The Charter of the United Nations : a commentary [1, Third edition.] 9780191788246, 0191788244, 9780191788253, 0191788252

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Contents Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Preface x List of Authors xii Table of Cases xvi Table of Instruments xxxv List of Abbreviations cxix The Charter of the United Nations cxxxiii Statute of the International Court of Justice clvii Drafting History 1 Reform 25 Interpretation of the Charter 71 Preamble 101 Chapter I.  Purposes and Principles 107 Article 1 107 Article 2 121 Article 2(1) 133 Article 2(2) 166 Article 2(3) 181

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Article 2(4) 200 Article 2(5) 235 Article 2(6) 252 Article 2(7) 280 Special Section:  Self-Determination 313 Chapter II.  Membership 335 Article 3 335 Article 4 341 Article 5 362 Article 6 374 Chapter III.  Organs 387 Article 7 387 Article 8 416 Chapter IV.  The General Assembly 445 Composition 445 Article 9 445 Functions and Powers 461 Article 10 461 (p. vi) Article 11 491 Article 12 507 Article 13 525 Article 14 552 Article 15 567 Article 16 575 Article 17 576 Voting 621 Article 18 621 Article 19 637 Procedure 657 Article 20 657 Article 21 688 Article 22 719 Chapter V.  The Security Council 751 Composition 751 Article 23 751

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Functions and Powers 761 Article 24 761 Article 25 787 Article 26 855 Voting 871 Article 27 871 Procedure 939 Article 28 939 Article 29 983 Article 30 1028 Article 31 1050 Article 32 1064 Chapter VI.  Pacific Settlement of Disputes 1069 Article 33 1069 Article 34 1086 Article 35 1108 Article 36 1119 Article 37 1146 Article 38 1161 Special Section:  Peacekeeping 1171 Special Section:  Responsibility to Protect 1201 Chapter VII.  Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression 1237 Special Section:  Introduction to Chapter VII: The General Framework 1237 (p. vii) Article 39 1272 Article 40 1297 Article 41 1305 Article 42 1330 Article 43 1351 Article 44 1357 Article 45 1360 Article 46 1362 Article 47 1364 Article 48 1376 Article 49 1385

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Article 50 1389 Article 51 1397 Chapter VIII.  Regional Arrangements 1429 Special Section: Introduction to Chapter VIII 1429 Article 52 1445 Article 53 1478 Article 54 1525 Chapter IX.  International Economic and Social Co-operation 1535 Article 55 (a) and (b) 1535 Article 55 (c) 1565 Article 56 1603 Article 57 1611 Article 58 1650 Article 59 1656 Article 60 1658 Chapter X.  The Economic and Social Council 1667 Composition 1667 Article 61 1667 Functions and Powers of ECOSOC 1678 Article 62 1678 Article 63 1697 Article 64 1709 Article 65 1718 Article 66 1723 Voting 1728 Article 67 1728 Procedure 1736 Article 68 1736 Article 69 1772 Article 70 1779 Article 71 1788 (p. viii) Article 72 1816 Chapter XI.  Declaration Regarding Non-self-governing Territories 1829 Article 73 1829 Article 74 1840

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Chapter XII.  International Trusteeship System 1841 Article 75 1841 Article 76 1849 Article 77 1861 Article 78 1867 Article 79 1868 Article 80 1871 Article 81 1873 Article 82 1875 Article 83 1878 Article 84 1881 Article 85 1882 Chapter XIII.  The Trusteeship Council 1883 Composition 1883 Article 86 1883 Functions and Powers 1887 Article 87 1887 Article 88 1890 Voting 1892 Article 89 1892 Procedure 1893 Article 90 1893 Article 91 1895 Chapter XIV.  The International Court of Justice 1897 Article 92 1897 Article 93 1951 Article 94 1957 Article 95 1972 Article 96 1975 Chapter XV.  The Secretariat 1991 Article 97 1991 Article 98 2002 Article 99 2009 Article 100 2022 Article 101 2053

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Chapter XVI.  Miscellaneous Provisions 2089 Article 102 2089 Article 103 2110 (p. ix) Article 104 2138 Article 105 2158 Chapter XVII.  Transitional Security Arrangements 2179 Article 106 2179 Article 107 2183 Chapter XVIII.  Amendments 2199 Article 108 2199 Article 109 2232 Chapter XIX.  Ratification and Signature 2243 Article 110 2243 Article 111 2253 Annex I:  Rules of Procedure of the General Assembly 2265 Annex II:  Provisional Rules of Procedure of the Security Council 2344 Annex III:  Note by the President of the Security Council 26 July 2010 2353 Index 2365

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Preface Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Only a few months before the ‘Ur’-version of this Commentary, the German edition of 1991, reached completion, its editor at the time was asked by one of the most prominent US international lawyers why he still bothered to engage in a stock-taking of the practice of an institution that was so evidently moribund. Instead, at the moment of publication of the Commentary, more or less coinciding with the end of the Cold War and with what was seen as the resuscitation of Charter-based collective security in the Second Gulf War, the reputation of, and the hopes in, the United Nations had risen to an all-time height. A mere four years later, when the first English Edition of the Commentary appeared in 1995, the high expectations in the UN had again made room for more restrained assessments of the Organization’s capacities. Another seven years later, the Preface to the Second Edition (2002) could do no more than state that the life of the UN, as well as its public image, had continued to be marked by modest achievements, sobering experiences, and grave disappointments. In fact, the gravest disappointment was yet to follow, the invasion of Iraq a few months later, in blatant breach of the Charter provisions on the use of force. But this did not keep Secretary-General Kofi Annan from using the sixtieth anniversary of the Organization in 2005 as a historic opportunity to call for the most sweeping overhaul in its history. Unfortunately, his exhortation has left very few, if any, positive traces. The story can be read as a description of a cup being half-empty, as the acknowledgement that far-reaching institutional reform of the UN has proven to be unfeasible. But it could also be seen as the story of a cup half-full, as a story of survival, as that of a system of global governance displaying truly remarkable tenacity and resilience, pursuing its task under most unfavourable circumstances, in the face of hypocritical blame and often abuse.

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Our Commentary wants to tell this story as faithfully as possible. We remain convinced that (in the words of the Preface to the Second Edition) ‘stock-taking of more than half a century of UN practice and, more importantly, the constant checking of this practice against the purposes and principles of the United Nations Charter with a view to providing guidance for future activities of the Organization and its member States, becomes more worthwhile than ever. In this vein, the present work…is also intended as a strong plea to handle the only truly universal world organization that we have with greater care.’ This Commentary, a joint product of seventy-four authors, owes its existence to the expertise, time, and energy of those highly committed scholars and practitioners. It is our great pleasure to welcome a number of new authors and we sincerely thank those who, for one reason or another, no longer participated in our project. It is also a sad duty for us to remember all authors who have passed away in the course of the last two decades, namely Albert Bleckmann (2004), Karl Doehring (2011), Carl-August Fleischhauer (2005), Konrad Ginther (2012), Wilhelm Grewe (2000), Günther Jaenicke (2008), Otto Kimminich (1997), Hermann Mosler (2001), and Ignaz Seidl-Hohenveldern (2001). We are very grateful to our collaborators whose competent and enthusiastic support was essential for the completion of the work:(p. xi) In Berlin, Helmut Aust and Christian Djeffal made excellent suggestions with regard to substantive editorial work. Alicia Köppen, Moritz von Rochow, and Alexander Silke diligently worked through many manuscripts to eradicate mistakes, and in particular to make sure that the complex citation and formatting standards were consistently applied. They were also responsible for the communication with Nikolai Wessendorf, the coordinating Assistant Editor in Munich. Fiona Nelson sensitively corrected many manuscripts on matters of the English language. Chris Gutmann and Martina Terzic helped with research work. Felix Lange and Benjamin Düsberg traced many cross-references. Indra von Mirbach and Lisann Bruchmann helped with different matters during the earlier part of the work. And, last but not least, Kerstin Schuster supported the work in ways which are too diverse to be easily summarized, but consistently fine enough to be admired. In Göttingen, Nicolas Klein managed and coordinated the editing process and diligently implemented the editorial standard. Without his unwavering and always well-spirited support, the editor-judge would not have been able to complete the editing work in addition to his main occupation. But, like all great projects, this was a team effort. Many thanks thus go to Morten Jonas, Elena-Josephine Woltaire, Georg Hermann Johannes Kallina, Lars Borchardt, Sebastian Ehricht, Sarah Bayani, Karen Schwabe, Johanna Dormann, Matthäus Fink, and Maik Knaust for contributing in countless ways to the completion of this work, both in form—in particular with regard to the OSCOLA standard—and substance, doing much of the cross-referencing work. In addition, we specially thank Carl Philipp Ritter and Micha Comnick for their technical support. In Munich, Nikolai Wessendorf, our Assistant Editor, deserves special praise and thanks not only for the zeal with which he coordinated the entire editing process. He also carried the major burden of the Munich share of the editing work and guided a small but all the more enthusiastic team: Mareike Gröneveld, Steven Henn, Robert Kitschke, and Oliver Monsees engaged in months of mostly tedious work. With ability and dedication Chun-Kyung Paulus Suh was heavily involved in the early phase of the project. At Oxford University Press, we are grateful to Merel Alstein, John Louth, Briony Ryles, and Fiona Stables who have been most helpful and reliable partners throughout the whole production process.

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Berlin, Göttingen, Munich July 2012 Bruno Simma Daniel-Erasmus Khan Georg Nolte Andreas Paulus

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List of Authors Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Jan-Michael Arend

Attorney at Law, Berlin

Art. 55(c) (with Riedel)

Dr. Helmut Philipp Aust

Humboldt University Berlin

Art. 2 (5)

Dr. Philip Bittner

Federal Ministry for European and International Affairs (Austria)

Art. 15 (with Hilger, Tichy)

Prof. Dr. Michael Bothe

University of Frankfurt

Peacekeeping

Prof. Dr. Jürgen Bröhmer

Murdoch University, Perth

Art. 53 (Enemy State Clause), Art. 107 (with Ress)

Dr. Konrad Bühler

Federal Ministry for European and International Affairs (Austria)

Art. 28

Eleni Chaitidou

International Criminal Court, The Hague

Art. 67, Art. 72

Prof. Simon Chesterman

National University of Singapore

Arts 97–99

Prof. Dr. Rudolf Dolzer

University of Bonn

Arts 31, 32 (with Kreuter-Kirchhof)

Prof. Dr. Oliver Dörr

University of Osnabrück

Art. 2 (4) (with Randelzhofer)

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Christian Ebner

Federal Ministry for European and International Affairs (Austria)

Art. 100

Dr. Christophe Eick

Auswärtiges Amt (German Foreign Office)

Art. 20

Prof. Dr. Bardo Fassbender

University of the Bundeswehr Munich

Art. 2 (1)

Prof. Dr. Ulrich Fastenrath

University of Dresden

Arts 3, 4, 73, 74

Dr. Thomas Fitschen

Auswärtiges Amt (German Foreign Office)

Art. 21

Dr. Carl-August Fleischhauer†

Art. 13 (with Simma)

Prof. Dr. Rudolf Geiger

University of Leipzig

Art. 16, Art. 23, Arts 86–91, Art. 106

Gilles Giacca

Geneva Academy of International Humanitarian Law and Human Rights

Art. 68 (with Riedel)

Prof. Dr. Thomas Giegerich

University of Kiel

Arts 36, 37, 38

Dr. Reinhard Hilger

Auswärtiges Amt (German Foreign Office)

Art. 15 (with Bittner, Tichy)

Prof. Dr. Stephan Hobe

University of Köln

Art. 71

Ingrid Jahn-Koch

American University, Washington, DC

Art. 30 (with Wasum-Rainer)

Prof. Dr. Stefan Kadelbach

University of Frankfurt

Interpretation of the Charter

Prof. Dr. DanielErasmus Khan

University of the Bundeswehr Munich

Drafting History Art. 22

Prof. Dr. Eckart Klein

University of Potsdam

Arts 10–12 (with Schmahl)

Prof. Dr. Robert Kolb

University of Geneva

Art. 2 (2)

Prof. Dr. Markus Kotzur

University of Hamburg

Art. 111

Dr. Charlotte Kreuter-Kirchhof

University of Bonn

Arts 31, 32 (with Dolzer)

Prof. Dr. Nico Krisch

Hertie School of Governance, Berlin

Introduction Chapter VII, Arts 39– 43

Prof. Dr. Philip Kunig

Freie University Berlin

Arts 64–66 (with Tietje)

Dr. Oliver Landwehr

United Nations (Vienna)

Arts 69, 70

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Johann Ruben Leiß

University of Göttingen

Art. 103 (with Paulus)

Matthias Lippold

University of Göttingen

Art. 7 (with Paulus)

Prof. Dr. Siegfried Magiera

German University of Administrative Sciences, Speyer

Art. 9

Dr. Ernst Martens

Auswärtiges Amt (German Foreign Office)

Art. 102

Prof. Dr. Werner Meng

Saarland University

Arts 57–60, 63

Prof. Dr. Georg Nolte

Humboldt University Berlin

Art. 2 (7), Art. 51 (with Randelzhofer)

Gregor Novak

University of Vienna

Arts 44–50 (with Reinisch)

Dr. Karin OellersFrahm

Max Planck Institute for Comparative Public Law and International Law Heidelberg

Arts 92–96

Prof. Dr. Stefan Oeter

University of Hamburg

Self-Determination

Anja Papenfuß

United Nations Association of Germany, Berlin

Art. 8 (with von Schorlemer)

Prof. Dr. Andreas Paulus

Justice of the Federal Constitutional Court and University of Göttingen

Art. 2 (Introduction), Arts 7 and 29 (with Lippold), Art. 103 (with Leiss)

Prof. Dr. Anne Peters

University of Basel

Arts 24, 25

Prof. Dr. Albrecht Randelzhofer

Freie University Berlin

Art. 2 (4) (with Dörr), Art. 51 (with Nolte)

Prof. Dr. Dietrich Rauschning

University of Göttingen

Arts 75–85

Prof. Dr. August Reinisch

University of Vienna

Arts 44–50 (with Novak)

Prof. Dr. Thilo Rensmann

University of Dresden

Reform

Prof. Dr. Georg Ress

Saarland University

Art. 53 (Enemy State Clause) and Art. 107 (with Bröhmer)

Prof. Dr. Eibe H. Riedel

University of Mannheim

Art. 55 (c) (with Arend), Art. 68 (with Giacca)

Donald Riznik

University of the Bundeswehr Munich

Art. 14 (with Zöckler)

Prof. Dr. Volker Röben

Swansea University

Arts 61, 62

Prof. Dr. Stefanie Schmahl

University of Würzburg

Arts 10–12 (with Klein)

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Prof. Dr. Sabine von Schorlemer

Saxon State Minister for Higher Education, Research and the Fine Arts and University of Dresden

Art. 8 (with Papenfuß)

Prof. Dr. HansJoachim Schütz

University of Rostock

Art. 26

Prof. Dr. Theodor Schweisfurth

Viadrina University Frankfurt/Oder

Arts 34, 35

Prof. Dr. Bruno Simma

University of Munich and Ann Arbor

Art. 13 (with Fleischhauer†)

Wolfgang Stöckl

United Nations (New York)

Art. 101

Prof. Dr. Tobias Stoll

University of Göttingen

Art. 55 (a) (b), Art. 56

Prof. Dr. Stefan Talmon

University of Bonn

Art. 2 (6)

Prof. Dr. Christian Tams

University of Glasgow

Art. 5, Art. 6

Thomas Thomma

Auswärtiges Amt (German Foreign Office)

Art. 17 (with Woeste)

Dr. Helmut Tichy

Federal Ministry for European and International Affairs (Austria)

Art. 15 (with Bittner, Hilger)

Prof. Dr. Christian Tietje

University of Halle-Wittenberg

Arts 64–66 (with Kunig)

Prof. Dr. Christian Tomuschat

Humboldt University Berlin

Art. 2 (3), Art. 19, Art. 33

Dr. Mindia Vashakmadze

Max Planck Institute for Comparative Public Law and International Law, Heidelberg

Responsibility to Protect

Prof. Dr. Christoph Vedder

University of Augsburg

Art. 110

Prof. Dr. Christian Walter

University of Munich

Introduction Chapter VIII, Art. 52, Art. 53 (without Enemy State Clause), Art. 54

Dr. Susanne WasumRainer

Auswärtiges Amt (German Foreign Office)

Art. 30 (with Jahn-Koch)

Dr. Georg Witschel

Auswärtiges Amt (German Foreign Office)

Art. 108, Art. 109

Dr. Peter Woeste

Auswärtiges Amt (German Foreign Office)

Art. 17 (with Thomma)

Prof. Dr. Rüdiger Wolfrum

Max Planck Institute for Comparative Public Law and International Law, Heidelberg

Preamble, Art. 1, Art. 18

Prof. Dr. Andreas R. Ziegler

University of Lausanne

Art. 104, Art. 105

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Prof. Dr. Andreas Zimmermann

University of Potsdam

Art. 27

Dr. Markus Zöckler

University of Munich

Art. 14 (with Riznik)

(p. xiii) (p. xiv) (p. xv)

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Table of Cases Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

I.  Administrative Tribunal of the Organization of American States Uehling (1974) Judgment No 8 169

II.  Arbitral Awards Affaire des forêts du Rhodope Central (Greece v Bulgaria) 29 March 1933; (1949) 3 UNRIAA 1389 1958 Government of Sudan v Sudan People’s Liberation Movement Army, 22 July 2009 (Permanent Court of Arbitration) 195 Island of Palmas (1928) 22 AJIL 867; 2 UNRIAA 829 (Permanent Court of Arbitration) 139 Pablo-Najera (1928) (France-Mexico Claims Commission) 2105 Russian Claim for Interest in Indemnities (Russia v Turkey) (1912) RIAA 433 (Permanent Court of Arbitration) 73 US-French Air Service Agreement (1946) XVIII RIAA 417 197 Young Loan Arbitration (UK, US, Belgium, France and Switzerland v Germany) (1980) ILR 494 88

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III.  Eritrea Ethiopia Claims Commission (Partial Award) (19 December 2005) (2009) 135 ILR 479 1402, 1405

IV.  European Court of Human Rights Al-Jedda v UK, Appl no 27021/08 (2011) 53 EHRR 23 73, 799, 848, 849, 852, 991, 1346, 2114, 2120, 2121, 2124, 2126, 2127, 2129 Al-Skeini v UK, Appl No 55721/07 (2011) 53 EHRR 18 1345, 1350 Banković v Belgium, Appl No 52207/99 (2007) 44 EHRR SE5 1345 Beer and Regan v Germany, Appl No 28934/95 (2001) 33 EHRR 3 2166 Behrami and Saramati v France, Appls No 71412/01 & 78166/01 (2007) 45 EHRR SE10; (2007) 46 ILM 743 823, 849, 886, 887, 989, 990, 991, 1193, 1194, 1339, 1346, 1348, 2114, 2127, 2150 Berić v Bosnia and Herzegovina, Appl No 36357/04 (2008) 46 EHRR SE6 989, 1346 Bosphorus v Ireland, Appl No 45036/98 (2006) 42 EHRR 1 826, 834, 841, 844, 846 Gajic v Germany, Appl No 31446/02, 28 August 2007 989 Golder v UK (A/18) (1979–80) 1 EHRR 524 76 Kalogeropoulou v Greece and Germany, Appl No 59021/00 2197 Kasumaj v Greece, Appl no 6974/05, 5 July 2007 989 Matthews v UK, Appl No 24833/94 (1999) 28 EHRR 361 823 Nada v Switzerland, Appl No 10593/08 826, 836, 2114, 2129 Naletilić v Croatia, Appl No 51891/91 (2000) 29 EHRR CD 219 1021 Osman v UK, Appl No 23452/94 (2000) 29 EHRR 245 774 Sabeh el Leil v France, Appl No 34869/05 (2012) 54 EHRR 14 2166 Waite and Kennedy v Germany, Appl No 26083/94 (2000) 30 EHRR 261 2166

(p. xvii) V.  European Union Court of Justice of the European Union Air Transport Association of America v Secretary of State for Energy and Climate Change (C–366/10) [2012] 2 CMLR 4 2132 Biret International v Council (C–93/02) [2003] ECR I–10497 805 Bosphorous (C–84/95) [1996] ECR I–3953 1318, 1325 European Economic Area (Opinion 1/91) [1991] ECR I–6079 78

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European Parliament v Council of the EC (Tschernobyl) (C–70/88) [1990] ECR I–2041 816 Garofalo v Ministero della Sanità and USL no 58 di Palermo (C–69 to C–79/96) [1997] ECR I–5603 1920 Kadi and Al-Barakat v Council and Commission (C–402/05 P & C–415/05 P) [2008] ECR I–6351 73, 189, 270, 834, 838, 839, 841, 1006, 1317, 1318, 2113, 2131, 2136, 2170 van Gend en Loos (26/62) [1963] ECR 1 2132 Zuckerfabrik Schöppenstedt v Council (5/71) ECR 975 846

General Court Biret International SA v Council (T–174/00) [2002] ECR II–17 805 Kadi v Council and Commission (Kadi I) (T–315/01) [2005] ECR II–3649 73, 815, 818, 833, 840, 853, 1259, 1261, 1318, 1528, 2119, 2124, 2131 Kadi v European Commission (Kadi II) (T–85/09) [2010] OJ C317/29 241, 839, 841, 1007, 1008, 1318 Omar Mohammed Othman v Council of the EU and Commission of the EC (T–318/01) [2009] ECR II–1627 2131 Organisation des Modjahedines du peuple d’Iran (T–228/02) [2006] ECR II–4665 1318 Yusuf and Al Barakaat International Foundation (T–306/01) [2005] ECR II–3533 2119, 2124, 2131, 2133

VI.  Inter-American Court of Human Rights Velásquez Rodriguez v Honduras, Ser C No 4 (1988) 773

VII.  International Court of Justice 1948 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) (First Admission Case) [1948] ICJ Rep 57 79, 83, 91, 159, 171, 174, 175, 343, 396, 776, 809, 1256, 1913, 1985, 1988 Corfu Channel (UK v Albania) (Preliminary Objection) [1947–48] ICJ Rep 26 1139, 1916, 1931, 1933, 2108

1949 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 9 80, 151, 208, 1406, 1961, 1965, 2108 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174 82, 85–7, 91, 153, 241, 251, 263, 264, 277, 278, 401, 781, 991, 1142, 1184, 1620, 1910, 1912, 1979, 2046, 2047, 2140, 2141, 2153

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Reparation for Injuries Suffered in the Service of the United Nations (Pleadings) [1949] ICJ Rep 95 2140

(p. xviii) 1950 Colombian-Peruvian Asylum (Columbia v Peru) [1950] ICJ Rep 226 105, 1948 Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) (Second Admission Case) [1950] ICJ Rep 4 76, 77, 86, 88, 91, 171, 351, 367, 380, 392, 1913 International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128 91, 174, 470, 630, 1846, 1863, 1869, 1872, 1913 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase (Advisory Opinion) [1950] ICJ Rep 65 80, 91, 98, 152, 284, 294, 295, 925, 1575 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase (Advisory Opinion) [1950] ICJ Rep 221 1575

1951 Anglo-Iranian Oil Co (UK v Iran) [1951] ICJ Rep 93 1966 Fisheries (UK v Norway) (Judgment) [1951] ICJ Rep 116 1913, 1961 Haya de la Torre (Columbia v Peru) (Judgment) [1951] ICJ Rep 71 1840, 1931, 1932, 1948 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15 1224, 1579, 1913, 1985

1952 Anglo-Iranian Oil Co (UK v Iran) [1952] ICJ Rep 97 1907, 1966 Rights of Nationals of the United States of America in Morocco (France v US) [1952] ICJ Rep 196 78, 98, 105

1954 Effect of Awards of Compensation Made by the UN Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 43 85, 91, 153, 394, 395, 399, 401, 402, 732, 781, 823, 890, 986, 988, 991, 992, 995, 1264, 2032 Monetary Gold Removed from Rome in 1943 (Italy, France, UK and US) (Judgment) [1954] ICJ Rep 32 1122, 1937, 1965

1955 Nottebohm (Judgment) [1955] ICJ Rep 63 1579, 1588 Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South West Africa (Advisory Opinion) [1955] ICJ Rep 67 77, 86, 91, 176, 464, 485, 486, 630

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1956 Admissibility of Hearings of Petitioners by the Committee on South West Africa [1956] ICJ Rep 23 91 Judgments of the Administrative Tribunal of the ILO upon Complaints made against UNESCO (Advisory Opinion) [1956] ICJ Rep 77 80, 2032

1957 Certain Norwegian Loans (France v Norway) [1957] ICJ Rep 9 1934 Interhandel (Switzerland v US) [1957] ICJ Rep 105 1934 Right of Passage Over Indian Territory (Preliminary Objections) [1957] ICJ Rep 125 192, 2118

1958 Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v Sweden) (Judgment) [1958] ICJ Rep 55 2134

(p. xix) 1959 Aerial Incident of 27 July 1955 (Israel v Bulgaria) [1959] ICJ Rep 127 83, 88, 1905 Interhandel (Switzerland v US) (Judgment) [1959] ICJ Rep 6 1935 Sovereignty over Certain Frontier Land (Belgium v Netherlands) [1959] ICJ Rep 209 1965

1960 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Rep 150 77, 79, 87, 175, 403 Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Rep 6 323

1961 Temple of Preah Vihear (Cambodia v Thailand) [1961] ICJ Rep 17 1905

1962 Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Rep 6 1948, 1965 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151 37, 38, 40, 77, 84–7, 89–92, 109, 131, 153, 176, 310, 367, 380, 392, 399–404, 469, 472, 474, 482, 488, 506, 508, 509, 560, 561, 602, 605, 640, 642, 654, 732, 733, 770, 772, 809, 816, 835, 842–4, 908, 915, 989, 1008, 1012, 1186, 1187, 1248, 1256, 1333, 1337, 1344, 1354, 1370, 1380, 1388, 1391, 1482, 1711, 1913, 1985, 2144, 2145, 2260 South West Africa Cases (Ethiopia v South Africa, Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319 77, 192, 925, 1469, 1579, 2128

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1963 Northern Cameroons (Cameroons v UK) (Preliminary Objections) [1963] ICJ Rep 15 192, 1920

1966 South West Africa (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) [1966] ICJ Rep 5 78, 481, 1914

1969 North Sea Continental Shelf (Federal Republic of Germany v Denmark and Netherlands) (Judgment) [1969] ICJ Rep 3 191, 483, 832, 1077, 1913, 1922, 1961

1970 Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) [1970] ICJ Rep 3 128, 297, 1224, 1225, 1571, 1579, 1588, 1630, 2151

1971 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16 33, 36, 77, 78, 80, 85, 86, 90–3, 95, 96, 238, 268, 276, 323, 381, 404, 464, 481, 486, 488, 503, 770, 771, 781, 792–4, 799, 800, 807, 808, 815, 819, 821, 822, 824, 844, 915, 918, 1008, 1071, 1122, 1130, 1144, 1246, 1256, 1295, 1400, 1579, 1588, 1835, 1838, 1864, 1912, 1980, 1986, 1988, 2124, 2133, 2205

1972 Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan) (Judgment) [1972] ICJ Rep 46 403, 1922, 1967

(p. xx) 1973 Application for Review of Judgment No 158 of the UN Administrative Tribunal (Advisory Opinion) [1973] ICJ Rep 166 399, 988, 992, 1922, 2050

1974 Fisheries Jurisdiction (Federal Republic of Germany v Iceland) (Merits) [1974] ICJ Rep 205 485, 1913, 1936 Fisheries Jurisdiction (United Kingdom v Iceland) (Merits) [1974] ICJ Rep 34 485, 1913, 1933, 1936, 1937 Nuclear Tests (Australia v France) [1974] ICJ Rep 253 89, 192, 925, 1080, 1920, 1937, 2125 Nuclear Tests (New Zealand v France) [1974] ICJ Rep 253 925

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1975 Western Sahara (Advisory Opinion) [1975] ICJ Rep 31–33 78, 91, 323, 357, 486, 1835, 1926, 1977, 1983, 1986, 1988

1976 Aegean Sea Continental Shelf (Greece v Turkey) (Oral Arguments on Jurisdiction) [1976] ICJ Rep 309 2109 Aegean Sea Continental Shelf (Greece v Turkey) (Provisional Measures) [1976] ICJ Rep 3 509, 1908

1978 Aegean Continental Shelf Case (Greece v Turkey) (Judgment) [1978] ICJ Rep 3 78, 192, 1081, 1141, 1933, 1935, 1937, 2109

1980 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73 77, 169, 174, 189, 404, 819, 1983, 1986 United States Diplomatic and Consular Staff in Tehran (US v Iran) (Judgment) [1980] ICJ Rep 3 227, 297, 509, 769–71, 1137, 1140, 1141, 1159, 1413, 1571, 1908, 1936, 1937, 1960, 1965

1981 Continental Shelf (Tunisia v Libya) (Judgment: Application by Malta for Permission to Intervene) [1981] ICJ Rep 3 1945

1982 Application for Review of Judgment No 273 of the UN Administrative Tribunal (Advisory Opinion) [1982] ICJ Rep 356 1923, 1983, 1984, 2050 Continental Shelf (Tunisia v Libya) (Judgment) [1982] ICJ Rep 18 1913, 1922, 1939, 1961

1984 Continental Shelf (Libyan v Malta) (Judgment: Application by Italy for Permission to Intervene) [1984] ICJ Rep 3 1945 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Judgment) [1984] ICJ Rep 246 1930 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Declaration of Intervention; Order of 4 October 1984) [1984] ICJ Rep 215 153 Military and Paramilitary Activities in and against Nicaragua (Judgment) [1984] ICJ Rep 440 1451, 1474(p. xxi)

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Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Jurisdiction and Admissibility) [1984] ICJ Rep 388 153, 229, 393, 508, 509, 770, 921, 1140, 1141, 1507, 1908, 1909, 1913, 1936, 1937, 1943, 2125, 2128, 2260 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Preliminary Objections) [1984] ICJ Rep 393 1905, 1935, 1936

1985 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia v Libya) [1985] ICJ Rep 192 1948, 2122 Continental Shelf (Libya v Malta) [1985] ICJ Rep 13 152, 1922, 1961

1986 Border and Transborder Actions (Nicaragua v Costa Rica) (Merits) [1986] ICJ Rep 14 1913 Frontier Dispute (Burkina Faso v Mali) (Merits) [1986] ICJ Rep 566 323, 1930 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14 78, 91, 92, 148, 151, 158, 188, 204, 208, 209, 212–4, 223, 229–31, 283, 284, 288, 289, 480, 483, 486, 809, 901, 1142, 1280, 1294, 1401, 1402, 1404, 1405, 1408–10, 1414, 1415, 1421, 1423–5, 1427, 1428, 1507, 1939

1987 Aegean Sea Continental Shelf Case [1987] ICJ Rep 3 1579 Application for Review of Judgment No 333 of the UN Administrative Tribunal (Advisory Opinion) [1987] ICJ Rep 18 77, 1579, 1977, 1983, 1984, 2030, 2032, 2034, 2035

1988 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 27 192, 676, 1469, 1920, 1964, 1981, 2007, 2163 Border and Transboundary Armed Actions (Nicaragua v Honduras) (Jurisdiction and Admissibility) [1988] ICJ Rep 69 76, 1080, 1936

1989 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Mazilou Case) (Advisory Opinion) [1989] ICJ Rep 177 91, 1579, 1982, 1984, 1985, 2150, 2170, 2175 Elettronica Sicula SpA (ELSI) (US v Italy) (Judgment) [1989] ICJ Rep 15 1930 Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) (Composition of Chamber: Order of 13 December 1989) [1989] ICJ Rep 165 1930

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1990 Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) (Judgment: Application by Nicaragua for Permission to Intervene) [1990] ICJ Rep 92 1945, 1962 Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) (Order: Application by Nicaragua to Intervene) [1990] ICJ Rep 18 1929, 1945

1991 Arbitral Award of 31 July 1989 (Guinea Bissau v Senegal) [1991] ICJ Rep 53 77

(p. xxii) 1992 Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) (Judgment) [1992] ICJ Rep 240 901, 1937, 1943 Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) (Judgment) [1992] ICJ Rep 351 1930 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v US) (Merits) [1992] ICJ Rep 21 323, 509 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Preliminay Objections) [1998] ICJ Rep 23 1909 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v UK; Libya v US) (Provisonal Measures) [1992] ICJ Rep 3 90, 94, 152, 309, 397, 770, 771, 807, 813, 816, 817, 819, 821, 841, 844, 850, 1261, 1310, 1907, 1909, 2113, 2124, 2136

1993 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Order of 13 September 1993) [1993] ICJ Rep 325 1585, 2113, 2119, 2120, 2133 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Provisional Measures) (8 April 1993) [1993] ICJ Rep 3 393, 825, 845, 853, 1141, 1259, 1428, 1585, 1952 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) [1993] ICJ Rep 38 77

1994 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) [1994] ICJ Rep 112 1465, 1943 Territorial Dispute (Libyan v Chad) [1994] ICJ Rep 3 76, 77, 1948

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1995 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia v Libya) [1995] ICJ Rep 192 1948 East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90 91, 128, 192, 323, 379, 1122, 1937 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) [1995] ICJ Rep 6 76, 1943 Maritime Delimitation between Guinea-Bissau and Senegal (Guinea-Bissau v Senegal) [1995] ICJ Rep 423 1943

1996 Aerial Incident of 3 July 1988 (Iran v US) [1996] ICJ Rep 803 1943 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) [1996] ICJ Rep 595 192, 323, 372, 886, 1937, 1943, 1952 Fisheries Jurisdiction (Spain v Canada) [1996] ICJ Rep 12 1934 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 91, 150, 151, 157, 179, 218, 219, 480, 484–6, 493, 922, 1224, 1424, 1912, 1913, 1928, 1977, 1980, 1983, 1985, 1986, 1990(p. xxiii) Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66 76, 77, 79, 82, 86, 89, 91, 124, 401–3, 816, 1932, 1983, 1985–7, 1990 Oil Platforms (Iran v US) (Preliminary Objection) [1996] ICJ Rep 803 77, 78, 88, 91 Requst for Interpretation of the Judgment of 11 June 1998 in the Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections: Nigeria v Cameroon) [1999] ICJ Rep 31 1948 Western Sahara [1996] ICJ Rep 226 1983

1997 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Order: CounterClaims) [1997] ICJ Rep 243 1946, 1952 Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7 191, 197, 1077, 1927 Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Order of 5 February 1997) [1997] ICJ Rep 3 1927

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1998 Fisheries Jurisdiction (Spain v Canada) (Judgment) [1998] ICJ Rep 432 190, 1081, 1936, 1943 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) (Prelimnary Objections) [1998] ICJ Rep 275 152, 192, 1075 Oil Platforms (Iran v USA) (Order: Counter-Claim) [1998] ICJ Rep 190 1946 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v UK; Libya v US) (Preliminary Objections) (27 February 1998) [1998] ICJ Rep 9 1080, 1907, 1908, 1925–7, 1933, 1943, 2113, 2124, 2125, 2133, 2136 Vienna Convention on Consular Relations (Paraguay v US) (Provisional Measures: Order of 10 November 1998) [1998] ICJ Rep 255 1933, 1944, 1963

1999 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Cumaraswamy) (Mazilu) (Advisory Opinion) [1999] ICJ Rep 62; (1999) 93 AJIL 913 410, 415, 1982–4, 1987, 2046, 2170 Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights [1999] ICJ Rep 62 91, 1977 Kasikili/Sedudu Island (Botswana v Namibia) [1999] ICJ Rep 1045 77, 78, 124 LaGrand (Germany v US) (Provisional Measures) [1999] ICJ Rep 9 1959, 1960, 1963, 1964, 1967 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) (Interpretation of Judgment of 11 June 1998) [1999] ICJ Rep 39 1910 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) (Order of 21 October 1999: Application to Intervene) [1999] ICJ Rep 1029 1946 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Order: Counter-Claims) [1999] ICJ Rep 983 1946 Legality of the Use of Force (Yugoslavia v Belgium and Nine Other States) (Provisional Measures) (Order) [1999] ICJ Rep 124 1926, 1932, 1936, 1944, 1952–4, 1956, 1973 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Order on Discontinuance) [1999] ICJ Rep 975 1909(p. xxiv) Request for Interpretation of the Judgment of 11 July 1998 in the Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) [1999] ICJ Rep 31 1960 Vienna Convention on Consular Relations (Germany v US) (Provisional Measures) [1999] ICJ Rep 9 1944

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2000 Aerial Incident of 10 August 1999 (Pakistan v India) (Jurisdiction) [2000] ICJ Rep 12 91, 190, 1138, 1934, 1936, 1973 Armed Activities on the Territory of the Congo (Congo v Uganda) (Provisional Measures) [2000] ICJ Rep 111 90, 393, 1908 Arrest Warrant of 11 April 2000 (Congo v Belgium) (Provisional Measures: Order of 8 December 2000) [2000] ICJ Rep 151

2001 LaGrand (Germany v US) (Judgment) [2001] ICJ Rep 466 76, 83, 84, 1944, 1960–3, 1967 Oil Platforms (Iran v US) [2001] ICJ Rep 161 1913, 1914 Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia v Malaysia) (Judgment: Application by the Philippines for Permission to Intervene) [2001] ICJ Rep 575 1946, 1962

2002 Application for Revision of the Judgment of 11 September 1992 in the Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) [2002] ICJ Rep 618 1930 Arrest Warrant of 11 April 2000 (Congo v Belgium) (Judgment) [2002] ICJ Rep 35 151 Land and Maritime Boundaries between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) [2002] ICJ Rep 303 1400, 1948, 1960, 1961 Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia) [2002] ICJ Rep 625 84

2003 Application for Revision of the Judgment of 11 September 1992 in the Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador v Honduras: Nicaragua Intervening) [2003] ICJ Rep 392 1922, 1929, 1948 Application for Revision of the Judgment of 11 July 1996 in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) [2003] ICJ Rep 7 1948, 1952, 1953 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) [2003] ICJ Rep 7 270, 1922 Avena (Mexico v US) (Provisional Measures) [2003] ICJ Rep 77 1963 Certain Criminal Proceedings in France (Congo v France) (Provisional Measure: Order of 17 June 2003) [2003] ICJ Rep 102 151

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Oil Platforms (US v Iran) (Merits) [2003] ICJ Rep 161 78, 91, 215, 1400, 1402, 1405– 12, 1420, 1421, 1425, 1426, 1937 Statement of discontinuance by the Court in the Order of 10 September 2003 [2003] ICJ Rep 149 1907

2004 Avena and Other Mexican Nationals (Mexico v US) [2004] ICJ Rep 12 77, 1960–3(p. xxv) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 38, 77, 86, 87, 91, 92, 128, 129, 207, 214, 221, 229–31, 323, 358, 359, 392, 393, 470, 474, 476, 477, 501, 508, 514–16, 520, 560, 665, 670, 672, 766, 767, 769, 844, 886, 922, 1186, 1224, 1228, 1248, 1400, 1408, 1416, 1417, 1423, 1588, 1908, 1909, 1913, 1977, 1981, 1983, 1984, 1986, 1988, 1990, 2121 Legality of Use of Force (Yugoslavia v Belgium and Nine Other States) (Preliminary Objections) [2004] ICJ Rep 279 76, 91, 92, 372, 382, 383, 1269, 1937, 1952–4, 1956, 2249, 2250, 2259

2005 Armed Activities on the Territory of the Congo (Congo v Uganda) [2005] ICJ Rep 168 91, 207, 212, 214, 484, 1400, 1402, 1408, 1409, 1414–19, 1423, 1425, 1913, 1914, 1937 Certain Property (Liechtenstein v Germany) (Preliminary Objections, Judgment) [2005] ICJ Rep 6 192, 1933, 1943 Frontier Dispute (Benin v Niger) [2005] ICJ Rep 90 1930, 1961 Legality of the Threat of Nuclear Weapons (Advisory Opinion) [2005] ICJ Rep 226 1419, 1425, 1426

2006 Armed Activities on the Territory of the Congo (New Application: 2002) (Congo v Rwanda) [2006] ICJ Rep 6 192, 925

2007 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment on the Merits) [2007] ICJ Rep 43 240, 241, 248, 372, 885–7, 1016, 1021, 1224, 1226, 1227, 1269, 1415, 1936, 1937, 1943, 1952, 1953, 2250 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) [2007] ICJ Rep 659 1961, 2260

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2008 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Yugoslavia) (Preliminary Objections) [2008] ICJ Rep 411 372, 1946, 1952, 1954, 1956 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (Judgment) [2008] ICJ Rep 177 78, 1932, 1935, 1961 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore) [2008] ICJ Rep 12 1961

2009 Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (2009) ILM 1183 78 Maritime Delimitation in the Black Sea (Romania v Ukraine) [2009] ICJ Rep 61 1961 Navigational and Related Rights (Costa Rica v Nicaragua) [2009] ICJ Rep 213 1961 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v US) [2009] ICJ Rep 3 1933, 1948

2010 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 18; (2010) 49 ILM 1404 77, 86, 91, 96, 152, 225, 263, 276, 277, 324, 392, 393, 410, 469, 474–6, 501, 502, 508, 515, 560, 771, 798, 799, 802, 803, 832, 908, 923, 1013, 1264, 1270, 1310, 1908, 1909, 1950, 1977, 1979, 1981, 1983, 1984, 1986, 1988, 1990(p. xxvi) Ahmadou Sadio Diallo (Guinea v Congo) (2010) 1961 Certain Criminal Proceedings in France (Congo v France) (2010) 1932, 1935 Jurisdictional Immunities of the State (Germany v Italy) (Order of 6 July 2010) 1947 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) (20 April 2010) 152, 191, 289, 1074, 1077, 1552, 1681, 1926, 1961

2011 Application of the Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia) (Preliminary Objections) 1 April 2011 80, 191 Application of the Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia) (Judgment) [2011] ICJ Rep 18 925, 1075, 1077, 1080, 1936, 1942 Application of the Interim Accord of 13 September 1995 (Former Yugoslav Republic of Macedonia v Greece) (Judgment) 5 December 2011 352, 1961 Chagos Islands (Mauritius v UK) (Order) 30 November 2011 1921

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Request for review of Judgment No 2867 of the ILOAT upon a complaint filed against the International Fund for Agricultural Development (Advisory Opinion) 1 February 2011 1918 Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment: Request for Intervention by Costa Rica) [2011] ICJ Rep 37 1946, 1962

2012 Jurisdictional Immunities of the State (Germany v Italy) (Judgment) 3 February 2012 125, 231, 1946

VIII.  International Criminal Tribunal for the Former Yugoslavia Prosecutor v Akayesu (Appeals Chamber Judgment) IT-94-1-A, A Ch (15 July 1999) 1266 Prosecutor v Akayesu (Appeals Chamber Judgment) ICTR-96-4-A, A Ch (1 June 2001) 1321 Prosecutor v Ante Gotovina, IT-06-90 (15 April 2011) 1021 Prosecutor v Blagojević (Judgment) IT-02-60-T (17 January 2005) 1227 Prosecutor v Blaškić (Decision on Subpoena) IT-95-14 (18 July 1997) 890 Prosecutor v Blaškić (Review of Decision of 18 July 1997) (29 October 1997) 993, 995, 1015, 1020 Prosecutor v Blaškić (Judgment) IT-95-14-T (3 March 2000) 898 Procecutor v Delalić (Celebići) IT-96-21-T (Judgment) (16 November 1998) 1021 Prosecutor v Erdemović (7 October 1997) (1999) 111 ILR 298 1021 Prosecutor v Furundžíja (Judgment) IT-95-17/1-T (10 December 1998); (1999) 1021 Prosecutor v Furundžíja (Decision on Appeal) IT-95-17/1-A (21 July 2000 1021 Prosecutor v Galić (Judgment) IT-98-A (30 November 2006) 1021 Prosecutor v Haradinaj, IT-04-84 (3 April 2008) 1021 Prosecutor v Kanyabashi (Decision on Defence Motion on Jurisdiction) ICTR-96-15-T (18 June 1997) 1015 Prosecutor v Kordić (Judgment) IT-95-14/2-T (26 February 2001) 1210, 1226 Prosecutor v Krstić (Judgment) IT-93-33-T (2 August 2001) 1021, 1227 Prosecutor v Kunarac, Kovać and Vuković (Foća) (Judgment, Trial Chamber II) IT-96-23-T (22 February 2001) 1021 Prosecutor v Milan Milutinović (Decision on Motion Challenging Jurisdiction) IT-99-37PT (6 May 2003) 270, 271

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Prosecutor v Milutinović (Jurisdiction) IT-99-37-PT (6 May 2003) 1268 Prosecutor v Stakić (Judgment) IT-97-24-T (31 July 2003) 1227 Prosecutor v Tadić (Jurisdiction) ICTY-94-1 (10 August 1995) 85, 89 Prosecutor v Tadić (Jurisdiction) ICTY-94-1-AR 72 (2 October 1995); (1994–95) 94, 240, 308, 780–2, 784, 810, 811, 828, 988, 991, 992, 1015, 1017, 1018, 1020, 1021, 1023, 1210, 1226, 1247, 1256, 1257, 1264, 1275, 1276, 1283, 1301, 1303, 1310, 1311, 1320, 1321(p. xxvii) Prosecutor v Tadić (Interlocutory Appeal of Jurisdiction) ICTY-94-2 (20 October 1995) 129 Prosecutor v Tadić (Merits, Appeals Chamber) ICTY-94-1 (15 July 1999) 832, 833, 1021, 1210, 1226, 1257, 1259, 1264, 1265, 1266, 1321

IX.  International Criminal Tribunal for Rwanda Prosecutor v Akayesu (Judgment) ICTR-96-4-T (2 September 1998); (1998) 1023 Prosecutor v Kambanda (Judgment and Sentence) ICTR-97-23-S; (1998); affirmed Kambanda v Prosecutor, ICTR 97-23-A (19 October 2000) 1023 Prosecutor v Ruggiu (Judgment and Sentence) ICTR-97-32-1 (1 June 2000) 1023 Prosecutor v Rwamakuba (Appropriate Remedy) ICTR-98-44C-T (31 January 2007) 89

X.  International Labour Organization Administrative Tribunal Alonso, ILOAT Decision No 233 (1974) 2082 ATSG, ILOAT Decision No 2867 (2012) 2067 Bustani v OPCW, ILOAT Judgment No 2232 (2003) 2051 Chadsey, ILOAT Decision No 22 (1986) 2030, 2068 Clunet, ILOAT Decision No 908 (1975) 2082 Connolly-Battisti, ILOAT Decision No 294 (1977) 2066, 2068 D’Andecy, ILOAT Decision No 51 (1960) 2063 de Sanctis, ILOAT Decision No 251 (1975) 2084 Gieser, ILOAT Judgment No 782 (1986) 169 Judgment No 2184 (2003) 2037 Lindsey, ILOAT Decision No 61 (1962) 2080 Reynolds, ILOAT Decision No 38 (1958) 2063, 2064 Richard, ILOAT Judgment No 1231 (1993) 169

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Rosecu, Re, ILOAT Judgment No 431 (1980) 2042 Rosescu v IAEA, ILOAT Judgment No 432 (1980) 2031 Routier, ILOAT Decision No 252 (1975) 2064 Sharma, ILOAT Decision No 30 (1957) 2080 Sherif, ILOAT Decision No 29 (1957) 2062, 2080 Sita Ram, ILOAT Decision No 367 (1978) 2068 Ungaro, ILOAT Decision No 167 (1971) 2063 Upon a Complaint Filed Against the International Fund for Agricultural, ILOAT Judgment No 2867 (2012) 91 Varlocosta–Pastrono, ILOAT Decision No 92 (1966) 2063 Varnet, ILOAT Decision No 179 (1971) 2068 Waghorn, ILOAT Judgment No 28 (1957) 169 Zamudio, ILOAT Decision No 212 (1974) 2068

XI.  International Tribunal for the Law of the Sea Camouco Case (No 5) (Panama v France) (7 February 2000) 546 Monte Confurco Case (No 6) (Seychelles v France) (18 December 2000) 546 M/V ‘SAIGA’ Case (No 2) (Saint Vincent and the Grenadines v Guinea) (1 July 1999) 217, 546 Responsibility and obligations of States sponsoring persons and entities with respect to activities in the international seabed area (Advisory Opinion) (No 17) (1 February 2011) 546 Southern Bluefin Tuna Cases (Nos 3 and 4) (New Zealand v Japan; Australia v Japan) (1999) 546

(p. xxviii) XII.  Permanent Court of International Justice 1922 Competence of the ILO in Regard to International Regulation of the Conditions of Labour of Persons Employed in Agriculture (Advisory Opinion) [1922] PCIJ, Ser B, No 2 401

1923 Acquisition of Polish Nationality (Advisory Opinion) [1923] PCIJ, Ser B, No 7 80 Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion) [1923] PCIJ, Ser B, No 4 99, 283, 291, 293, 295

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S.S. ‘Wimbledon’ (UK, France, Italy, Japan v Germany) (Merits) [1923] PCIJ, Ser A, No 1 129, 138, 1958, 1961 Status of Eastern Carelia (Advisory Opinion) [1923] PCIJ, Ser B, No 5 258, 263

1924 Mavrommatis Palestine Concessions (Greece v Britain) (Judgment) [1924] PCIJ, Ser A, No 2 192, 925, 1129, 1469, 1568, 1933, 2259 Treaty of Neuilly, Article 179, Annex, Paragraph 4 (Interpretation) [1924] PCIJ, Ser A, No 3 1928

1925 Exchange of Greek and Turkish Populations (Advisory Opinion) [1925] PCIJ, Ser B, No 10 80 Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne (Advisory Opinion) [1925] PCIJ, Ser B, No 12 876, 1169 Interpretation of Judgment No 3, Judgment No 4 [1925] PCIJ, Ser A, No 4 1928 Polish Postal Service in Danzig (Advisory Opinion) [1925] PCIJ, Ser B, No 11 1960

1926 Competence of the ILO to Regulate Incidentally the Personal Work of the Employer (Advisory Opinion) [1926] PCIJ, Ser B, No 13 85, 1629 Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article IV) (Advisory Opinion) [1926] Ser B, No 16 401

1927 S.S. ‘Lotus’ (France v Turkey) (Merits) [1927] PCIJ, Ser A, No 10 79, 137, 138, 215, 1568 Interpretation of Judgments Nos 7 and 8 (Factory at Chorzów) [1927] PCIJ, Ser A, No 13 1947, 1961 Jurisdiction of the European Commission on the Danube (Advisory Opinion) (1927) PCIJ, Ser B, No 14 85, 401 Readaptation of the Mavrommatis Jerusalem Concessions (Greece v UK) [1927] PCIJ, Ser A, No 11 1958

1928 Factory at Chorzów (Germany v Poland) (Merits) [1928] PCIJ Ser A, No 17 1958 Jurisdiction of the Courts of Danzig (Advisory Opinion) [1928] PCIJ, Ser B, No 15 1568 Rights of Minorities in Upper Silesia (Minority Schools) [1928] PCIJ, Ser A, No 15 1140

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1929 Territorial Jurisdiction of the International Commission of the River Oder (UK, Czechoslovakia, Denmark, France, Germany and Sweden v Poland) (1929) PCIJ, Ser A, No 23 85

(p. xxix) 1930 Free Zones of Upper Savoy and the District of Gex (Switzerland v France) [1930] PCIJ, Ser A/B No 46 80, 85

1931 Railway Traffic between Lithuania and Poland (Advisory Opinion) (1931) PCIJ, Ser A/ B, No 42 87, 1074

1932 Interpretation of the Convention of 1919 Concerning Employment of Women during the Night (Advisory Opinion) [1932] PCIJ, Ser A/B, No 50 83 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory [1932] PCIJ, Ser A/B No 44 1964

1939 Panevezys-Saldutiskis Railway [1939] PCIJ, Ser A/B No 76 1568 Société Commerciale de Belgique [1939] PCIJ, Ser A/B No 78 1964

XIII.  Special Court for Sierra Leone Appeals Chamber Prosecutor v Fofana, Case No SCSL-2004-14-AR72 (E) (Jurisdiction) (25 May 2004) 828

XIV.  Special Tribunal for Lebanon Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, CH/AC/2010/02 (10 November 2010) 89

XV.  United Nations Administrative Tribunal Aboud, UNAT Decision No 934 2048 Ayah, UNAT Decision No 212 2068 Azzu, UNAT Decision No 103 2066 Balogun, UNAT Decision No 852 418, 428, 429 Bancroft, UNAT Judgment No 35 2032 Banerjee, UNAT Judgment No 344 169

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Bieler, UNAT Decision No 765 442 Carson, UNAT Decision No 85 2088 Champoury, UNAT Decision No 76 2062, 2064 Coll v Secretary General, UNAT Decision No 113 2034 Crawford v Secretary-General, UNAT Judgment No 18 2031, 2048 Dauchy v Secretary-General, UNAT Judgment No 492 2028 De Bonel, UNAT Decision No 145 2064 De Ungria, UNAT Judgment No 71 2049 Duberg v UNESCO, UNAT Judgment No 17 2032 Dupuy, UNAT Judgment No 174 2049 Eldridge, UNAT Judgment No 32 2032 Elveson, UNAT Judgment No 36 2032 Fischmann, UNAT Judgment No 326 2030, 2035 Gillead, UNAT Judgment No 104 2049 Gillmah, UNAT Decision No 98 2088(p. xxx) Glassman, UNAT Judgment No 33 2032 Gordon, UNAT Judgment No 29 2032 Grinblat, UNAT Decision No 671 441, 2087 Harris, UNAT Judgment No 31 2032 Harris, UNAT Decision No 67 2062 Hilaire, UNAT Judgment No 220 2049 Howrani, UNAT Decision No 4 2062, 2066 Irani, UNAT Decision No 150 2068 Ismail, UNAT Decision No 935 2066 Jabri v Secretary-General, UNAT Judgment No 377 2045 Kagen-Pozner, UNAT Judgment No 22 2032 Kahale, UNAT Decision No 165 2045 Kaplan, UNAT Judgment No 19 2032, 2080 Khavkine, UNAT Decision No 66 2066

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Kimpton v Secretary-General, UNAT Judgment No 115 2032 Lawrence, UNAT Decision No 185 2062 Levcik, UNAT Judgment No 192 169, 2030, 2034–6 Loriot, UNAT Decision No 1217 2068 Makris-Batistatos, UNAT Judgment No 121 2049 Mauch, UNAT Decision No 54 2068 Middleton, UNAT Judgment No 20 2032 Miller, UNAT Decision No 1144 2066 Mirza v Scretary General, UNAT Decision No 149 2034 Morrow, UNAT Decision No 16 2072 Mullan, UNAT Decision No 162 419, 421, 2068 Nelson, UNAT Judgment No 157 2049, 2088 Older, UNAT Judgment No 34 2032 Osman, UNAT Decision No 180 2063 Peynado, UNAT Decision No 138, Vol 4, 234 2064 Queginer, UNAT Decision No 202 2080 Qui, Zhou and Yao v Secretary-General, UNAT Judgment No 482 2036, 2042 Reed, UNAT Judgment No 37 2032 Robinson, UNAT Decision No 15 2064, 2066 Roy, UNAT Decision No 123 2066 Roy, UNAT Decision No 143 2088 Rubin, UNAT Judgment No 21 2032 Sabillo, UNAT Decision No 164 2088 Saperstein, UNAT Judgment No 24 2032 Smith, UNAT Decision No 249 2062 Sokolow, UNAT Judgment No 23 2032 Steiner, UNAT Decision No 986 2066 Stepczynski, UNAT Decision No 64 2062 Svenchansky, UNAT Judgment No 30 2032

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Van Tassel, UNAT Judgment No 25 2032 Wallach, UNAT Decision No 53 2080 Witner, UNAT Decision No 194 2068 Yakimetz, UNAT Judgment No 333 2030, 2035 Zap, Herman, UNAT Judgment No 27 2032 Zap, Majorie, UNAT Judgment No 26 2032

XVI.  United Nations Appeals Tribunal Megerdichian, UN Appeals Tribunal Decision No 88 (2010) 2082, 2085 Sefraoui, UN Appeals Tribunal Decision No 95 (2009) 2068, 2082

(p. xxxi) XVII.  United Nations Dispute Tribunal Allen, UNDT Decision No 9 (2010) 2064 Kasmani, UNDT Decision No 17 (2009) 2068, 2081 Yisma, UNDT Decision No 61 (2011) 2068

XVIII.  United Nations Human Rights Committee De Lopez v Uruguay, Communication No 52/1979, Selected Decisions, 91 1584 Sayadi and Vinck v Belgium, UN Doc CCPR/C/94/D/1472/2006 (29 December 2008) 415, 836, 852, 1006, 1261, 1266, 1318, 2121, 2129

XIX.  WTO Indonesia: Certain Measures Affecting the Automobile Industry, WTO Panel Report, WT/DS54/R, WT/DS59/R, WT/DS64/R (2 July 1998) 2122 US: Import Prohibition of Certain Shrimp Products, Report of the Appellate Body, WT/ DS58/AB/R (12 October 1998) 78, 84

XX.  Domestic Cases Austria K v K, Final Appeal, 2 Ob 166/98 w; ILDC 356 (AT 2000) 2174 UNRWA v Finanzlandesdirektion für Wien, Niederösterreich und das Burgenland (1983) 110 JDI 643 2142

Belgium Tribunal Civil (Brussels) Socobel v Greece (1951) Journal des Tribunaux 3896; (1953) 47 AJIL 508 1964

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United Nations v B (1952) 19 ILR 490 2143

Bosnia and Herzegovina Constitutional Court Decision U 9/00 (3 November 2000) (2001) 61 ZaöRV 173 1350

High Representative Appeal No AP-953/05, Bilbija (23 March 2007) 1350

Canada Federal Court Abdelrazik v Minister of Foreign Affairs and the Attorney-General of Canada (4 June 2009) 2009 FC 580 822, 838, 839, 1006, 1265, 1315, 1318 Superior Court of Montreal United Nations v Canada Asiatic Lines Ltd (1958) 26 ILR 622 2145 Supreme Court Hunter v Southam (1984) 2 SCR 145 32

Croatia Constitutional Court Decision of 12 November 2002, ILDC 383 840

(p. xxxii) Cyprus Stavrinou v United Nations and Commander of the United Nations Force in Cyprus, Appeal Decision, Civil Appeal No 8145 (17 July 1992); (1992) CLR 992; ILDC 929 (CY 1992) 2149, 2171

Denmark Investment and Finance Co of 11 January 1984 Ltd v UNICEF, U 2000 478 Ø; ILDC 64 (DK 1999) 2149, 2165

Egypt Court of First Instance Giurgis v UNRWA (31 December 1961) 2148

Germany Federal Constitutional Court BVerfGE 36 (1974) 1; BVerfGE 77 (1988) 137 1515 BVerfGE 73 (1986) - Solange I 841

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BVerfGE 90 (1994) 286 1193, 1194 BVerfGE 111 (2004) 307 - Görgülü 805, 1964 BverfGE 126 (2010) 286 - Honeywell 838 BVerfGE 123 (2009) 267 131

Federal Supreme Court in Criminal Matters BGHSt 41, 127 (Judgment of 21 April 1995) 804, 840

Federal Supreme Court in Civil Matters BGHZ 155, 279 (Judgment of 26 June 2003) 2197

Higher Regional Court of Naumburg 14 WF 64/04, 31 EuGRZ 749 (2004) 1964

Greece Prefecture of Voiotia v Federal Republic of Germany, Case No 11/2000, Decision of 4 May 2000 2197

Ireland Dubsky v Government of Ireland [2005] IEHC 442 840

Israel Mahalwas v UNTSO (Appeal Decision) PLA 3093/07; ILDC 1070 (IL 2007) 2165

Italy Court of Cassation Nanni v Peace and Sovereign Order of Malta (1935) 8 ILR 2 1814

Supreme Court Judgment No 5044 of 6 November 2003 (registered 11 March 2004); 128 ILR 659 2197

Japan Tokyo District Court Shigeko Ui v University of the United Nations (1979–80) 23 Japan Ann Intl L 196 2149

(p. xxxiii) Kenya High Court Tanad Transporters Ltd v UN Children’s Fund, Ruling of 1 July 2009; (2009) UNJYB 487 2166

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Netherlands District Court (Civil Law Section) A v Netherlands (3 February 2010) 851

District Court of Utrecht UNRRA v Daan (1949) 16 AD 337 2143

Hague Appeal Court Nuhanovic v Netherlands, appeal judgment, LJN: BR5388; LJN: R5388; ILDC 1742 (NL 2011), 5 July 2011 990 Mothers of Srebrenica v Netherlands and the United Nations, Case No 200.022.151/01, Judgment of 30 March 2010 97, 2150, 2165 Srebrenica, 200.020.174/01, 5 July 2011 1185

Hague District Court Milosevic v Netherlands (2001) 48 Neth Intl LR 357 97, 415 Mothers of Srebrenica v Netherlands and the United Nations, Case No 07-2973 2150

Switzerland Federal Supreme Court A v B (Judgment of 8 April 2004) ILDC 343 (CH 2004) 2175 A v Federal Department of Economic Affairs, Case No 2A 783/2006 (Judgment of 22 April 2008) ILDC 1201 (CH 2008) 2119 A v SECO, Case No 1A.48/2007 (Judgment of 22 April 2008) ILDC 1201 (CH 2008) 818, 840, 2119, 2170 Case No K 68/02 (8 April 2005) 2172 Nada v SECO, Case No 1A 45/2007 (Judgment of 14 November 2007) BGE 133 II 450; ILDC 461 (CH 2007) 811, 818, 828, 840, 845, 850, 852, 1006, 1259, 1318, 2119, 2124, 2129 NML Capital v BIS, Case No 5A.360/2010 2166 Rukundo v l’Office fédéral de la justice, Case No 1A.129/2001 415

Syria XX v UNRWA (1955–56 Syria) 2148

Turkey Yassin Abdullah Kadi v Prime Ministry and Ministry of Foreign Affairs of Turkey, E2006/2824, K 2007/115; ILDC 311 (TR 2007) 2129

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United Kingdom High Court Hay v HM Treasury [2009] EWHC 1677 (Admin); [2009] Lloyd’s Rep FC 547; ILDC 1367 (UK 2009) 2134 R (on the application of Al-Jedda) v Secretary of State for Defence [2005] EWHC 1809 (Admin); [2005] HRLR 39 2114, 2126, 2129

Court of Appeal A v HM Treasury [2008] EWCA Civ 1187; [2009] 3 WLR 25 2134(p. xxxiv) Al-Jedda v Secretary of State for Defence [2010] EWCA Civ 758; [2011] QB 773 2134 R (on the application of Al-Jedda) v Secretary of State for Defence [2006] EWCA Civ 327; [2007] QB 621 2114, 2126, 2129, 2134

House of Lords Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] AC 883 273 R (on the application of Al-Jedda) v Secretary of State for Defence [2007] UKHL 58; [2008] 1 AC 332 854, 990, 1262, 1266, 1345, 1346, 1350, 2114, 2124, 2126, 2128, 2129 R (on the application of M) (FC) v HM Treasury [2008] UKHL 26; [2008] 2 All ER 1097 1265

Supreme Court Ahmed (A) v HM Treasury; Youssef v HM Treasury [2010] UKSC 2; [2010] 2 AC 534 818, 825, 837–9, 850, 854, 1006, 1008, 1317, 1318, 2129, 2134

United States Antelope, The, 23 US (10 Wheat) 66 (1825) 141 Balfour, Guthrie & Co Ltd v US, 90 F Supp 831 (ND Cal 1950); (1950) 17 ILR 323 2141, 2149 Bisson v United Nations, Case No 06-6352 (SDNY 2008); (2008) ILDC 889 (US) 2147, 2165 Chan v Korean Airlines Ltd, 490 US 122 (1989) 77 Committee of United States Citizens Living in Nicaragua v Ronald Wilson Reagan, 859 F 2d 929 (1988) 1965 Currun v City of New York, 77 NYS 2d 206 (1947); (1947) 14 ILR 154 2141 Diggs v Dent, No 74-1292 (DDC 14 May 1975); (1975) 14 ILM 797 1325 Diggs v Shultz, 470 F 2d 461 (1972); (1972) 11 ILM 1252 1325

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Foster & Elam v Neilson, 27 US 253 (1829) 805 Hinton v Divine, Civ No 84–1130 (ED Pa 1986) 2032 Kadic v Karadciz; Doe I and Doe II v Karadzic, Decision of 13 October 1995; (1995) 104 ILR 135 2167 Keeney v US, 218 F 2d 843 (DCC 1954); (1953) 20 ILR 382 2029 Medellin v Dong Dreke, 371 F 3d 270 (2004) 1964 Medellin v Texas, 552 US 491 (2008) 805 Missouri v Holland, 252 US 416 (1920) 35 Ntakirutimana v Reno, 184 F 3d 419 (5th Cir 1999) 1023 Osbaldo Torres v State of Oklahoma, 317 F 3d 1145 (2004); (2004) 43 ILM 1228 1963, 1964 Ozonoff v Berzak, 744 F 2d 224 (1st Cir 1984) 2032, 2045 Permanent Mission of India to the UN v City of New York, 551 US 193 (2007) 2174 Shamsee v Shamsee, 77 AD 2d 618 (1980); (1980) UNJYB 222 2142, 2148 United Nations Korean Reconstruction Agency v Glass Production Methods, 291 F 2d 168 (1961) 2143 United States v Coplon, 84 F Supp 472 (1949); 88 F Supp 915 (1950); (1949) 16 AD 296 2025 United States v Egorov, 222 F Supp 106 (1963); (1963) UNJYB 202 2025 United States v Melekh, 190 F Supp 67 (SDNY 1960) 2044 United States v Palestine Liberation Organization, Order and Opinion of 29 June 1988, 88 Civ 1962 (ELP) 35; (1988) 27 ILM 1056 (US Dist Ct, Southern Dist of NY) 361 Wencak v United Nations (1956) 23 ILR 509 2142

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Table of Instruments Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

International Instruments Abolition of Forced Labour Convention (ILO Convention No 105) (1957) 1630 Act of Capitulation of Japan (14 August 1945) 1516 African Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba) (1996) 495 Agreement on Inter-American Reciprocal Assistance and Solidarity (Act of Chapultepec) (1945) 147 Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) 1646 Art. 73(c) 2131 Atlantic Charter (1941) 3, 114, 335, 1511, 1512, 1537, 1875 cl 3 1844 Point 8 12, 13 American Convention on Human Rights (1969) 1459 American Treaty on Pacific Settlement (1948) 1459 Antarctic Treaty (1959) Art. IV 1449

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Austrian State Treaty (1955) 1516 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989) 1552 Berne Convention on the Protection of Literary and Artistic Works (1886) 1645 Briand-Kellogg Pact (1928) 207, 1508, 2190 Art. I 206, 208 Art. II 184 Bryan Treaties (1913 et seq) 205 Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal (London Charter) (1945) 548 Art. 6(c) 1226 Cocoa Agreement (1975) Art. 73 384 Coffee Agreement (1976) Art. 66 384 Comprehensive Nuclear Test Ban Treaty (1996, not yet in force) 497 Convention against the Taking of Hostages (1979) 539 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987) 1587, 1588, 1593 Art. 17(7) 413 Art. 19(3) 1595 Art. 21 1597 Art. 22 1599 Optional Protocol 1587 Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) 1563 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949) 1585 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971) 2113 Convention instituting the Definitive Statute of the Danube (1921) Art. 38 1922(p. xxxvi)

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Convention of International Civil Aviation (1947) 1633, 2157 Art. 11 1634 Art. 12 1619 Arts 48–50 1633 Art. 53 lit e 1633 Art. 54 lit h 1633 Art. 56 1633 Art. 81 2098 Art. 83 2098 Art. 93bis 1699 Convention on a Code of Conduct for Liner Conferences (1974) 550 Convention on Biological Diversity (1993) 550, 1553 Cartagena Protocol on Biosafety to the Convention on Biological Diversity (2000) 1553 Convention on Conciliation and Arbitration (1992) 1079 Convention on Contracts for the International Sale of Goods (1980) 537 Convention on Environmental Impact Assessment in a Transboundary Context (1991) 1552 Convention on Independent Guarantees and Stand-by Letters of Credit (1995) 537 Convention on Intangible Heritage (2006) 1563 Convention on International Bills of Exchange and International Promissory Notes (1988) 537 Convention on International Civil Aviation (1944) Art. 65 1809 Convention on International Liability for Damage Caused by Space Objects (1971) 541 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973) 1552 Convention on Jurisdictional Immunities of States and their Property (2004) 533, 540 Convention on Registration of Objects Launched into Outer Space (1974) 542 Convention on Psychotropic Substances (1971) 1561

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Convention on Relations between the Three Powers and the Federal Republic of Germany (1952) 327 Art. 1 2194 Art. 7 2196 Convention on Special Missions (1969) 532, 533, 538 Convention on the Assignment of Receivables in International Trade (2001) 538 Convention on the Carriage of Goods by Sea (1978) 537 Convention on the Conservation of Migratory Species of Wild Animals (1979) 1552 Convention on the Elimination of All Forms of Racial Discrimination (1965) 551 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) (1979) 551, 1586, 1588, 1593 Art. 8 424, 438 Art. 30 2264 Convention on the Law of the Non-Navigational Uses of International Watercourses (1997) 532 Convention on the Law of the Sea (UNCLOS) (1982) 482, 544, 1913 Arts 91–93 2156 Art. 284 1078 Art. 297 1081 Art. 300 179 Art. 320 2264 Annex II Art. 3(1)(b) 547 Annex V 1078 Annex VII 546 Annex VII 546 Part XI 545, 546(p. xxxvii) Convention on the Liability of Operators of Transport Terminals in International Trade (1991) 537 Convention on the Limitation Period in the International Sale of Goods (1974) 537 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) 1563

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Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973) 532, 538 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) (1948) 548, 1223, 1585, 1687, 1954 Art. I 240, 885, 1225 Art. II 1223 Art. VI 240 Art. VIII 1223 Art. IX 1953, 1954 Convention on the Privileges and Immunities of the Specialized Agencies (1945) 1618, 1653, 2061 s 18(a) 2046 s 18(b) 2043 Art. II, s 3 2146 Art. IV 2025 Art. IV, s 22 2038 Art. V, s 20 2007, 2025 Art. VI, s 22 2046 Art. IX, 32 1987 Convention on the Privileges and Immunities of the United Nations (1946) (CPIUN) 1019, 2162, 2163, 2210 Art. I 2142, 2143, 2148 Art. I, s1 2146 Art. II 2165 Art. II/2 2165, 2166 Art. II/3 2166, 2167 Art. II/4 2167 Art. II/7 2167, 2168 Art. II/7b 2168 Art. II/7c 2168 Art. II/8 2167, 2168 Art. III 2165, 2169

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Art. III/10 2160 Art. IV/11 2173, 2174 Art. IV/11d 2173 Art. IV/16 2173 Art. IV/17–21 2169 Art. V 2176 Art. V/18 2169, 2171–2 Art. V/18b 2172 Art. V/18g 2172 Art. V/19 2170, 2171 Art. V/20 2170, 2173 Art. VI 2175–6 Art. VI/22–23 2176 Art. VII/26 2176 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction (1993) 497(p. xxxviii) Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (1972) 497 Convention on the Protection of the Underwater Cultural Heritage (2001) 1563 Convention on the Protection of World Cultural and Natural Heritage (1972) 1563 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) (1958) 1687 Art. II(2) 538 Art. VII(1) 538 Convention on the Reduction of Statelessness (1961) 532 Convention on the Rights and Duties of States (Montevideo Convention) (1933) 143, 147 Convention on the Safety of United Nations and Associated Personnel (1994) 2051, 2176 Optional Protocol (2005) 540 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) 185

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Convention on the Status of Refugees (1951) 2256 Conventions on the Territorial Sea and the Contiguous Zone, the Continental Shelf, the High Seas, and on Fishing and the Conservation of the Living Resources of the High Seas (1982) 533 Art. 14 1387 Convention on the Use of Electronic Communications in International Contracts (2005) 538 Convention relating to the Status of Stateless Persons (1954) 117 1687 Discrimination (Employment and Occupation) Convention (ILO Convention No 111) (1958) 1630 Equal Remuneration Convention (ILO Convention No 100) (1951) 1630 European Convention for the Peaceful Settlement of Disputes (1957) Art. 1 1140, 1931 Arts 4–18 1140 Arts 19–26 1140 Art. 26 1168 Art. 39(1) 1168 European Convention for the Protection of Human Rights and Fundamental (1950) 1589, 2114, 2256 Art. 5(10) 2126 Art. 6 415, 1006, 2166 Art. 13 1006 Art. 15 825 European Convention on the Legal Personality of International Non-governmental Organizations (1986) 1809 European Convention on the Recognition of Non-Governmental Organizations (1986) Art. 2 1794 Art. 2.1 1813 Forced Labour Convention (ILO Convention No 29) (1930) 1630 Freedom of Association and Protection of the Right to Organise Convention (1948) (ILO Convention No 87) 1630 Framework Convention on Climate Change, UNGA Res 45/212 (1990) 482, 550, 1553 General Agreement on Tariffs and Trade 47, 1548

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General Agreement on Trade in Services (1994) 183 Art. 14bis 2131 Geneva Convention I (1949) Art. 49 1018 Geneva Convention II (1949) Art. 50 1018(p. xxxix) Geneva Convention III (1949) Art. 129 1070 Geneva Convention IV (1949) Art. 23(1) 826 Art. 146 1018 Geneva Conventions for the amelioration of the conditions of the wounded and sick in armed forces in the field (1949) 1210 Art. 1 886, 1223 Art. 3 886 Protocol I Art. 89 1234 Geneva Convention on the High Seas (1958) 532 Arts 5–7 2156 Geneva Conventions on the Laws of War (1949) 2256 Additional Protocol Art. 1(4) 482 Additional Protocols (1977) 1585 Geneva General Act for the Pacific Settlement of International Disputes (1928) 1120, 2210 Art. 11–12 1168 Art. 17 1931 Arts 25–28 1168 Geneva Protocol for the Pacific Settlement of International Disputes (1924) 1120, 1274 Art. 2 206 Hague Convention for the Pacific Settlement of International Disputes (First) (1907) 1120 Art. 3 1142

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Arts 4–6 1168 Art. 37(2) 1958 Art. 44 1923 Part II 1121 Hague Convention concerning Resolution of the Legal Personality of Foreign Companies, Associations and Foundations (1956) Art. 1 2153 Hague Convention for the Pacific Settlement of International Disputes (1899) Art. 1 183 Hague Convention II respecting the Limitation of the Employment of Force for the Recovery of Contract Debts (Drago-Porter Convention) (1907) Art. 1 205 Hague Convention III relating to the Opening of Hostilities (1907) 205 Art. 1 204 Hague Convention IV respecting the Laws and Customs of War (1907) Annex 1018 Indigenous and Tribal Peoples Convention (1989) (ILO Convention 169) 1587 Inter-American Treaty of Reciprocal Assistance (Rio Treaty) (1947) 1459 Art. 5 1457, 1530 Art. 6 1473 Art. 10 1457 Art. 13 1473 International Convention against Apartheid in Sports (1985) 551 Art. 11(7) 413 International Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989) 539 International Convention for the Prevention of Pollution from Ships (1973) 1644(p. xl) International Convention for the Protection of All Persons from Enforced Disappearance (CPED) (2006) 551, 1587, 1588, 1593 International Convention for the Safety of Life at Sea (1974) 1644 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) (1978, rev. 1995) 1644

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International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1965) 1585, 1588, 1593 Art. 8(6) 413 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) (1990) 551, 1587, 1588, 1593 Art. 11 1597 Art. 14 1599 International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) 1585 Jute Agreement (1989) Art. 44 384 Locarno Treaty (1925) 1274 Art. 2 206 Minimum Age Convention (1973) (No 138) 1630 Moscow Declaration (1943) 348 Munich Agreement (1938) 198 Natural Rubber Agreement (1987) Art. 64 384 Olive Oil Agreement (1986) Art. 58 384 Paris Convention on the Protection of Intellectual Property (1883) 1645 Protection of Victims of International Armed Conflicts (Protocol I of 8 June 1977) 482 Right to Organise and Collective Bargaining Convention (1949) (No 98) 1630 Rio Treaty (1947) Art. 3 1420 Single Convention on Narcotic Drugs (1961) 412, 1561, 1693 Supplementary Conventions on the Abolition of Slavery (1953–56) 1585 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) 1561 Sugar Agreement (1984) Art. 41 384 Treaty between the Federal Republic of Germany and the Republic of Poland concerning the Confirmation of the Boundary between the Two States (1993) 2192, 2196

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Treaty between the Federal Republic of Germany and the Union of Soviet Socialist Republics on Good-Neighborliness, Partnership and Cooperation (1991) Art. 2 2196 Treaty concerning Principles for Improvement of Relations and Intensification of Cooperation (1970) 1521 Treaty establishing a Monetary, Economic and Social Union between the Federal Republic of Germany and the German Democratic Republic (1990) 2191 Treaty of Alliance (1942) Arts III–IV 1513 Treaty of Alliance (1943) 81–83, 1513 Treaty of Alliance and of Mutual Assistance (1944) 1513 Treaty of Amity and Co-operation in Southeast Asia (1976) Arts 13–17 1466 Treaty of the Economic Community of West African States (ECOWAS) (1975) 1467 Treaty of Versailles (1919) 1628 Art. 49 1176(p. xli) Art. 329 1623 Art. 398 1623 Art. 399 1702 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (1967) 482, 496, 541 Treaty on the Basis of the Relations between the Federal Republic of Germany and the German Democratic Republic (1972) 2187 Treaty on the Establishment of German Unity (1990) 2191 Treaty on the Final Settlement with Respect to Germany (1990) 2191 Art. 1 2196 Treaty on the Non-Proliferation of Nuclear Weapons (1968) 179, 496 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 (1971) 497 Tropical Timber Agreement (1983) Art. 40 384 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) 1561

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United Nations Convention on the Rights of Persons with Disabilities (CRPD) (2006) 551, 1587, 1588, 1593 Art. 50 2264 United Nations Convention on the Rights of the Child (CRC) (1989) 551, 1556, 1587, 1588, 1593 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict 1587 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography 1587 United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (1994) 550, 1553, 2150 Vienna Convention for the Protection of the Ozone Layer (1985) 1552 Montreal Protocol on Substances that Deplete the Ozone Layer (1987) 1552 Vienna Convention on Consular Relations (1963) 532, 1938 Vienna Convention on Diplomatic Relations (1961) 532, 1938, 2163, 2177 Art. 41(1) 305 Art. 9 2170, 2174 Art. 38(1)–(2) 2171 Vienna Convention on the Law of Treaties (1969) 532 Vienna Convention on the Law of Treaties (VCLT) (1980) 75, 79, 82, 86, 96, 99, 1913, 1938, 2116 Art. 1(a) 1686 Art. 2(1)(b) 2210 Art. 4 75, 1524 Art. 5 32, 33, 1142, 1149, 1170, 2204 Art. 10 2258 Art. 11 482 Art. 14 2210 Art. 18 84 Art. 19 84 Art. 26 178 Art. 27 838, 848, 2245 Art. 30 2117

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Art. 30(1) 2118, 2122, 2130 Art. 30(2)–(3) 2117 Art. 30(4)(a) 2117(p. xlii) Art. 30(4)(b) 2118 Arts 31–33 1400 Art. 31 76, 77, 80, 84, 98, 178, 798, 915, 1264, 2259 Art. 31(1) 76, 84, 891, 2121, 2141, 2162, 2259, 2260 Art. 31(2) 77, 84, 2260 Art. 31(2)(a) 881 Art. 31(3) 77, 84, 98, 1835 Art. 31(3)(b) 32, 894, 1127, 1166, 1400 Art. 31(3) lit b 798 Art. 31(3) lit c 822 Art. 31(3)(c) 78, 915, 2118 Art. 32 76, 88, 646, 798, 881, 1264, 2259 Art. 33 2259 Art. 33(1) 83 Art. 33(2) 2260 Art. 33(4) 84, 1944, 2259, 2260 Art. 34 266, 1142, 2153 Arts 34ff 1452 Art. 35 266, 2153 Art. 36 258, 266, 1149, 1150 Art. 41 84, 1158, 1170, 2204 Art. 46 2245 Art. 52 379 Art. 53 130, 231, 232, 818, 819, 845, 852, 1158, 2113, 2119, 2133, 2136 Art. 56 1166 Art. 60 197, 639

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Art. 60(2)(a) 384 Art. 61(2) 1166 Art. 62(2)(b) 1166 Art. 64 2119, 2133, 2136 Art. 66 1078 Art. 70(1) 381 Art. 70(1)(b) 381 Art. 75 232, 1522, 1523 Arts 76–80 2263 Art. 77(1)(c)–(e) 2211 Art. 80 2096, 2102 Art. 80(2) 2098 Art. 81(1) 2103 Art. 85 2263 Annex 1078 Annex, para 6 1168 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (VCLTIO) (1986, not yet entered into force) 75, 532 Art. 2(1)(j) 80 Art. 2(f) 1400 Art. 30 2117 Art. 30(6) 2130 Art. 81 2096 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character (1975) 532, 2162, 2163, 2177 Art. 1(4) 414(p. xliii) Art. 7 358 Art. 14 2175 Art. 20 359

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Vienna Convention on the Succession of States in Respect of State Property, Archives and Debts (1983) 532 Vienna Convention on the Succession of States in Respect of Treaties (1978) 532, 1938 Art. 4 2250 Warsaw Pact (1955) Art. 4 1421 Washington Naval Treaty (1922) 1436 Worst Forms of Child Labour Convention (1999) (ILO Convention No 182) 1630

Instruments pertaining to international Institutions African Commission on Human and Peoples’ Rights African Charter on Human and People’s Rights on the Establishment of an African Court on Human and People’s Rights (1998) 1588 Protocol 1575

African Union (AU) Constitutive Act of the African Union (2000) Art. 3 lit e 1457 Art. 4(e) 184 Art. 4 lit h 1490, 1491, 1492, 1493 Art. 4(h) 1287 Art. 5 1798 Art. 22 1798 Art. 30 1486 Protocol Art. 13 1460 Statutes of the Economic, Social and Cultural Council of the African Union (2004) Arts 3–6 1798, 1809

Association of Southeast Asian Nations (ASEAN) Charter of the Association of Southeast Asian Nations (2007) (Singapore Declaration) (2008) Art. 1(1) 1467 Art. 2(2) lit b–c 1467

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Art. 3 1467 Art. 45 1467 Declaration of ASEAN Concord I (Bali Concord) (1976) 1466 Declaration of ASEAN Concord II (Bali Concord II) (2003) 1467 Declaration Establishing ASEAN (Bangkok Declaration) (1967) 1466 Treaty of Amity and Co-operation in Southeast Asia (1976) Arts 13–17 1466

Committee on Economic, Social and Cultural Rights (CESCR) Convention on the Committee on Economic, Social and Cultural Rights Art. 12 1560

Committee on the Elimination of Racial Discrimination (CERD) Convention on the Committee on the Elimination of Racial Discrimination (CERD) Art. 1 1574(p. xliv)

Common Market for Eastern and Southern Africa Constitution of the Common Market for Eastern and Southern Africa Art. 171 384

European Union Treaty of Lisbon (2009) 131, 2251 Art. 1, para 49(c) 1464 Treaty of Paris Establishing the European Coal and Steel Community (1951) Preamble 140 Brussels Treaty (1948) 1463, 2256 Art. IV 1420 Protocol No 1 of the Brussels Treaty (1954) 1463 Treaty on European Union (TEU) (Treaty of Nice) Art. 1 No 2 1464 Art. 11 1798 Art. 17 1464 Art. 20 1170 Art. 27(2)–(3) 359 Art. 34(2) 359

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Art. 43(7) 1464 Treaty on the Functioning of Europe (TFEU) Art. 75 269 Art. 215 269 Art. 245 2024 Art. 347 2132 Art. 351 2132 Title V, ch 2 269

Food and Agriculture Organization (FAO) Agreement between the United Nations and the Food and Agriculture Organization of the United Nations (FAO) (1946) Art. II(2) 1782 Art. II(6) 1784 Art. VI 1381 Art. IX(1) 1703 Art. XII 1619 Art. XIII 1704 Art. XII 1654 Constitution of the Food and Agriculture Organization of the United Nations (Constitution of FAO) (1945) Art. I(3)(a)–(b) 285 Art. VIII 2060 Art. XIII(3)–(4) 1809 Art. XIV 2098

International Atomic Energy Agency (IAEA) Agreement concerning the relationship between the United Nations and the International Atomic Energy Agency (IAEA) (1957) 1619 Art. VII 1785 Art. IX 1381 Statute of the International Atomic Energy Agency (1956) 997 Art. III(A.6) 285(p. xlv)

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Art. VII(F) 2024, 2031 Art. XIV(G) 2152

International Bank for Reconstruction and Development (IBRD) (World Bank) Agreement between the United Nations and the International Bank for Reconstruction and Development (1947) 1382, 1704 Art. I(3) 1700 Art. II(1) 1784 Art. II(3) 1782 Art. IV 1715 Art. V(3) 1729 Art. VI 1701 Protocol, Art. I(2) 1626 Protocol, Art. IV 1626 Protocol, Art. VI 1626 Articles of Agreement of the International Bank for Reconstruction and Development (1945) 1637 Art. I(iii) 1542 Art. II(8) 1808 Art. IV(9) 2152 Art. IV(10) 1383 Art. V, s 2(a) 384 Art. V(9) 1700 Art. IV, s 10 285

International Civil Aviation Organization (ICAO) Agreement between the United Nations and the International Civil Aviation Organization (1947) 315 Art. III(2) 1782 Art. III(6) 1784 Art. VII 1381

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Constitution of the International Civil Aviation Organization (Chicago Convention) (1944) Art. 93(b) 385

International Civil Service Commission (ICSC) Statute and Rules of Procedure (1987) 2061 Art. 1.1 2079 Art. 1.2 2079 Art. 22 2078

International Centre for the Settlement of Investment Disputes (ICSID) Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) 185

International Court of Justice Statute of the International Court of Justice (ICJ Statute) (1945) 263, 370, 1122 Art. 2 1920, 1921, 1924 Arts 4–15 1923 Art. 4(1) 1923 Art. 4(3) 1955 Art. 5(1) 2004 Art. 5(1)(d) 232 Art. 7 2004(p. xlvi) Art. 8 bis 232 Art. 10 882 Art. 10(1) 882 Art. 10(2) 883, 901 Art. 10(3) 882 Art. 12 1923 Art. 13(4) 2004 Art. 14 2004 Art. 15 bis 233 Art. 15 ter 233

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Arts 16–17 1921 Art. 16 1925 Art. 17(1) 1925 Art. 17(2) 1920, 1925, 1929, 1988 Art. 17(3) 1698 Art. 18 1920, 1925 Art. 18(2) 2004 Art. 20 1921 Art. 21 396, 1911 Art. 21(1) 1927 Art. 21(2) 1926 Art. 22(1)–(2) 1927 Art. 23 1928 Art. 24 1921, 1988 Art. 25 1928 Art. 26–29 1928 Art. 26(1) 1928 Art. 26(2) 1921, 1929, 1946, 1949 Art. 26(3) 1929 Art. 30 1920, 1940 Art. 30(1) 1031 Art. 30(2) 1926 Art. 31 1988 Art. 31(4) 1928, 1930 Art. 31(6) 1921, 1925 Art. 32 1920, 1922 Art. 32(7) 1910 Art. 33 1910 Art. 34 1073, 1170, 1703, 1931, 1964, 1977, 2223

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Art. 34(1) 189 Art. 34(2) 1703 Art. 35 1169, 1931, 1956 Art. 35(1) 1952 Art. 35(2) 883, 901, 1953, 1954, 1956 Art. 35(3) 1910, 1955 Art. 36 1122, 1136, 1138, 1931, 1973, 2223 Art. 36(1) 1138, 1139, 1913, 1931, 1932, 1954 Art. 36(2) 1080, 1138, 1913, 1931, 1932, 1933, 1955, 2094, 2125 Art. 36(3) 1143, 1934 Art. 36(4) 2004 Art. 36(5) 1905 Art. 36(6) 1934, 1935, 1936, 1942(p. xlvii) Art. 37 1905 Art. 38 114, 126, 484 Art. 38(1) 122, 130, 199, 278, 1138, 1229, 1912, 1922, 1938, 1977 Art. 38(1)(a) 482 Art. 38(1)(b) 482, 1922 Art. 38(1)(c) 484, 1578, 1922, 2133 Art. 38(1)(d) 1939–40 Art. 38(2) 1139, 1143, 1939–40 Art. 39 1940, 2261 Art. 39(3) 2261 Art. 40 1940, 2223 Art. 40(3) 2004 Art. 41 1159, 1944 Art. 43 1940, 1941 Art. 44(2) 1927 Art. 50 396

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Art. 53 1941 Art. 55 1928, 1947 Art. 56–58 1960 Arts 57–60 1959 Art. 57 1947 Arts 59–60 1922, 1947 Art. 59 1942, 1959, 1960, 1962, 1964 Art. 60 2122 Art. 60(1) 1948 Art. 61 1953 Art. 62 1945, 1962 Art. 63 1946 Arts 65–68 1988 Art. 65 1976, 1977, 1978 Art. 65(1) 1138, 1983, 1986 Art. 66 1989 Art. 66(2) 1989 Art. 67 2004 Art. 68 1979, 1988 Art. 69 1907, 1955 Art. 70 2004 Ch II 1931 Ch III 1922, 1940 Ch IV 1940 Practice Directions of the International Court of Justice (2001) 1912, 1940 Rules of the International Court of Justice Art. 1 1921 Art. 3(6) 1927 Art. 4 1921

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Art. 8 1921, 1925 Art. 9 1926 Arts 10–14 1927 Art. 12 1927 Art. 13 1927 Art. 16 1928 Art. 21 1926 Art. 21(2) 1926(p. xlviii) Art. 22(1) 1926 Art. 24 1925 Art. 26 1927 Art. 28(4) 1911 Art. 34 1921, 1925 Art. 38(5) 1931 Arts 43ff 1941 Art. 51 1940 Art. 55 1927 Art. 66 1927 Art. 70 1940 Art. 79(1) 1942 Art. 80 1946 Art. 81 1945 Arts 90–93 1940 Art. 92 1941 Art. 95 1940, 1947 Art. 98 1948, 1995 Arts 102–109 1988 Art. 102 1979 Art. 102(2)–(3) 1138, 1988

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Art. 103(2) 1976 Art. 106 1989 Art. 107 1940, 1990 Part II 1911, 1927 Part III 1922, 1940 Part IV 1922, 1940

International Criminal Court Rome Statute (1998) 549, 806, 1019, 1586 Art. 5(1) 549 Art. 7 1225, 1226 Art. 7(2)(a) 1226 Art. 12(3) 357 Art. 13(b) 1027 Art. 15 bis (6) 935 Art. 16 934, 956 Art. 86 785 Art. 128 2264 Rules of Procedure and Evidence and of the Elements of Crimes (2000) 549

International Criminal Tribunal for Rwanda (ICTR) ICTR Statute (1994) Art. 1 1022 Art. 7 1022 Art. 12(2) 1023 Art. 14 1023 Art. 15(3) 1023 Art. 28(2) 1016 Art. 30 1023 Statute of the Mechanism Art. 1(1)–(3) 1025 Art. 1(4)(a)–(b) 1025(p. xlix)

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Art. 5(2) 1025 Art. 6 1025 Art. 8(1) 1025 Art. 21 1025 Art. 32 1025

International Criminal Tribunal for Yugoslavia (ICTY) ICTY Statute (1993) Art. 1 1017 Arts 2–5 1018 Arts 6–8 1017 Art. 9 1018 Arts 10–11 1019 Art. 15 1019 Art. 17 1019 Art. 18(4) 1019 Arts 19–22 1019 Art. 24 1019 Arts 27–29 1019 Art. 29(2) 1016 Art. 30 2142 Arts 32–34 1019 Statute of the Mechanism Art. 1(1)–(3) 1025 Art. 1(4)(a)–(b) 1025 Art. 5(2) 1025 Art. 6 1025 Art. 8(1) 1025 Art. 21 1025 Art. 32 1025

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International Development Association (IDA) Articles of Agreement of the International Development Association (Agreement of IDA) (1960) Art. VI(3) 1729 Art. VI (7) 1808 Convention of the International Development Association Art. 4(8) 1700

International Finance Corporation (IFC) Articles of Agreement of the International Finance Corporation (Agreement of IFC) (1956) Art. IV(3) 1729 Art. IV (7) 1808 Art. 7, s 2(a) 385 Convention establishing the International Finance Corporation Art. 4(8) 1700

International Fund for Agricultural Development (IFAD) Agreement establishing the International Fund for Agricultural Development (Agreement establishing IFAD) (1976) (as amended) Art. 3(3) 3 1646 Art. 6(2) 1646 Art. 6(3) 1621, 1647(p. l) Art. 6(5) 1647 Art. 7(1) 1646 Art. 8(2) 1809 Art. 13(1) 1703 Agreement establishing the International Fund for Agricultural Development (1976) Art. VIII 1619 Art. VIII(s) 1662 Relationship Agreement (with protocol concerning its entry into force, 6 April 1978) 1625

International Labor Organization (ILO) Abolition of Forced Labour Convention (1957) (ILO Convention No 105) 1630

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Agreement between the United Nations and the International Labor Organization (1946) Art. II(2) 1781, 1782 Art. II(6) 1784 Art. IV 1625 Art. VI 1381 Art. IX(1) 1703 Art. XIII 1704 Art. XIV 1702 Constitution of the International Labour Organization (Constitution of the ILO) (1944) 385 Arts 2–7 1629 Art. 7(2) 1629 Art. 9 2060 Art. 9/4 2024 Art. 12(3) 1809 Art. 20 2098 Arts 24–25 1630 Art. 29(2) 1630 Discrimination (Employment and Occupation) Convention (1958) (ILO Convention No 111) 1630 Equal Remuneration Convention (1951) (ILO Convention No 100) 1630 Forced Labour Convention (1930) (ILO Convention No 29) 1630 Freedom of Association and Protection of the Right to Organise Convention (1948) (ILO Convention No 87) 1630 Minimum Age Convention (1973) (ILO Convention No 138) 1630 Right to Organise and Collective Bargaining Convention (1949) (ILO Convention No 98) 1630 Statute of the International Labor Organization Art. 19 2210 Statute of the International Labor Organization Administrative Tribunal Art. XII 1987

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Worst Forms of Child Labour Convention (1999) (ILO Convention No 182) 1630

International Law Commission Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (2001) 534 Draft Articles on State Responsibility (ASR) 534, 823 Art. 16 248, 249, 250, 256 Art. 20 190 Art. 21 190 Art. 22 847 Art. 26 130 Art. 27 1191(p. li) Art. 41(2) 249, 250 Art. 48 197 Art. 49 195 Art. 52(1) 197 Statute of the International Law Commission (1947) 535 Art. 1(1) 530

International Maritime Organization (IMO) Agreement between the United Nations and the Inter-Governmental Maritime Consultative Organization (IMCO/IMO) (1959) Art. II(2) 1782 Art. VI 1381 Art. X 2076 Convention establishing the International Maritime Organization (Convention of IMO) (1948) 1644 Art. 11 388, 1699 Art. 59 1619 Art. 62 1809

International Monetary Fund (IMF) Agreement between the United Nations and the International Monetary Fund (1947) 1382, 1704 Art. I(3) 1700

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Art. II(1) 1784 Art. II(3) 1782 Art. VI 1701 Art. XII(2) 1729 Protocol, Art. I(2) 1626 Protocol, Art. IV 1626 Protocol, Art. VI 1626 Articles of Agreement of the International Monetary Fund (1944) Art. I(iii) 1542 Art. IV, s 3(b) 285 Art. X 1808 Art. XII, ss 2–3 1635 Art. XII, s 4 lit c 1635 Art. XIII(l) 1700 Art. XVIII 1636 Art. 26, s 2 384

International Narcotics Control Board (INCB) Single Convention on Narcotic Drugs (1961) 412

International Refugee Organization Agreement between the United Nations and the International Refugee Organization (1948) Art. II 1781

International Telecommunication Union (ITU) Agreement between the United Nations and the International Telecommunication Union (1947) Art. II(1) 1784 Art. VI 1381 Art. VIII 2076(p. lii) International Telecommunications Union Convention (1992) 1642 Art. XXIX 1619

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International Trade Organization (ITO) Havana Charter (1948) 1548

International Tribunal on the Law of the Sea (ITLOS) Statute of the International Tribunal on the Law of the Sea Art. 21 546

League of Arab States Pact of the League of Arab States (1945) Art. 6 1461 Art. 2 1461 Art. 5 1461 Art. 18 384, 1530

League of Nations Agreement concerning the execution of the transfer to the United Nations of certain assets of the League of Nations (1946) 2145 Covenant of the League of Nations (1919) 101, 124, 1122, 1513, 2114, 2256 Art. 1 335 Art. 1(2) 143, 346 Art. 2 388 Art. 2(2) 2115 Art. 3(2) 659, 660, 664 Art. 3(3) 471, 2115 Art. 3(4) 451 Art. 4(1) 143, 752, 875 Art. 4(2) 752 Art. 4(3) 941 Art. 4(4) 471, 2115 Art. 4(5)–(6) 1050 Art. 5 143, 388, 763, 875 Art. 5(1) 557, 875, 876, 877 Art. 5(2) 388, 723, 877, 986, 1029, 1031

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Art. 7(1) 659 Art. 7(3) 391, 417 Art. 8 494, 763 Art. 9 986 Arts 10–17 1120 Art. 10 205, 790 Art. 11 1120, 2115 Art. 11(1) 1239 Art. 11(2) 1108 Art. 12 205, 1120, 1147, 1307, 1589 Art. 12(1) 184 Art. 13 205, 1120 Art. 13(1) 1903 Art. 13(4) 205, 1147, 1958, 1959, 1966, 1970 Art. 14 258, 389, 1902, 1978 Art. 14(3) 1903, 1978 Art. 15 205, 1108, 1120(p. liii) Art. 15(1) 1161 Art. 15(4) 877, 1161 Art. 15(4)–(7) 1120 Art. 15(6)–(7) 205 Art. 15(6) 877, 1147 Art. 15(7) 1147 Art. 15(8) 282, 291, 293, 294, 310 Art. 16 258, 1239, 1176, 1240 Art. 16(1) 236, 1306, 1307 Art. 16(2) 1239, 1273, 1331, 1332, 1352 Art. 16(3) 1385 Art. 16(4) 375, 376, 379, 877

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Art. 17 258, 1109, 2115 Art. 17(1) 258, 1065 Art. 17(3) 258 Art. 17(4) 258 Art. 18 2091, 2092, 2098, 2108 Art. 19 555, 556, 557, 558, 566, 1123 Art. 20 2115 Art. 20(2) 2115 Art. 21 1435, 1446 Art. 22 1830, 1843, 1850, 1861, 1868, 1872 Art. 22(1)–(2) 1843 Art. 22(1) 1851 Art. 22(5) 1850, 1862 Art. 22(6) 1863 Art. 22(7) 1843, 1890 Art. 22(9) 1843, 1884, 1887 Art. 22(a) 986 Art. 23(c) 1561 Art. 23(d) 864 Art. 23(e) 1668 Art. 24 1623, 1702, 1795 Art. 26(2) 2216 Art. 48 177 Preamble 110 Rules of Procedure of the League Council 375 Art. 9(3) 877

North Atlantic Treaty Organization North Atlantic Treaty (1949) 1452 Preamble 2131 Art. 5 1421

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Art. 5(2) 1529 Art. 7 1457

Organization of American States (OAS) Charter of the Organization of American States (1948) 147, 1530 Art. 2 lit b 1459 Art. 2(c) 184 Art. 24 1468, 1470 Art. 53 388 Art. 54 392(p. liv) Art. 77 392 Art. 137 2131 Preamble Art. 2 1457 Art. 131 1457 Inter-American Democratic Charter (2001) 1460 Protocol of Amendments to the Charter of the Organization of American States (Protocol of Washington) (1992) 1459, 1460

Organization of African Unity (OAU) Agreement between the United Nations and the Organization of African Unity on Cooperation between the Latter and the United Nations Economic Commission for Africa (1965) 1787 Charter of and the Organization of African Unity (1948) Preamble 2131

Permanent Court of International Justice (PCIJ) Statute of the Permanent Court of International Justice (1920) 1122 Art. 1 1972 Art. 2 1924 Art. 4 1903 Art. 8 1903 Art. 10 1903 Art. 10(1)–(2) 882

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Art. 35 1903 Arts 65–68 1978 Arts 71–74 1978

Special Tribunal for Lebanon Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon (2007) Art. 15 898 Statute of the Special Tribunal for Lebanon (2007) Art. 2 1027

United Nations Charter of the United Nations (UNC) (1945) 3, 7, 12, 14, 28, 35, 72, 74, 75, 81, 82, 86, 87, 98, 479 Art. 1 28, 29, 42, 85, 102, 104, 107–20, 121, 123, 126, 127, 128, 132, 169, 170, 183, 465, 811, 812, 814, 1124, 1167, 1456, 1541, 1679, 1686, 1830, 1832, 1849, 2131 Art. 1(1) 104, 105, 108, 110, 111, 113, 114, 118, 161, 192, 216, 266, 471, 475, 508, 510, 561, 562, 771, 772, 1784, 240, 829, 830, 891, 1129, 1137, 1140, 1147, 1157, 1158, 1167, 1170, 1245, 1246, 1247, 1257, 1258, 1260, 1262, 1275, 1323, 1407, 1469, 1850 Art. 1(2) 43, 92, 103, 104, 105, 108, 110, 111, 114, 115, 118, 315, 316, 319, 1258, 1277, 1831, 1850 Art. 1(3) 44, 88, 105, 110, 111, 115, 116, 118, 119, 120, 161, 296, 417, 811, 822, 824, 825, 852, 1000, 1258, 1539, 1569, 1570, 1609, 1679, 1684, 1687, 2121, 2134, 2188 Art. 1(4) 29, 115, 120 Art. 2 28, 29, 42, 102, 104, 108, 109, 116, 121–32, 168, 169, 170, 184, 188, 207, 256, 261, 465, 811, 812, 814, 1124, 1167, 1456, 1521, 2131, 2260(p. lv) Art. 2(1) 7, 49, 51, 103, 122, 125, 128, 129, 133–65, 193, 196, 219, 255, 256, 347, 379, 467, 485, 624, 786, 1048, 1081, 1518, 1674, 1729, 1867 Art. 2(2) 123, 125, 128, 129, 166–80, 238, 255, 256, 379, 813 Art. 2(3) 104, 105, 125, 128, 181–99, 255, 256, 307, 510, 1070, 1071–2, 1073, 1074, 1075, 1085, 1115, 1129, 1136, 1143, 1151, 1157, 1167, 1277, 2188 Art. 2(4) 103, 105, 110, 123, 125, 128, 129, 135, 158, 199–234, 255, 256, 316, 466, 467, 476, 1115, 1147, 1204, 1399, 1400, 1401–4, 1409, 1414, 1456, 1483, 1484, 1492, 1493, 1496, 1501, 1507, 1510, 1520, 1521, 1850, 2117, 2188 Art. 2(5) 105, 125, 127, 128, 129, 235–51, 256, 266, 366, 808, 811, 813, 814, 819, 824, 847, 1386, 1481, 1482, 1483

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Art. 2(6) 105, 122, 123, 126, 127, 128, 130, 135, 252–79, 343, 379, 381, 465, 800, 1143, 1150, 1168 Art. 2(7) 19, 51, 99, 122, 123, 126, 127, 128, 129, 130, 132, 266, 280–311, 347, 366, 379, 465, 467, 499, 560, 831, 920, 1073, 1098, 1127, 1129, 1160, 1167, 1168, 1247, 1257, 1347, 1456, 1481, 1482, 1573, 1579, 1605, 1606, 1609, 1694, 1710, 1712, 1716, 1832, 2195, 2204 Art. 3 335–40, 345, 447, 1951, 2247, 2248 Art. 3(g) 1294 Arts 4–6 479, 781, 893 Art. 4 213, 219, 335, 337, 341–61, 367, 370, 380, 382, 384, 447, 626, 1053, 1528, 2205, 2212 Art. 4(1) 42, 343, 346–50, 1518 Art. 4(2) 42, 351, 447, 478, 461, 792, 1038, 1952, 2251 Art. 5 160, 262, 362–73, 375, 382, 383, 384, 406, 452, 561, 624, 645, 792, 884, 893, 899, 1481, 1483, 2207, 2213 Art. 6 123, 363, 365, 367, 370, 372, 374–86, 561, 624, 655, 884, 893, 1407 Art. 7 61, 126, 387–415, 994, 1263, 1726, 1906, 2147 Art. 7(1) 390, 391, 392, 398, 446, 1668, 1672, 1884, 1886, 1888, 2068 Art. 7(2) 28, 388, 390, 394, 395, 396, 397, 398, 399, 400, 986, 987, 988, 999, 1692, 1740, 1741, 1742, 1818, 1826, 2068, 2070, 2078, 2079 Art. 8 391, 416–44, 2060 Art. 8(1) 856 Art. 9 445–60, 1672 Art. 9(1) 447, 751 Art. 9(2) 92, 451, 455, 755 Arts 10–12 504 Arts 10–13 568 Arts 10–14 480 Arts 10–17 447, 463, 554 Art. 10 114, 238, 446, 461–90, 498, 499, 500, 501, 504, 505, 506, 508, 510, 513, 560, 561, 563, 626, 768, 1031, 1120, 1680, 1832, 1872, 1971, 1980 Art. 10(1)–(2) 465 Arts 11–14 104

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Art. 11 109, 114, 126, 161, 184, 301, 472, 491–506, 513, 560, 561, 562, 563, 626, 768, 769, 771, 856, 1186, 1274 Art. 11(1) 238, 464, 465, 472, 492, 493, 495, 498, 499, 500, 504, 506, 510, 529, 559, 856, 858, 861, 863 Art. 11(2) 38, 238, 254, 256, 258, 263, 464, 469, 470, 472, 473, 475, 478, 493, 498, 499, 500, 501, 502, 503, 504, 505, 506, 508, 509, 510, 517, 559, 563, 772, 779, 900, 1111, 1141, 1186, 1248, 1481, 1482 Art. 11(3) 470, 499, 502–4, 506, 510, 559, 1109, 1120, 1131, 1147, 2010(p. lvi) Art. 11(4) 500, 504–6 Art. 12 109, 184, 220, 468, 471, 507–24, 558, 559, 560, 561, 562, 769, 1137, 1720, 1908 Art. 12(1) 38, 465, 470, 496, 498, 499, 501, 502, 509–16, 519, 781, 1109, 1111, 1129, 1134, 1143, 1159, 1248 Art. 12(2) 520–4, 1037, 2004 Art. 13 88, 109, 114, 126, 161, 238, 417, 499, 525–51, 559, 560, 563, 626, 710, 1606, 1672 Art. 13(1) 464, 470, 493, 1569 Art. 13(1)(a) 526, 527, 528, 529, 784, 1687 Art. 13(1)(b) 105, 296, 528, 551, 1540, 1658 Art. 13(2) 551 Art. 14 109, 114, 128, 129, 238, 499, 500, 508, 510, 552–66, 626, 1122, 1123, 1130, 1133, 1137, 1469 Art. 15 567–74 Art. 15(1) 464, 570, 777, 792, 1716 Art. 15(2) 464, 573, 1690, 1727, 1911 Art. 16 464, 575 Art. 16(1) 1175 Art. 16(2) 1175 Art. 17 50, 479, 576–620, 626, 639, 649, 1177, 1185, 1186, 1727, 1820, 1910, 2004 Art. 17(1) 464, 640, 2057 Art. 17(2) 85, 409, 469, 488, 579, 596, 599, 605, 640, 641, 642, 700, 2150, 2152 Art. 17(3) 464, 592, 610, 1626, 1698

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Arts 18–20 690 Art. 18 50, 92, 384, 400, 447, 591, 621–36, 706, 707, 758, 1980 Art. 18(1) 452, 455, 599, 624, 1729 Art. 18(2) 55, 368, 380, 478, 517, 557, 563, 578, 588, 622, 625, 626, 627, 628, 629, 631, 645, 654, 669, 707, 754, 888, 890, 903, 910, 917, 1674, 1675, 1892, 1981, 2206, 2207, 2209, 2236 Art. 18(3) 563, 622, 624, 625, 627, 628, 631, 707, 890, 903 Art. 19 363, 375, 447, 578, 579, 624, 637–55, 668, 2207 Art. 19(1) 645, 646, 649, 650, 651, 652, 654 Art. 19(2) 646, 648, 651, 653, 699 Arts 20–22 447 Art. 20 518, 523, 657–87, 899, 1110, 2004 Art. 20(2) 669 Art. 21 28, 396, 626, 688–718, 1031, 2209 Art. 22 61, 92, 390, 391, 396, 397, 398, 399, 400, 410, 452, 496, 573, 626, 650, 719–49, 988, 998, 1185, 1726, 1917, 1982, 2147 Art. 22(1) 421 Art. 23 626, 751–60, 884, 1824, 1885, 1910, 2180, 2214, 2217, 2228 Art. 23(1) 93, 160, 447, 751, 754, 755, 2205, 2217, 2219, 2263 Art. 23(2) 753, 754, 2208, 2216, 2218 Art. 23(3) 755 Art. 24 95, 192, 220. 276, 474, 508, 568, 761–85, 812, 814, 865, 867, 891, 952, 986, 1012, 1071, 1073, 1123, 1145, 1162, 1167, 1185, 1256, 1495, 1980 Art. 24(1) 109, 474, 751, 771, 773, 777, 782, 1012, 1070, 1123, 1128, 1129, 1130, 1131, 1135, 1139, 1147, 1153, 1525, 1718, 2214 Art. 24(2) 109, 123, 128, 129, 238, 780, 781, 808, 811, 812, 813, 814, 819, 824, 834, 852, 987, 1000, 1123, 1124, 1167, 1470, 2120(p. lvii) Art. 24(3) 570, 777, 779, 780 Art. 24c(3) 777 Art. 25 85, 95, 96, 238, 239, 240, 241, 265, 276, 397, 410, 501, 780, 787–854, 1016, 1071, 1103, 1104, 1111, 1138, 1144, 1185, 1261, 1333, 1376, 1386, 1387, 1496, 1605, 1606, 1909, 2124 Art. 26 492, 494, 495, 781, 855–70, 1365, 1367, 1372, 1374

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Art. 27 129, 871–938, 1032, 1033, 1054, 1465, 1968, 2214, 2217 Art. 27(1) 884–8, 1729 Art. 27(2) 93, 666, 792, 883, 888–911, 917, 994, 1031, 1034, 1980, 2218, 2236 Art. 27(3) 31, 34, 36, 93, 160, 367, 370, 380, 512, 666, 753, 792, 794, 812, 858, 881, 883–5, 888, 890, 891, 894, 897– 904, 906, 908–27, 1032, 1064, 1096, 1100, 1101, 1122, 1123, 1129, 1130, 1132, 1133, 1144, 1148, 1155, 1156, 1167, 1969, 1980, 2181, 2205 Arts 28–32 890, 900 Art. 28 786, 939–81, 1041, 1465 Art. 28(1) 917, 942, 943–76, 1039 Art. 28(2) 942, 967, 968, 973, 976, 977, 1036, 1039 Art. 28(3) 942, 977–81 Art. 29 61, 390, 391, 396, 397, 398, 399, 400, 410, 411, 414, 415, 422, 867, 890, 897, 983–1027, 1038, 1096, 1134, 1144, 1185, 1186, 1263, 1982, 2147 Art. 30 28, 396, 897, 1028–49, 1060, 1818 Art. 31 31, 895, 896, 897, 902, 1041, 1050–63, 1052, 1053, 1055, 1056, 1057, 1060, 1061, 1064, 1067, 1358, 1772, 1773 Art. 32 32, 254, 263, 266, 358, 381, 895, 896, 897, 902, 923, 1041, 1043, 1044, 1052, 1053, 1054, 1055, 1060, 1064–7, 1117, 1130, 1143, 1165, 1167, 1358, 1772 Arts 33–35 1122 Arts 33–38 307, 510, 924 Arts 33–39 109 Art. 33 198, 900, 920, 923, 1069–85, 1087, 1112, 1113, 1115, 1116, 1126, 1129, 1132, 1141, 1143, 1147, 1151, 1152, 1163, 1300, 1469, 1916, 1969, 1972, 1973 Art. 33(1) 195, 1071, 1072–81, 1085, 1112, 1128, 1129, 1133, 1134, 1136, 1148, 1150, 1151, 1153, 1155, 1162, 1165, 1168, 1186, 1475, 2188 Art. 33(2) 794, 856, 1070, 1072, 1082, 1083–5, 1089, 1103, 1109, 1134, 1144, 1148, 1150 Arts 33ff 1054 Arts 34–36 1123, 1152 Art. 34 256, 266, 510, 794, 856, 900, 920, 923, 1052, 1084, 1086–1107, 1109, 1130, 1131, 1149, 1155, 1446, 1469, 1470, 1471, 1476, 1720, 1966, 1969 Art. 34(1) 792

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Art. 34(2) 794 Art. 35 510, 923, 1052, 1092, 1099, 1108–18, 1128, 1147, 1152, 1153, 1446, 1469, 1470, 1471, 1477, 1966 Art. 35(1) 192, 498, 500, 502, 506, 508, 1111–14, 1117, 1129, 1131, 1149, 1152, 1164, 1165, 2010, 2011, 2017 Art. 35(2) 188, 254, 255, 258, 263, 266, 356, 358, 381, 500, 701, 1043, 1066, 1073, 1114–16, 1131, 1143, 1149, 1150, 1152, 1153, 1160, 1164, 1165, 1452 Art. 35(3) 510, 1118 Arts 36–38 856, 1122, 1126, 1128, 2195 Art. 36 195, 256, 561, 794, 920, 923, 1089, 1103, 1119–45, 1147, 1150, 1155, 1160, 1163, 1166, 1300, 1469, 1471 Art. 36(1) 192, 367, 792, 890, 924, 1071, 1109, 1121, 1123, 1124, 1125, 1128, 1129, 1131, 1132, 1133, 1135, 1137, 1139, 1141, 1142, 1143, 1144, 1149, 1154, 1156, 1162, 1164, 1165, 1168, 1476, 1983 Art. 36(2) 890, 1121, 1128, 1132, 1135, 1136, 1137, 1139, 1156, 1952(p. lviii) Art. 36(3) 792, 920, 921, 922, 1080, 1120, 1121, 1128, 1137–41, 1156, 1170, 1909, 1916, 1917, 1932, 1933, 1972 Arts 37–38 1123, 1124 Art. 37 256, 561, 1128, 1132, 1146–1160, 1465, 1471 Art. 37(1) 510, 1109, 1133, 1147, 1149, 1150, 1151, 1152, 1153, 1154, 1164 Art. 37(2) 367, 792, 924, 1089, 1103, 1104, 1105, 1120, 1124, 1133, 1147, 1148, 1149, 1150, 1151, 1152, 1153–60, 1162, 1165, 1167, 1168, 1476 Art. 38 104, 256, 510, 792, 920, 1103, 1109, 1124, 1150, 1161–70 Arts 39ff 1493, 1496 Arts 39–42 266, 1256 Arts 39–46 1363 Arts 39–47 856 Arts 39–51 208 Art. 39 32, 33, 53, 93, 95, 208, 210, 221, 225, 311, 473, 502, 503, 512, 561, 769, 771, 785, 792, 801, 806, 809, 825, 828, 859, 885, 920, 921, 933, 992, 1016, 1024, 1073, 1100, 1130, 1131, 1144, 1145, 1148, 1160, 1168, 1193, 1230, 1231, 1242, 1260, 1266, 1272–96, 1298, 1299, 1300, 1310, 1341, 1407, 1471, 1495, 1720, 1966, 2181 Art. 40 32, 33, 244, 366, 792, 920, 1135, 1144, 1160, 1260, 1267, 1296, 1297– 1304, 2180

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Art. 41 366, 410, 473, 474, 502, 564, 1248, 792, 1015, 1016, 1260, 1262, 1267, 1269, 1271, 1273, 1275, 1298, 1301, 1302, 1305–29, 1341, 1342, 1348, 1377, 1382, 1383, 1391, 1481, 1483, 1507, 1720, 2180 Art. 42 34, 36, 94, 95, 109, 220, 221, 225, 366, 409, 475, 818, 992, 1175, 1193, 1248, 1259, 1260, 1262, 1263, 1269, 1273, 1275, 1206, 1299, 1301, 1302, 1311, 1312, 1330–50, 1369, 1377, 1382, 1383, 1481, 1483, 1507, 2122, 2126, 2180, 2181 Arts 42ff 1368 Arts 43–47 36, 1370 Art. 43 31, 34, 37, 52, 53, 94, 109, 220, 409, 475, 753, 771, 794, 1045, 1175, 1191, 1241, 1262, 1269, 1333, 1336, 1337, 1340, 1348, 1351–6, 1358, 1359, 1360, 1362, 1368, 1371, 1372, 1376, 1377, 1387, 1497, 1876, 2180, 2181 Art. 43(1) 39, 1353 Art. 43(3) 1354, 1497 Arts 43ff 1367 Art. 44 209, 409, 752, 792, 1357–9 Arts 45–47 1362 Art. 45 409, 1360–1, 1362, 1365, 1367, 1368, 1374, 1481 Art. 46 1362–3, 1365, 1367, 1374 Art. 47 39, 94, 395, 856, 867, 1336, 1358, 1363, 1364–75, 1386, 2224 Art. 47(1) 395, 856, 863, 1367, 1369, 1370, 1372 Art. 47(2) 753, 1366, 1367 Art. 47(3) 1369, 1370, 1371 Art. 47(4) 1366, 1367 Art. 48 109, 239, 240, 265, 501, 792, 888, 1016, 1193, 1263, 1337, 1376–84, 1390, 1481, 1497, 1698 Art. 48(1) 220, 1376, 1481 Art. 48(2) 1376, 1380, 1381, 1382, 1383, 1497, 1498, 1504, 2130 Art. 49 792, 1333, 1385–8, 1390 Art. 50 254, 266, 1312, 1387, 1389–96, 1481 Art. 51 37, 52, 61, 91, 94, 95, 109, 129, 155, 207, 208, 210, 218, 222, 224, 229, 263, 475, 766, 1293, 1296, 1319, 1397–1428, 1434, 1438, 1452, 1459, 1481, 1493, 1508, 1509, 1528, 1529, 1530, 1531, 1913, 1937(p. lix) Arts 52–54 1439

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Art. 52 109, 1127, 1354, 1445–77, 1447, 1525, 1526, 1527 Art. 52(1) 128, 129, 357, 1446–68, 1469 Art. 52(2) 1438, 1448, 1452, 1454, 1455, 1456, 1468–77, 1481, 1499 Art. 52(3) 884, 901, 922, 926, 1080, 1125, 1128, 1438, 1446, 1455, 1456, 1468– 77, 1481, 1499 Art. 52(4) 1080, 1099, 1110, 1446, 1452, 1471, 1475, 1476, 1477, 1499 Art. 53 31, 188, 208, 308, 1234, 1339, 1407, 1438, 1478–1524, 1525–7, 2222, 2223 Art. 53(1) 219, 856, 888, 1143, 1192, 1269, 1440, 1444, 1448, 1455, 1479, 1481–96, 1508, 1510, 1522 Art. 53(1)(1) 1496–9, 1507, 1513, 1527 Art. 53(1)(2) 1496, 1499–1504 Art. 53(1)(2), phrase 2 1506–24, 1527, 2185 Art. 53(2) 1434, 1513, 1515, 1516, 1517, 1518 Art. 53(3) 856 Art. 54 856, 1339, 1450, 1468, 1499, 1525–34 Art. 55 88, 103, 104, 109, 147, 316, 465, 466, 528, 1537, 1539, 1540, 1541, 1543, 1544, 1545, 1573, 1604, 1605, 1654, 1658, 1679, 1683, 1686, 1687, 1698, 1710, 1725, 1832 Art. 55(a) 44, 1535–64, 1609, 1679, 1681, 1682 Art. 55(b) 44, 1535–64, 1609, 1681 Art. 55(c) 296, 417, 1565–1602, 1681, 1684, 1746, 2188 Art. 55 lit c 822, 824 Art. 56 120, 161, 296, 466, 1537, 1539, 1540, 1541, 1543, 1569, 1573, 1603–10, 1683, 1725, 2188 Arts 57–59 1539 Arts 57–60 1663, 1699 Art. 57 33, 44, 355, 409, 449, 610, 611, 1381, 1611–49, 1656, 1682, 1690, 1695, 1726, 1781, 1785, 2061, 2075, 2076 Art. 57(1) 1618, 1619, 1696, 1780 Art. 57(2) 661 Art. 58 44, 1650–5, 1683, 1698

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Art. 59 44, 1656–7, 1688 Art. 60 44, 393, 571, 766, 1539, 1570, 1627, 1657, 1658–65, 1670, 1672, 1682, 1704, 1707, 1724, 1725, 1726, 1727, 1729, 1741, 1781 Art. 60(2) 1723 Art. 61 1666–77, 1910, 2214, 2217 Art. 61(1) 1670, 1672–5, 1684, 1694, 1772, 2218 Art. 61(2) 1675–6, 1694, 2219, 2220 Art. 61(3) 1676, 2208, 2216 Art. 61(4) 1676–7 Arts 62–64 84 Arts 62–66 167 Art. 62 88, 1544, 1606, 1678–96, 1698, 1707, 1709, 1720, 1805 Art. 62(1) 138, 1679, 1681–3, 1686, 1711 Art. 62(2) 138, 238, 196, 1569, 1684–6 Art. 62(3) 1686–8 Art. 62(4) 1686, 1688–9, 1783 Arts 63–66 1679, 1690 Art. 63 33, 355, 449, 610, 611, 1381, 1627, 1659, 1670, 1690, 1695, 1697–1708, 1709, 1780, 1785, 1961, 2061, 2075 Art. 63(1) 44, 1683, 1711, 1719, 1781, 1982 Art. 63(2) 1682, 1683, 1707, 1710, 1780(p. lx) Art. 64 177, 1697, 1709–17 Art. 64(1) 1710, 1711, 1712, 1713, 1715, 1716, 1717 Art. 64(2) 1710, 1716–17 Art. 65 1695, 1701, 1718–22 Art. 65(1) 1690 Art. 65(3) 1690 Art. 66 393, 1670, 1672, 1707, 1723–7 Art. 66(1) 1690, 1723, 1724, 1741 Art. 66(2) 1627, 1690, 1718, 1723, 1725

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Art. 66(3) 1690, 1718, 1726 Art. 67 400, 1728–35, 1817 Art. 67(1) 1729 Art. 67(2) 910, 1730–1, 1892 Arts 68–71 1817 Arts 68–72 1690, 1772 Art. 68 396, 397, 399, 1569, 1570, 1593, 1692, 1734–5, 1736–71, 1776, 1818, 2070 Art. 69 1675, 1703, 1729, 1733, 1772–8, 1782, 1791 Art. 70 355, 1627, 1698, 1743, 1779–87, 1791, 1797, 1822 Art. 71 1690, 1788–1815 Art. 72 28, 1816–28 Art. 72(1) 1031, 1733, 1742, 1817–18, 1824, 1826 Art. 72(2) 1676, 1690, 1817, 1818, 1821 Art. 73 109, 319, 345, 357, 1829–38, 1850 Art. 73(a) 1830 Art. 73(b) 1830, 1831 Art. 73(c) 1831 Art. 73(e) 299, 1831, 1832, 1833, 1834, 2004 Art. 73 lit (e) 319 Art. 74 1830, 1838, 1840 Art. 75 1841–8, 1864, 1868, 1871 Art. 76 109, 1830, 1849–60, 1865, 1876, 1879 Art. 76(a) 1850–1, 1876, 1881 Art. 76(b) 1851–9, 1876, 1891 Art. 76(c) 417, 1569, 1850, 1859–60, 1876 Art. 76(d) 1839, 1850, 1860, 1877 Art. 77 396, 1523, 1696, 1830, 1861–6, 1868, 1871, 2223 Art. 77(1)(a) 1845, 1867, 1871 Art. 77(1)(b) 1871, 2188

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Art. 77(1)(c) 1865, 1871 Art. 77(2) 1864 Art. 78 103, 154, 1867 Art. 79 1851, 1862, 1868–70, 1871, 1873 Art. 80 1868, 1871–2 Art. 80(1) 1872 Art. 81 381, 1868, 1873–4 Arts 82–83 95, 1868 Art. 82 1875–7 Art. 83 1875, 1876, 1876–80, 1888, 2221 Art. 83(1) 575, 856, 1888, 1895 Art. 83(2) 1876 Art. 83(3) 856, 1875, 1888, 1890 Art. 84 109, 1850, 1881(p. lxi) Art. 85 1868, 1882, 2222 Art. 85(1) 1851, 1882, 1884 Art. 85(2) 1885, 1891 Art. 85(3) 1885 Art. 86 1882, 1883–6, 1910 Art. 86(1) 1892 Art. 86(1)(c) 1845 Art. 87 393, 1877, 1887–9 Art. 87(a) 1890, 1891 Art. 87(b) 1831, 1851 Art. 87(c) 1886, 1889 Art. 87(d) 1888 Art. 88 1850, 1851, 1877, 1890–1 Art. 89 400, 1729, 1892 Art. 89(2) 1892

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Art. 90 28, 396, 1893–4 Art. 90(1) 1031, 1818, 1893 Art. 90(2) 1894 Art. 91 1690, 1727, 1895–6 Arts 92–96 1906 Art. 92 90, 122, 370, 371, 1080, 1137, 1897–1950, 1973, 2146 Art. 92(1) 1906 Art. 92(2) 1904 Art. 93 1931, 1951–6 Art. 93(1) 370, 381, 1906 Art. 93(2) 254, 263, 381, 792, 901, 1906, 1951 Art. 94 1906, 1922, 1942, 1954, 1955, 1957–71 Art. 94(1) 238, 1959, 1960, 1961, 1962, 1964, 1965, 1971, 2125 Art. 94(2) 366, 781, 792, 901, 921, 1140, 1159, 1249, 1907, 1959, 1960, 1966, 1967, 1968, 1969, 1970, 1971 Art. 95 1906, 1972–4 Art. 96 91, 771, 1906, 1932, 1937, 1975–90 Art. 96(1) 310, 893, 901, 921, 1122, 1138, 1978, 1979, 1980, 1986 Art. 96(2) 90, 1690, 1703, 1979, 1980, 1987, 2005 Arts 97–99 2043 Art. 97 39, 561, 893, 902, 948, 1187, 1991–2001, 2044, 2060 Art. 98 39, 40, 572, 994, 1014, 1037, 1186, 1187, 1263, 1683, 1690, 1727, 1838, 2002–8, 2010, 2012, 2013 Art. 99 39, 109, 184, 394, 502, 1109, 1125, 1147, 1187, 1981, 1993, 2000, 2001, 2002, 2005, 2009–21 Art. 100 2022–52, 2075 Art. 100(1) 2031 Art. 101 399, 401, 418, 2031, 2053–88, 2205 Art. 101(1) 2000, 2039, 2055, 2057, 2060, 2124 Art. 101(2) 2055, 2057, 2058, 2060, 2068, 2172

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Art. 101(3) 421, 427, 439–40, 441, 2039, 2057, 2060, 2064, 2078, 2083, 2084, 2085, 2087, 2088 Arts 102–111 2255 Art. 102 1932, 1933, 2089–2109 Art. 102(1) 2092–2105, 2106 Art. 102(2) 254, 1869, 2105–9 Art. 103 73, 78, 88, 97, 123, 131, 191, 266, 415, 785, 786, 850, 851, 852, 853. 854, 887, 1013, 1048, 1261, 1262, 1270, 1456, 1457, 1470, 1509, 1519, 1528, 1701, 1871, 1909, 1932, 2110–37(p. lxii) Art. 104 109, 410, 2138–57 Art. 105 109, 2046, 2147, 2158–78 Art. 105(1) 2165–9 Art. 105(2) 2025, 2169–73 Art. 105(3) 2162 Art. 106 475, 753, 1337, 2179–82 Art. 107 31, 188, 219, 560, 563, 1507, 1508, 1509, 1511, 1512, 1514, 1516, 1519, 1522, 1523, 1524, 2183–98, 2222, 2223 Art. 108 28, 30, 32, 33, 34, 73, 82, 91, 391, 481, 485, 622, 753, 754, 882, 883, 912, 1170, 1883, 2199–231, 2233, 2234, 2235, 2236, 2238, 2240, 2241 Art. 109 28, 29, 32, 33, 73, 82, 91, 131, 391, 481, 485, 622, 753, 882, 2201, 2202, 2203, 2204, 2208, 2232–41 Art. 109(1) 883, 930, 2219, 2233, 2234, 2236, 2237, 2240 Art. 109(2) 30, 34, 882, 912, 2233, 2234, 2237, 2238 Art. 109(3) 29, 884, 2233, 2234, 2236, 2239, 2240 Art. 110 3, 35, 337, 1951, 2210, 2243–52 Art. 110(1) 2211, 2244, 2251, 2263 Art. 110(2) 2004, 2211, 2246, 2256, 2263 Art. 110(3) 20, 753, 2245, 2246 Art. 110(4) 2247, 2248, 2251, 2263 Art. 111 83, 217, 2253–64 Ch I 107–20, 378 Ch II 363, 781

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Ch IV 28, 105, 463, 559, 781, 786, 897 Ch V 28, 472, 781, 889, 895, 988 s B, para 6 553 Ch VI 104, 105, 184, 303, 367, 472, 559, 772, 781, 793, 794, 829, 856, 878, 880, 884, 888, 889, 891, 893, 895, 900, 916, 920, 923, 925, 926, 927, 931, 988, 1012, 1070, 1071, 1085, 1087, 1089, 1091, 1103, 1104, 1113, 1120, 1121, 1122, 1123, 1124, 1126, 1127, 1129, 1130, 1133, 1144, 1145, 1149, 1150, 1157, 1162, 1166, 1167, 1168, 1170, 1186, 1246, 1247, 1274, 1303, 1323, 1434, 1443, 1469, 1475, 1476, 1487, 1540, 1916, 1966, 1969, 2180 s A 751 Ch VII 31, 37, 52, 85, 95, 104, 105, 114, 123, 129, 156, 184, 207, 217, 225, 226, 233, 237, 238, 239, 242, 243, 246, 247, 250, 251, 268, 269, 270, 271, 276, 303, 304, 305, 307, 333, 363, 367, 375, 376, 382, 467, 472, 473, 474, 501, 559, 760, 768, 769, 772, 781, 785, 790, 793, 809, 818, 819, 820, 825, 828, 829, 830, 832, 833, 839, 865, 888, 889, 893, 900, 916, 931, 932, 988, 989, 997, 1000, 1012, 1013, 1071, 1120, 1122, 1123, 1123, 1126, 1127, 1128, 1130, 1144, 1145, 1148, 1151, 1166, 1168, 1175, 1186, 1203, 1213, 1214, 1217, 1231, 1236, 1237–71, 1274, 1278, 1279, 1281, 1287, 1292, 1294, 1296, 1299, 1303, 1310, 1323, 1336, 1339, 1344, 1346, 1348, 1359, 1360, 1362, 1370, 1372, 1377, 1379, 1380, 1385, 1387, 1388, 1390, 1399, 1401, 1434, 1443, 1444, 1476, 1481, 1487, 1490, 1492, 1493, 1497, 1499, 1533, 1626, 1865, 1866, 1907, 1909, 1913, 1966, 1968, 2121, 2122, 2126, 2129, 2134, 2180 Ch VIII 129, 238, 308, 472, 856, 888, 901, 988, 1099, 1125, 1127, 1143, 1186, 1206, 1429–44, 1447, 1449, 1450, 1451, 1452, 1453, 1454, 1455, 1456, 1458, 1459, 1461, 1465, 1466, 1478, 1479, 1486, 1488, 1495, 1498, 1499, 1525, 1528, 1529, 1533, 2185 Ch IX 105, 115, 463, 528, 551, 1443, 1539, 1540, 1640, 1674, 1679 Ch X 44, 105, 115, 463, 528, 551, 1540, 1659, 1663, 1666–77, 1679, 1721, 1723 (p. lxiii) Ch XI 42, 318–19, 1541, 1829–39, 1842, 1846 Ch XII 42, 318–19, 463, 575, 781, 856, 1186, 1347, 1541, 1830, 1841–8, 1864 Ch XIII 28, 42, 394, 463, 575, 1347, 1541, 1830, 1831, 1846, 1883–6, 2221 Ch XIV 28, 104, 781, 1897–1950 Ch XV 28, 463, 1991–2001 Ch XVI 2089–2109, 2224 Ch XVII 2179–82, 2186 Ch XVIII 1907, 2199–231 Ch XIX 2243–52

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Preamble 101–6, 121, 1569 para 2 147, 417, 1407, 1539 para 4 1407, 1539 para 7 209, 216 para 8 1539

Agreements Agreement between Germany and the United Nations concerning the Headquarters of the UN Volunteers Programme (1995) 360 Agreement between the Government of the Federal Republic of Germany, the United Nations and the Secretariat of the Convention on the Conservation of Migratory Species of Wild Animals concerning the headquarters of the Convention Secretariat (2002) 2164 Agreement between the United Nations and Kenya (regarding UNEP) (1972) 2164 Agreement between the United Nations and Romania relating to the establishment of a demographic centre in Bucharest (1974) Art. I(5) 2150 Agreement between the United Nations and the Government of Egypt concerning the status of UNEF in Egypt (1957) 2156 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (2002) Appendix II 1026 Agreement between the Republic of Austria and United Nations regarding the seat of the United Nations in Vienna (1995) 2164 Agreement establishing the Common Fund for Commodities (1980) Art. 29 1619 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (1945) Art. 6(c) 1018 Agreement governing the Activities of States on the Moon and other Celestial Bodies (1979) 542 Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) 1646 Art. 73(c) 2131 Agreement regarding the Headquarters of the United Nations (United Nations-United States of America) (1947) 2164, 2169 Art. III/7 2166

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Art. III/8 2166 Art. IV/11 2173, 2176, 2177 Art. IV/13 2177 Art. IV/13a 2173, 2174 Art. IV/13b 2170, 2174 Art. IV/15 2175 Art. V/15 2173, 2174 Art. V/15(2) 2174, 2175(p. lxiv) Agreement relating to the headquarters of the Economic Commission for Asia and the Far East in Thailand (1954) 2149 Basic Agreement between the United Nations and the Congo (1960) 2144 Headquarters Agreement between Austria and the United Nations (1995) Art. X s 29 360 Art. XI s 32 lit b 360 Headquarters Agreement between the United States and the United Nations (1947) Art. III, s 7(b) 2154 Art. IV 360 Multilateral Agreement on Trade in Goods (1994) Art. XXI(c) 2131 Seat Agreement (United Nations–Switzerland) (1947) 2164, 2169 Art. II/5 2168 Art. IV/9 2173 Art. IV/9d 2173 Art. IV/13 2173 Art. V/16 2170 Trusteeship Agreement for the Territory of Nauru (1947) Art. 3 1852 Art. 5 1852 Trusteeship Agreement for New Guinea (1946) 1858, 1859 Trusteeship Agreement with the United States for the Pacific Islands (1947) Arts 2–7 1876

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Art. 5 1879 Art. 5(3) 1877 Art. 6 1879 Art. 8(1)–(3) 1877 Arts 9–12 1876 Art. 13 1877, 1888, 1890 Art. 14 1876 Art. 16 1876 Trusteeship Agreement for Somaliland (1950) Art. 3 1852 Art. 16 1869 Art. 24 1874 Preamble 1869 Trusteeship Agreement for Tanganyika (1946) 1846 Art. 2 1851 Art. 3 1852 Art. 6 1852 Art. 92 1852

Charters Charter of Economic Rights and Duties of States (1974) 123, 479, 486, 1548 Art. 1 1549 Art. 2 1549 Art. 2(1) 150 Art. 2(2)(c) 1549 Art. 6 1549 Art. 10 1550 Art. 13 1549 Art. 18 1549(p. lxv)

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Covenants Covenant against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (1984) Art. 2 1225 International Covenant on Civil and Political Rights (ICCPR) (1966) 315, 413, 551, 1576, 1579, 1580, 1582, 1588, 1594, 1684, 1938, 2129 Art. 1 43, 322, 1584, 1838 Art. 1(1)–(3) 322 Art. 1(3) 1835 Art. 2 1225 Art. 2(1) 1584 Art. 4 825, 1584 Art. 4(1)–(2) 825 Art. 5(1) 1584 Art. 14 825, 2166 Art. 17 1006 Arts 21–22 1584 Art. 23 1006 Art. 25 1006 Art. 40(4) 1581, 1595 Art. 41 1597 Art. 43 413 International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) 315, 413, 551, 1574, 1576, 1579, 1580, 1582, 1588, 1592, 1594, 1597, 1684, 1938 Art. 1 43, 322, 1584, 1828 Art. 1(1)–(3) 322 Art. 1(3) 1835 Art. 2 1225 Art. 2(1) 1581 Art. 2(3) 1584 Art. 4 1584

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Art. 13 1584 Art. 15 1584 Art. 21 1581

Declarations Declaration by United Nations (1942) 13 Preamble 336 United Nations Declaration and Programme of Action on a Culture of Peace (1999) 1562 United Nations Declaration of Four Nations on General Security (Moscow Declaration) (1943) 13, 144, 2179 para 5 2180 United Nations Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (1963) 479, 482, 486, 541 United Nations Declaration on Measures to Eliminate International Terrorism (1994) 539 United Nations Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (1986) 540 United Nations Declaration of the Rights and Duties of Nations (1916) Art. III 145(p. lxvi) United Nations Declaration on Environment and Development (Rio Declaration) (1988) 1553, 1693, 1751 Principle 15 1553 United Nations Declaration on Fact-finding by the UN in the Field of the Maintenance of International Peace and Security (1991) 539, 1088, 1103 para 7 1089 para 15 1089 Annex 187 United Nations Declaration on International Cooperation in the Exploration and Use of Outer Space (1996) UNGA Res 51/122 (13 December 1996) 542 United Nations Declaration on Social Progress and Development UNGA Res 2542 (XXIV) (11 December 1969) 1555 United Nations Declaration on the Establishment of a New International Economic Order UNGA Res 3201 (S-VI) (1 May 1974) 1548

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United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples UNGA Res 1514 (XV) (14 December 1960) 320, 479, 486, 1686, 1835, 1858 United Nations Declaration on Inadmissibility of Intervention in Domestic Affairs of States and Protection of their Independence and Sovereignty, UNGA Res 2131 (XX) (21 December 1965) 149 United Nations Declaration on Permanent Sovereignty over Natural Resources (14 December 1962) 479 United Nations Declaration on the Enhancement of Cooperation between the United Nations and Regional Arrangements or Agencies in the Maintenance of International Peace and Security UNGA Res 49/57 (9 December 1994) 1441 United Nations Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations UNGA Res 42/22 (18 November 1987) 208, 213 United Nations Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, Annex to UNGA Res 36/103 (9 December 1981) 149 United Nations Declaration on Principles of International Law concerning Friendly Relations and Co-operation of States in Accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 October 1970) 43, 92, 105, 117, 120, 123, 125, 148, 149, 157, 161, 162, 170, 179, 186, 195, 208, 209, 212, 230, 256, 288, 320, 321, 327, 379, 406, 479, 483, 486, 539, 780, 865, 892, 1540, 1608, 1690, 1830, 1835, 1836, 1838, 1840, 1914 Principle 1, para 6 197 Principle 2 186 United Nations Declaration on the Elimination of Discrimination against Women UNGA Res 2263 (XXII) (7 November 1967) 551 Art. 6 423 Art. 10 423 United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 December 1960) 92 United Nations Declaration on the Rights of Indigenous Peoples UNGA Res 61/295 (13 September 2007) 479, 1558, 1686, 1858 Arts 1–4 1558 Art. 7(1) 1558 Art. 8(j) 1559 Arts 10–12 1558 Art. 14 1558(p. lxvii) Art. 19 1558

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United Nations Declaration on the Prevention and Removal of Disputes and Situations which May Threaten International Peace and Security and on the Role of the UN in this Field (5 December 1988) 539, 1138, 1163 Declaration on the Right of Peoples to Peace UNGA Res 39/11 (12 November 1984) 110 Art. 48 197 United Nations Declaration on the Rights of National or Ethnic, Religious and Linguistic Minorities UNGA Res 47/135 (18 December 1992) 301 United Nations Manila Declaration on the Peaceful Settlement of Disputes of 1982, Annex to UNGA Res 37/10 (15 November 1982) 162, 195, 479, 539, 1079, 1134, 1151, 1162, 1915, 1972 Ch 1, para 1 192 Ch 1, para 2 196, 198 Ch 1, para 3 198 Ch 1, para 5 190 Ch 1, para 8 197 Ch 1, para 12 193, 194 Pts I–II 186 Pt II.2 1145 Pt II.4(a) 1151 Pt II.4(e) 1154 United Nations Millennium Declaration UNGA Res 55/2 (8 September 2000) 187, 521, 693, 696, 1442, 2001, 2228 Universal Declaration of Human Rights UNGA Res 217 (III) (10 December 1948) 92, 123, 296, 479, 482, 551, 1576, 1578, 1599, 1891 Art. 1 1577 Art. 2 1574, 1577 Arts 3–20 1577 Art. 8 822 Arts 10–13 822 Arts 13ff 1577 Art. 17 822, 1577 Art. 21 1577

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Arts 29–30 1577 Preamble 1608

Institutions United Nations Administrative Tribunal (UNAT) Statute of the United Nations Administrative Tribunal Art. 11 2050 Relationship Agreement between the United Nations and the United Nations Industrial Development Organization (entry into force on 17 December 1985) 1625 Art. 3(b) 1688 Art. 9 1704 Art. 12 lit a 1703

United Nations Commission on International Trade Law (UNCITRAL) Conciliation Rules (1980) 538 Legal Guide on Drawing up International Contracts for the Construction of Industrial Works (1987) 568 Legal Guide on Electronic Funds Transfers (1987) 537(p. lxviii) Legal Guide on International Counter-trade Transactions (1992) 537 Legislative Guide on Insolvency Law (2004) 538 Legislative Guide on Privately Financed Infrastructure Projects (2000) 538 Legislative Guide on Secured Transactions (2007) 538 Model Law on Cross-Border Insolvency (1997) 538 Model Law on International Commercial Arbitration (1985) 538 Model Law on International Commercial Conciliation (2002) 538 Model Law on International Credit Transfer (1992) 537 Model Law on Procurement of Goods, Construction and Services (1994) 538 Notes on Organizing Arbitral Proceedings (1996) 538 Practice Guide on Cross-Border Insolvency Cooperation (2009) 538

United Nations Dispute Tribunal (UNDT) Statute of the United Nations Dispute Tribunal (2009) UN Doc A/RES/63/253 Art. 2, s 5 2067

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Art. 2, s 9 2084 Art. 11, s 3 2068

United Nations Educational, Scientific and Cultural Organization (UNESCO) Agreement between the United Nations and the United Nations Educational, Scientific and Cultural Organization (UNESCO) (entered into force 14 December 1946) Art. III(2) 1782 Art. III(6) 1784 Art. VI 1381 Art. VIII 1702 Art. XI(1) 1703 Art. XV(1) 1704 UNESCO Constitution (1945) 1562 Art. I 3 285 Art. II(4)–(5) 1699 Arts IV–VI 1632 Art. VI 2060 Art. 10 1619

United Nations Industrial Development Organization (UNIDO) Agreement between the United Nations and the United Nations Industrial Development Organization (UNIDO) UNGA Res 40/180 (17 December 1985) Art. 3(a) 1784 Art. 3(b) 1782 Constitution of the United Nations Industrial Development Organization UN Doc A/ CONF90/19 (1979) 1647 Art. 7 388 Art. 18 1662 Art. 19(1)(b) 1808 Art. 21 (1) 2146 Art. 21(2)(b) 2146

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Convention establishing the United Nations Industrial Development Organization (1979) Art. XVIII 1619

Principles Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (1982) 542(p. lxix) Principles Relating to the Remote Sensing of the Earth from Outer Space (1986) 542 Principles Relevant to the Use of Nuclear Power Sources in Outer Space (1999) 543

Resolutions Commission on Human Rights UNCHR Res 1992/39 (28 February 1992) 299 UNCHR Res 2000/3 (7 April 2000) 294

Economic and Social Council ECOSOC Res 1/1 (15 February 1946) 1657 ECOSOC Res 1/3 (16 February 1946) 1657 ECOSOC Res 1/4 (16 February 1946) 1797 ECOSOC Res 5(I) (16 February 1946) 1685 ECOSOC Res 8(I) (16 February 1946) 1707 ECOSOC Res 11(I) (16 February 1946) 1744 ECOSOC Res 9(I) (16 February 1946) 407 ECOSOC Res 2/3 (21 June 1946) 1797 ECOSOC Res 3(II) (21 June 1946) 1744, 1798, 1826 ECOSOC Res 11 (I) (1946) 1826 ECOSOC Res 11 (II) (21 June 1946) 422 ECOSOC Res 72/3 (21 June 1946) 1797 ECOSOC Res 13 (III) (21 September 1946) 2076 ECOSOC Res 13 (IID) 21 September 1946 1661 ECOSOC Res 35 (IV) (28 March 1947) 1657 ECOSOC Res 36 (IV) (28 March 1947) 1777, 2148 ECOSOC Res 36 (IV) and 37 (IV), 28 March 1947 1744

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ECOSOC Res 51 (IV) (8 March 1947) 1546 ECOSOC Res 62 (V) (28 July 1947) 1657 ECOSOC Res 69 (V) (31 July 1947) 1746 ECOSOC Res 76 (V) (5 August 1947) 1684 ECOSOC Res 100 (V) (12 August 1947) 1828 ECOSOC Res 106 (VI) (25 February and 5 March 1948) 1744, 1777, 1784 para 3 1777 ECOSOC Res 112 (VI) (11March 1948) 1727 ECOSOC Res 154B (VII) (20 August 1948) 421 ECOSOC Res 168 (VII) (23 July 1948) 1700 ECOSOC Res 172 (VII) (13 August 1948) 1724 ECOSOC Res 214 B (VIII) (16 February 1949) 1720 ECOSOC Res 222 A (IX) (14 August 1949) 1726 ECOSOC Res 2217 (IX) (15 August 1949) 1546 ECOSOC Res 227 (X) (17 February 1950) 1685 ECOSOC Res 253 (IX) (28 July 1949) 1724 ECOSOC Res 277 00 (17 February 1950) 1631 ECOSOC Res 288 B (X) (27 February 1950) 1797, 1799, 1800, 1801, 1811 para 13 1791 para 40(f) 1807 ECOSOC Res 323 (XI) (14 August 1950) 1721 ECOSOC Res 363 (XII) (14 March 1951) 1702 ECOSOC Res 368 (XIII) (22 August 1951) 1682 ECOSOC Res 454 (XIV) (28 July 1952) 1806 ECOSOC Res 455 (XIV) (25 June 1952) 1807 ECOSOC Res 497 D (XVI) (28 July 1953) 1713(p. lxx) ECOSOC Res 517 A (XVII) (22 April 1954) 1777 ECOSOC Res 528 (XVII) (1 April 1954) 1713 ECOSOC Res 594 (XX) (15 December 1955) 1777 ECOSOC Res 609 (XXI) (26 April 1956) 1716

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ECOSOC Res 635 (XXII) (19 December 1956) 1713 ECOSOC Res 664 A, B (XXIV) (1 August 1957) 1713 ECOSOC Res 671 (XXV) (29 April 1958) 1744, 1784 ECOSOC Res 694 E (XXVI) (31 July 1958) 1713 ECOSOC Res 715A (XXVII) (23 April 1959) 1826 ECOSOC Res 728 F (XXVIII) (30 July 1959) 1806 ECOSOC Res 844 (XXXII) (3 August 1961) 1716 ECOSOC Res 888 B (XXIV) (24 July 1962) 1715 ECOSOC Res 920 (XXXIV) (3 August 1962) 581, 1691, 1745, 1826 ECOSOC Res 999 (XXXVI) (19 December 1963) 1774 ECOSOC Res 1030 B (XXXVII) (13 August 1964). 1656 ECOSOC Res 1074 C (XXXIX) (28 July 1965) 1715 ECOSOC Res 1090 F (XXXIX) (31 July 1965) 1713 ECOSOC Res 1171 (XLI) (5 August 1966) 1745 ECOSOC Res 1172 (XLI) (5 August 1966) 1713 ECOSOC Res 1195 (XLII) 16 May 1967 412 ECOSOC Res 1267 (XLIII) (3 August 1967) 1784, 1786, 1791 ECOSOC Res 1277 (XLIII) (4 August 1967) 1716 ECOSOC Res 1280 (XLIII) (4 August 1967) 1652 ECOSOC Res 1296 (XLIV) (25 May 1968) 1744, 1797, 1800, 1801 para 4 1792, 1793 para 7 1792, 1793 para 9 1792 para 12 1791 para 13 1791 para 34 1810 para 36(b) 1800 para 39(f) 1807 Preamble 1792, 1799

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ECOSOC Res 1458 (XLVII) (8 August 1969) 1713 ECOSOC Res 1471 (XLVII) (18 November 1969) 1656 ECOSOC Res 1503 (XLVIII) (27 May 1970) 1684 ECOSOC Res 1536 (XLIX) (27 July 1970) 1810 ECOSOC Res 1566 (L) (3 May 1971) 1707 ECOSOC Res 1592 (L) (21 May 1971) 1724 ECOSOC Res 1600 (LI) (20 July 1971) 1777 ECOSOC Res 1623 (LI) (30 July 1971) para 14 1773 ECOSOC Res 1643 (LI) (30 July 1971) 1661 ECOSOC Res 1757 (LIV) (18 May 1973) 2219 ECOSOC Res 1798 (LV) (24 July 1973) 1721 ECOSOC Res 1818 (LV) (9 August 1973) 1744 ECOSOC Res 1849 (LVI) (16 May 1974) 1810 ECOSOC Res 1851 (LVI) (16 May 1974) 1810 ECOSOC Res 1875 (LVII) (16 July 1974) 1721 ECOSOC Res 1919 (LVIII) (5 May 1975) 1806 ECOSOC Res 1949 (LVIII) (8 May 1975 1775 ECOSOC Res 1998 (LX) (12 May 1976) 424 ECOSOC Res 2012 (LXI) (3 August 1976) 1721(p. lxxi) ECOSOC Res 2026 (LXI) (4 August 1976) 1724 ECOSOC Res 2093 (LXIII) (26 July 1977) 1721 ECOSOC Res 2095 (LXIII) (29 July 1977) 1721 ECOSOC Res 2096 (LXIII) (29 July 1977) 1721 ECOSOC Res 2098 II (LXIII) (3 August 1977) 1713 ECOSOC Res 2101 (LXIII) (3 August 1977 1724 ECOSOC Res 49/1991 (21 June 1981) 407 ECOSOC Res 1982/34 (7 May 1982) 1587 ECOSOC Res 1982/50 (23 July 1982) 1663

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ECOSOC Res 1982/67 (27 October 1982) 1826 ECOSOC Res 37 (1984) (24 May 1984) 407 ECOSOC Res 17 (28 May 1985) 1593 ECOSOC Res 1987/112 (6 February 1987) 1714 ECOSOC Res 1988/77 (29 July 1988) 1714 ECOSOC Res 1989/56 (24 May 1989) 2074 ECOSOC Res 1989/114 (28 July 1989) 1714 ECOSOC Res 1990/12 (24 May 1990) 425 ECOSOC Res 1991/46 (21 June 1991) 1654 ECOSOC Res 1993/80 (30 July 1993) 1801 ECOSOC Res 1994/1 (14 July 1994) 1745 ECOSOC Res 1994/24 (26 July 1994) 1560, 2074 ECOSOC Res 1994/43 (29 July 1994) 1744 ECOSOC Res 1996/31 (25 July 1996) 1797, 1799, 1801, 1810 para 1 1791 para 4 1793 para 6 1793 paras 9–13 1793 paras 10–12 1800 para 15 1800, 1804 para 18 1791 para 19 1791 paras 22–24 1801 para 24 1803, 1804 para 27 1804 paras 28–29 1802 para 29 1804 paras 30–32 1803 paras 34–37 1805

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para 37(c) 1806 para 38(b) 1805 para 39 1805 para 40 1805 paras 41–44 1810 paras 46–49 1810 paras 50–53 1811 para 55 1811 para 56 18112 para 57 1811 para 57(a) 1806 para 58 1811, 1812 para 59 1812 para 61 1811 para 61(a) 1803(p. lxxii) para 61(c)–(e) 1803 para 61(c) 1804, 1811 para 61(h) 1800 para 62 1802 paras 64–67 1807 paras 69–70 1799 Preamble 1799, 1801, 1807 ECOSOC Res 1997/73 (10 June 1997) para 14 1749 ECOSOC Res 1998/46 (31 July 1998) 1749, 1826 ECOSOC Res 1999/51 (29 July 1999) 1749 ECOSOC Res 1999/65 (26 October 1999) 1826 ECOSOC Res 2000/22 (28 July 2000) 1826 ECOSOC Res 2001/30 (26 July 2001) 1681

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ECOSOC Res 2001/45 (20 December 2001) 1749, 1826 ECOSOC Res 2004/52 (23 July 2004) 1751 ECOSOC Res 2004/69 (11 November 2004) 1826 ECOSOC Res 2010/7 (20 July 2010) 424

ESCWA (Economic and Social Commission for Western Asia) ESCWA Res 197 (XVII) (31 May 1994) 1744

General Assembly UNGA Res 1 (I) (24 January 1946) 495, 865, 997 UNGA Res 2 (I) (1 February 1946) 2261 UNGA Res 4 (I) (14 February 1946) 1797 UNGA Res 5 (1) (14 February 1946) 1705 UNGA Res 9 (I) (9 February 1946) 1832 UNGA Res 11 (I) (24 January 1946) 1998 para 3 1999 para 4(d) 1995 UNGA Res 13(I) (13 February 1946) 2040, 2048, 2058, 2075, 2078 UNGA Res 14 (I) (13 February 1946) 404, 406, 407 UNGA Res 21 (I) (2 April 1947) 1876, 1878 UNGA Res 22 A (13 February 1946) 2162 UNGA Res 23 (I) (10 February 1946) 2091 UNGA Res 24 (I) (12 February 1946) 22, 2103 UNGA Res 28 (I) (9 February 1946) 1744 UNGA Res 39 (I) (12 December 1946) 466, 473 UNGA Res 44 (I) (8 December 1946) 564, 1980 para 2 295 UNGA Res 41 (I) (14 December 1946) 495, 858, 859, 860, 862, 863, 864, 865, 867, 1367 UNGA Res 48 (I) (11 December 1946) 119 UNGA Res 54 (I) (19 November 1946) 412 UNGA Res 56 (I) (11 December 1946) 119

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UNGA Res 57 (I) (11 December 1946) 1555, 2071, 2074 s 2(a) 2148 UNGA Res 61 (I) (14 December 1946) 1538, 1559 UNGA Res 64 (I) (14 December 1946) 1845 UNGA Res 65 (I) (14 December 1946) 1863 UNGA Res 66 (I) (14 December 1946) 1832, 1836 UNGA Res 74 (I) (7 December 1946) 581 UNGA Res 77 (I) (12 December 1946) 661(p. lxxiii) UNGA Res 92 (I) (7 December 1946) 2007 UNGA Res 94 (I) (11 December 1946) 529 UNGA Res 95 (I) (11 December 1946) 548 UNGA Res 97 (I) (14 December 1946) 2091, 2132 UNGA Res 109 (II) (21 October 1947) (threats to the political independence and territorial integrity of Greece) 118, 1176, 1194 UNGA Res 110 (II) (3 November 1947) 118 UNGA Res 111 (II) (13 November 1947) 493, 513, 529, 660 UNGA Res 112 (II) (14 November 1947) 563, 2195 UNGA Res 113 A–H (II) (17 November 1947) 570 UNGA Res 117 (II) (21 November 1947) 893 UNGA Res 119 (II) (31 October 1947) 1715 UNGA Res 125 (II) (20 November 1947) 1713 UNGA Res 129 (II) (17 November 1947) 1724 UNGA Res 141 (II) (1 November 1947) 1863 UNGA Res 144 (II) (3 November 1947) 1833 UNGA Res 146 (II) (3 November 1947) 1832 UNGA Res 147 (II) (20 October 1947) 664 UNGA Res 153 (II) (15 November 1947) 2085 UNGA Res 171 (II) (14 November 1947) 1914 UNGA Res 173 (II) (17 November 1947) 690, 2261 UNGA Res 174 (II) (21 November 1947) 407, 530, 2148

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UNGA Res 177 (II) (21 November 1947) 548 UNGA Res 178 (II) (21 November 1947) 147 UNGA Res 181 (II) (29 November 1947) 473, 502, 515, 563, 1727, 1862, 2182 UNGA Res 186 (S-2) (14 May 1948) 407 UNGA Res 190 (III) (3 November 1948) 118 UNGA Res 191 (III) (4 November 1948) 858 UNGA Res 192 (III) (19 November 1948) 862, 863, 864, 865 UNGA Res 193 (III) (27 November 1948) 473 UNGA Res 194 (III) (11 December 1948) 349, 407 UNGA Res 195 (III) (12 December 1948) 2195 UNGA Res 196 (III) (3 December 1948) 660 UNGA Res 197 A–I (III) (8 December 1948) 570, 1988 UNGA Res 200 (III) (4 December 1948) 1545 UNGA Res 207 (III) (18 November 1948) 1673, 1674 UNGA Res 217 (III) (10 December 1948) (Universal Declaration of Human Rights) 92, 123, 296, 479, 482, 551, 1576, 1578, 1599, 1891 Art. 1 1577 Art. 2 1574, 1577 Arts 3–20 1577 Art. 8 822 Arts 10–13 822 Arts 13ff 1577 Art. 17 822, 1577 Art. 21 1577 Arts 29–30 1577 Preamble 1608 UNGA Res 219 (III) (3 November 1948) 1832 UNGA Res 222 (III) (3 November 1948) 1834 UNGA Res 227 (III) (26 November 1948) 1863 UNGA Res 231 (III) (8 October 1948) 453

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UNGA Res 244 (III) (8 October 1948) 1955 UNGA Res 246 (III) (4 December 1948) 1724(p. lxxiv) UNGA Res 248 (III) (7 December 1948) 1650 UNGA Res 253 (III) (16 October 1948) 449 UNGA Res 257 (III) (3 December 1948) 451 UNGA Res 260 B (II) (9 December 1948) 548 UNGA Res 267 (III) (14 April 1949) 914 UNGA Res 265 (III) (14 May 1949) 116 UNGA Res 272 (III) (30 April 1949) 466, 1575, 2189, 2195 para 3 295 UNGA Res 273 (III) (11 May 1949) 349 UNGA Res 285 (III) (25 April 1949) 301 UNGA Res 289 A (IV) (21 November 1949) 408, 1867 UNGA Res 208 (III) (18 November 1949) 1673 UNGA Res 290 (IV) (1 December 1949) 110 UNGA Res 294 (IV) (22 October 1949) 466, 2195 Preamble 295 UNGA Res 295 (IV) (21 November 1949) 513 UNGA Res 296 A–K (IV) (22 November 1949) 570 UNGA Res 304 (IV) (16 November 1949) 1546 UNGA Res 319 (IV) (3 December 1949) 408, 2071, 2074 UNGA Res 300 (IV) (5 December 1949) 858 UNGA Res 302 (IV) (8 December 1949) 408, 2071, 2074, 2148 para 9 2072 UNGA Res 320 (IV) (15 November 1949) 1853 UNGA Res 323 (IV) (15 November 1949) 1860 UNGA Res 324 (IV) (15 November 1949) 1860 UNGA Res 327 (IV) (2 December 1949) 1833 UNGA Res 332 (IV) (2 December 1949) 1832 UNGA Res 338 (IV) (6 December 1949) 1863, 1980

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UNGA Res 347 (IV) (24 November 1949) 612 UNGA Res 351 (IV) (24 November 1949) 1917 UNGA Res 362 (IV) (22 October 1949) 664, 661 UNGA Res 364 (IV) B (1 December 1949) 2091 UNGA Res 366 (IV) (3 December 1949) (Rules of Procedure for the calling of international conferences of States) r 1 1689 r 2 1688 r 3(1) 1688 r 7(a) 1688 r 8 1783, 1810 UNGA Res 376 (V) (7 October 1950) 37 UNGA Res 377 (V) (3 November 1950) 221, 366 UNGA Res 377 A (V) (3 November 1950) (Uniting for Peace Resolution) 37, 92, 471, 476, 477, 499, 500, 501, 512, 518, 626, 665, 666, 669, 670, 671, 673, 694, 765, 900, 908, 1013, 1175, 1234, 1248, 1701, 1719, 1724, 2127, 2182, 2218 para 1, cl 1 672 para 1, cl 2 671, 672 para 5 672 para 14 116 UNGA Res 380 (V) (17 November 1950) 111, 487 UNGA Res 381 (V) (17 November 1950) 118 UNGA Res 385 (V) (3 November 1950) 2195 para 3 295(p. lxxv) UNGA Res 400 (V) (20 November 1950) (financing of economic development of developing countries) 119 UNGA Res 409 B (V) (1 December 1950), 1673 UNGA Res 409 C (V) (1 December 1950) 1673 UNGA Res 410 (V) (1 December 1950) 1726 UNGA Res 410 A (V) (1 December 1950) (relief and rehabilitation of Korea) 119 UNGA Res 413 (V) (1 December 1950) 1659 UNGA Res 414 (V) (1 December 1950) 1699

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UNGA Res 426 (V) (14 December 1950) 119 UNGA Res 427 (V) (14 December 1950) 2189, 2190, 2196 Preamble 564 UNGA Res 428 (V) (14 December 1950) 2148 UNGA Res 449 (A) (V) (13 December 1950) 1864 UNGA Res 475 (V) (1 November 1950) 626 UNGA Res 477 (V) (1 November 1950) 449, 1462 UNGA Res 479 (V) (14 December 1950) 1689 UNGA Res 482 (V) (12 December 1950) 2091, 2100 UNGA Res 492 (V) (1 November 1950) 1997, 1999 UNGA Res 498 (V) (1 February 1951) 476, 503, 672 UNGA Res 500 (V) (18 May 1951) 267, 476, 672 UNGA Res 502 (VI) (11 January 1952) 407, 495, 862, 863, 864, 865, 868, 997 UNGA Res 507 (VI) (5 February 1952) 668 UNGA Res 509 (VI) (14 December 1951) Preamble 564 UNGA Res 510 (VI) (20 December 1951) 2196 UNGA Res 519 (VI) (12 January 1952) 1727 UNGA Res 538 (VI) (2 February 1952) 2071 UNGA Res 543 (VI) (5 February 1952) 1580 UNGA Res 598 (VI) (12 January 1952) 1687 UNGA Res 590 (VI) (2 February 1952) 420, 2048, 2061 UNGA Res 606 (VI) (1 February 1952) 1807 UNGA Res 611 (VII) (17 December 1952) 301 UNGA Res 612 (VII) (19 December 1952) 301 UNGA Res 613 (VII) (20 December 1952) 1517 UNGA Res 616 (VII) (5 December 1952) 466 UNGA Res 616 A (VII) (5 December 1952) 119 UNGA Res 616 B (VII) (5 December 1952) 1609 UNGA Res 620 A–G (VII) (21 December 1952) 570

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UNGA Res 626 (VII) (21 December 1952) (right to exploit freely natural wealth and resources) 119 UNGA Res 640 (VII) (31 December 1952) 422 UNGA Res 646 (VII) (10 December 1952) 1832 UNGA Res 684 (VII) (6 November 1952) 691 UNGA Res 707 (VII) (23 April 1953) (complaint of Burma against China) 118 UNGA Res 708 (VII) (1 April 1953) 2031 UNGA Res 721 (VIII) (8 December 1953) 301, 466, 564 UNGA Res 741 (VIII) (7 December 1953) 2196 UNGA Res 742 (VIII) (27 November 1953) 1835 para 3 1834 paras 5–6 1835 paras 9–10 1835 Annex 1834(p. lxxvi) UNGA Res 749 A (VIII) (28 November 1953) 1833 UNGA Res 782 (VIII) (9 December 1953) 2048 UNGA Res 784 (VIII) (9 December 1953) 2058 UNGA Res 791 (VIII) (23 October 1953) 691 UNGA Res 802 (VIII) (6 October 1953) 2071 UNGA Res 819 (IX) (11 December 1954) 118 UNGA Res 820 (IX) (14 December 1954) 119, 466 UNGA Res 832 (IX) (21 October 1954) 2071 UNGA Res 844 (IX) (11 October 1954) 695 UNGA Res 847 (IX) (22 November 1954) 1833 UNGA Res 848 (IX) (22 November 1954) 1833 UNGA Res 858 (IX) (4 December 1954) 1856 UNGA Res 886 (IX) (17 December 1954) 2058 UNGA Res 895 (IX) (4 December 1954) 406 UNGA Res 906 (IX) (10 December 1954) 39, 295 UNGA Res 917 (X) (6 December 1955) 466, 1609

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UNGA Res 918 (X) (8 December 1955) 42, 344 UNGA Res 923 (X) (9 December 1955) (establishment of a special United Nations Fund for Economic Development) 119 UNGA Res 933 (X) (8 November 1955) 1832, 1833 UNGA Res 944 (X) (15 December 1955) 1856 UNGA Res 957 (X) (8 November 1955) 409, 2050 UNGA Res 992 (X) (21 November 1955) 2236, 2239, 2240 para 1 35 Preamble, para 3 34 UNGA Res 997 (ES-I) (2 November 1956) 477, 519 UNGA Res 998 (ES-I) (4 November 1956) 38, 39, 477, 1176, 1194 UNGA Res 1000 (ES-I) (5 November 1956) 38, 1176, 1194 UNGA Res 1001 (ES-I) (7 November 1956) 40, 477, 1176, 1194 UNGA Res 1004 (ES-II) (4 November 1956) 295 UNGA Res 1016 (XI) (30 January 1957) 119, 466 UNGA Res 1036 (XI) (26 February 1957) 1705 UNGA Res 1044 (XI) (13 December 1956) 1855 UNGA Res 1075 (XI) (7 December 1956) 453 UNGA Res 1103 (XI) (18 December 1956) 530 UNGA Res 1108 (XI) (16 November 1956) 631 UNGA Res 1127 (XI) (21 November 1956) 295 UNGA Res 1133 (XI) (14 September 1957) 295 UNGA Res 1135 (XII) (24 September 1957) 631 UNGA Res 1143 (XII) (25 October 1957) 407 UNGA Res 1145 (XII) (14 November 1957) Annex, Art. III 1713 UNGA Res 1178 (XII) (26 November 1957) 119, 466 UNGA Res 1181 (XII) (29 November 1957) 631 UNGA Res 1182 (XII) (29 November 1957) 1856 UNGA Res 1192 (XII) (12 December 1957) 447 UNGA Res 1202 (XII) (13 December 1957) 1689, 2004

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UNGA Res 1236 (XII) (14 December 1957) 110 UNGA Res 1239 (XIII) (23 September 1958) 631 UNGA Res 1240 (XIII) (14 October 1958) 400, 1726 UNGA Res 1240 B (XIII) (14 October 1958) 2074 UNGA Res 1248 (XIII) (30 October 1958) 119, 466 UNGA Res 1252 (XIII) (4 November 1958) 868(p. lxxvii) UNGA Res 1256 (XIII) (14 November 1958) 1726 UNGA Res 1300 (XIII) (10 December 1958) 1672 UNGA Res 1332 (XIII) (12 December 1958) 120, 1832, 1833 UNGA Res 1333 (XIII) (13 December 1958) 631 UNGA Res 1348 (XIII) (13 December 1958) 541 UNGA Res 1349 (XIII) (13 March 1959) 1855, 1857 UNGA Res 1350 (XIII) (13 March 1959) 1856 UNGA Res 1351 (XIV) (22 September 1959) 631 UNGA Res 1353 (XIV) (21 October 1959) 265 UNGA Res 1375 (XIV) (17 November 1959) 119 UNGA Res 1386 (XIV) (20 November 1959) 551 UNGA Res 1418 (XIV) (5 December 1959) 1855, 1857 UNGA Res 1416 (XIV) (5 December 1959 1855 UNGA Res 1423 (XIV) (5 December 1959) (international measures to assist in offsetting fluctuations in commodity prices) 119 UNGA Res 1436 (XIV) (5 December 1959) 2041, 2085 UNGA Res 1446 (XIV) (5 December 1959) 41 UNGA Res 1468 (XIV) (12 December 1959) 1833 UNGA Res 1472 A (XIV) (12 December 1959) 407, 541 UNGA Res 1474 (ES-IV) (20 September 1960) 1194, 1388 UNGA Res 1493 (XV) (8 October 1960) 631 UNGA Res 1497 (XV) (31 October 1960) 564, 1084 UNGA Res 1498 (XV) (22 November 1960) 456 UNGA Res 1505 (XV) (12 December 1960) 117

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UNGA Res 1514 (XV) (14 December 1960) 42, 320, 550, 1833, 1834, 1836, 1856 UNGA Res 1522 (XV) (15 December 1960) 1547 UNGA Res 1535 (XV) (15 December 1960) 1833 UNGA Res 1536 (XV) (15 December 1960) 120 UNGA Res 1541 (XV) (15 December 1960) 1835, 1839, 1855 Annex 1839 UNGA Res 1542 (XV) (15 December 1960) 564, 1836 UNGA Res 1559 (XV) (18 December 1960) 2086 UNGA Res 1569 (XV) (18 December 1960) 1857 UNGA Res 1573 (XV) (19 December 1960) 503 UNGA Res 1580 (XV) (20 December 1960) 631 UNGA Res 1594 (XV) (27 March 1961) 400 UNGA Res 1596 (XV) (7 April 1961) 502 UNGA Res 1599 (XV) (4 April 1961) 514 UNGA Res 1600 (XV) (4 April 1961) 514 UNGA Res 1603 (XV) (20 April 1961) 1833 UNGA Res 1608 (XV) (21 April 1961) 1855, 1857 UNGA Res 1609 (XV) (21 April 1961) 1857 UNGA Res 1616 (XV) (21 April 1961) 1472 UNGA Res 1626 (XVI) (18 October 1961) 1856, 1857 UNGA Res 1642 (XVI) (6 November 1961) 1856 UNGA Res 1646 (XVI) (6 November 1961) 1856 UNGA Res 1647 (XVI) (6 November 1961) 530 UNGA Res 1652 (XVI) (6 November 1961) 1857 UNGA Res 1654 (XVI) (27 November 1961) 407, 1833, 1896 UNGA Res 1665 (XVI) (4 December 1961) 496 UNGA Res 1668 (XVI) (15 December 1961) 625 UNGA Res 1686 (XVI) (18 December 1961) 117 UNGA Res 1699 (XVI) (19 December 1961) 300, 1833(p. lxxviii)

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UNGA Res 1700 (XVI) (19 December 1961) 1832, 1833 UNGA Res 1710 (XVI) (19 December 1961) 1545 UNGA Res 1711 (XVI) (19 December 1961) 1547 UNGA Res 1712 (XVI) (19 December 1961) 1656 UNGA Res 1714 (XVI) (19 December 1961) 400, 407, 408, 2074 UNGA Res 1722 (XVI) (20 December 1961) 414, 495 UNGA Res 1741 (XVI) (20 December 1961) 1726, 1934 UNGA Res 1743 (XVI) (23 February 1962) 408 UNGA Res 1746 (XVI) (27 June 1962) 1856 UNGA Res 1747 (XVI) (28 June 1962) 1836 UNGA Res 1752 (XVII) (21 September 1962) 1177, 1194, 2006 UNGA Res 1761 (XVII) (6 November 1962) 382, 466, 564 UNGA Res 1803 (XVII) (14 December 1962) (Permanent Sovereignty over Natural Resources) 92, 119, 550 UNGA Res 1810 (XVII) (17 December 1962) 1833 UNGA Res 1815 (XVII) (18 December 1962) (Considerations on the Principles of International Law Concerning Friendly Relations and Co-operation Among States) 116, 780, 892 UNGA Res 1846 (XVII) (19 December 1962) 1833 UNGA Res 1847 (XVII) (19 December 1962) 1832 UNGA Res 1852 (XVII) (19 December 1962) 2086 UNGA Res 1871 (XVII) (20 December 1962) 456 UNGA Res 1898 (XVIII) (11 November 1963) 691 UNGA Res 1899 (XVIII) (13 November 1963) 502 UNGA Res 1904 (XVIII) (20 November 1963) (Declaration on the Elimination of All Forms of Racial Discrimination) 120, 551 UNGA Res 1913 (XVIII) (3 December 1963) 514 UNGA Res 1934 (XVIII) (11 December 1963) 409, 2074 UNGA Res 1940 (XVIII) (11 December 1963) 1656, 1705 UNGA Res 1962 (XVIII) (13 December 1963) 379, 482, 541, 550 UNGA Res 1966 (XVIII) (16 December 1963) 117

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UNGA Res 1970 (XVIII) (16 December 1963) 1833 UNGA Res 1990 (XVIII) (17 December 1963) 447, 698, 717 UNGA Res 1991 A (XVIII) (17 December 1963) 30, 447, 752, 883, 2214, 2218 para 2 2207 para 3 2207, 2209 UNGA Res 1991 B (XVIII) (17 December 1963) 1673, 2214, 2218 para 2 2207 para 3 2207, 2209 UNGA Res 1992 (XVIII) (17 December 1963) 2216, 2218 UNGA Res 1995 (XIX) (30 December 1964) 47, 120, 409, 1660, 1705, 1807, 2071, 2074, 2148 UNGA Res 2006 (XIX) (18 February 1965) 1180 UNGA Res 2011 (XX) (11 October 1965) 449 UNGA Res 2025 (XX) (17 November 1965) 625 UNGA Res 2029 (XX) (22 November 1965) 408, 1546, 1726, 2071, 2074, 2148 UNGA Res 2046 A (XX) (8 December 1965) 2218 UNGA Res 2046 B (XX) (8 December 1965) 2218 UNGA Res 2046 C (XX) (8 December 1965) 1673, 2218 UNGA Res 2054 (XX) (15 December 1965) 467 UNGA Res 2054 A (XX) (19 December 1965) 1383 UNGA Res 2073 (XX) (17 December 1965) 1836 UNGA Res 2074 (XX) (17 December 1965) 502(p. lxxix) UNGA Res 2079 (XX) (18 December 1965) 631 UNGA Res 2089 (XX) (20 December 1965) 1656, 1705 UNGA Res 2095 (XX) (20 December 1965) 400 UNGA Res 2101 (XX) (20 December 1965) 883, 2219 para 2 2207 UNGA Res 2103 A (XX) (20 December 1965) 117 UNGA Res 2105 (XX) (20 December 1965) 1383 UNGA Res 2106 (XX) (21 December 1965) 413

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UNGA Res 2107 (XX) (21 December 1965) 1383 UNGA Res 2109 (XX) (21 December 1965) 1833 UNGA Res 2112 (XX) (21 December 1965) 1859 UNGA Res 2113 B (XX) (21 December 1965) 457 UNGA Res 2131 (XX) (21 December 1965) 149, 487 UNGA Res 2145 (XXI) (27 October 1966) 994, 1838 UNGA Res 2150 (XXI) (4 November 1966) 1652, 2079 UNGA Res 2152 (XXI) (17 November 1966) (purpose of the United Nations Industrial Development Organization) 119, 409, 411, 1551, 1608, 1705, 1807 UNGA Res 2158 (XXI) (25 November 1966) (permanent sovereignty over natural resources) 119 UNGA Res 2166 (XXI) (5 December 1966) 117 UNGA Res 2167 (XXI) (5 December 1966) 117 UNGA Res 2170 (XX) (6 December 1966) 1547 UNGA Res 2181 (XXI) (12 December 1966) 117 UNGA Res 2186 (XXI) (13 December 1966) 409 UNGA Res 2188 (XXI) (13 December 1966) 44, 45, 1659 UNGA Res 2205 (XXI) (17 December 1966) 407, 536, 1551, 2148 UNGA Res 2211 (XXI) (17 December 1966) 2074 UNGA Res 2222 (XXI) (19 December 1966) (outer space) 117, 496 UNGA Res 2233 (XXI) (20 December 1966) 1833 UNGA Res 2241 (XXI) (20 December 1966 2040, 2041 UNGA Res 2248 (S-IV) (19 May 1967) 408, 1838 UNGA Res 2248 (S-V) (19 May 1967) 994 UNGA Res 2252 (ES-V) (4 July 1967) 631 UNGA Res 2263 (XXII) (7 November 1967) 119, 551 Art. 6 423 Art. 10 423 UNGA Res 2323 (XXII) (16 December 1967) 627 UNGA Res 2340 (XXII) (18 December 1967) (sea-bed) 117, 543

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UNGA Res 2347 (XXII) (19 December 1967) 1856, 1858 UNGA Res 2351 (XXII) (19 December 1967) 1833 UNGA Res 2360 (XXII) (19 December 1967) 1652 UNGA Res 2373 (XXII) (12 June 1968) 496 UNGA Res 2415 (XXIII) (17 December 1968) 1547 UNGA Res 2422 (XXIII) (18 December 1968) 1833 UNGA Res 2445 (XXIII) (19 December 1968) 117 UNGA Res 2479 (XXIII) (21 December 1968) 2261 UNGA Res 2452 A (XXIII) (19 December 1968) 631 UNGA Res 2504 (XXIV) (19 November 1969) 1834 UNGA Res 2520 (XXIV) (4 December 1969) 1955 UNGA Res 2529 (XXIV) (5 December 1969) 1656 UNGA Res 2539 (XXIV) (11 December 1969) 2040 UNGA Res 2542 (XXIV) (11 December 1969) 1555 UNGA Res 2552 (XXIV) (12 December 1969) 2240(p. lxxx) UNGA Res 2558 (XXIV) (12 December 1969) 1833 UNGA Res 2621 (XXV) (12 October 1970) 1724 UNGA Res 2625 (XXV) (24 October 1970) (Friendly Relations Declaration) 43, 92, 105, 117, 120, 123, 125, 148, 149, 157, 161, 162, 170, 179, 186, 195, 208, 209, 212, 230, 256, 283, 288, 320, 321, 327, 379, 406, 479, 483, 486, 487, 494, 539, 780, 865, 892, 1540, 1608, 1690, 1830, 1835, 1836, 1838, 1840, 1914 Principle 1, para 6 197 Principle 2 186 UNGA Res 2626 (XXV) (14 October 1970) 1545, 1547 UNGA Res 2636 A (XXV) (13 November 1970) 458 UNGA Res 2647 (XXV) (17 December 1970) 120 UNGA Res 2671 (XXV) (8 December 1970) 467, 494, 1724 UNGA Res 2688 (XXV) (11 December 1970) 1660, 2071 para 61 2072 UNGA Res 2697 (XXV) (11 December 1970) 2240 UNGA Res 2715 (XXV) (15 December 1970) 422

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UNGA Res 2723 (XXV) (15 December 1970) 1914 UNGA Res 2734 (XXV) (16 December 1970) (Declaration on the Strengthening of International Security) 110, 117, 493, 564, 865, 866, 870, 968 UNGA Res 2736 (XXV) (17 December 1970) 2040, 2086 UNGA Res 2743 (XXV) (17 December 1970) 2077, 2078 UNGA Res 2749 (XXV) (17 December 1970) 550 UNGA Res 2750 C (XXV) (17 December 1970) 406, 543 UNGA Res 2758 (XXVI) (25 October 1971) 625, 631, 753 UNGA Res 2782 (XXVI) (6 December 1971) 21 UNGA Res 2793 (XXVI) (7 December 1971) 348, 477, 517, 564 UNGA Res 2799 (XXVI) (13 December 1971) 564 UNGA Res 2818 (XXVI) (14 December 1971) 1914 UNGA Res 2832 (XXVI) (16 December 1971) 496 UNGA Res 2837 (XXVI) (17 December 1971) 691, 698, 707 Annex II 459 UNGA Res 2847 (XXVI) (20 December 1971) 30, 447, 1674, 1729, 2212, 2219 para 4 2207, 2209 paras 5–6 2216, 2219 para 7 2220 UNGA Res 2862 (XXVI) (20 December 1971) 458 UNGA Res 2864 (XXVI) (20 December 1971) 569 UNGA Res 2874 (XXVI) (20 December 1971) 1724 UNGA Res 2908 (XXVII) (2 November 1972) 1837 UNGA Res 2939 (XXIV) (11 December 1969) 2086 UNGA Res 2948 (XXVII) (8 December 1972) 458 UNGA Res 2951 (XXVII) (11 December 1972) 409 UNGA Res 2968 (XXVII) (14 December 1972) 2240 UNGA Res 2991 (XXVII) (15 December 1972) 569 UNGA Res 2997 (XXVII) (15 December 1972) 405, 408, 1807, 2071, 2074 UNGA Res 3019 (XXVII) (18 December 1972) 408

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UNGA Res 3028 (XXVII) (18 December 1972) 1724 UNGA Res 3042 (XXVII) (19 December 1972) 2075 UNGA Res 3067 (XXVIII) (16 November 1973) 543 UNGA Res 3070 (XXVIII) (30 November 1973) 228 UNGA Res 3081 (XXVIII) (6 December 1973) 409, 2074 UNGA Res 3082 (XXVIII) (6 December 1973) 123, 1548 UNGA Res 3101 (XXVIII) (11 December 1973) 609(p. lxxxi) UNGA Res 3113 (XXVIII) (12 December 1973) 300 UNGA Res 3151 (XXVIII) (14 December 1973) 467 UNGA Res 3172 (XXVIII) (17 December 1973) 1704 UNGA Res 3181 (XXVIII) (17 December 1973) 457 UNGA Res 3182 (XXVIII) (18 December 1973) 405 UNGA Res 3186 (XXVIII) (18 December 1973) 569 UNGA Res 3189 (XXVIII) (18 December 1973) 691, 2261 UNGA Res 3190 (XXVIII) (18 December 1973) 691 UNGA Res 3191 (XXVIII) (18 December 1973) 691 UNGA Res 3201 (S-VI) (1 May 1974) 47, 1548 UNGA Res 3202 (S-VI) (1 May 1974) 47 UNGA Res 3208 (XXIX) (11 October 1974) 449 UNGA Res 3210 (XXIX) (14 October 1974) 1724 UNGA Res 3212 (XXIX) (1 November 1974) 503, 564, 1079, 1082 UNGA Res 3232 (XXIX) (12 November 1974) 1915 UNGA Res 3233 (XXIX) (12 November 1974) 178 UNGA Res 3236 (XXIX) (22 November 1974) 356 para 5 189 UNGA Res 3236 (XXIX) (22 November 1974) 1724 UNGA Res 3237 (XXIX) (22 November 1974) 449, 695, 702, 703, 1688, 1724, 1775 UNGA Res 3246 (XXIX) (29 November 1974) 228, 1836 UNGA Res 3275 (XXIX) (10 December 1974) 1810

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UNGA Res 3276 (XXIX) (10 December 1974) 424 UNGA Res 3280 (XXIX) (10 December 1974) 450, 1775 UNGA Res 3281 (XXIV) (12 December 1974) 123 UNGA Res 3283 (XXIX) (12 December 1974) para 3 1079 UNGA Res 3284 (XXIX) (13 December 1974) 1856, 1859 UNGA Res 3314 (XXIX) (14 December 1974) (Definition of Aggression) 123, 208, 467, 487, 494, 539, 1294, 1407 Art. 1 209 Art. 3 232, 1410 Art. 3(a)–(b) 1410 Art. 3(c) 1410, 1411 Art. 3(d) 1411, 1413 Art. 3(e) 1413, 1414 Art. 3(g) 1408, 1410, 1414, 1415 Art. 3(2) 1415 Art. 5(2) 232 Art. 6 210 Art. 7 229 UNGA Res 3322 (XXIX) (16 December 1974) 569 UNGA Res 3327 (XXIX) (16 December 1974) 2148 UNGA Res 3346 (XXIX) (17 December 1974) 1645 UNGA Res 3348 (XXIX) (17 December 1974) 1661 UNGA Res 3349 (XXIX) (17 December 1974) 35, 2240 UNGA Res 3351 (XXIX) (18 December 1974) 2004 UNGA Res 3355 (XXIX) (18 December 1974) 2262 UNGA Res 3357 (XXIX) (18 December 1974) 405 UNGA Res 3362 (S-VH) (16 September 1975) 1656, 1747 UNGA Res 3362 (S-VII) (16 September 1975) 406, 1547 UNGA Res 3366 (XXX) (19 September 1975) 570

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UNGA Res 3369 (XXX) (10 October 1975) 449(p. lxxxii) UNGA Res 3376 (XXX) (10 November 1975) 189 UNGA Res 3379 (XXX) (10 November 1975) 487 UNGA Res 3392 (XXX) (29 November 1975) 1741, 1745 UNGA Res 3395 (XXX) (20 November 1975) 564 UNGA Res 3416 (XXX) (8 December 1975) para 3 439 UNGA Res 3417 A (XXX) (8 December 1975) 2065 UNGA Res 3452 (XXX) (9 December 1975) 551 UNGA Res 3490 (XXX) (12 December 1975) 424 UNGA Res 3499 (XXX) (15 December 1975) 35, 2241 UNGA Res 3520 (XXX) (15 December 1975) 424 paras 9–10 424 UNGA Res 31/3 (18 October 1976) 449 UNGA Res 31/4 (21 October 1976) 1836 UNGA Res 31/6 A (26 October 1976) 1392 UNGA Res 31/26 (29 November 1976) 2027, 2065, 2086 UNGA Res 31/93 (14 December 1976) 1745 UNGA Res 31/96 (14 December 1976) 691 UNGA Res 31/108 (16 December 1976) 1810 UNGA Res 31/152 (20 December 1976) 449, 695, 702 UNGA Res 31/154 (20 December 1976) 246 UNGA Res 31/179 (21 December 1976) 1810 UNGA Res 31/184 (21 December 1976) 1810 UNGA Res 31/192 (22 December 1976) 581, 1651, 2079 UNGA Res 31/193 B II (22 December 1976) 2061 UNGA Res 32/7 (1 November 1977) 1836 UNGA Res 32/116 (16 December 1977) Pt B, Preamble 246 UNGA Res 32/154 (19 December 1977) 865

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UNGA Res 32/156 (19 December 1977) 1617 UNGA Res 32/162 (19 December 1977) 2074 UNGA Res 32/181 (19 December 1977) 1547 UNGA Res 32/197 (20 December 1977) 48, 1661, 1663, 1671, 1706, 1746, 2059 Annex para 12 411 UNGA Res S-10/2 (30 June 1978) 113, 414 UNGA Res S-10/2 (13 July 1978) para 1 865 para 5 865 Annex 870 UNGA Res 33/12 (3 November 1978) 717 UNGA Res 33/18 (10 November 1978) 449 UNGA Res 33/38 (13 December 1978) Pt B, Preamble 246 UNGA Res 33/73 (15 December 1978) 110, 118 UNGA Res 33/131 (19 December 1978) 1392 UNGA Res 33/138 (19 December 1978) 447, 715, 718 UNGA Res 33/141 (19 December 1978) 2091, 2103 UNGA Res 33/143 (20 December 1978) 2027, 2065 Pt III, para 1 425 UNGA Res 34/37 (21 November 1979) 1474 UNGA Res 34/46 (23 November 1979) 119 UNGA Res 34/58 (29 November 1979) 1560 UNGA Res 34/88 (11 December 1979) 113(p. lxxxiii) UNGA Res 34/87 B (11 December 1979) 113 UNGA Res 34/91 (12 December 1979) 1836 UNGA Res 34/96 (13 December 1979) 409, 2146 UNGA Res 34/99 (14 December 1979) 105 UNGA Res 34/100 (14 December 1979) 110 UNGA Res 34/103 (14 December 1979) 113

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UNGA Res 34/146 (17 December 1979) (International Convention against the Taking of Hostages) 117 UNGA Res 34/180 (18 December 1979) (adoption of the Convention of the Elimination of All Forms of Discrimination against Women) 119, 413, 424 UNGA Res 34/182 (18 December 1979) 407 UNGA Res 34/218 (19 December 1979) 1705 UNGA Res ES-6/2 (14 January 1980) (Afghanistan) 116, 118 UNGA Res 35/2 (13 September 1980) 449 UNGA Res 35/3 (13 October 1980) 449 UNGA Res 35/37 (20 November 1980) 118 UNGA Res 35/46 (3 December 1980) 113 Annex para 18 865 UNGA Res 35/56 (5 December 1980) 1545 Annex 1560 UNGA Res 35/156 B (12 December 1980) 113 UNGA Res 35/156 J (12 December 1980) 113 UNGA Res 35/158 (12 December 1980) 110 UNGA Res 35/167 (15 December 1980) 359 UNGA Res 35/210 (17 December 1980) 2027, 2064, 2086 UNGA Res 35/212 (17 December 1980) 2047 UNGA Res 36/4 (15 October 1981) 449 UNGA Res 36/34 (18 November 1981) 1118 UNGA Res 36/39 (18 November 1981) 405, 530 UNGA Res 36/43 (19 November 1981) 1560 UNGA Res 36/55 (25 November 1981) 120 UNGA Res 36/103 (9 December 1981) 149 UNGA Res 36/92 D (9 December 1981) 113 UNGA Res 36/101 (9 December 1981) 105 UNGA Res 36/102 (9 December 1981) 118 UNGA Res 36/104 (9 December 1981) 118 UNGA Res 36/105 (10 December 1981) 1836

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UNGA Res 36/106 (10 December 1981) (Draft Code of Offences against Mankind) 117, 548 UNGA Res 36/110 (10 December 1981) (on a declaration on the peaceful settlement of disputes) 118 UNGA Res 36/131 (14 December 1981) 119 UNGA Res 36/133 (14 December 1981) 119 UNGA Res 36/229 (18 December 1981) 1664 UNGA Res 36/232 (18 December 1981) 2047 UNGA Res ES-7/4 (28 April 1982) para 9b 246 UNGA Res 37/2 (21 October 1982) 1383 UNGA Res 37/9 (4 November 1982) para 1 191 UNGA Res 37/10 (15 November 1982) 162, 494, 539, 1915, 1972 UNGA Res 37/66 (3 December 1982) 414 UNGA Res 37/99 K (13 December 1982) 406, 409 UNGA Res 37/117 (16 December 1982) 105(p. lxxxiv) UNGA Res 37/119 (16 December 1982) 112 UNGA Res 37/126 (17 December 1982) s II, para 2 2041 s IV, para 5 2041 UNGA Res 37/236 (21 December 1982) 2047 UNGA Res 38/12 (16 November 1983) para 1 191 UNGA Res 38/36 (1 December 1983) 512 UNGA Res 38/68 (15 December 1983) 113 UNGA Res 38/71 B (15 December 1983) 110 UNGA Res 38/124 (16 December 1983) 119 UNGA Res 38/131 (19 December 1983) 186 UNGA Res 38/161 (19 December 1983) 1552

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UNGA Res 38/180 (19 December 1983) Pt A, paras 9, 13, 14; Pt D, para 11; Pt E, paras 2, 3 246 UNGA Res 38/191 (20 December 1983) 112 UNGA Res 38/227 (2 December 1983) 615 UNGA Res 38/320 (19 December 1983) 2047 UNGA Res 39/5 (30 October 1984) (Kampuchea) 118 UNGA Res 39/6 (1 November 1984) para 1 191 UNGA Res 39/11 (12 November 1984) (Declaration on the Right of Peoples to Peace) 110 UNGA Res 39/13 (15 November 1984) 118, 1074 UNGA Res 39/27 (20 December 1984) 2083 UNGA Res 39/46 (10 December 1984) 413 UNGA Res 39/57 (12 December 1984) 113 UNGA Res 39/58 (12 December 1984) 113 UNGA Res 39/59 (12 December 1984) 117 UNGA Res 39/79 (13 December 1984) 186 UNGA Res 39/145 (14 December 1984) 119 UNGA Res 39/146 (14 December 1984) Pt A, para 11; Pt B, paras 13–14 246 UNGA Res 39/148 H (17 December 1984) 409, 2074 UNGA Res 39/157 (17 December 1984) 118 UNGA Res 39/158 (17 December 1984) 112 UNGA Res 39/160 (17 December 1984) 110 UNGA Res 39/217 (18 December 1984) 1706 UNGA Res 39/244 (18 December 1984) 2047 UNGA Res 39/245 (18 December 1984) 424 UNGA Res 40/3 (24 October 1985) 110, 113 UNGA Res 40/12 (13 November 1985) 118, 1074 UNGA Res 40/21 (27 November 1985) para 1 191

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UNGA Res 40/64 (10 December 1985) 413 UNGA Res 40/68 (11 December 1985) 185 UNGA Res 40/86 (12 December 1985) 113 UNGA Res 40/87 (12 December 1985) (outer space) 117 UNGA Res 40/94 A–O (12 December 1985) 113 UNGA Res 40/108 (13 December 1985) 424 UNGA Res 40/124 (13 December 1985) 119 UNGA Res 40/125 (13 December 1985) 120 UNGA Res 40/168 (16 December 1985) Pt A, para 11; Pt B, paras 9, 13–14 246(p. lxxxv) UNGA Res 40/151 A–I (16 December 1985) 113 UNGA Res 40/155 (16 December 1985) 110 UNGA Res 40/159 (16 December 1985) 112 UNGA Res 40/180 (17 December 1985) 409 UNGA Res 40/237 (18 December 1985) 407, 1746, 2059 UNGA Res 40/250 (18 December 1985) 1664 UNGA Res 40/258 (18 December 1985) 424, 2047 UNGA Res 41/30 (3 November 1986) 1836 UNGA Res 41/33 (5 November 1986) para 4 1082 para 7 1074 UNGA Res 41/39 (20 November 1986) 502 para 7 503 para 17 503 UNGA Res 41/40 (25 November 1986) 191 UNGA Res 41/41 A (2 December 1986) 1836 UNGA Res 41/59 A–O (3 December 1986) 113, 863, 865 UNGA Res 41/60 A–J (3 December 1986) 113 UNGA Res 41/61 (3 December 1986) 113 UNGA Res 41/74 (3 December 1986) 185 UNGA Res 41/86 A–R (4 December 1986) 113

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UNGA Res 41/90 (4 December 1986) 111 UNGA Res 41/92 (4 December 1986) 186 UNGA Res 41/162 (4 December 1986) Pt A, para 11; Pt B, paras 9, 13–14 246 UNGA Res 41/172 (5 December 1986) 409 UNGA Res 41/205 (11 December 1986) 2047 UNGA Res 41/206 (11 December 1986) 2027, 2061 UNGA Res 41/206 A (11 December 1986) 2065 UNGA Res 41/206 C (11 December 1986) 2065 UNGA Res 41/207 (11 December 1986) 2061 UNGA Res 41/208 (11 December 1986) 2061 UNGA Res 41/213 (19 December 1986) 50, 453, 583, 588, 589, 614, 615, 711, 2059 II, para 6 50 UNGA Res 42/10 (28 October 1987) 449 UNGA Res 42/15 (10 November 1987) para 4 1082 UNGA Res 42/19 (17 November 1987) para 1 191 UNGA Res 42/22 (18 November 1987) 539 Annex II, para 17 1079 UNGA Res 42/93 (7 December 1987) 186 UNGA Res 42/118 (7 December 1987) 120 UNGA Res 42/150 (7 December 1987) 186 UNGA Res 42/211 (21 December 1987) 583, 615 UNGA Res 42/219 (21 December 1987) 2047 para 3 2047 UNGA Res 42/220 (21 December 1987) 2027, 2086 UNGA Res 42/221 (21 December 1987) s II 2042 UNGA Res 42/229 A (2 March 1988) para 2 361(p. lxxxvi) UNGA Res 42/230 (23 March 1988) 361

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UNGA Res 43/20 (3 November 1988) para 7 1082 UNGA Res 43/25 (17 November 1988) para 1 191 UNGA Res 43/48 (30 November 1988) 361 UNGA Res 43/49 (2 December 1988) 361 UNGA Res 43/51 (5 December 1988 186, 539, 1138 UNGA Res 43/53 (6 December 1988) para 5 412 UNGA Res 43/88 (7 December 1988) 968 UNGA Res 43/160 (9 December 1988) 695 UNGA Res 43/163 (9 December 1988) 186 UNGA Res 43/171 (9 December 1988) 171, 192, 1840 UNGA Res 43/173 (9 December 1988) 540 UNGA Res 43/177 (15 December 1988) 356, 449 UNGA Res 43/196 (20 December 1988) 1553 UNGA Res 43/224 (21 December 1988) 2027, 2041 UNGA Res 43/225 (21 December 1988) 2047 para 2 2047 UNGA Res 43/232 (1 March 1989) 640 UNGA Res 44/6 (17 October 1989) 449 UNGA Res 44/15 (1 November 1989) para 7 1074, 1082 UNGA Res 44/23 (17 November 1989) 186, 527 UNGA Res 44/27 A (22 November 1989) 189 UNGA Res 44/31 (4 December 1989) 186 UNGA Res 44/39 (4 December 1989) 548 UNGA Res 44/61 (8 December 1989) 120 UNGA Res 44/114 (15 December 1989) 110, 113 UNGA Res 44/126 (15 December 1989) 968

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UNGA Res 44/185 (19 December 1989) 2027, 2041 UNGA Res 44/186 (19 December 1989) 2047 para 12 2047 UNGA Res 44/198 (21 December 1989) s IIIC 2042 UNGA Res 44/225 (22 December 1989) 547 UNGA Res 44/240 (29 December 1989) 227 UNGA Res 45/6 (16 October 1990) 450, 696 UNGA Res 45/40 (28 November 1990) 540, 1915 UNGA Res 45/41 (28 November 1990) 548 UNGA Res 45/80 (12 December 1990) 968 UNGA Res 45/99 (14 December 1990) 120 UNGA Res 45/129 (14 December 1990) 424 UNGA Res 45/158 (18 December 1990) 551 UNGA Res 45/176 (19 December 1990) 189 UNGA Res 45/179 (21 December 1990) 2074 UNGA Res 45/199 (21 December 1990) 1545 UNGA Res 45/212 (21 December 1990) 482 UNGA Res 45/239 (21 December 1990) 2027, 2037 UNGA Res 45/239 C (21 December 1990) 426 UNGA Res 45/240 (21 December 1990) 2047 para 12 2047(p. lxxxvii) UNGA Res 45/241 (21 December 1990) s IX 2042 UNGA Res 45/264 (13 May 1991) 1663, 1714, 1748 UNGA Res 46/8 (16 October 1991) 449 UNGA Res 46/54 (9 December 1991) 548 UNGA Res 46/59 (9 December 1991) 539 para 13 2011 Annex 187

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UNGA Res 46/62 (9 December 1991) 192 UNGA Res 46/77 (12 December 1991) 447 UNGA Res 46/98 (16 December 1991) 426 UNGA Res 46/129 (17 December 1991) 299 UNGA Res 46/168 (19 December 1991) 1553 UNGA Res 46/182 (19 December 1991) 2070 UNGA Res 46/215 (20 December 1991) 547 UNGA Res 46/232 (2 March 1992) 2027 UNGA Res 46/235 (20 July 1992) 1748 UNGA Res 47/1 (22 September 1992) 270, 338, 372, 383, 384, 460, 1045, 1269, 1952 UNGA Res 47/4 (16 October 1992) 449 UNGA Res 47/12 (29 October 1992) 1461 UNGA Res 47/25 (25 November 1992) 1474 UNGA Res 47/28 (25 November 1992) 2047 UNGA Res 47/33 (25 November 1992) 2165 UNGA Res 47/52 A (9 December 1992) 628 UNGA Res 47/62 (11 December 1992) 54, 756 UNGA Res 47/63 A (11 December 1992) para 7 503 UNGA Res 47/120 (18 December 1992) 1163 UNGA Res 47/120 A (18 December 1992) Pt II, para 4 2019 UNGA Res 47/128 (18 December 1992) 120 UNGA Res 47/135 (18 December 1992) 301 UNGA Res 47/181 (22 December 1992) 55 UNGA Res 47/191 (22 December 1992) 407, 1554 UNGA Res 47/192 (22 December 1992) 547 UNGA Res 47/197 (22 December 1992) 1559 UNGA Res 47/199 (22 December 1992) 1714 UNGA Res 47/217 (23 December 1992) (Peacekeeping Reserve Fund) 596

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UNGA Res 47/226 (8 April 1993) 2027, 2031 UNGA Res 47/233 (17 August 1993) 463, 465, 779 UNGA Res 47/235 (14 September 1993) 643 UNGA Res 47/120 B (20 September 1993) 303, 565 UNGA Res 48/2 (13 October 1993) 449 UNGA Res 48/3 (13 October 1993) 449 UNGA Res 48/4 (13 October 1993) 449 UNGA Res 48/5 (13 October 1993) 449 UNGA Res 48/26 (3 December 1993) 54, 893, 1060, 1103, 2241 UNGA Res 48/37 (9 December 1993) 539 UNGA Res 48/83 (16 December 1993) 968 UNGA Res 48/88 (20 December 1993 1952 UNGA Res 48/94 (20 December 1993) 189 UNGA Res 48/124 (20 December 1993) 294, 306 UNGA Res 48/132 (20 December 1993) 120(p. lxxxviii) UNGA Res 48/141 (20 December 1993) 1591, 1592, 2070, 2074 para 3(a) 298 UNGA Res 48/162 (20 December 1993) 1714, 1748 UNGA Res 48/194 (21 December 1993) 547 UNGA Res 48/218 B (29 July 1994) 1651, 2070 UNGA Res 48/237 (24 March 1994) 449 UNGA Res 48/258 A (23 June 1994) para 7 458 UNGA Res 48/264 (29 July 1994) 447, 691, 697 UNGA Res 48/265 (24 August 1994) 449, 696 UNGA Res 49/1 (17 October 1994) 449, 1468 UNGA Res 49/2 (19 October 1994) 449, 696 UNGA Res 49/10 (3 November 1994) 503 UNGA Res 49/37 (9 December 1994) 294 UNGA Res 49/53 (9 December 1994) 549

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UNGA Res 49/57 (9 December 1994) 111, 1441 UNGA Res 49/58 (9 December 1994) 2222 UNGA Res 49/59 (9 December 1994) 539, 1188, 2046 UNGA Res 49/60 (9 December 1994) 539 UNGA Res 49/75 K (15 December 1994) 1981 UNGA Res 49/121 (19 December 1994) 547 UNGA Res 49/126 (19 December 1994) para 1 55 UNGA Res 49/130 (19 December 1994) 1745 UNGA Res 49/187 (23 December 1994) 120 UNGA Res 49/222 (23 December 1994) 2027 UNGA Res 49/238 (31 March 1995) 2047 UNGA Res 49/251 (20 July 1995) 643 UNGA Res 50/6 (27 October 1995) 2227 UNGA Res 50/25 (5 December 1995) 547 UNGA Res 50/50 (11 December 1995) 187, 539 UNGA Res 50/52 (15 December 1995) 2222, 2223, 2241 UNGA Res 50/54 (11 December 1995) 1917, 1982, 2050 UNGA Res 50/55 (29 January 1996) 1883, 2221 UNGA Res 50/70 (12 December 1995) 110, 113 UNGA Res 50/80 B (12 December 1995) 110 UNGA Res 50/81 (14 December 1995) 1556 UNGA Res 50/107 (20 December 1995) 1559 UNGA Res 50/120 (20 December 1995) 1714 UNGA Res 50/203 (22 December 1995) 426 UNGA Res 50/206 C (23 December 1995) paras 6–8 697 UNGA Res 50/227 (24 May 1996) 1714, 1748 Annex I, para 37 1683 UNGA Res 51/1 (15 October 1996) 449

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UNGA Res 51/6 (24 October 1996) 449 UNGA Res 51/36 (9 December 1996) 547 UNGA Res 51/68 (12 December 1996) 119 UNGA Res 51/100 (12 December 1996) 120 UNGA Res 51/122 (13 December 1996) 542 UNGA Res 51/136 (13 December 1996) 628, 2241 UNGA Res 51/160 (16 December 1996) 549 UNGA Res 51/193 (17 December 1996) 569(p. lxxxix) UNGA Res 51/204 (17 December 1996) 449 UNGA Res 51/205 (17 December 1996) 999 UNGA Res 51/210 (17 December 1996) 539 UNGA Res 51/219 (18 December 1996) 294, 303 UNGA Res 51/226 (3 April 1997) 2027, 2038, 2041 s II, para 5 2028 UNGA Res 51/227 (3 April 1997) 2047 UNGA Res ES-10/2 (25 April 1997) 477, 503 UNGA Res 51/240 (20 June 1997) 56, 1658, 1664, 1748 UNGA Res 51/241 (31 July 1997) 691, 692, 1997 para 59 1999 UNGA Res 51/243 (15 September 1997) 2039 UNGA Res 52/6 (22 October 1997) 449 UNGA Res 52/12 A (12 November 1997) 427, 1749 UNGA Res 52/12 B (19 December 1997) 1748, 1995, 2221 UNGA Res 52/13 (20 November 1997) 494 UNGA Res 52/29 (26 November 1997) 547 UNGA Res 52/48 (9 December 1997) 298 UNGA Res 52/100 (12 December 1997) para 45 427 UNGA Res 52/119 (12 December 1997) 294, 306 UNGA Res 52/161 (16 December 1997) 2224

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UNGA Res 52/163 (15 December 1997) 698 UNGA Res 52/164 (15 December 1997) 539 UNGA Res 52/193 (18 December 1997) 1559 UNGA Res 52/194 (18 December 1997) 1559 UNGA Res 52/211 B (19 December 1997) para 2 194 UNGA Res 52/217 (22 December 1997) 2039 UNGA Res 52/218 (22 December 1997) 2039 UNGA Res 52/220 (22 December 1997) 2039 UNGA Res 52/232 (4 June 1998) 661, 663 UNGA Res 52/234 (26 June 1998) 2038, 2039 UNGA Res 52/248 (26 June 1998) 2039 UNGA Res 52/250 (7 July 1998) 449, 695 UNGA Res 53/5 (15 October 1998) 449 UNGA Res 53/6 (15 October 1998) 449 UNGA Res 53/11 (26 October 1998) 2039 UNGA Res 53/30 (23 November 1998) 55, 758, 2227 UNGA Res 53/33 (24 November 1998) 547 UNGA Res 53/87 (7 December 1998) 2176 UNGA Res 53/101 (8 December 1998) (Principles and guidelines for international negotiations) 187, 294, 494, 540 UNGA Res 53/105 (8 December 1998) 549 UNGA Res 53/108 (8 December 1998) 539 UNGA Res 53/118 (9 December 1998) 119 UNGA Res 53/154 (9 December 1998) 120 UNGA Res 53/165 (9 December 1998) 501 UNGA Res 53/198 (15 December 1998) 1559 UNGA Res 53/203 A (18 December 1998) para 2 194 UNGA Res 53/218 (7 April 1999) 2039

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UNGA Res 53/221 (7 April 1999) 2027, 2038, 2039, 2086(p. xc) UNGA Res 53/224 (7 April 1999) 663 UNGA Res 53/239 (8 June 1999) 661, 663 UNGA Res 53/243 (13 September 1999) 294, 1126, 1562 UNGA Res 54/4 (6 October 1999) 438 UNGA Res 54/28 (17 November 1999) 187, 2100 UNGA Res 54/64 (6 December 1999) 2262 UNGA Res 54/107 (9 December 1999) 999, 1394 UNGA Res 54/109 (9 December 1999) 539 UNGA Res 54/111 (9 December 1999) 531 UNGA Res 54/139 (17 December 1999) on the improvement of the status of women in the Secretariat 427 UNGA Res 54/168 (17 December 1990) 294, 306 UNGA Res 54/181 (17 December 1999) 120 UNGA Res 54/183 (17 December 1999) 467, 510, 511 UNGA Res 54/189 A (17 December 1999) para 2 194 UNGA Res 54/195 (17 December 1999) 1452 paras 2–3 448 UNGA Res S-23/3 (10 June 2000) Annex 431 UNGA Res 54/264 (15 June 2000) 2039 UNGA Res 55/2 (8 September 2000) (Millennium Declaration) 494, 693, 696, 1442, 1664, 2001, 2228 para 30 758 UNGA Res 55/5 A (26 October 2000) 58, 644, 653 para 2 639 UNGA Res 55/5 B (23 December 2000) 640 UNGA Res 55/5 B–F (23 December 2000) 58 UNGA Res 55/12 (1 November 2000) 270, 338, 384, 460, 655

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UNGA Res 55/14 (3 November 2000) 663 UNGA Res 55/87 (4 December 2000) 118 UNGA Res 55/101 (4 December 2000) 1609 UNGA Res 55/109 (4 December 2000) 120 UNGA Res 55/152 (12 December 2000) 531 UNGA Res 55/153 (12 December 2000) 533 UNGA Res 55/156 (12 December 2000) 1394, 1395 UNGA Res 55/160 (12 December 2000) 449 UNGA Res 55/161 (12 December 2000) 449 UNGA Res 55/174 A (19 December 2000) 246, 510, 511 para 2 194 UNGA Res 55/235 (23 December 2000) 603, 640, 642 para 1(a) 642 UNGA Res 55/258 (14 June 2001) 2027 UNGA Res 55/278 (12 July 2001) 2074 UNGA Res S-26/2 (2 August 2001) 1560 UNGA Res 55/285 (7 September 2001) 488, 691, 692 UNGA Res 56/1 (12 September 2001) 494, 511 UNGA Res 56/6 (9 November 2001) 118 UNGA Res 56/83 (12 December 2001) 195 Annex 126, 248 UNGA Res 56/86 (12 December 2001) 1394, 1395 UNGA Res 56/87 (12 December 2001) 1395 UNGA Res 56/88 (12 December 2001) 1004 UNGA Res 56/93 (12 December 2001) 540(p. xci) UNGA Res 56/142 (19 December 2001) 118 UNGA Res 56/152 (19 December 2001) 1609 UNGA Res 56/154 (19 December 2001) 118, 294, 306 UNGA Res 56/205 (21 December 2001) 1745 UNGA Res 56/206 (21 December 2001) 1745

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UNGA Res 56/220 A (21 December 2001) 511 para 3 194 UNGA Res 56/243 A (24 December 2001) 511 para 5 639 UNGA Res 56/509 (8 July 2002) 488, 713 UNGA Res 57/4 B (20 December 2002) para 2 639 UNGA Res 57/24 (19 November 2002) 1395 UNGA Res 57/25 (19 November 2002) 1395 UNGA Res 57/26 (19 November 2002) 1163 UNGA Res 57/30 (19 November 2002) 449 UNGA Res 57/32 (19 November 2002) 450 UNGA Res 57/113 (6 December 2002) 511 UNGA Res 57/126 (11 December 2002) 693, 1139 UNGA Res 57/198 (18 December 2002) 118 UNGA Res 57/217 (18 December 2002) 1609 UNGA Res 57/224 (18 December 2002) 120 UNGA Res 57/270 B (23 June 2003) 1748 UNGA Res 57/281 (20 December 2002) 2039 UNGA Res 57/300 (20 December 2002) 574 UNGA Res 57/301 (13 March 2003) 662, 693 UNGA Res 57/305 (15 April 2003) 2027 UNGA Res 57/337 (3 July 2003) 494 para 14 1158 Annex, para 25 1155 UNGA Res ES-10/242 (15 October 2003) 516 UNGA Res ES-10/13 (21 October 2003) 516 UNGA Res 58/7 (4 November 2003) 628 UNGA Res 58/8 (4 November 2003) 628 UNGA Res ES-10/14 (8 December 2003) 477, 516

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UNGA Res 58/1 B (12 December 2003) para 11 639 UNGA Res 58/80 (9 December 2003) 1395 UNGA Res 58/126 (19 December 2003) 569, 574 Annex, para 6 716 UNGA Res 58/144 (22 December 2003) 431 UNGA Res 58/163 (22 December 2003) 118 UNGA Res 58/170 (22 December 2003) 120 UNGA Res 58/188 (23 December 2003) 1609 UNGA Res 58/189 (22 December 2003) 118, 294, 306 UNGA Res 58/248 (23 December 2003) 1395, 2221, 2241 UNGA Res 58/269 (23 December 2003) 1706 UNGA Res 58/291 (6 May 2004) 59 UNGA Res 58/316 (1 July 2004) 574 Annex, para 4(c) 571 UNGA Res 58/317 (5 August 2004) 494 UNGA Res 59/1 B (23 December 2004) para 3 639 UNGA Res 59/35 (2 December 2004) 126(p. xcii) UNGA Res 59/44 (2 December 2004) 1395 UNGA Res 59/45 (2 December 2004) 1395 UNGA Res 59/164 (20 December 2004) 431 UNGA Res 59/179 (20 December 2004) 118 UNGA Res 59/187 (20 December 2004) 120 UNGA Res 59/204 (20 December 2004) 1609 UNGA Res 59/266 (23 December 2004) 2027 UNGA Res 59/276 (23 December 2004) 2070 UNGA Res 59/280 (8 March 2005) 540 UNGA Res 59/313 (12 September 2005) 488, 716 para 1(b) 475

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para 2 703 para 15 627 UNGA Res 60/1 (16 September 2005) (2005 World Summit Outcome) 60, 123, 156, 298, 355, 392, 627, 690, 758, 766, 1004, 1061, 1074, 1078, 1203, 1209, 1210, 1222, 1423, 1443, 1489, 1522, 1671, 1681, 1727, 2077, 2220, 2223, 2224, 2229 para 2 117 para 5 117 para 9 1277 paras 73–75 187 paras 73–76 1163 para 77 117 paras 138–40 123 paras 138–139 467, 468, 1223, 1234, 1284, 2001 para 139 225, 298, 302, 468, 767, 1127 para 149 447 paras 155–156 1665, 1671, 1676 para 155 1751 para 155(b)–(c) 1822 para 177 188 UNGA Res 60/7 (1 November 2005) 3 UNGA Res 60/23 (23 November 2005) 1395 UNGA Res 60/42 (8 December 2005) 540 UNGA Res 60/64 (16 December 2005) 294, 306 UNGA Res 60/146 (16 December 2005) 118 UNGA Res 60/156 (23 November 2005) 120 UNGA Res 60/164 (16 December 2005) 118 UNGA Res 60/180 (20 December 2005) 573, 1078, 1694 para 23 1994 UNGA Res 60/237 B (23 December 2005) para 14 639

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UNGA Res 60/251 (15 March 2006) 62, 63, 118, 1588, 1685, 1686 para 1 392 para 8 406 UNGA Res 60/283 (7 July 2006) 619 UNGA Res 60/286 (8 September 2006) 488 para 18 1999 para 20 1998 para 22 1998 UNGA Res 60/288 (8 September 2006) 494, 511 UNGA Res ES-10/16 (17 November 2006) 516 UNGA Res 61/14 (13 November 2006) 1534(p. xciii) UNGA Res 61/16 (20 November 2006) 1671 1677, 1680, 1691, 1692, 1694, 1706, 1714, 1750, 1822 para 3 1745 para 8 1727, 1745 UNGA Res 61/18 (28 November 2006) 511 para 2 194 UNGA Res 61/25 (1 December 2006) para 4 189 UNGA Res 61/37 (4 December 2006) 186 UNGA Res 61/38 (4 December 2006) 1395 UNGA Res 61/39 (4 December 2006) Preamble, para 5 187 UNGA Res 61/44 (4 December 2006) 449, 1467 UNGA Res 61/49 (4 December 2006) 1534 UNGA Res 61/60 (6 December 2006) 498 UNGA Res 61/145 (19 December 2006) 431 UNGA Res 61/152 (19 December 2006) 118 UNGA Res 61/168 (19 December 2006) 120 UNGA Res 61/243 (22 December 2006) para 18 639

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UNGA Res 61/244 (22 December 2006) 2027 UNGA Res 61/261 (4 April 2007) 432, 1917, 2050, 2166 para 4 402 UNGA Res 61/279 (29 June 2007) 2070 UNGA Res 61/292 (2 August 2007) 488 UNGA Res 61/295 (13 September 2007) 479, 1558, 1686 UNGA Res 61/296 (5 October 2007) 1534 UNGA Res 62/68 (6 December 2007) 534 UNGA Res 62/69 (6 December 2007) 1395 UNGA Res 62/70 (6 December 2007) Preamble, para 6 187 UNGA Res 62/83 (10 December 2007) para 6 189 UNGA Res 62/126 (18 December 2007) 1556 UNGA Res 62/146 (18 December 2007) 118 UNGA Res 62/149 (18 December 2007) 298 UNGA Res 62/160 (18 December 2007) 120 UNGA Res 62/166 (18 December 2007) 1609 UNGA Res 62/224 (22 December 2007) 1706 UNGA Res 62/228 (22 December 2007) 402, 1917, 2067, 2166 UNGA Res 62/243 (14 March 2008) 707 UNGA Res 62/276 (15 September 2008) 488 UNGA Res 63/3 (8 October 2008) 467 UNGA Res 63/17 (10 November 2008) 1534 UNGA Res 63/29 (26 November 2008) paras 4–7 189 UNGA Res 63/62 (2 December 2008) 628 UNGA Res 63/99 (5 December 2008) 246 UNGA Res 63/114 (5 December 2008) 1534 UNGA Res 63/127 (11 December 2008) 1395

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UNGA Res 63/128 (11 December 2008) Preamble, para 6 187 UNGA Res 63/165 (18 December 2008) 118(p. xciv) UNGA Res 63/180 (18 December 2008) 120 UNGA Res 63/245 (24 December 2008) 298 UNGA Res 63/250 (24 December 2008) 2025, 2041, 2081 s II, para 15 2041 UNGA Res 63/253 (24 December 2008) 402, 1652, 1917, 1982, 2166 UNGA Res 63/276 (7 April 2009) 2028 UNGA Res 63/308 (14 September 2009) 468 UNGA Res 63/309 (14 September 2009) 488 UNGA Res 63/310 (7 October 2009) 1534, 2021 UNGA Res ES-10/18 (16 January 2009) 477 UNGA Res 64/3 (19 October 2009) 450 UNGA Res 64/11 (9 November 2009) 511 UNGA Res 64/19 (2 December 2009) paras 4–8 189 UNGA Res 64/77 (7 December 2009) 2176 UNGA Res 64/91 (10 December 2009) 465 UNGA Res 64/93 (10 December 2009) 511 UNGA Res 64/112 (16 December 2009) 537 UNGA Res 64/115 (16 December 2009) 1395 UNGA Res 64/116 (16 December 2009) Preamble, para 6 187 UNGA Res 64/126 (16 December 2009) 459 UNGA Res 64/141 (18 December 2009) 431, 2087 UNGA Res 64/150 (18 December 2009) 118 UNGA Res 64/239 (24 December 2009) 643 UNGA Res 64/240 (24 December 2009) 643 UNGA Res 64/244 A (24 December 2009) 640

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UNGA Res 64/248 (24 December 2009) 609 para 12(b) 639 UNGA Res 64/249 (24 December 2009) 609 para 2(a) 642 UNGA Res 64/259 (29 March 2010) para 19 2028 UNGA Res 64/289 (2 July 2010) 67, 437 paras 49–90 2087 UNGA Res 64/298 (9 September 2010) 1988, 2074 UNGA Res 64/301 (13 September 2010) 488, 716 UNGA Res 65/1 (22 September 2010) 494 UNGA Res 65/11 (23 November 2010) 494 UNGA Res 65/16 (30 November 2010) 511 paras 4–9 189 UNGA Res 65/22 (6 December 2010) 537 UNGA Res 65/23 (6 December 2010) 537 UNGA Res 65/24 (6 December 2010) 537 UNGA Res 65/31 (6 December 2010) 2241 UNGA Res 65/32 (6 December 2010) Preamble, para 6 187 UNGA Res 65/34 (6 December 2010) 494, 511 UNGA Res 65/104 (10 December 2010) 511 UNGA Res 65/126 (13 December 2010) 1534 UNGA Res 65/140 (16 December 2010) 1534 UNGA Res 65/191 (21 December 2010) 431 UNGA Res 65/203 (21 December 2010) 294, 298(p. xcv) UNGA Res 65/222 (21 December 2010) 294 UNGA Res 65/241 (24 December 2010) para 30(a) 1079 UNGA Res 65/248 (24 December 2010) 2083

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UNGA Res 65/253 (24 December 2010) para 3 1020 UNGA Res 65/254 (24 December 2010) para 1 642 UNGA Res 65/255 (24 December 2010) 642 UNGA Res 65/256 (24 December 2010) para 2 642 UNGA Res 65/260 A (24 December 2010) 640 UNGA Res 65/265 (1 March 2011) 406, 479 UNGA Res 65/274 (18 April 2011) 1534 UNGA Res 65/276 (3 May 2011) 449, 702, 2252 UNGA Res 65/281 (17 June 2011) para 3 392 UNGA Res 65/308 (14 July 2011) 479 UNGA Res 65/315 (12 September 2011) 447, 488, 692, 694, 702, 716, 717 para 8 702 UNGA Res 65/316 (12 September 2011) 1468 UNGA Res 66/1 A (16 September 2011) 700 UNGA Res 66/11 (18 November 2011) 479 UNGA Res 66/13 (21 November 2011) 511 UNGA Res 66/78 (9 December 2011) 511 UNGA Res 66/79 (9 December 2011) 503 UNGA Res 66/80 (9 December 2011) 503 UNGA Res 66/105 (9 December 2011) 511 UNGA Res 66/176 (19 December 2011) 467 UNGA Res 66/253 (3 August 2012) 467

Human Rights Council UNHRC Res 18/6 (29 September 2011) 294 UNHRC Res 5/1 (18 June 2007) 1589, 1590, 1685 para 18 lit b 358

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Security Council UNSC Res 4 (29 April 1946) 1095, 1096, 1098 UNSC Res 9 (15 October 1946) 1954, 1956 paras 1–2 1955 para 5 1955 UNSC Res 15 (19 December 1946) 1096 UNSC Res 18 (13 February 1947) 860, 862, 863, 864, 865, 997, 1367 UNSC Res 19 (27 February 1947) 1092, 1102 UNSC Res 21 (2 April 1947) 1863 UNSC Res 22 (9 April 1947) 1084 UNSC Res 27 (1 August 1947) 193 UNSC Res 31 (25 August 1947) 1176, 1194 UNSC Res 39 (20 January 1948) 1095 UNSC Res 42 (5 March 1948) 2182 UNSC Res 47 (21 April 1948) 407, 1124, 1135, 1176, 1194 UNSC Res 50 (29 May 1948) 267, 272, 407, 1194 UNSC Res 54 (15 July 1948) 39, 245, 267, 1282, 1299, 1303(p. xcvi) UNSC Res 57 (4 October 1948) 1293 UNSC Res 59 (October 1948) 1303 UNSC Res 62 (16 November 1948) 1299, 1302 UNSC Res 67 (28 January 1949) 1176, 1194 UNSC Res 50 (29 May 1949) 1176 UNSC Res 82 (25 June 1950) 1293, 1300, 1301 para III 239, 245 UNSC Res 83 (27 June 1950) 35, 267, 1175, 1296 UNSC Res 84 (7 July 1950) 267, 1013, 1175 UNSC Res 85 (31 July 1950) para 4 1382 UNSC Res 101 (24 November 1953) para B2 267

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UNSC Res 109 (1955) (14 December 1955) 42 UNSC Res 118 (1956) (13 October 1956) 40, 1084 UNSC Res 119 (1956) (31 October 1956) 38, 512, 518 UNSC Res 120 (4 November 1956) 512, 518 UNSC Res 128 (11 June 1958) 1095, 1194 UNSC Res 132 (7 September 1959) 1092 UNSC Res 134 (1 April 1960) 1098 UNSC Res 143 (14 July 1960) 1177, 1194 UNSC Res 144 (19 July 1960) 1092, 1472 UNSC Res 145 (22 July 1960) 1177, 1194, 1382 UNSC Res 146 (9 August 1960) 239, 1177, 1194, 1333, 1388 UNSC Res 157 (17 September 1960) 667 UNSC Res 161 (21 February 1961) 1092, 1177, 1194, 1282, 1333 UNSC Res 163 (22 June 1961) 994, 1096, 1099 UNSC Res 164 (22 July 1961) 2017 UNSC Res 169 (24 November 1961) 1177, 1194 UNSC Res 179 (11 June 1963) 1177, 1194 UNSC Res 180 (31 July 1963) para 5(d) 193 UNSC Res 181 (7 August 1963) 467, 489 UNSC Res 186 (4 March 1964) 1078, 1177, 1194 para 7 194 UNSC Res 189 (4 June 1964) 1096 UNSC Res 199 (30 December 1964) 1137 UNSC Res 209 (4 September 1965) 1301 UNSC Res 211 (20 September 1965) 1194, 1304 UNSC Res 217 (20 November 1965) 1285, 1291 UNSC Res 218 (23 November 1965) para 5(d) 193 UNSC Res 221 (9 April 1966) 37, 1285, 1329, 1333, 1338

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UNSC Res 227 (28 October 1966) 1999 UNSC Res 232 (16 December 1966) 37, 245, 268, 270, 273, 275, 467, 1310, 1378, 1382 para 3 791 para 6 791 UNSC Res 234 (7 June 1967) 1304 UNSC Res 236 (11 June 1967) 1301 UNSC Res 242 (22 November 1967) 1078, 1157, 1158 UNSC Res 253 (29 May 1968) 245, 268, 270, 1270, 1382, 1391 para 16 1378 Preamble, para 5 791 UNSC Res 254 (18 June 1968) (p. xcvii) paras 3–5 194 UNSC Res 269 (12 August 1969) 382 UNSC Res 277 (18 March 1970) 245, 268, 270 para 16 1391 para 18 257 UNSC Res 282 (23 July 1970) 93, 239, 489 UNSC Res 283 (29 July 1970) 244 UNSC Res 289 (23 November 1970) 1092, 1096 UNSC Res 294 (15 July 1971) 1092 UNSC Res 295 (3 August 1971) 1092 UNSC Res 301 (20 October 1971) paras 6, 11, and 15 276 UNSC Res 303 (6 December 1971) 512, 672, 2018 UNSC Res 314 (28 February 1972) 262 para 2 257 Preamble, para 3 791 UNSC Res 318 (of 28 July 1972) Preamble, para 5 791

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UNSC Res 320 (29 September 1972) para 2 257 Preamble, para 3 791 UNSC Res 322 (22 November 1972) 193 para 3 1084 UNSC Res 326 (2 February 1973) 1092 UNSC Res 329 (10 March 1973) 1391, 1721 UNSC Res 333 (22 May 1973) 1326 Preamble, para 3 791 UNSC Res 338 (22 October 1973) 1082, 1125, 1144 para 3 1084 UNSC Res 340 (25 October 1973) 1177, 1194 UNSC Res 341 (27 October 1973) 1194 UNSC Res 350 (31 May 1974) 1177, 1194 UNSC Res 353 (20 July 1974) para 5 1084 UNSC Res 357 (14 August 1974) para 3 1084 UNSC Res 360 (16 August 1974) para 3 1084 UNSC Res 365 (13 December 1974) 1082 UNSC Res 377 (22 October 1975) 1082, 1083, 1092, 1095, 1474 UNSC Res 379 (2 November 1975) 1082, 1474 UNSC Res 380 (6 November 1975) 1082, 1474 UNSC Res 384 (22 December 1975) 1092, 1096 UNSC Res 385 (30 January 1976) 2006 UNSC Res 386 (17 March 1976) 1392, 1721 UNSC Res 388 (6 April 1976) 268, 270 UNSC Res 389 (22 April 1976) 193 UNSC Res 393 (30 July 1976) 1295

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UNSC Res 395 (25 August 1976) 1141 paras 3–4 1084 UNSC Res 402 (22 December 1976) 1392, 1721 UNSC Res 403 (14 January 1977) 1392 UNSC Res 404 (8 February 1977) 1092 UNSC Res 406 (25 May 1977) 1392, 1721(p. xcviii) UNSC Res 409 (27 May 1977) 257, 268, 270, 273 UNSC Res 417 (31 October 1977) 93 UNSC Res 418 (4 November 1977) 273, 489, 800, 1286, 1308, 1363, 1377, 1382, 1391 paras 2 and 5 268 UNSC Res 425 (19 March 1978) 668, 1177, 1194, 2148 UNSC Res 436 (6 October 1978) 1082 UNSC Res 437 (10 October 1978) 791 UNSC Res 451 (15 June 1979) 1142 UNSC Res 457 (4 December 1979) 1142, 1156, 2015 UNSC Res 458 (14 December 1979) 1142 UNSC Res 460 (21 December 1979) para 4 791 UNSC Res 461 (31 December 1979) 1156, 1159, 1160, 2015 para 4 1079 UNSC Res 462 (9 January 1980) 518, 1111 UNSC Res 478 (20 August 1980) 1124 UNSC Res 479 (28 September 1980) 1084, 1130, 1137 paras 1–2 1074 UNSC Res 496 (15 December 1981) 1092, 1295 UNSC Res 500 (28 January 1982) 512, 518 UNSC Res 502 (3 April 1982) 1071, 1293, 1295, 1304, 1473 para 3 191, 1074 para 5 1084

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UNSC Res 505 (26 May 1982) para 2 1079 UNSC Res 507 (May 28 1982) 1295 UNSC Res 514 (12 July 1982) 407, 1092 UNSC Res 516 (1 August 1982) 1178, 1194 UNSC Res 527 (15 December 1982) para 6 1084 UNSC Res 530 (19 May 1983) 1137 UNSC Res 539 (28 October 1983) 512 UNSC Res 541 (18 November 1983) 258 UNSC Res 542 (23 November 1983) 1082 UNSC Res 546 (6 January 1984) 1295 UNSC Res 550 (11 May 1984) 258 UNSC Res 558 (13 December 1984) para 3 257, 268 UNSC Res 562 (10 May 1985) 1137 UNSC Res 567 (20 June 1985) 1295 UNSC Res 569 (26 July 1985) 1329 UNSC Res 571 (20 September 1985) 407, 1092 UNSC Res 574 (7 October 1985) 1295 UNSC Res 577 (6 December 1985) 1293 UNSC Res 582 (24 February 1986) 1084, 1302 para 5 1074 UNSC Res 587 (23 September 1986) 308 UNSC Res 591 (28 November 1986) 245 para 12 257, 268 UNSC Res 598 (20 July 1987) 1071, 1078, 1194, 1299, 1300, 1302–4, 2019 UNSC Res 608 (14 January 1988) 1124 UNSC Res 621 (20 September 1988) 1441, 1474 UNSC Res 622 (31 October 1988) 1194

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UNSC Res 626 (20 December 1988) 1195(p. xcix) UNSC Res 632 (16 February 1989) 1195 UNSC Res 637 (27 July 1989) 407 UNSC Res 644 (7 November 1989) 1195 UNSC Res 660 (2 August 1990) 1293, 1299, 1300, 1303, 1304, 1428 para 3 1084 UNSC Res 661 (6 August 1990) 349, 800, 1009, 1269, 1303, 1308, 1312, 1378, 1392 para 2 268 para 5 257, 268 UNSC Res 662 (9 August 1990) 1250, 1322 UNSC Res 665 (25 August 1990) 220, 1295, 1329, 1338, 1339, 1373 para 1 1428 UNSC Res 666 (13 September 1990) para 7 1079 UNSC Res 667 (16 September 1990) Preamble, para 8 791 UNSC Res 670 (25 September 1990) 349, 850, 969, 1310, 1382, 2124 paras 7–8 791 UNSC Res 674 (29 October 1990) 1250, 1322 para 7 1079 UNSC Res 678 (29 November 1990) (Iraq/Kuwait) 94, 95, 220, 239, 349, 969, 1199, 1303, 1333, 1338, 1339, 1377, 1387, 2180 para 2 52, 1179 UNSC Res 683 (22 December 1990) 1888, 1890 UNSC Res 686 (2 March 1991) Preamble, para 2 791 UNSC Res 687 (3 April 1991) 409, 495, 1009, 1010, 1011, 1124, 1160, 1249, 1250, 1279, 1308, 1322, 1323, 1328, 2039 para 25 269 UNSC Res 688 (5 April 1991) 1286 UNSC Res 689 (9 April 1991) 1195 UNSC Res 690 (29 April 1991) 1195, 1474, 2006

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UNSC Res 692 (20 May 1991) 95, 1010, 1249, 1082, 1919 UNSC Res 693 (20 May 1991) 1195 UNSC Res 696 (30 May 1991) 1195 UNSC Res 705 (15 August 1991) 1011 UNSC Res 707 (15 August 1991) 1249 UNSC Res 713 (25 September 1991) 245, 372, 845, 969, 1016, 1247, 1269, 1282, 1291, 1311, 1458 UNSC Res 714 (30 September 1991) 1082 UNSC Res 717 (16 October 1991) 1195 UNSC Res 724 (15 December 1991) 1282 UNSC Res 727 (8 January 1992) 1458 UNSC Res 731 (21 January 1992) 1134, 1319, 2113 para 3 819 UNSC Res 733 (23 January 1992) 1378, 1282, 2124 UNSC Res 743 (21 February 1992) 372, 1016, 1195, 1458 Preamble, para 7 791 UNSC Res 745 (28 February 1992) 1195, 2006 UNSC Res 746 (17 March 1992) 1125 UNSC Res 748 (31 March 1992) (Libya) 94, 95, 771, 800, 1250, 1271, 1311, 1313, 1319, 1378, 1909, 2113, 2124, 2136 para 1 795, 819 para 7 257, 268, 269 UNSC Res 751 (24 April 1992) 1195(p. c) UNSC Res 752 (15 May 1992) 257, 1074, 1082, 1300, 1303, 1458 UNSC Res 757 (1991) 270, 372, 1016, 1269, 1308, 1312, 1313, 1393, 1458, 1952, 2124 para 11 257 UNSC Res 760 (18 June 1992) 372 UNSC Res 764 (29 June 1992) 1074, 1082 para 10 1016 UNSC Res 769 (7 August 1992) para 4 1016

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UNSC Res 770 (13 August 1992) 93, 372, 1270, 1334, 1498 UNSC Res 771 (13 August 1992) 372 UNSC Res 773 (26 August 1992) 1250, 1322 UNSC Res 777 (19 September 1992) 270, 372, 384, 460, 1054, 1269 UNSC Res 778 (30 September 1992) 1011 UNSC Res 785 (30 October 1992) 1074, 1082 UNSC Res 787 (16 November 1992) 270, 1074, 1082, 1334, 1498, 2124 UNSC Res 788 (19 November 1992) 1282, 1343, 1378, 1501, 1504, 2124 Preamble 1503 UNSC Res 793 (30 November 1992) 1074, 1082 UNSC Res 794 (3 December 1992) 93, 239, 467, 1071, 1074, 1199, 1282, 1283, 1286, 1291, 1292, 1334 para 10 1179 UNSC Res 797 (16 December 1992) 1195, 1198 UNSC Res 808 (22 February 1993) 1016 para 2 988 UNSC Res 812 (12 March 1993) 1082, 1441 UNSC Res 813 (26 March 1993) 1504 Preamble 1503 UNSC Res 814 (26 March 1992) 1183, 1195, 1334, 1336 para 8 802 UNSC Res 816 (31 March 1993) 1199, 1334 para 2 1179 UNSC Res 819 (16 April 1993) 270 UNSC Res 820 (17 April 1993) 270, 1498, 2124 UNSC Res 825 (11 May 1993) 1280 UNSC Res 827 (25 May 1993) (Yugoslavia) 95, 240, 273, 409, 783, 1016, 1024, 1249, 1252, 1257, 1320 para 4 271 para 6 1019 UNSC Res 833 (27 May 1993) 1009, 1250, 1322

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UNSC Res 836 (4 June 1993) 1199, 1336, 1498 para 10 1179 UNSC Res 837 (6 June 1993) 1336 UNSC Res 841 (16 June 1993) 1288, 1291, 1292, 1308, 1378, 1460 paras 3–4 2014 UNSC Res 843 (18 June 1993) 1393 UNSC Res 845 (17 January 1992) 1134 UNSC Res 846 (22 June 1993) 1195 UNSC Res 856 (10 August 1993) Preamble 1503 UNSC Res 858 (24 August 1993) 1195 UNSC Res 864 (15 September 1993) 271, 1281, 1282, 1283 UNSC Res 866 (22 September 1993) 1195 Preamble 1503(p. ci) UNSC Res 867 (23 September 1993) 1195 UNSC Res 872 (5 October 1993) 1195, 1441 UNSC Res 875 (October 1993) 1334 UNSC Res 883 (11 November 1993) 1378, 2136 para 12 257, 268 UNSC Res 897 (4 February 1994) 1252 UNSC Res 912 (21 April 1994) para 7(c) 2007 UNSC Res 915 (4 May 1994) 1195 UNSC Res 917 (6 May 1994) 1249, 1252, 1271, 1288, 1308, 1313, 1329, 1334 para 12 257, 268, 269 UNSC Res 918 (17 May 1994) 1282, 1334, 1378 para 15 257, 268 UNSC Res 925 (8 June 1994) 1334 Preamble, para 5 1022 UNSC Res 929 (22 June 1994) 1199, 1282, 1283, 1286, 1334 para 3 1179

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UNSC Res 937 (21 July 1994) 911, 1198 UNSC Res 938 (28 July 1994) 911 UNSC Res 939 (29 July 1994) 911 UNSC Res 940 (31 July 1994) 239, 911, 1125, 1199, 1250, 1288 para 4 1179 UNSC Res 941 (23 September 1994) 1250, 1322 UNSC Res 942 (23 September 1994) 1250, 1270, 1322 UNSC Res 947 (30 September 1994) 11252 UNSC Res 955 (8 November 1994) (Rwanda) 95, 240, 409, 783, 988, 1022, 1024, 1249, 1252, 1320 para 2 273 para 5 1022 Annex 264 UNSC Res 956 (10 November 1994) 1883 UNSC Res 958 (19 November 1994) 96, 1179 UNSC Res 968 (16 December 1994) 1195 UNSC Res 976 (8 February 1995) 1195 UNSC Res 977 (22 February 1995) 1022 UNSC Res 981 (31 March 1995) 1012, 1195 UNSC Res 983 (31 March 1995) 1195 UNSC Res 986 (14 April 1995) 1011, 1316, 2006 UNSC Res 993 (12 May 1995) 1135 UNSC Res 998 (16 June 1995) 1250 UNSC Res 1004 (12 July 1995) 271 UNSC Res 1010 (10 August 1995) paras 1–2 802 UNSC Res 1011 (15 December 1995) 1199 UNSC Res 1013 (7 September 1995) 1327 UNSC Res 1016 (21 September 1995) 1142 UNSC Res 1031 (15 December 1995) 1249, 1250, 1255, 1279, 1322, 1346, 1498 paras 14–15 1179

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UNSC Res 1035 (21 December 1995) 1014, 1095, 1346 UNSC Res 1037 (15 January 1996) 1178, 1196, 1199, 1255, 1347, 2006 para 14 1179 UNSC Res 1038 (15 January 1996) 1012, 1196 UNSC Res 1044 (31 January 1996) 1250(p. cii) UNSC Res 1045 (8 February 1996) 271 UNSC Res 1054 (26 April 1996) 94, 244, 257, 999, 1271, 1313, 1319, 1378 para 5 268 Preamble, para 10 795 UNSC Res 1063 (28 June 1996) 1196 UNSC Res 1066 (15 July 1996) 1196 UNSC Res 1070 (16 August 1996) 999, 1378 UNSC Res 1072 (30 August 1996) 1282 UNSC Res 1078 (9 November 1996) 1282, 1286 UNSC Res 1079 (15 November 1996) 1252 UNSC Res 1080 (15 November 1996) 1340 UNSC Res 1094 (20 January 1997) 1142, 1196 UNSC Res 1101 (28 March 1997) 283, 1282, 1283, 1340 UNSC Res 1102 (31 March 1997) 1074 UNSC Res 1108 (22 May 1997) 1082 UNSC Res 1111 (4 June 1997) 1011 UNSC Res 1113 (12 June 1997) 1142 UNSC Res 1114 (19 June 1997) 1282 UNSC Res 1118 (30 June 1997) 1196 UNSC Res 1120 (14 July 1997) 1252 UNSC Res 1123 (30 July 1997) 1196 UNSC Res 1125 (6 August 1997) 1282 UNSC Res 1127 (28 August 1997) 271, 1071, 1074, 1268, 1269, 271, 1071, 1270, 1271, 1282, 1311, 1313, 1315, 2124 paras 2–3 802

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UNSC Res 1132 (8 October 1997) 239, 1252, 1282, 1288, 1292, 1334, 1378, 1486, 2124 para 8 1485 para 13 274 UNSC Res 1136 (6 November 1997) 1282 UNSC Res 1141 (28 November 1997) 1196 UNSC Res 1143 (4 December 1997) 1011 UNSC Res 1144 (19 December 1997) 1347 UNSC Res 1153 (20 February 1998) 1011 UNSC Res 1159 (27 March 1998) 1196 UNSC Res 1160 (31 March 1998) 270, 802, 1292, 1295, 1441 para 4 194 para 10 2124 UNSC Res 1162 (17 April 1998) 1343 UNSC Res 1165 (30 April 1998) 1023 Annex 264 UNSC Res 1166 (30 April 1998) 1020 Annex 264 UNSC Res 1171 (5 June 1998) 271, 1271, 1378 UNSC Res 1172 (6 June 1998) 1135, 1280 UNSC Res 1173 (12 June 1998) 271, 1071, 1252, 1270, 1289, 1312, 1314, 2124 para 17 269 UNSC Res 1174 (15 June 1998) 1250, 1322, 1347 UNSC Res 1177 (26 June 1998) 1125, 1135, 1137, 1143 UNSC Res 1181 (13 June1998) 1196 UNSC Res 1189 (13 August 1998) 1281 UNSC Res 1192 (August 27 1998) 1268 UNSC Res 1193 (28 August 1998) para 16 792(p. ciii) UNSC Res 1196 (16 September 1998) 1243, 1253, 1326

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UNSC Res 1199 (23 September 1998) 1252, 1299, 1303 para 3 194 UNSC Res 1203 (24 October 1998) 93, 1441 para 4 802 para 5 194 UNSC Res 1210 (24 November 1998) 1011 UNSC Res 1212 (25 November 1998) 1721 UNSC Res 1218 (22 December 1998) 1079 UNSC Res 1227 (10 February 1999) 1295, 1300, 1302, 1303, 1329 UNSC Res 1234 (9 April 1999) 1300 UNSC Res 1237 (7 May 1999) 1074, 1327 UNSC Res 1242 (21 May 1999) 1011 UNSC Res 1244 (10 June 1999) 276, 324, 932, 1127, 1196, 1199, 1251, 1255, 1279, 1322, 1335, 1340, 1343, 1347, 2006 para 7 1179 para 9 1179 UNSC Res 1246 (11 June 1999) 1196 UNSC Res 1250 (29 June 1999) 194, 1082 UNSC Res 1251 (29 June 1999) 1082 UNSC Res 1261 (25 August 1999) 1243, 1253 UNSC Res 1264 (15 September 1999) 1199, 1252, 1282, 1335, 1340, 1344 para 3 1179 para 12 2006 UNSC Res 1265 (17 September 1999) 1243, 1253, 1285 UNSC Res 1267 (15 October 1999) 94, 239, 241, 271, 415, 801, 1005, 1250, 1270, 1271, 1281, 1313, 1319, 2113, 2124 Peamble, para 8 795 UNSC Res 1269 (19 October 1999) 1281 UNSC Res 1270 (22 October 1999) 1196, 1288, 1334, 1336, 1344, 1486 UNSC Res 1271 (22 October 1999) 283

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UNSC Res 1272 (29 October 1999) 408, 1196, 1255, 1282, 1335, 1347, 2006 para 2 1013 UNSC Res 1274 (12 November 1999) 1078 UNSC Res 1275 (19 November 1999) 1011 UNSC Res 1279 (30 November 1999) 1196 UNSC Res 1280 (3 December 1999) 1011 UNSC Res 1281 (10 December 1999) 1011 UNSC Res 1284 (17 December 1999) 1010, 2039 UNSC Res 1287 (31 January 2000) para 4 194 para 6 194 UNSC Res 1289 (7 February 2000) 1282, 1334, 1336, 1344 UNSC Res 1291 (24 February 2000) 1335 UNSC Res 1295 (18 April 2000) 1071, 1270, 1282, 1313, 1314, 1326–7, 1329, 1378 UNSC Res 1296 (19 April 2000) 302, 998, 1243, 1253, 1285 UNSC Res 1297 (12 May 2000) 1269, 1300, 1302, 1303, 1304 UNSC Res 1298 (17 May 2000) 1268, 1303, 1378 UNSC Res 1302 (8 June 2000) 1011, 1317 UNSC Res 1304 (16 June 2000) 1249, 1299, 1303, 1304 para 9 194 UNSC Res 1306 (5 July 2000) 1252, 1268, 1282, 1288, 1289, 1310, 1311, 1312, 1313, 1314, 1378 para 10 802(p. civ) UNSC Res 1308 (17 July 2000) 1289 UNSC Res 1311 (28 July 2000) para 4 194 UNSC Res 1312 (31 July 2000) 1196, 1441 UNSC Res 1315 (14 August 2000) 1026, 1252 UNSC Res 1318 (7 September 2000) 1125 UNSC Res 1320 (15 September 2000) 1196 UNSC Res 1325 (31 October 2000) 435, 436, 824, 1243, 1253, 1258, 1285

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UNSC Res 1326 (31 October 2000) 270, 338, 384, 460 UNSC Res 1327 (13 November 2000) 998, 1106 Annex 1372 UNSC Res 1329 (30 November 2000) 1020 Annex 264 UNSC Res 1330 (5 December 2000) 1011 para 12 1011 UNSC Res 1332 (14 December 2000) para 12 194 UNSC Res 1333 (19 December 2000) 94, 271, 824, 1258, 1270, 1271, 1313, 1317, 1378 Preamble, para 4 194 para 8(c) 796 para 17 269 UNSC Res 1334 (22 December 2000) para 2 194 UNSC Res 1339 (31 January 2001) para 5 194 UNSC Res 1341 (22 February 2001) para 15 194 UNSC Res 1343 (7 March 2001) 1255, 1268, 1312, 1313, 1315, 1378 para 21 801 para 22 269 UNSC Res 1346 (30 March 2001) 1082 para 10 194 UNSC Res 1353 (13 June 2001) 1372 UNSC Res 1355 (15 June 2001) 271, 1270 UNSC Res 1356 (19 June 2001) 1378 UNSC Res 1357 (21 June 2001) pt III 1346 UNSC Res 1359 (29 June 2001) para 2 1082

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UNSC Res 1363 (30 July 2001) 1378 UNSC Res 1364 (31 July 2001) para 7 194 UNCS Res 1366 (30 August 2001) 1125 UNSC Res 1368 (12 September 2001) 94, 494, 801, 1293, 1418 UNSC Res 1369 (14 September 2001) 1441 UNSC Res 1370 (18 September 2001) paras 6–7 1082 UNSC Res 1373 (28 September 2001) 94, 494, 783, 1004, 1253, 1259, 1281, 1282, 1313, 1322, 1326, 1327, 1378 paras 2–3 274 para 6 274 UNSC Res 1377 (12 November 2001) 801, 1253(p. cv) UNSC Res 1385 (19 December 2001) 1314 UNSC Res 1386 (20 December 2001) 239, 1199, 1335 para 3 1179 para 7 1387 UNSC Res 1387 (15 January 2002) 1012 UNSC Res 1390 (28 January 2002) 239, 271, 801, 1250, 1270, 1281, 1378 para 6 275 UNSC Res 1393 (31 January 2002) 194 UNSC Res 1399 (19 March 2002) 1270 UNSC Res 1400 (28 March 2002) para 5 1082 para 5 194, 1082 UNSC Res 1401 (28 March 2002) 1196, 2001 UNSC Res 1408 (6 May 2002) 1378 Preamble 802 para 18 801 UNSC Res 1409 (14 May 2002) 1011, 1316 UNSC Res 1410 (17 May 2002) 1013, 1196, 1269

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UNSC Res 1417 (14 June 2002) para 13 194, 1082 para 14 194 UNSC Res 1422 (12 July 2002) 268, 783, 785, 934, 1253, 1321 UNSC Res 1423 (12 July 2002) 1249 UNSC Res 1427 (29 July 2002) paras 5–7 194 UNSC Res 1431 (14 August 2002) Annex 264 UNSC Res 1441 (8 November 2002) 495, 1010, 1250, 1342 UNSC Res 1445 (4 December 2002) para 9 1082 UNSC Res 1446 (4 December 2002) 1289 UNSC Res 1452 (20 December 2002) 1005, 1315 UNSC Res 1455 (17 January 2003) 1378 UNSC Res 1456 (20 January 2003) 1318 UNSC Res 1464 (4 February 2003) 1267, 1335 UNSC Res 1467 (18 March 2003) 1281, 1313 UNSC Res 1474 (8 April 2003) 801 para 1 795, 802 UNSC Res 1478 (6 May 2003) 1314, 1378 UNSC Res 1479 (13 May 2003) 1196, 1249 UNSC Res 1483 (22 May 2003) 268, 1343, 1393 para 16 1011 UNSC Res 1484 (30 May 2003) 239, 245, 1335 UNSC Res 1487 (12 June 2003) 268, 785, 1253, 1321 UNSC Res 1494 (30 July 2003) paras 5–7 194 UNSC Res 1497 (1 August 2003) 1253, 1321, 1441 UNSC Res 1500 (14 August 2003) 1014, 2006 UNSC Res 1502 (26 August 2003) 2176

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UNSC Res 1503 (28 August 2003) 1024 UNSC Res 1507 (12 September 2003) paras 4–6 1084 UNSC Res 1509 (19 September 2003) 1196, 1197(p. cvi) UNSC Res 1511 (16 October 2003) 1199, 1267, 1335 para 13 1179 UNSC Res 1515 (2003) 516 UNSC Res 1518 (24 November 2003) 1393 UNSC Res 1519 (16 December 2003) 1378 para 1 795, 802 UNSC Res 1521 (22 December 2003) 1252, 1255, 1289, 1314, 1378 UNSC Res 1526 (30 January 2004) 1326, 1378 Annex 837 UNSC Res 1528 (27 February 2004) 1196, 1218, 1335, 1339 para 8 1183 UNSC Res 1529 (29 February 2004) 1340, 1441 para 6 1179 UNSC Res 1530 (11 March 2004) 817 UNSC Res 1531 (12 March 2004) paras 4–5 1084 UNSC Res 1533 (12 March 2004) 1329, 1378 UNSC Res 1535 (26 March 2004) 1318 UNSC Res 1537 (30 March 2004) 1441 UNSC Res 1539 (22 April 2004) 1250 UNSC Res 1540 (28 April 2004) 245, 495, 783, 1058, 1253, 1258, 1280, 1313, 1322, 1328 Preamble, para 8 801 UNSC Res 1542 (30 April 2004) 1180, 1196, 1288 UNSC Res 1545 (21 May 2004) 1125, 1196, 1335, 1339, 1441, 1488 UNSC Res 1546 (8 June 2004) 1014, 1247, 1344, 1378 para 10 1179 UNSC Res 1551 (9 July 2004) 1198

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UNSC Res 1554 (29 July 2004) paras 4–7 194 UNSC Res 1556 (30 July 2004) 93, 1283, 1378, 1442 UNSC Res 1558 (17 August 2004) 1378 UNSC Res 1559 (2004) (2 September 2004) 306 UNSC Res 1562 (17 September 2004) 1255, 1441 para 9 1084 UNSC Res 1564 (18 September 2004) 1270, 1344 UNSC Res 1566 (8 October 2004) 1281 UNSC Res 1572 (15 November 2004) 1300, 1315, 1378 UNSC Res 1574 (19 November 2004) para 1 1082 UNSC Res 1575 (22 November 2004) 1198, 1458 UNSC Res 1579 (21 December 2004) 1378 UNSC Res 1584 (1 February 2005) 1329 UNSC Res 1590 (24 March 2005) 1197 para 7 1082 UNSC Res 1591 (29 March 2005) 801 para 2 1082 UNSC Res 1593 (31 March 2005) 1320, 1321, 1382 UNSC Res 1595 (7 April 2005) 1092 UNSC Res 1596 (18 April 2005) 1378 UNSC Res 1597 (20 April 2005) Annex 264 UNSC Res 1599 (28 April 2005) 1013 UNSC Res 1612 (26 July 2005) 1285(p. cvii) UNSC Res 1615 (29 July 2005) paras 4–7 194 UNSC Res 1617 (29 July 2005) 1328, 1378 UNSC Res 1624 (14 September 2005) 1318, 1327

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UNSC Res 1625 (14 September 2005) Annex 1090, 1091 UNSC Res 1631 (17 October 2005) 1443 UNSC Res 1636 (31 October 2005) 244, 1378 UNSC Res 1637 (8 November 2005) 1014 UNSC Res 1638 (11 November 2005) 1271, 1322, 1329 UNSC Res 1639 (21 November 2005) 269 UNSC Res 1643 (15 December 2005) 1314, 1378 para 13 269 UNSC Res 1645 (20 December 2005) 573, 1078 UNSC Res 1653 (27 January 2006) 1134 UNSC Res 1671 (25 April 2006) 269, 1340, 1459 para 8 1179 UNSC Res 1672 (25 April 2006) 801, 1313, 1378 UNSC Res 1673 (27 April 2006) 264, 1344 UNSC Res 1674 (28 April 2006) 302, 1210, 1285, 1489 para 2 95 para 4 65, 95, 468 UNSC Res 1679 (16 May 2006) 1378 UNSC Res 1689 (20 June 2006) 1252, 1255 UNSC Res 1696 (31 July 2006) 1249, 1267, 1280, 1295, 1300 UNSC Res 1699 (8 August 2006) 1328 UNSC Res 1701 (11 August 2006) 1300, 1378 UNSC Res 1704 (25 August 2006) 1197 UNSC Res 1706 (31 August 2006) 65, 468, 1213, 1287, 1335, 1442, 1489 Preamble 1210 UNSC Res 1716 (13 October 2006) 194 UNSC Res 1718 (14 October 2006) 268, 1267, 1280, 1311, 1312, 1322, 1341, 1378 UNSC Res 1719 (25 October 2006) 1196 UNSC Res 1721 (1 November 2006) para 21 1533

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UNSC Res 1730 (19 December 2006) 1005, 1310, 1316, 1317, 1318, 2007 UNSC Res 1735 (22 December 2006) 801, 1005, 1315, 1328, 1378 UNSC Res 1737 (27 December 2006) 1280, 1300, 1303, 1311, 1313, 1341, 1378 UNSC Res 1738 (23 December 2006) 302, 1285 UNSC Res 1744 (20 February 2007) 1378, 1441, 1444, 1461 UNSC Res 1747 (24 March 2007) 1378, 1384 UNSC Res 1753 (27 April 2007) 1252 UNSC Res 1755 (30 April 2007) 468 Preamble 1210 UNSC Res 1757 (30 May 2007) 303, 801, 1026, 1249, 1320, 1322 UNSC Res 1769 (31 July 2007) 1183, 1197, 1214, 1335, 1442, 1489 Preamble 1210 UNSC Res 1778 (25 September 2007) 1267, 1340, 1459, 1489, 1533 para 6 1179 UNSC Res 1780 (15 October 2007) 1441 UNSC Res 1781 (15 October 2007) 194 UNSC Res 1783 (31 October 2007) para 3 1082(p. cviii) UNSC Res 1784 (31 October 2007) 1197 UNSC Res 1790 (18 December 2007) 1014 UNSC Res 1793 (21 December 2007) 1378 UNSC Res 1798 (30 January 2008) 1197 para 4 1084 UNSC Res 1803 (3 March 2008) 245 UNSC Res 1807 (31 March 2007) 1313 UNSC Res 1808 (15 April 2008) 194 UNSC Res 1816 (2 June 2008) 1199, 1247, 1283, 1291, 1344 para 7 1179 UNSC Res 1820 (19 June 2008) 1285 UNSC Res 1822 (30 June 2008) 268, 1005, 1318, 1396 UNSC Res 1827 (30 July 2008) 1135

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UNSC Res 1828 (31 July 2008) 1197 UNSC Res 1833 (22 September 2008) Preamble, para 17 194 UNSC Res 1837 (29 September 2008) 1025 UNSC Res 1844 (20 November 2008) 268, 1315 UNSC Res 1845 (20 November 2008) 269 UNSC Res 1846 (2 December 2008) 269, 1199 para 10 1179 UNSC Res 1851 (16 December 2008) 269, 1291 para 10 1179 UNSC Res 1856 (22 December 2008) 1489 UNSC Res 1857 (22 December 2008) 468 UNSC Res 1860 (8 January 2009) 1137 UNSC Res 1861 (14 January 2009) 1489 UNSC Res 1863 (16 January 2009) 1489 UNSC Res 1866 (13 February 2009) 1131, 1157 UNSC Res 1871 (30 April 2009) paras 3–4 1082 UNSC Res 1874 (12 June 2009) 246, 268, 1322 UNSC Res 1876 (26 June 2009) 1031 UNSC Res 1883 (7 August 2009) 1014 UNSC Res 1887 (14 September 2009) 495 UNSC Res 1888 (30 September 2009) 1285 UNSC Res 1890 (8 October 2009) Preamble, para 19 194 UNSC Res 1891 (13 October 2009) para 8 1082 UNSC Res 1893 (29 October 2009) 1314 para 18 269 UNSC Res 1894 (11 November 2009) 65, 302, 468, 1285, 1489 UNSC Res 1895 (18 November 2009) 269

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UNSC Res 1897 (30 November 2009) 1283 UNSC Res 1899 (16 December 2009) 1125 UNSC Res 1900 (16 December 2009) 1025 UNSC Res 1902 (17 December 2009) 1125 UNSC Res 1903 (17 December 2009) 1252, 1255, 1314 UNSC Res 1904 (17 December 2009) 1005, 1269, 1317, 1326, 1396, 2007 Annex I 837 UNSC Res 1907 (23 December 2009) 1124 UNSC Res 1920 (30 April 2010) 1125, 1130(p. cix) UNSC Res 1923 (25 May 2010) 1489 UNSC Res 1925 (28 May 2010) 1197, 1289 para 12 1183 UNSC Res 1927 (4 June 2010) 1288 UNSC Res 1929 (9 June 2010) 239, 1280 para 30 269 UNSC Res 1930 (15 June 2010) para 5 194 UNSC Res 1931 (29 June 2010) 1025 UNSC Res 1935 (30 July 2010) (Darfur) para 12 194 UNSC Res 1936 (5 August 2010) 1014 UNSC Res 1939 (15 September 2010) (Nepal) Preamble, para 8 194 UNSC Res 1943 (13 October 2010) Preamble, para 23 194 UNSC Res 1946 (15 October 2010) para 10 999 UNSC Res 1948 (18 November 2010) 269 UNSC Res 1950 (23 November 2010) 1283, 1328 UNSC Res 1953 (14 December 2010) 1082, 1131 Preamble, para 5 194

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UNSC Res 1960 (16 December 2010) 1285 UNSC Res 1962 (20 December 2010) 1288, 1292 UNSC Res 1964 (22 December 2010) 1444 UNSC Res 1966 (22 December 2010) 962, 1025, 1919 Annex 264 UNSC Res 1967 (19 January 2011) 1218, 1288 UNSC Res 1969 (24 February 2011) 1131 UNSC Res 1970 (26 February 2011) 93, 268, 468, 1124, 1199, 1231, 1283, 1287, 1292, 1295, 1315, 1320, 1321, 1489 Preamble, para 9 156, 225 UNSC Res 1972 (17 March 2011) 1295 UNSC Res 1973 (17 March 2011) 65, 93, 268, 302, 467, 836, 1074, 1199, 1217, 1228, 1231, 1250, 1283, 1292, 1295, 1329, 1340, 1459, 1489, 1490, 2181 paras 3–4 468 para 4 1179, 2006 para 25 269 Preamble, para 4 225, 156, 239 UNSC Res 1974 (22 March 2011) Preamble, para 20 194 UNSC Res 1975 (30 March 2011) 271, 1124, 1125, 1219, 1250, 1288, 1288, 1295 UNSC Res 1976 (11 April 2011) 1283, 1328 UNSC Res 1977 (20 April 2011) 1280 Preamble 239 UNSC Res 1979 (27 April 2011) 1130, 1474 UNSC Res 1983 (7 June 2011) 1290 UNSC Res 1986 (13 June 2011) 1135 UNSC Res 1988 (17 June 2011) 1005 para 1 1313 UNSC Res 1989 (17 June 2011) 1005, 1008, 1281, 1311, 1317, 1327 Preamble 239 UNSC Res 1990 (2 July 2011) 1197(p. cx)

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UNSC Res 1996 (8 July 2011) 1197 para 2 2011 para 4 1183 UNSC Res 2000 (27 July 2011) 1255, 1288, 1335 UNSC Res 2001 (28 July 2011) 1014 UNSC Res 2002 (4 March 2012) 1014 UNSC Res 2009 (16 September 2011) 1218 UNSC Res 2010 (30 September 2011) 1444 UNSC Res 2014 (21 October 2011) 302, 1219, 1283, 1287 UNSC Res 2015 (24 October 2011) 1283 UNSC Res 2016 (27 October 2011) 1489 UNSC Res 2018 (31 October 2011) 1283 UNSC Res 2020 (22 November 2011) 1328 UNSC Res 2031 (21 December 2011) 1489 UNSC Res 2032 (22 December 2011) 283 UNSC Res 2033 (12 January 2012) 1450, 1534 UNSC Res 2039 (29 February 2012) 1283 UNSC Res 2046 (2 May 2012) 1300, 1301, 1302

Trusteeship Council UNTC Res 7 (I) (28 April 1947) 1891 UNTC Res 463 (XI) (6 June 1952) 1891

Rules ECOSCO Rules of Procedure 1772, 1780, 1784, 1785, 1817, 1819–28 r 3 1732, 1824 r 4 1824 r 4(1)(c) 1672, 1718 r 4(2) 1733, 1822 r 4(3) 1785, 1822 r 5 1822

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r 6 1823, 1824 r 7 1821 r 9 1823 r 9(2)(c) 1695, 1718 r 9(2)(g) 1823 r 9(3) 1802 r 9(4) 1823 r 10 1718, 1804 r 11 1804, 1823 r 12(1) 1718, 1802 r 13 1823 r 13(2) 1718 r 13(3) 1802 r 14 1823 r 15 1823 r 17 1825, 2003 r 18 1799, 1824 r 18(2) 1825 r 19 1695, 1799 r 20(2) 1825 r 22 1824(p. cxi) r 23 1730 rr 24–27 1741 r 24 1692 r 24(1) 1742, 1826 r 24(2) 1746, 1827 r 25 1827 r 26 1825 r 26(1)–(2) 1826

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r 27(1) 1730, 1818 r 27(2) 1827, 1828 r 28(1) 1827 r 28 1827 r 31 1742, 1824, 1827 r 32 1827 rr 34–35 1827 r 38 1824, 1827 r 39 1827 r 41 1675, 1731, 1828 r 42 1828 r 42(1) 1824 r 42(2) 1824 rr 43–52 1828 r 43(1) 1824, 1828 r 44(1)–(2) 1828 r 44(3) 1824 r 45 1824, 1828 r 46 1828 rr 49–51 1828 r 53 1828 rr 54–57 1828 rr 56–65 1734 r 57 1734 r 58 1729 r 59 1732, 1733 r 60(1) 1730 r 60(2) 1730, 1731 r 61(1)–(3) 1732

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rr 62–68 1732 r 63 1824 rr 66–67 1734 r 66 1734 rr 69–70 1731, 1824 r 69(1) 1776 r 71 1731, 1783 r 72 1729, 1773, 1822 r 72(1) 1773, 1775, 1776 r 72(2) 1776 r 72(3) 1729, 1774 r 73 1775 r 74 1776, 1787, 1823 r 75 1781, 1782, 1822 r 75(b) 1782 r 75(5) 1785(p. cxii) r 78 1687 r 79 1786, 1822, 1825 r 80(2)–(3) 1798 r 81 1802, 1803, 1804, 1823 rr 82–84 1799, 1803 r 82 1798 r 83 1687 r 84 1824 r 85 1819, 1820 r 86 1825 ch I 1821–3 ch II 1823–4 ch IV 1824–5

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ch V 1825–7 ch VI 1827 ch VII 1827 ch IX 1927 ch X 1824, 1828 ch XI 1734 ch XII 1776 ECOSCO Rules of Procedure of the Functional Commissions 1746, 1780, 1784, 1828 r 1 1828 r 5(4) 1805, 1828 r 5(4)(b)(ii) 1734 r 6(1) 1785 r 15 1828 r 21 1746, 1929 r 22 1828 r 58 1734 r 69(2) 1777 r 71 1712, 1785 r 73(2) 1776 r 75 1805 r 76(2) 1805 rr 77–78 1828 ch XI 1734 Financial Regulations and Rules of the Organization (2003) reg 3.4 643, 644 Provisional Rules of Procedure of the UNSC 1033–48, 1695, 1996 rr 1–9 1117 r 1 942, 949, 950, 1036 rr 2–3 950, 951, 952, 1036 r 3 1113

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r 4 942, 969, 976, 1036 r 5(1) 977 r 5(2) 978, 979 r 6 1038 r 7 950, 1035, 1117, 2003 r 8 1117 r 9 1117 r 11 521, 1037 r 12 942, 969, 976(p. cxiii) r 13 755, 1030 r 14 1030 rr 16–17 756 r 16 950 r 18 1035 r 19 889, 1035 r 20 1036 r 21 1037 r 23 950, 993 r 25 2003 r 27 452, 453, 1046 r 28 821, 993, 1038 r 30 1035 r 31 1047 r 32 1047 r 36 1047 rr 37–39 1051 r 37 948, 1043, 1044, 1045, 1052, 1057, 1117 r 39 948, 1044, 1045, 1052, 1053, 1054, 1065, 1117 r 48 948

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r 49 950 r 51 948, 1040 r 53 950 r 55 1040 r 58 348, 351, 1030, 2251 r 59 351, 1041 r 60 351, 1030 r 61 1030 Ch I, rr 1–5 943, 1035 Ch II, rr 6–12 1035 Ch III, rr 13–17 1035, 1042, 1043 Ch IV, rr 18–20 1035 Ch V, rr 21–26 1035 Ch VI, rr 27–39 1035 Ch VII, r 40 1035 Ch VIII, rr 41–47 1035, 1047 Ch IX, rr 48–57 1035 Ch X, rr 58–60 1035 Ch XI, r 61 1035 Rules of Procedure of the General Assembly (12 December 1947) 1116 r 1 662, 673, 692 r 2 673 r 3 674 r 4 673 r 5 660, 673 r 6 664, 673 r 7 669, 673 r 8 518, 694 r 8(a) 694

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r 8(b) 2218 r 9 668, 1110 r 9(b) 694 rr 10–11 518(p. cxiv) r 10 673, 694 r 12 2003 rr 13–14 517 r 13(a) 2008 r 13(c)–(e) 2235 r 13(g) 2011, 2235 r 11 661, 673 r 12 701 r 13 568, 571, 572, 701 r 13(e) 1113 r 14 701 r 15 669 r 16 517 r 18 517, 1676 r 19 626, 669, 694 r 21 517, 702 r 23 517 rr 24ff 406 r 25 451, 699 r 26 451 rr 27–29 2003 r 27 383, 455, 457 r 28 454, 699, 716, 725 r 29 454 r 30 713

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r 35 715 r 38–44 725 r 38 698 r 40 517, 698 r 41 698 r 42 699 rr 45–46 2003 r 45 701 r 47 697 r 49 520 r 57 2262 r 60 701 r 63 694 r 65 698 r 67 627, 707, 715 r 68 715 r 71 652 rr 72–76 704 rr 73–76 715 r 73 705 r 74 712 r 81 1731 rr 82–91 706, 707 rr 82–95 627 r 83 517, 1674 r 84 626 rr 85–86 669, 674(p. cxv) r 86 707, 712m 1730 r 87 627, 708

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r 87(1) 626 r 87(b) 627, 708 rr 92–95 707 r 92 627, 713, 714, 1997 rr 93–94 713 r 95 1731 rr 96ff 406, 452 r 98 697, 724 rr 99–133 701 r 100 452, 698 r 101 452, 698 r 108 701, 707 r 113 705 r 114 704 r 115 450, 704, 705 rr 123f 627 r 125 627 r 126 712 r 133 1731 rr 134–138 691 r 134 2251 r 135 348, 351 r 136 351 r 137 351 r 138 447, 2251 r 139 1675, 1729, 2215 r 140 752, 754, 884, 1675 r 141 1997 r 142 754

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rr 145–146 1675 r 145 1729 r 147 1885 rr 152–157 587 r 153 588, 706 rr 155–157 700, 725 r 157–160 725 r 157 587, 700 r 160 597, 653, 700 r 161 450, 452, 697, 701 r 163 2209 Annex I 662 Annex I, para 39 714, 715 Annex IV 715 Annex V, para 4 663 Annex V, paras 9–10 705 Annex V, paras 87–88 706 Annex V, para 95 706 Annex V, para 104 711 Annex V, para 106 713 Annex V, para 108(a) 713 Annex V, para 112 701(p. cxvi) Annex VI, paras 6–7 712 Annex VI, para 16 713, 714 Annex VI, para 21 698 Annex VI, paras 25– 27 713 Annex VI, para 30 713 Annex VII, para 2 708 Annex VIII 622, 693

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Part IV 697 Part VI 697 Part XIII 697 Part VXI 697 Rules of Procedure of the Military Staff Committee Art. 47 521 Art. 87–88 521 Rules of Procedure of the Trusteeship Council 1893 rr 1–2 1894 r 6 2003 r 8 1894 rr 17–18 1893 r 35(2) 1892 rr 70–71 1891 r 75 1889 r 79 1889 rr 85–89 1889 r 90 1889 rr 91–96 1889 r 98 1888 r 102 1895 UN Model Rules for the Conciliation of Disputes between States (11 December 1995) 187, 539, 1078

Universal Postal Union (UPU) Agreement between the United Nations and the Universal Postal Union (1948) Art. IV 1625 Art. VI 1381 Constitution of the Universal Postal Union (Constitution UPU) (1966) 1641 Art. I 1701 Art. X 1808

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Art. IX 1619

World Health Organization Agreement between the United Nations and the World Health Organization (1948) Art. II(2) 1782 Art. V 1712 Art. IV 1625, 1715 Art. VII 1381 Constitution of the World Health Organization (1946) 131 Art. 2(c)–(d) 285 Art. 2(k) 285 Art. 35 2060 Art. 71 1808(p. cxvii) Preamble, para 1 1542 Convention establishing the World Health Organization Art. XXXVI 1702 International Health Regulations 1640

World Intellectual Property Organization (WIPO) Agreement between the United Nations and the World Intellectual Property Organization (WIPO) (1974) Art. 3(a) 1784 Art. 3(b) 1782 Art. 15 2076 Convention establishing the World Intellectual Property Organization (1967) (Convention of WIPO) 1645 Art. 13(2) 1808

World Meteorological Organization (WMO) Agreement between the United Nations and the World Meteorological Organization (WMO) (1951) Art. II(1) 1784 Art. VI 1381 Art. IX 2076

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Convention of the World Meteorological Organization (1947) Art. XII 1619 Art. 26(b) 1808

World Tourist Organization (UNWTO) Agreement between the United Nations and the World Tourism Organization (2003) 1625, 1648, 1657 Art. 3(2) 1782 Statutes of the World Tourism Organization (1970) 1648 Arts 4–6 1649 Art. 7 1617, 1649 Art. 9(1) 1649

World Trade Organization Declaration on the Contribution of the World Trade Organization to Achieving Greater Coherence in Global Economic Policymaking (1994) 1618 Marrakesh Agreement Establishing the World Trade Organization (1994) 1646, 1785

National Instruments Austria Federal Law on the Granting of Privileges and Immunities to International Organizations (Austrian BGBl 677/1977, BGBl I 2/1997, BGBl I 135/2009) 360 Federal Regulations on the Granting of Privileges and Immunities to Permanent Observer Missions (Austrian BGBl 614/1978) 360

Canada Charter of Rights and Freedoms (1982) s 6 839(p. cxviii)

Germany 1954 Federal Law (BGBl 1954 II 639) as amended by 1964 Federal Law (BGBl 1964 II 187) 2141

The Netherlands The International Criminal Court Implementation Act (2002) Art. 17 415

Switzerland Decree of 31 March 1948/22 May 1958 360

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Decree of 25 June 1975 360

United Kingdom United Nations Act (1946) 838

United States Anti-Terrorism Act (1987) 360 Declaration of Independence (1776) 317 Foreign Relations Authorization Act for Fiscal Years 1986 and 1987 s 51 2043 Helms–Biden UN Reform Act (1999) 58, 2057

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List of Abbreviations Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

ACABQ Advisory Committee on Administrative and Budgetary Questions ACC Administrative Committee on Coordination Acta Jur Acad Sci Hung Acta Juridica Academiae Scientiarum Hungaricae AD Annual Digest and Reports of Public International Law Cases AdG Archiv der Gegenwart AEC Atomic Energy Commission Af YB Intl L African Yearbook of International Law AFDI Annuaire français de droit international

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AfJICL African Journal of International and Comparative Law African J Legal Studies African Journal of Legal Studies AJIL American Journal of International Law AJPIL Austrian Journal of Public International Law AJPS American Journal of Political Science Am JCL American Journal of Comparative Law Am Polit Sci Rev American Political Science Review Am U Int L Rev American University International Law Review Am UJ Intl L & Pol’y American University Journal of International Law and Policy AMDI Anuario Mexicano de Derecho Internacional AMIS African Union Mission in Sudan(p. cxx) AMISOM African Union Mission in Somalia An Der Int Anuario de Derecho Internacional ANC African National Council Ann d’Et Intl Annales d’études internationales Annu de I’Inst de Droit Intl Annuaire de I’Institut de Droit International Annu de la Fac de Droit et de Sci Polit

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Annuaire de la Faculté de Droit et de Science Politique Annu Eur Annuaire Européen (The Hague) Annu Rev of UN Aff Annual Review of UN Affairs AöR Archiv des öffentlichen Rechts App Appendix APS Proc Proceedings of the Academy of Political Science Arab L Q Arabic Law Quarterly ARIEL Austrian Review of International and European Law Art./Arts Article/Articles ASEAN Association of Southeast Asian Nations ASG Assistant Secretary-General ASIL Proc Proceedings of the Annual Meetings of the American Society of International Law AU African Union Austrl YB Intl L Australian Yearbook of International Law AVR Archiv des Völkerrechts AWD Außenwirtschaftsdienst des Betriebsberaters/Recht der internationalen Wirtschaft BayVBl Bayerische Verwaltungsblätter

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BC Intl & Comp L Rev Boston College International and Comparative Law Review BFSP British and Foreign State Papers BGBl Bundesgesetzblatt (German Official Gazette) BGHZ Federal Supreme Civil Court Reports (Germany) Brooklyn J Intl L Brooklyn Journal of International Law BVerfGE Federal Constitutional Court Reports (Germany) BYIL The British Year Book of International Law Calif L Rev California Law Review Calif W Intl LJ California Western International Law Journal Calif W L Rev California Western Law Review Can Bar Rev Canadian Bar Review Can YB Intl L Canadian Yearbook of International Law Case Western Reserve J Intl L Case Western Reserve Journal of International Law CAT Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment CCA Commission on Conventional Armaments CCAQ Consultative Committee on Administrative Questions

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CCD Conference of the Committee on Disarmament CCSQ Consultative Committee for Specialized Questions CD Committee on Disarmament (now Conference on Disarmament) CDP Committee for Development Planning CEDAW Convention on the Elimination of all Forms of Discrimination against Women CERD Committee on the Elimination of Racial Discrimination CESCR Committee on Economic, Social and Cultural Rights CF Contingency Fund CFSP Common Foreign and Security Policy (of the European Union) Ch Chapter Chicago J Intl L Chicago Journal of International Law Chinese JIL Chinese Journal of International Law Chulalongkoru L Rev Chulalongkoru Law Review CILSA Comparative and International Law Journal of Southern Africa CINCUNC Commander-in-Chief, United Nations Command CIS Commonwealth of Independent States Cl

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Clause CLP Current legal problems Clunet Journal du Droit International(p. cxxi) CoC Committee on Contributions Colum J of Internatl Aff Columbia Journal of International Affairs Colum J of Transnatl L Columbia Journal of Transnational Law Colum L Rev Columbia Law Review Comm Statute A Zimmermann, C Tomuschat, K Oellers-Frahm, C Tams, and T Thienel (eds), The Statute of the International Court of Justice—Commentary (OUP 2006) Comm Statute (2nd edn 2012) A Zimmermann, C Tomuschat, K Oellers-Frahm and C Tams (eds), The Statute of the International Court of Justice—Commentary (OUP 2012) Common Market L Rev Common Market Law Review Communità Internaz Communità Internazionale Comun e Stud Comunicazione e studi Connecticut J Intl L Connecticut Journal of International Law COPUOS Committee on the Peaceful Uses of Outer Space Cornell Intl LJ Cornell International Law Journal CP (2nd edn)/(Contributor) JP Cot and A Pellet (eds), La Charte des Nations Unies, Commentary (2nd edn, Economica 1991)

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CP/(Contributor) JP Cot and A Pellet (eds), La Charte des Nations Unies, Commentary (Economica 1985) CPC Committee for Programme and Coordination CPF/(Contributor) JP Cot, A Pellet, and M Forteau (eds), La Charte des Nations Unies, Commentary (3rd edn, Economica 2005) CPIUN Convention on the Privileges and Immunities of the United Nations, UNTS vol 1, No 1–4 CRC Convention on the Rights of the Child CSCE Conference on Security and Co-operation in Europe CSDP Common Security and Defence Policy (of the European Union) CSW Commission on the Status of Women Curso Der Int Curso de Derecho Internacional DA Deutschland Archiv DC Disarmament Commission Denv J Intl L & Pol’y Denver Journal of International Law and Policy DPRK Democratic People’s Republic of Korea DGVR Berichte Berichte der Deutschen Gesellschaft für Völkerrecht DIEC Director-General for International Economic Cooperation Dir Internaz

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Diritto internazionale DOMREP Representative of the Secretary-General in the Dominican Republic DöV Die öffentliche Verwaltung DPKO UN Department of Peacekeeping Operations DGVN Deutsche Gesellschaft fÜr Völkerrecht DSB Drug Supervisory Body Duke J Comp & Intl L Duke Journal of Comparative and International Law DVBl Deutsche Verwaltungsblätter(p. cxxii) EA Europa-Archiv EAC European Atomic Community EC European Communities ECA Economic Commission for Africa ECAFE Economic Commission for Asia and the Far East ECE Economic Commission for Europe ECJ Reports European Court of Justice. Reports of Judgments ECLAC Economic Commission for Latin America and the Caribbean ECOSOC United Nations Economic and Social Council

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ECOWAS Economic Community of West African States ECSC European Coal and Steel Community ECtHR European Court of Human Rights ed/eds Editor/editors edn Edition EDNY United States District Court of the Eastern District of New York EEC European Economic Community eg for example EJIL European Journal of International Law EPIL R Bernhardt et al (eds), Encyclopedia of Public International Law, vol I (North-Holland 1992), vol II (1995), vol III (1997), vol IV (2000) EPTA Expanded Programme of Technical Assistance ESA European Space Agency ESCAP Economic and Social Commission for Asia and the Pacific ESCOR Economic and Social Council Official Records ESCWA Economic and Social Commission for Western Asia Et Int l (Tunis) Etudes Internationales (Tunisia)

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Eth Intl Aff Ethics & International Affairs EUFOR European Union Force EuGRZ Europäische Grundrechte-Zeitschrift EUTM European Training Mission FAO Food and Agriculture Organization of the United Nations ff and following Fin Reg Financial Regulations Florida J Intl L Florida Journal of International Law fn footnote (external to the work) Fordham Intl LJ Fordham International Law Journal Foreign Aff Foreign Affairs FRG Federal Republic of Germany Friedens-Warte Die Friedens-Warte (Journal of International Peace and Organization) Ga J Intl & Comp L Georgia Journal of International and Comparative Law GA/UNGA United Nations General Assembly GAOR General Assembly Official Records(p. cxxiii) GATT

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General Agreement on Tariffs and Trade GBl Gesetzblatt (of the GDR) GC General Committee GCC Gulf Cooperation Council GDR German Democratic Republic Georgetown LJ Georgetown Law Journal GHS LM Goodrich, E Hambro, and AP Simons (eds), Charter of the United Nations— Commentary and Documents (3rd edn, Columbia University Press 1969) GNP gross national product GoJIL Goettingen Journal of International Law GYIL German Yearbook of International Law Hague YB Intl L Hague Yearbook of International Law Harv Intl LJ Harvard International Law Journal Harv L Rev Harvard Law Review Harv Human Rights J Harvard Human Rights Journal Hastings Const L Q Hastings Constitutional Law Quarterly HICLR Hastings International & Comparative Law Review HRC

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Human Rights Committee HRL Rev Human Rights Law Review HRLJ Human Rights Law Journal HRQ Human Rights Quarterly IACB Inter-Agency Consultative Board of UNDP IAEA International Atomic Energy Agency IAS Inter-American System IBRD International Bank for Reconstruction and Development IC International Conciliation ICAO International Civil Aviation Organization ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ICJ Pleadings International Court of Justice. Pleadings, Oral Arguments, Documents ICJ Reports International Court of Justice. Reports of Judgments, Advisory Opinions, and Orders ICJ Review Review of the International Commission of Jurists

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ICJ Yearbook Yearbook of the International Court of Justice ICLQ International and Comparative Law Quarterly ICON International Journal Constitutional Law ICSAB International Civil Service Advisory Board ICSC International Civil Service Commission ICSID International Center for Settlement of Investment Disputes ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia(p. cxxiv) IDA International Development Association ie that is IFAD International Fund for Agricultural Development IFC International Finance Corporation IGO Intergovernmental Organization IHEI Institut des Hautes Etudes Internationales IJIL Indian Journal of International Law ILC International Law Commission ILC Yearbook

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Yearbook of the International Law Commission ILF International Law Forum ILM International Legal Materials ILO International Labour Organization ILOAT ILO Administrative Tribunal ILOOB ILO Official Bulletin ILQ International Law Quarterly ILR International Law Reports ILSA J Intl & Comp L International Law Students Association Journal of International and Comparative Law IMCO Intergovernmental Maritime Consultative Organization IMF International Monetary Fund IMO International Maritime Organization INCB International Narcotics Control Board India Q India Quarterly Indiana LJ Indiana Law Journal INF Intermediate Nuclear Forces INSTRAW UN International Research and Training Institute for the Advancement of Women

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Int Recht u Diplom Internationales Recht und Diplomatie Intl International (English) Intl Aff International Affairs Intl Community L Rev International Community Law Review Intl Env Agreements International Environmental Agreements Intl Geneva YB International Geneva Yearbook Intl J International Journal Intl Lawyer The International Lawyer Intl Org L Rev/IOLR International Organization Law Review Intl Rel International Relations (Warsaw) Intl Stud Rev International Studies Review IO International Organization Iowa L Rev Iowa Law Rev Ir Stud Intl Aff Irish Studies in International Affairs IRD Internationales Recht und Diplomatie IRIN UN Integrated Regional Information Networks IRO

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International Refugee Organization IRRC International Review of the Red Cross Israel L R Israel Law Review(p. cxxv) Ital YB Intl L Italian Yearbook of International Law ITLOS International Tribunal for the Law of the Sea ITO International Trade Organization ITU International Telecommunication Union IYBHR Israel Yearbook of Human Rights J Journal J Air Law and Comm Journal of Air Law and Commerce J Conflict & Security L Journal of Conflict & Security Law J Contemporary History Journal of Contemporary History J Intl PK Journal of International Peacekeeping J Transntl L & Pol’y Journal of Transnational Law & Policy Japan Ann Intl L Japanese Annual of International Law JDI Journal du droit international (Clunet) Jerusalem J Intl L Jerusalem Journal of International Law

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JICJ Journal of International Criminal Justice JIR Jahrbuch für Internationales Recht JIU Joint Inspection Unit JÖR Jahrbuch des öffentlichen Rechts der Gegenwart JPR Journal of Peace Research JUNIC Joint United Nations Information Committee JuS Juristische Schulung JWTL Journal of World Trade Law JZ Juristenzeitung KAS Int Reports Konrad-Adenauer-Stiftung International Reports Keesing’s Keesing’s Record of World Events Kelsen H Kelsen, The Law of the United Nations (Stevens 1951) L Law La Comunità Internaz La Communità Internazionale LAS League of Arab States Leiden J Intl L Leiden Journal of International Law LGDJ

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Librairie générale de droit et de jurisprudence (publisher) LLDC least-developed country LNOJ League of Nations Official Journal LNTS League of Nations Treaty Series LoN League of Nations Loyola LA Intl and Comp LJ Loyola of Los Angeles International and Comparative Law Journal LPICT Law & Practice of International Courts and Tribunals Manchester UP Manchester University Press Max Planck UNYB/Max Planck YB UN L Max Planck Yearbook of United Nations Law Melb J Intl L Melbourne Journal of International Law Mich J Intl L Michigan Journal of International Law Mich L Rev Michigan Law Review MIGA Multilateral Investment Guarantee Agency MINOGUA United Nations Verification Mission in Guatemala(p. cxxvi) MINURCA United Nations in the Central African Republic MINURSO Mission des Nations Unies pour le Réferendum de la Sahara de l’Ouest (UN Mission for the Referendum in Western Sahara) MLR

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Modern Law Review MN margin number MONUA United Nations Observer Mission in Angola MONUC United Nations Organization Mission in the Democratic Republic of the Congo MPEPIL (online edn) R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (online edn, OUP 2008) MPEPIL, vol I-X (OUP 2012) R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (printed edn, OUP 2012) MTP medium-term plan n footnote (internal to the work) NAM non-aligned movement NGO non-governmental organization NIEO New International Economic Order Nigerian J Intl Aff Nigerian Journal of International Affairs NILR Netherlands International Law Review NJ Neue Justiz NJIL Nordic Journal of International Law NJW Neue Juristische Wochenschrift

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Nordisk Tidsskrift Intl Ret Nordisk Tidsskrift for International Ret NTIR Nederlands Tijdschrift voor Internationaal Recht (today NILR) NULR Natal University Law Review NYIL Netherlands Yearbook of International Law NYU J Intl L & Pol New York University Journal of International Law and Politics NYU L Rev New York University Law Review NZWehrr Neue Zeitschrift für Wehrrecht NZZ Neue Zürcher Zeitung OAS Organization of American States OAU Organization for African Unity OCHA Office for the Coordination of Humanitarian Affairs OGC Observer Group Beirut OHRM Office for Human Resources Management OIC Organization of Islamic Cooperation OIOS Office of Internal Oversight Services ONUC Opération des Nations Unies au Congo/United Nations Operation in the Congo ONUCA

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United Nations Observer Group in Central America ONUMOZ United Nations Operation in Mozambique(p. cxxvii) ONUSAL United Nations Observer Mission in El Salvador ONUVEH United Nations Observer Group for the Verification of the Elections in Haiti Orbis Quarterly Journal of World Affairs OSAGI UN Office of the Special Adviser on Gender Issues and Advancement of Women OSCE Organization for Security and Cooperation in Europe Österr ZfAP Österreichische Zeitschrift für Außenpolitik Österr ZöR Österreichische Zeitschrift für öffentliches Recht Österr ZöRVR Österreichische Zeitschrift für öffentliches Recht und Völkerrecht Osteur R Osteuropa-Recht OTC Organization for Trade Cooperation ÖVwGH Österreichischer Verwaltungsgerichtshof Pace Intl L Rev Pace International Law Review para/paras paragraph/paragraphs Parry C Parry, Consolidated Treaty Series, 1648–1919 (Oceana Publications 1969) PCIJ Permanent Court of International Justice

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PCOB Permanent Central Opium Board PK peace-keeping plen plenary PLO Palestine Liberation Organization Pol Etr Politique étrangère Pol YB Intl L Polish Yearbook of International Law pt Part Q Quarterly Quest Intl L Questions of International Law RabelsZ Rabels Zeitschrift für ausländisches und internationales Privatrecht RADIC Revue Africaine de Droit International et Comparé RBB results-based budgeting RBDI Revue belge de droit international RDI Revue de droit international, de science diplomatiques et politiques Rec des Cours Recueil des Cours de l’Académie de Droit International Rep Report Rev

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Review Rev Roum de Sci Soc Revue Roumaine de Science Sociale Rev de Droit et de Lég Comp Intl Revue de droit et de législation comparée international Rev de Droit Int de Sci Diplom et Polit Revue de Droit International de Sciences Diplomatiques et Politiques Rev de Droit Mil et de Droit de la Guerre Revue de droit pénal militaire et de droit de la guerre Rev Egypt de Droit Intern Revue Egyptienne de Droit International(p. cxxviii) Rev Esp de Derecho Internac Revista española de derecho internacional Rev Hellen de Droit Intl Revue hellénique de droit international Rev Intern des Sci Admin Revue internationale des sciences administrative Rev Intern Fran du Droit des Gens Revue internationale française du droit des gens Rev Intl Stud Review of International Studies Rev Jur de Buenos Aires Revista Juridica de Buenos Aires Rev Jur Pol Ind Coop Revue juridique et politique: indépendence et coopération RFAP Revue française d’administration publique RGBI Reichsgesetzblatt RGDIP Revue générale de droit international publique RIAA Reports of International Arbitral Awards

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RICR Revue International de la Croix-Rouge RIDC Revue internationale de droit comparé Riv Dir Internaz Rivista di diritto internazionale Riv Stud Eur Rivista di Studi Europei RIW/AWD Recht der internationalen Wirtschaft/Außenwirtschaftsdienst RM RB Russel and JE Muther, A History of the United Nations Charter (The Brookings Institution 1958) ROW Recht in Ost und West RP Repertory of Practice of United Nations Organs RPSC Repertoire of the Practice of the Security Council RSDIE/SZIER Revue Suisse de droit international et de droit européen s Section S+F Vierteljahreszeitschrift für Sicherheit und Frieden SALT Strategic Arms Limitation Treaty SAYIL South African Yearbook of International Law SC/UNSC Security Council Schweiz JB Internat R Schweizerisches Jahrbuch für Internationales Recht

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SCOR Security Council Official Records SD self-determination SDNY United States District Court of New York SDR Special Drawing Rights SFDI Société française pour le droit international SG/UNSG Secretary-General of the United Nations SIONUT Système informatisé de l’ONU pour les traités (United Nations Treaty Information System) SIPRI Stockholm International Peace Research Institute Yearbook SJIR Stanford Journal of International Relations Soc Sci Q Social Science Quarterly SPC Special Political Committee Stanford J Intl L Stanford Journal of International Law START Strategic Arms Reduction Talks(p. cxxix) SUNFED Special UN Fund for Economic Development Supp Supplement SWAPO South West African People’s Organization

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SWP Stiftung Wissenschaft und Politik SYBIL Singapore Yearbook of International Law Syr J Intl L & Com Syracuse Journal of International Law and Commerce SZIER/RSDIE Schweizerische Zeitschrift für internationales und europäisches Recht TC Trusteeship Council TCOR Trusteeship Council Official Records Temple Intl & Comp LJ Temple International & Comparative Law Journal Tex Intl LJ Texas International Law Journal Tex Rev L Pol Texas Review of Law and Politics tr/trs translator/translators trans translation trans (author) authors’ translation TWQ Third World Quarterly U Chi L Rev University of Chicago Law Review U Ghana LJ University of Ghana Law Journal U Ill L Rev University of Illinois Law Review UCLA J Intl L & For Aff

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University of California at Los Angeles (UCLA) Journal of International Law and Foreign Affairs UCLA L Rev University of California at Los Angeles Law Review UDHR Universal Declaration of Human Rights UN Charter/UNC Charter of the United Nations of 26 June 1945 UN Chron UN Chronicle UNAMET United Nations Mission in East Timor UNAMIC United Nations Advance Mission in Cambodia UNAMID African Union/United Nations Hybrid Operation in Darfur UNAMIR United Nations Assistance Mission for Rwanda UNAMSIL United Nations Mission in Sierra Leone UNASOG/tms United Nations Aouzou Strip Observer Group UNAT United Nations Administrative Tribunal UNApT United Nations Appeals Tribubnal UNAVEM United Nations Angola Verification Mission UNC United Nations Command in Korea UNCDF United Nations Capital Development Fund UNCED

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United Nations Conference on Environment and Development UNCHR United Nations Commission on Human Rights UNCHS United Nations Centre for Human Settlements UNCIO United Nations Conference on International Organization UNCITRAL United Nations Commission on International Trade Law UNCLOS United Nations Conference on the Law of the Sea UNCORS United Nations Commission on the Racial Situation in the Union of South Africa(p. cxxx) UNCRO United Nations Confidence Restoration Operation in Croatia UNCTAD United Nations Conference on Trade and Development UNCTC United Nations Centre on Transnational Corporations UNDOF United Nations Disengagement Observer Force UNDP United Nations Development Programme UNDRO Office of the United Nations Disaster Relief Co-ordinator UNDYB United Nations Disarmament Yearbook UNEF United Nations Emergency Force UNEP United Nations Environment Programme UNESCO

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United Nations Educational, Scientific and Cultural Organization UNFDAC United Nations Fund for Drug Abuse Control UNFICYP United Nations Peace-keeping Force in Cyprus UNFPA United Nations Fund for Population Activities UNGOMAP United Nations Good Offices Mission in Afghanistan and Pakistan UNHB (year) New Zealand Ministry of Foreign Affairs (ed), United Nations Handbook (year) UNHCHR United Nations High Commissioner for Human Rights UNHCR United Nations High Commissioner for Refugees UNHHSF United Nations Habitat and Human Settlements Foundation UNHRC United Nations Human Rights Council UNICEF United Nations Children’s Fund UNIDF United Nations Industrial Development Fund UNIDIR United Nations Institute for Disarmament Research UNIDO United Nations Industrial Development Organization UNIDROIT International Institute for the Unification of Private Law UNIFEM United Nations Development Fund for Women UNIFIL United Nations Interim Force in Lebanon

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UNIIMOG United Nations Iran-Iraq Military Observer Group UNIKOM United Nations Iraq-Kuwait Observation Mission UNIPOM United Nations India-Pakistan Observation Mission UNITAR United Nations Institute for Training and Research UNJSPB United Nations Joint Staff Pension Board UNJSPF United Nations Joint Staff Pension Fund UNJYB United Nations Juridical Yearbook UNMEE United Nations Mission in Ethiopia and Eritrea UNMIBH United Nations Mission in Bosnia-Herzegovina UNMIH United Nations Mission in Haiti UNMIK United Nations Interim Administration Mission in Kosovo UNMO United Nations Military Observer UNMOGIP United Nations Military Observer Group in India and Pakistan(p. cxxxi) UNMOP United Nations Mission of Observers in Prevlaka UNMOT United Nations Mission of Observers in Tajikistan UNMOVIC United Nations Monitoring, Verification and Inspection Commission UNOGIL

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United Nations Observation Group in Lebanon UNOMIG United Nations Observer Mission in Georgia UNOMIL United Nations Observer Mission in Liberia UNOMSA United Nations Observer Mission in South Africa UNOMSIL United Nations Mission in Sierra Leone UNOMUR United Nations Observer Mission Uganda-Rwanda UNOSOM United Nations Operation in Somalia UNPA United Nations Protected Area UNPREDEP United Nations Preventive Deployment Force UNPROFOR United Nations Protection Force in (former) Yugoslavia UNREF United Nations Refugee Fund (previously Refugee Emergency Fund) UNRIAA United Nations Reports of International Arbitral Awards UNRRA United Nations Relief and Rehabilitation Agency UNRWA United Nations Relief and Works Agency for Palestinian Refugees in the Near East UNSCOM United Nations Special Commission UNSF United Nations Special Fund UNSG/S-G United Nations Secretary-General

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UNTAC United Nations Transitional Authority in Cambodia UNTAES United Nations Transitional Administration in Eastern Slavonia UNTAET United Nations Transitional Administration in East Timor UNTAG United Nations Transitional Assistance Group in Namibia UNTEA/UNSF United Nations Temporary Executive Authority and United Nations Security Force in West New Guinea (West Irian) UNTS United Nations Treaty Series UNTSO United Nations Truce Supervision Organization UNWTO World Tourism Organization UNYB United Nations Yearbook (UN Department of Public Information) UNYOM United Nations Yemen Observation Mission UPU Universal Postal Union US Dept St Bull United States Department of State Bulletin US Digest Digest of United States Practice in International Law US Govt Print Off United States Government Printing Office USG Under-Secretary-General Vand J Transntl L Vanderbilt Journal of Transnational Law

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VCLT Vienna Convention on the Law of Treaties Virginia J Intl L Virginia Journal of International Law Virginia L Rev Virginia Law Review(p. cxxxii) VN Vereinte Nationen (German Review on the United Nations) VRÜ Verfassung und Recht in Übersee VVDStRL Veröffentlichungen der Vereinigung der deutschen Staatsrechtslehrer WEOG Western European and other countries West Pol Q The Western Political Quarterly WEU West European Union WFC World Food Council WFP World Food Programme WHO World Health Organization WiB Wirtschaftsrechtliche Beratung WIPO World Intellectual Property Organization Wis Intl LJ Wisconsin International Law Journal Wiss Z Univ Halle Wissenschaftliche Zeitschrift der Universität Halle WLR

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Weekly Law Reports WMO World Metereological Organization Yale J Intl L/YJIL Yale Journal of International Law Yale LJ Yale Law Journal YB Yearbook YB Intl Env L Yearbook of International Environmental Law YB Intl Humanitarian Law Yearbook of International Humanitarian Law YB European L Yearbook of European L YBWA Yearbook of World Affairs YJIL Online Yale Journal of International Law Online ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht ZEUS Zeitschrift für Europarechtliche Studien ZfP Zeitschrift für Politik ZParl Zeitschrift für Parlamentsfragen ZSR Zeitschrift für Schweizerisches Recht

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The Charter of the United Nations Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

of June 26, 1945 (Text: UNCIO XV, 335) as amended by General Assembly Resolution 1991 (XVIII) of December 17, 1963—in force since August 31, 1965 (UNTS 557, 143), 2101 (XX) of December 20, 1965—in force since June 12, 1968 (UNTS 638, 308), and 2847 (XXVI) of December 20, 1971 —in force since September 24, 1973 (UNTS 892, 119).

We the Peoples of the United Nations Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom,

And for these Ends to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ

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international machinery for the promotion of the economic and social advancement of all peoples,

Have Resolved to Combine Our Efforts to Accomplish these Aims Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.

Chapter I  Purposes and Principles Article 1 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 principles of justice and (p. cxxxiv) 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 co-operation 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.

Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. 1.  The Organization is based on the principle of the sovereign equality of all its Members. 2.  All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. 3.  All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and. justice, are not endangered. 4.  All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political

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independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 5.  All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 6.  The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 7.  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.

Chapter II  Membership Article 3 The original Members of the United Nations shall be the states which, having participated in the United Nations Conference on International Organization at San Francisco, or having previously signed the Declaration by United Nations of 1 January 1942, sign the present Charter and ratify it in accordance with Article 110.

(p. cxxxv) Article 4 1.  Membership in the United Nations is open to a other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. 2.  The admission of any such state to membership in the Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.

Article 5 A Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security Council.

Article 6 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.

Chapter III  Organs

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Article 7 1.  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. 2.  Such subsidiary organs as may be found necessary may be established in accordance with the present Charter.

Article 8 The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.

Chapter IV  The General Assembly Composition Article 9 1.  The General Assembly shall consist of all the Members of the United Nations. 2.  Each Member shall have not more than five representatives in the General Assembly.

(p. cxxxvi) Functions and Powers Article 10 The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.

Article 11 1.  The General Assembly may consider the general principles of cooperation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both. 2.  The General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member of the United Nations in accordance with Article 35 , paragraph 2, and, except as provided in Article 12 , may make recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion. 3.  The General Assembly may call the attention of the Security Council to situations which are likely to endanger international peace and security.

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4.  The powers of the General Assembly set forth in this Article shall not limit the general scope of Article 10 .

Article 12 1.  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. 2.  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 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.

Article 13 1.  The General Assembly shall initiate studies and make recommendations for the purpose of: a.  promoting international co-operation in the political field and encouraging the progressive development of international law and its codification; (p. cxxxvii) b.  promoting international co-operation in the economic, social, cultural, educational, and health fields, an assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. 2.  The further responsibilities, functions and powers of the General with respect to matters mentioned in paragraph) above are set forth in Chapters IX and X.

Article 14 Subject to the provisions of Article 12, the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations.

Article 15 1.  The General Assembly shall receive and consider annual and special reports from the Security Council; these reports shall include an account of the measures that the Security Council has decided upon or taken to maintain international peace and security. 2.  The General Assembly shall receive and consider reports from the other organs of the United Nations.

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Article 16 The General Assembly shall perform such functions with respect to the international trusteeship system as are assigned to it under Chapters XII and XIII, including the approval of the trusteeship agreements for areas not designated as strategic.

Article 17 1.  The General Assembly shall consider and approve the budget of the Organization. 2.  The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly. 3.  The Assembly shall consider and approve any financial and budgetary arrangements with specialize 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.

Voting Article 18 1.  Each member of the General Assembly shall have one vote. 2.  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: recommendations with respect to the maintenance of international peace and security, the election of the nonpermanent members of the Security Council, the election of the members of the Economic and Social Council, the election of members of the Trusteeship Council in accordance with paragraph 1 of Article 86, (p. cxxxviii) the admission of new Members to the United Nations, 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. 3.  Decisions on other questions, including the determination of additional categories of questions to be decided by a two-thirds majority, shall be made by a majority of the members present and voting.

Article 19 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 of the Member.

Procedure Article 20 The General Assembly shall meet in regular annual sessions and in such special sessions as occasion may require. Special sessions shall be convoked by the

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Secretary-General at the request of the Security Council or of a majority of the Members of the United Nations.

Article 21 The General Assembly shall adopt its own rules of procedure. It shall elect its President for each session.

Article 22 The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions.

Chapter V  The Security Council Composition Article 23 1.  The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, 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 Organization, and also to equitable geographical distribution. 2.  The non-permanent members of the Security Council shall be elected for a term of two years. In the first election of the non-permanent members after the increase (p. cxxxix) of the membership of the Security Council from eleven to fifteen, two of the four additional members shall be chosen for a term of one year. A retiring member shall not be eligible for immediate re-election. 3.  Each member of the Security Council shall have one representative.

Functions and Powers Article 24 1.  In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. 2.  In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI , VII, VIII, and XII. 3.  The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration.

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Article 25 The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Article 26 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 referred to in Article 47, plans to be submitted to the Members of the United-Nations for the establishment of a system for the regulation of armaments.

Voting Article 27 1.  Each member of the Security Council shall have one vote. 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.

(p. cxl) Procedure Article 28 1.  The Security Council shall be so organized as to be able to function continuously. Each member of the Security Council shall for this purpose be represented at times at the seat of the Organization. 2.  The Security Council shall hold 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. 3.  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.

Article 29 The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.

Article 30 The Security Council shall adopt its own rules of procedure, including the method of selecting its President.

Article 31 Any Member of the United Nations which 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 latter considers that the interests of that Member are specially affected.

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Article 32 Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of the United Nations, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute. The Security Council shall any down such conditions as it deems just for the participation of a state which is not a Member of the United Nations.

Chapter VI  Pacific Settlement of Disputes Article 33 1.  The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of a, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. 2.  The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

(p. cxli) Article 34 The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.

Article 35 1.  Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34 , to the attention of the Security Council or of the General Assembly. 2.  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 purposes of the dispute, the obligations of pacific settlement provided in the present Charter. 3.  The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12 .

Article 36 1.  The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment. 2.  The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties. 3.  In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general

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rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.

Article 37 1.  Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council. 2.  If the Security Council deems that the continuance of the 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.

Article 38 Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute.

(p. cxlii) Chapter VII  Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression Article 39 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 4 and 42, to maintain or restore international peace and security.

Article 40 In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

Article 41 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.

Article 42 Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

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Article 43 1.  All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. 2.  Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. 3.  The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.

(p. cxliii) Article 44 When Security Council has decided to use force it shall, before calling upon a Member not represented on it to provide armed forces in fulfilment of the obligations assumed under Article 43, invite that Member, if the Member so desires, to participate in the decisions of the Security Council concerning the employment of contingents of that Member’s armed forces.

Article 45 In order to enable the Nations to take urgent military measures, Members shall hold immediately available national air-force contingents for combined international enforcement action. The strength and degree of readiness of these contingents and plans for their combined action shall be determined, within the limits laid down in the special agreement or agreements referred to in Article 43, by the Security Council with the assistance of the Military Committee.

Article 46 Plans for the application of armed force shall be made by the Security Council with the assistance of the Military Staff Committee.

Article 47 1.  There shall be established a Military Staff Committee to advise and assist the Security Council on 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. 2.  The Military Staff Committee consist of the Chiefs of Staff of the permanent members of the Security Council or their representatives. Any Member of the United Nations not permanently represented on the Committee shall be invited by the Committee to be associated with it when the efficient discharge of the Committee’s responsibilities requires the participation of that Member its work.

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3.  The Military Staff Committee be responsible under the Security Council for the strategic direction of any armed forces paced at the disposal of the Security Council. Questions relating to the command of such forces shall be worked out subsequently. 4.  The Military Staff Committee, with the authorization of the security Council and after consultation with appropriate regional agencies, may establish sub-committees.

Article 48 1.  The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. 2.  Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

(p. cxliv) Article 49 The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.

Article 50 If preventive or enforcement measures against any state are taken by the Security Council, any other state, whether a Member of the United Nations or not, which finds itself confronted with special economic problems arising from the carrying out of those measures shall have the right to consult the Security Council with regard to a solution of those problems.

Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Chapter VIII  Regional Arrangements Article 52 1.  Nothing in the present Charter the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate fur regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations. 2.  The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific

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settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council. 3.  The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council. 4.  This Article in no way the application of Articles 34 and 35 .

Article 53 1.  The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request (p. cxlv) of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state. 2.  The term enemy state as used in paragraph 1 of this Article applies to any state which during the Second World War has been an enemy of any signatory of the present Charter.

Article 54 The Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security.

Chapter IX  International Economic and Social CoOperation Article 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 co-operation; and c.  universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

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Article 56 All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.

Article 57 1.  The various specialized agencies, established by intergovernmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields, shall be brought into relationship with the United Nations in accordance with the provisions of Article 63. 2.  Such agencies thus brought into relationship with the United Nations are hereinafter referred to as specialized agencies.

Article 58 The Organization shall make recommendations for the co-ordination of the policies and activities of the specialized agencies.

Article 59 The Organization shall, where appropriate, initiate negotiations among the states concerned for the creation of any new specialized agencies required for the accomplishment of the purposes set forth in Article 55.

(p. cxlvi) Article 60 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.

Chapter X  The Economic and Social Council Composition Article 61 1.  The Economic and Social Council shall consist of fifty-four Members of the United Nations elected by the General Assembly. 2.  Subject to the provisions of paragraph 3, eighteen members of the Economic and Social Council shall be elected each year for a term of three years. A retiring member shall be eligible for immediate re-election. 3.  At the first election after the increase in the membership of the Economic and Social Council from twenty-seven to fifty-four members, in addition to the members elected in place of the nine members whose term of office expires at the end of that year, twenty-seven additional members shall be elected. Of these twenty-seven additional members, the term of office of nine members so elected shall expire at the end of one year, and of nine other members at the end of two years, in accordance with arrangements made by the General Assembly. 4.  Each member of the Economic and Social Council shall have one representative.

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Functions and Powers Article 62 1.  The Economic and Social Council may 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 General Assembly, to the Members of the United Nations, and to the specialized agencies concerned. 2.  It may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all. 3.  It may prepare draft conventions for submission to the General Assembly, with respect to matters falling within its competence. 4.  It may call, in accordance with the rules prescribed by the United Nations, international conferences on matters falling within its competence.

Article 63 1.  The Economic and Social Council may enter into agreements with any of the agencies referred to in Article 57, defining the terms on which the agency concerned shall be brought into relationship with the United Nations. Such agreements shall be subject to approval by the General Assembly. (p. cxlvii) 2.  It may co-ordinate 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.

Article 64 1.  The Economic and Social Council may take appropriate steps to obtain regular reports from the specialized agencies. may make arrangements with the Members of the United Nations 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. 2.  It may communicate its observations on these reports to the General Assembly.

Article 65 The Economic and Social Council may furnish information to the Security Council and shall assist the Security Council upon its request.

Article 66 1.  The Economic and Social Council shall perform such functions as fall within its competence in connexion with the carrying out of the recommendations of the General Assembly.

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2.  It 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. 3.  It shall perform such other functions as are specified elsewhere in the present Charter or as may be assigned to it by the General Assembly.

Voting Article 67 1.  Each member of the Economic and Social Council shall have one vote. 2.  Decisions of the Economic and Social Council shall be made by a majority of the members present and voting.

Procedure Article 68 The Economic and Social Council 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.

Article 69 The Economic and Social Council shall invite any Member of the United Nations to participate, without vote, in its deliberations on any matter of particular concern to that Member.

Article 70 The Economic and Social Council may make arrangements for representatives of the specialized agencies to participate, without vote, in its deliberations and in those of the (p. cxlviii) commissions established by it, and for its representatives to participate in the deliberations of the specialized agencies.

Article 71 The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned.

Article 72 1.  The Economic and Social Council shall adopt its own rules of procedure, including the method of selecting its President. 2.  The Economic and Social Council shall meet as required in accordance with its rules, which shall include provision for the convening of meetings on the request of a majority of its members.

Chapter XI  Declaration Regarding Non-Self-Governing Territories

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Article 73 Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end: a.  to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses; b.  to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement; c.  to further international peace and security; d.  to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and e.  to 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 Chapters XII and XIII apply.

(p. cxlix) Article 74 Members of the United Nations also agree that their policy in respect of the territories to which this Chapter applies, no less than in respect of their metropolitan areas, must be based on the general principle of good-neighbourliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters.

Chapter XII  International Trusteeship System Article 75 The United Nations shall establish under its authority an international trusteeship system for the administration and supervision of such territories as may be placed thereunder by subsequent individual agreements. These territories are hereinafter referred to as trust territories.

Article 76 The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be: a.  to further international peace and security;

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b.  to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement; c.  to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world; and d.  to ensure equal treatment in social, economic, and commercial matters for all Members of the United Nations and their nationals, and also equal treatment for the latter in the administration of justice, without prejudice to the attainment of the foregoing objectives and subject to the provisions of Article 80.

Article 77 1.  The trusteeship system shall apply to such territories in the following categories as may be placed thereunder by means of trusteeship agreements: a.  territories now held under mandate; b.  territories which may be detached from enemy states as a result of the Second World War; and c.  territories voluntarily placed under the system by states responsible for their administration. 2.  It will be a matter for subsequent agreement as to which territories in the foregoing categories will be brought under the trusteeship system and upon what terms.

(p. cl) Article 78 The trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality.

Article 79 The terms of trusteeship for each territory to be placed under the trusteeship system, including any alteration or amendment, shall be agreed upon by the states directly concerned, including the mandatory power in the case of territories held under mandate by a Member of the United Nations, and shall be approved as provided for in Articles 83 and 85.

Article 80 1.  Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of

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existing international instruments to which Members of the United Nations may respectively be parties. 2.  Paragraph 1 of this Article shall not be interpreted as giving grounds for delay or postponement of the negotiation and conclusion of agreements for placing mandated and other territories under the trusteeship system as provided for in Article 77.

Article 81 The trusteeship agreement shall in each case include the terms under which the trust territory will be administered and designate the authority which will exercise the administration of the trust territory. Such authority, hereinafter called the administering authority, may be one or more states or the Organization itself.

Article 82 There may be designated, in any trusteeship agreement, a strategic area or areas which may include part or all of the trust territory to which the agreement applies, without prejudice to any special agreement or agreements made under Article 43.

Article 83 1.  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. 2.  he basic objectives set forth in Article 76 shall be applicable to the people of each strategic area. 3.  The Security Council shall, subject to the provisions of the trusteeship agreements and without prejudice to security considerations, avail itself of the assistance of the Trusteeship Council to perform those functions of the United Nations under the trusteeship system relating to political, economic, social, and educational matters in the strategic areas.

(p. cli) Article 84 It shall be the duty of the administering authority to ensure that the trust territory shall play its part in the maintenance of international peace and security. To this end the administering authority may make use of volunteer forces, facilities, and assistance from the trust territory in carrying out the obligations towards the Security Council undertaken in this regard by the administering authority, as well as for local defence and the maintenance of law and order within the trust territory.

Article 85 1.  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 amendment, shall be exercised by the General Assembly.

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2.  The Trusteeship Council, operating under the authority of the General Assembly, shall assist the General Assembly in carrying out these functions.

Chapter XIII  The Trusteeship Council Composition Article 86 1.  The Trusteeship Council shall consist of the following Members of the United Nations: a.  those Members administering trust territories; b.  such of those Members mentioned by name in Article 23 as are not administering trust territories; and c.  as many other Members elected for three-year terms by the General Assembly as may be necessary to ensure that the total number of members of the Trusteeship Council is equally divided between those Members of the United Nations which administer trust territories and those which do not. 2.  Each member of the Trusteeship Council shall designate one specially qualified person to represent it therein.

Functions and Powers Article 87 The General Assembly and, under its authority, the Trusteeship Council, in carrying out their functions, may: a.  consider reports submitted by the administering authority; b.  accept petitions and examine them in consultation with the administering authority; c.  provide for periodic visits to the respective trust territories at times agreed upon with the administering authority; and d.  take these and other actions in conformity with the terms of the trusteeship agreements.

(p. clii) Article 88 The Trusteeship Council shall formulate a questionnaire on the political, economic, social, and educational advancement of the inhabitants of each trust territory, and the administering authority for each trust territory within the competence of the General Assembly shall make an annual report to the General Assembly upon the basis of such questionnaire.

Voting Article 89 1.  Each member of the Trusteeship Council shall have one vote.

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2.  Decisions of the Trusteeship Council shall be made by a majority of the members present and voting.

Procedure Article 90 1.  The Trusteeship Council shall adopt its own rules of procedure, including the method of selecting its President. 2.  The Trusteeship Council shall meet as required in accordance with its rules, which shall include provision for the convening of meetings on the request of a majority of its members.

Article 91 The Trusteeship Council shall, when appropriate, avail itself of the assistance of the Economic and Social Council and of the specialized agencies in regard to matters with which they are respectively concerned.

Chapter XIV  The International Court of Justice Article 92 The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.

Article 93 1.  All Members of the United Nations are facto parties to the Statute of the International Court of Justice. 2.  A state which is not of the United Nations may become a party to the Statute of the International Court of Justice on to be determined in each case by the General Assembly upon the recommendation of the Security Council.

Article 94 1.  Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. (p. cliii) 2.  If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give to the judgment.

Article 95 Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.

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Article 96 1.  The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. 2.  Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

Chapter XV  The Secretariat Article 97 The Secretariat shall comprise a Secretary-General and such staff as the Organization may require. The Secretary-General shall be appointed by the General Assembly upon the recommendation of the Security Council. He shall be the chief administrative officer of the Organization.

Article 98 The Secretary-General shall act in that capacity 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. The Secretary-General shall make an annual report to the General Assembly on the work of the Organization.

Article 99 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.

Article 100 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 externa to the Organization. They shall refrain from any action which might 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 SecretaryGeneral and the staff and not to seek to influence them in the discharge of their responsibilities.

(p. cliv) Article 101 1.  The staff shall be appointed by the Secretary-General under regulations established by the General Assembly. 2.  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.

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3.  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 efficiency, competence, and integrity. Due regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible.

Chapter XVI  Miscellaneous Provisions Article 102 1.  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. 2.  No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph I of this Article may invoke that treaty or agreement before any organ of the United Nations.

Article 103 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.

Article 104 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 fulfilment of its purposes.

Article 105 1.  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. 2.  Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization. 3.  The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.

(p. clv) Chapter XVII  Transitional Security Arrangements Article 106 Pending the coming into force of such special agreements referred to in Article 43 as in the opinion of the Security Council enable it to begin the exercise of its responsibilities under Article 42, the parties to the Four-Nation Declaration, signed at Moscow, 30 October 1943, and France, shall, in accordance with the provisions of paragraph 5 of that Declaration, consult with one another and as occasion requires with other Members of the United Nations with a view to such From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and security.

Article 107 Nothing in the present Charter shall invalidate or preclude action, in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Governments having responsibility for such action.

Chapter XVIII  Amendments Article 108 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.

Article 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 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.

(p. clvi) Chapter XIX  Ratification and Signature Article 110 1.  The present Charter shall be ratified by the signatory states in accordance with their respective constitutional processes. 2.  The shall be deposited with the Government of the Unite States of America, which shall notify a the signatory states of each deposit as well as the Secretary-General of the Organization when he has been appointed. 3.  The present Charter shall come into force upon the deposit of by the Republic of China, France, the Union of Soviet Socialist, the United Kingdom of Great Britain and Northern Ireland, and the United States of America, and by a majority of the other signatory states. A protocol of the deposited shall thereupon be drawn up by the Government of the United

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States of America which shall communicate copies thereof to all the signatory states. 4.  The states signatory to the present Chartar which ratify it after it has come into force will become original Members of the United Nations on the date of the deposit of their respective ratifications.

Article 111 The present Charter, of which the Chinese, French, Russian, English, and Spanish texts are equally authentic, shall remain deposited in the archives of the Government of -the United States of America. Duly certified copies thereof shall be transmitted by that Government to the Governments of the other signatory states. IN FAITH WHEREOF the representatives of the Governments of the United Nations have signed the present Charter. DONE at the city of San Francisco the twenty-sixth day of June, one thousand nine hundred and forty-five.

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Statute of the International Court of Justice Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

of June 26, 1945 (Text: UNCIO XV, 355)

(p. clvii) Article 1 The International Court of Justice established by the Charter of the United Nations as the principal judicial organ of the United Nations shall be constituted and shall function in accordance with the provisions of the present Statute.

Chapter I  Organization of the Court Article 2 The Court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.

Article 3 1.  The Court shall consist of fifteen members, no two of whom may be nationals of the same state. 2.  A person who for the purposes of membership in the Court could be regarded as a national of more than one state shall be deemed to be a national of the one in which he ordinarily exercises civil and political rights.

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Article 4 1.  The members of the Court shall be elected by the General Assembly and by the Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration, in accordance with the following provisions. 2.  In the case of Members of the United Nations not represented in the Permanent Court of Arbitration, candidates shall be nominated by national groups appointed for this purpose by their governments under the same conditions as those prescribed for members of the Permanent Court of Arbitration by Article 44 of the Convention of The Hague of 1907 for the pacific settlement of international disputes. 3.  The conditions under which a state which is a party to the present Statute but is not a Member of the United Nations may participate in electing the members of the Court shall, in the absence of a special agreement, be laid down by the General Assembly upon recommendation of the Security Council.

Article 5 1.  At least three months before the date of the election, the SecretaryGeneral of the United Nations shall address a written request to the members of the Permanent Court of Arbitration belonging to the states which are parties to the present Statute, (p. clviii) and to the members of the national groups appointed under Article 4, paragraph 2, inviting them to undertake, within a given time, by national groups, the nomination of persons in a position to accept the duties of a member of the Court. 2.  No group may nominate more than four persons, not more than two of whom shall be of their own nationality. In no case may the number of candidates nominated by a group be more than double the number of seats to be filled.

Article 6 Before making these nominations, each national group is recommended to consult its highest court of justice, its legal faculties and schools of law, and its national academies and national sections of international academies devoted to the study of law.

Article 7 1.  The Secretary-General shall prepare a list in alphabetical order of all the persons thus nominated. Save as provided in Article 12, paragraph 2, these shall be the only persons eligible. 2.  The Secretary-General shall submit this list to the General Assembly and to the Security Council.

Article 8 The General Assembly and the Security Council shall proceed independently of one another to elect the members of the Court.

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Article 9 At every election, the electors shall bear in mind not only 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.

Article 10 1.  Those candidates who obtain an absolute majority of votes in the General Assembly and in the Security Council shall be considered as elected. 2.  Any vote of the Security Council, whether for the election of judges or for the appointment of members of the conference envisaged in Article 12, shall be taken without any distinction between permanent and nonpermanent members of the Security Council. 3.  In the event of more than one national of the same state obtaining an absolute majority of the votes both of the General Assembly and of the Security Council, the eldest of these only shall be considered as elected.

Article 11 If, after the first meeting held for the purpose of the election, one or more seats remain to be filled, a second and, if necessary, a third meeting shall take place.

(p. clix) Article 12 1.  If, after the third meeting, one or more seats still remain unfilled, a joint conference consisting of six members, three appointed by the General Assembly and three by the Security Council, may be formed at any time at the request of either the General Assembly or the Security Council, for the purpose of choosing by the vote of an absolute majority one name for each seat still vacant, to submit to the General Assembly and the Security Council for their respective acceptance. 2.  If the joint conference is unanimously agreed upon any person who fulfills the required conditions, he may be included in its list, even though he was not included in the list of nominations referred to in Article 7. 3.  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, within a period to be fixed by the Security Council, proceed to fill the vacant seats by selection from among those candidates who have obtained votes either in the General Assembly or in the Security Council. 4.  In the event of an equality of votes among the judges, the eldest judge shall have a casting vote.

Article 13 1.  The members of the Court shall be elected for nine years and may be re-elected; provided, however, that of the judges elected at the first

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election, the terms of five judges shall expire at the end of three years and the terms of five more judges shall expire at the end of six years. 2.  The judges whose terms are to expire at the end of the abovementioned initial periods of three and six years shall be chosen by lot to be drawn by the Secretary-General immediately after the first election has been completed. 3.  The members of the Court shall continue to discharge their duties until their places have been filled. Though replaced, they shall finish any cases which they may have begun. 4.  In the case of the resignation of a member of the Court, the resignation shall be addressed to the President of the Court for transmission to the Secretary-General. This last notification makes the place vacant.

Article 14 Vacancies shall be filled by the same method as that laid down for the first election, subject to the following provision: the Secretary-General shall, within one month of the occurrence of the vacancy, proceed to issue the invitations provided for in Article 5, and the date of the election shall be fixed by the Security Council.

Article 15 A member of the Court elected to replace a member whose term of office has not expired shall hold office for the remainder of his predecessor’s term.

(p. clx) Article 16 1.  No member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature. 2.  Any doubt on this point shall be settled by the decision of the Court.

Article 17 1.  No member of the Court may act as agent, counsel, or advocate in any case. 2.  No member may participate in the decision of any case in which he has previously taken part as agent, counsel, or advocate for one of the parties, or as a member of a national or international court, or of a commission of enquiry, or in any other capacity. 3.  Any doubt on this point shall be settled by the decision of the Court.

Article 18 1.  No member of the Court can be dismissed unless, in the unanimous opinion of the other members, he has ceased to fulfill the required conditions. 2.  Formal notification thereof shall be made to the Secretary-General by the Registrar. 3.  This notification makes the place vacant.

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Article 19 The members of the Court, when engaged on the business of the Court, shall enjoy diplomatic privileges and immunities.

Article 20 Every member of the Court shall, before taking up his duties, make a solemn declaration in open court that he will exercise his powers impartially and conscientiously.

Article 21 1.  The Court shall elect its President and Vice-President for three years; they may be re-elected. 2.  The Court shall appoint its Registrar and may provide for the appointment of such other officers as may be necessary.

Article 22 1.  The seat of the Court shall be established at The Hague. This, however, shall not prevent the Court from sitting and exercising its functions elsewhere whenever the Court considers it desirable. 2.  The President and the Registrar shall reside at the seat of the Court.

Article 23 1.  The Court shall remain permanently in session, except during the judicial vacations, the dates and duration of which shall be fixed by the Court. (p. clxi) 2.  Members of the Court are entitled to periodic leave, the dates and duration of which shall be fixed by the Court, having in mind the distance between The Hague and the home of each judge. 3.  Members of the Court shall be bound, unless they are on leave or prevented from attending by illness or other serious reasons duly explained to the President, to hold themselves permanently at the disposal of the Court.

Article 24 1.  If, for some special reason, a member of the Court considers that he should not take part in the decision of a particular case, he shall so inform the President. 2.  If the President considers that for some special reason one of the members of the Court should not sit in a particular case, he shall give him notice accordingly. 3.  If in any such case the member of the Court and the President disagree, the matter shall be settled by the decision of the Court.

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Article 25 1.  The full Court shall sit except when it is expressly provided otherwise in the present Statute. 2.  Subject to the condition that the number of judges available to constitute the Court is not thereby reduced below eleven, the Rules of the Court may provide for allowing one or more judges, according to circumstances and in rotation, to be dispensed from sitting. 3.  A quorum of nine judges shall suffice to constitute the Court.

Article 26 1.  The Court may from time to time form one or more chambers, composed of three or more judges as the Court may determine, for dealing with particular categories of cases; for example, labour cases and cases relating to transit and communications. 2.  The Court may at any time form a chamber for dealing with a particular case. The number of judges to constitute such a chamber shall be determined by the Court with the approval of the parties. 3.  Cases shall be heard and determined by the chambers provided for in this article if the parties so request.

Article 27 A judgment given by any of the chambers provided for in Articles 26 and 29 shall be considered as rendered by the Court.

Article 28 The chambers provided for in Articles 26 and 29 may, with the consent of the parties, sit and exercise their functions elsewhere than at The Hague.

Article 29 With a view to the speedy dispatch of business, the Court shall form annually a chamber composed of five judges which, at the request of the parties, may hear and determine (p. clxii) cases by summary procedure. In addition, two judges shall be selected for the purpose of replacing judges who find it impossible to sit.

Article 30 1.  The Court shall frame rules for carrying out its functions. In particular, it shall lay down rules of procedure. 2.  The Rules of the Court may provide for assessors to sit with the Court or with any of its chambers, without the right to vote.

Article 31 1.  Judges of the nationality of each of the parties shall retain their right to sit in the case before the Court.

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2.  If the Court includes upon the Bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge. Such person shall be chosen preferably from among those persons who have been nominated as candidates as provided in Articles 4 and 5. 3.  If the Court includes upon the Bench no judge of the nationality of the parties, each of these parties may proceed to choose a judge as provided in paragraph 2 of this Article. 4.  The provisions of this Article shall apply to the case of Articles 26 and 29. In such cases, the President shall request one or, if necessary, two of the members of the Court forming the chamber to give place to the members of the Court of the nationality of the parties concerned, and, failing such, or if they are unable to be present, to the judges specially chosen by the parties. 5.  Should there be several parties in the same interest, they shall, for the purpose of the preceding provisions, be reckoned as one party only. Any doubt upon this point shall be settled by the decision of the Court. 6.  Judges chosen as laid down in paragraphs 2, 3, and 4 of this Article shall fulfill the conditions required by Articles 2, 17 (paragraph 2), 20, and 24 of the present Statute. They shall take part in the decision on terms of complete equality with their colleagues.

Article 32 1.  Each member of the Court shall receive an annual salary. 2.  The President shall receive a special annual allowance. 3.  The Vice-President shall receive a special allowance for every day on which he acts as President. 4.  The judges chosen under Article 31, other than members of the Court, shall receive compensation for each day on which they exercise their functions. 5.  These salaries, allowances, and compensation shall be fixed by the General Assembly. They may not be decreased during the term of office. 6.  The salary of the Registrar shall be fixed by the General Assembly on the proposal of the Court. 7.  Regulations made by the General Assembly shall fix the conditions under which retirement pensions may be given to members of the Court and to the Registrar, and (p. clxiii) the conditions under which members of the Court and the Registrar shall have their travelling expenses refunded. 8.  The above salaries, allowances, and compensation shall be free of all taxation.

Article 33 The expenses of the Court shall be borne by the United Nations in such a manner as shall be decided by the General Assembly.

Chapter II  Competence of the Court

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Article 34 1.  Only states may be parties in cases before the Court. 2.  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. 3.  Whenever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court, the Registrar shall so notify the public international organization concerned and shall communicate to it copies of all the written proceedings.

Article 35 1.  The Court shall be open to the states parties to the present Statute. 2.  The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court. 3.  When a state which is not a Member of the United Nations is a party to a case, the Court shall fix the amount which that party is to contribute towards the expenses of the Court. This provision shall not apply if such state is bearing a share of the expenses of the Court

Article 36 1.  The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. 2.  The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a.  the interpretation of a treaty; b.  any question of international law; c.  the existence of any fact which, if established, would constitute a breach of an international obligation; (p. clxiv) d.  the nature or extent of the reparation to be made for the breach of an international obligation. 3.  The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.

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4.  Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court. 5.  Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms. 6.  In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.

Article 37 Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.

Article 38 1.  The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a.  international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b.  international custom, as evidence of a general practice accepted as law; c.  the general principles of law recognized by civilized nations; d.  subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2.  This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Chapter III  Procedure Article 39 1.  The official languages of the Court shall be French and English. If the parties agree that the case shall be conducted in French, the judgment shall be delivered in French. If the parties agree that the case shall be conducted in English, the judgment shall be delivered in English. 2.  In the absence of an agreement as to which language shall be employed, each party may, in the pleadings, use the language which it prefers; the decision of the Court (p. clxv) shall be given in French and English. In this case the Court shall at the same time determine which of the two texts shall be considered as authoritative. 3.  The Court shall, at the request of any party, authorize a language other than French or English to be used by that party.

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Article 40 1.  Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the Registrar. In either case the subject of the dispute and the parties shall be indicated. 2.  The Registrar shall forthwith communicate the application to all concerned. 3.  He shall also notify the Members of the United Nations through the Secretary-General, and also any other states entitled to appear before the Court.

Article 41 1.  The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2.  Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.

Article 42 1.  The parties shall be represented by agents. 2.  They may have the assistance of counsel or advocates before the Court. 3.  The agents, counsel, and advocates of parties before the Court shall enjoy the privileges and immunities necessary to the independent exercise of their duties.

Article 43 1.  The procedure shall consist of two parts: written and oral. 2.  The written proceedings shall consist of the communication to the Court and to the parties of memorials, counter-memorials and, if necessary, replies; also all papers and documents in support. 3.  These communications shall be made through the Registrar, in the order and within the time fixed by the Court. 4.  A certified copy of every document produced by one party shall be communicated to the other party. 5.  The oral proceedings shall consist of the hearing by the Court of witnesses, experts, agents, counsel, and advocates.

Article 44 1.  For the service of all notices upon persons other than the agents, counsel, and advocates, the Court shall apply direct to the government of the state upon whose territory the notice has to be served.

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2.  The same provision shall apply whenever steps are to be taken to procure evidence on the spot.

(p. clxvi) Article 45 The hearing shall be under the control of the President or, if he is unable to preside, of the Vice-President; if neither is able to preside, the senior judge present shall preside.

Article 46 The hearing in Court shall be public, unless the Court shall decide otherwise, or unless the parties demand that the public be not admitted.

Article 47 1.  Minutes shall be made at each hearing and signed by the Registrar and the President. 2.  These minutes alone shall be authentic.

Article 48 The Court shall make orders for the conduct of the case, shall decide the form and time in which each party must conclude its arguments, and make all arrangements connected with the taking of evidence.

Article 49 The Court may, even before the hearing begins, call upon the agents to produce any document or to supply any explanations. Formal note shall be taken of any refusal.

Article 50 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.

Article 51 During the hearing any relevant questions are to be put to the witnesses and experts under the conditions laid down by the Court in the rules of procedure referred to in Article 30.

Article 52 After the Court has received the proofs and evidence within the time specified for the purpose, it may refuse to accept any further oral or written evidence that one party may desire to present unless the other side consents.

Article 53 1.  Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim.

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2.  The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.

(p. clxvii) Article 54 1.  When, subject to the control of the Court, the agents, counsel, and advocates have completed their presentation of the case, the President shall declare the hearing closed. 2.  The Court shall withdraw to consider the judgment. 3.  The deliberations of the Court shall take place in private and remain secret.

Article 55 1.  All questions shall be decided by a majority of the judges present. 2.  In the event of an equality of votes, the President or the judge who acts in his place shall have a casting vote.

Article 56 1.  The judgment shall state the reasons on which it is based. 2.  It shall contain the names of the judges who have taken part in the decision.

Article 57 If the judgment does not represent in whole or in part the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

Article 58 The judgment shall be signed by the President and by the Registrar. It shall be read in open court, due notice having been given to the agents.

Article 59 The decision of the Court has no binding force except between the parties and in respect of that particular case.

Article 60 The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.

Article 61 1.  An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.

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2.  The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground. 3.  The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision. (p. clxviii) 4.  The application for revision must be made at latest within six months of the discovery of the new fact. 5.  No application for revision may be made after the lapse of ten years from the date of the judgment.

Article 62 1.  Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene. 2.  It shall be for the Court to decide upon this request.

Article 63 1.  Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith. 2.  Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.

Article 64 Unless otherwise decided by the Court, each party shall bear its own costs.

Chapter IV  Advisory Opinions Article 65 1.  The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. 2.  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.

Article 66 1.  The Registrar shall forthwith give notice of the request for an advisory opinion to all states entitled to appear before the Court. 2.  The Registrar shall also, by means of a special and direct communication, notify any state entitled to appear before the Court or international organization considered by the Court, or, should it not be sitting, by the President, as likely to be able to furnish information on the question, that the Court will be prepared to receive, within a time-limit to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

be fixed by the President, written statements, or to hear, at a public sitting to be held for the purpose, oral statements relating to the question. 3.  Should any such state entitled to appear before the Court have failed to receive the special communication referred to in paragraph 2 of this Article, such state may express a desire to submit a written statement or to be heard; and the Court will decide. (p. clxix) 4.  States and organizations having presented written or oral statements or both shall be permitted to comment on the statements made by other states or organizations in the form, to the extent, and within the timelimits which the Court, or, should it not be sitting, the President, shall decide in each particular case. Accordingly, the Registrar shall in due time communicate any such written statements to states and organizations having submitted similar statements.

Article 67 The Court shall deliver its advisory opinions in open court, notice having been given to the Secretary-General and to the representatives of Members of the United Nations, of other states and of international organizations immediately concerned.

Article 68 In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable.

Chapter V  Amendment Article 69 Amendments to the present Statute shall be effected by the same procedure as is provided by the Charter of the United Nations for amendments to that 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.

Article 70 The Court shall have power to propose such amendments to the present Statute as it may deem necessary, through written communications to the SecretaryGeneral, for consideration in conformity with the provisions of Article 69.(p. clxx)

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Drafting History Daniel-Erasmus Khan From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter

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(p. 1) Drafting History Prof. Dr. Daniel-Erasmus Khan A.  The Genesis of the Charter: An Overview 1–8 B.  Stages in the Creation of the New World Organization 9–57 I.  Proposals by Individuals and Private Groups 9–18 II.  Planning by the Experts 19–26 III.  The United Nations in the Proclamations of the Leading Statesmen on the War Aims 27–36 IV.  The Dumbarton Oaks Conference 37–41 V.  The Yalta Compromise 42–44 VI.  The Founding Conference at San Francisco 45–56 VII.  Ratification and Entry into Force 57 C.  Transition from League of Nations to United Nations 58–62

Select Bibliography American Society of International Law, ‘The UN Charter as History. Panel Discussion on April 5, 1995’ (1995) 89 ASIL 45. Benedicks W, The San Francisco Conference on International Organization: April–June 1945 (UMI 1994). Cot JP, ‘United Nations, History of’ MPEPIL (online edn). Drakidis P, La Charte de l’Atlantique 1941, la déclaration des Nations unies 1942: sauvegardées par la Charte de l’ONU, arsenal prioritaire de paix et de sécurité mondiales (CRIPES 1995). Fassbender B, ‘Dumbarton Oaks Conference (1944)’ MPEPIL (online edn). Hilderbrand R, Dumbarton Oaks: The Origins of the United Nations and the Search for Postwar Security (University of North Carolina Press 1990). Hoopes T and Brinkley D, FDR and the Creation of the UN (Yale UP 1997). Laing E, ‘Relevance of the Atlantic Charter for a New World Order’ (1989) 29 IJIL 298. Luard E, A History of the United Nations (Macmillan 1982). Marin MA, ‘Reflexiones sobre la Conferencia de San Francisco y la Carta de las Naciones Unidas’ in ONU, Año XL (Madrid 1987). May ER and Laiou AE (eds), The Dumbarton Oaks Conversations and the United Nations, 1944–1994 (Dumbarton Oaks Research Library and Collection 1998). Mazower M, No Enchanted Palace, The End of Empire and the Ideological Origins of the United Nations (Princeton UP 2009). Reynolds PA and Hughes EJ, The Historian as Diplomat: Charles K. Webster and the United Nations 1939–1946 (Robertson 1976). Russell R and Muther J, A History of the United Nations Charter. The Role of the United States 1940–1945 (Brookings Institution 1958). Schlesinger S, Act of Creation. The Founding of the United Nations (Westview Press 2003). Tiwari SC, Genesis of the United Nations (Lokbharati Publications 1968). Volger H, Geschichte der Vereinten Nationen (2nd edn, Oldenbourg 2008).

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Weber H, ‘History of the United Nations’ in Wolfrum R (ed), United Nations: Law, Policies and Practice (CH Beck and others 1995) 572.

Main Text (p. 2) A.  The Genesis of the Charter: An Overview * 1  To understand the genesis of the new peace Organization, it is not necessary, as was felt in the League of Nations period, to refer back to the philosophers of past centuries, to the classical ideas of eternal peace and a European federation for the enforcement of peace.1 In order to justify the constitutional legitimacy of the new world organization, there was simply no need to once again recall the quite obvious2 ‘three step bond’ from Kant to Wilson to the League of Nations and finally to the United Nations.3 2  It is frankly admitted that the following account certainly fails to do justice to the complexity of ideas and ideologies that lie behind the UN.4 My comments are indeed still very much committed to the traditional and rather limited narrative on the coming into being of the new World Organization. It is true, the hitherto virtually unchallenged assumption that the UN was essentially an American product as well as the prevailing ‘discontinuity thesis’ (‘the United Nations rose—like Aphrodite—from the Second World War, pure and uncontaminated by any significant association with that pre-war failure, the League of Nations’5) are in urgent need of a critical reappraisal. However, arguments put forward in order to challenge these two interconnected historical axioms in due consideration of a broad(er) array of intellectual antecedents and the entanglement of the Charter’s internationalism with imperialism, deserve further verification. It is simply felt that this short introductory chapter—at least for the time being—is not the right place to engage in this exciting and rather recent intellectual debate.6 3  The genesis of the UN began at the very moment at which the collapse of the League became evident. The war triggered by the aggression of Nazi Germany, soon widening (p. 3) into a world war, raised the inevitable question of a new legal world order for the post-war era. As a most bitter lesson of World War II, the need for collective action by the powerful States against threats to stability of the international order, and in particular to prevent future aggression by one country against another, was thus to become the primary concern in the various efforts to reframe the organizational structure of the world community.7 However, after considerable debate8 a consensus was reached that these efforts should no longer be limited to stopping direct threats of war, but should include the fight against its root-causes, too, including in particular ‘poverty, disease, ignorance, insecurity, unemployment, inequality and not least lawless tyranny and lack of human dignity’.9 Even if it was only in 2005 that the UN decided to institute an ‘International Day of Commemoration in memory of the victims of the Holocaust’,10 there was at least tacit agreement ‘that the founding principle of the Charter of the United Nations, “to save succeeding generations from the scourge of war” [as a] testimony to the indelible link between the United Nations and the unique tragedy of the Second World War’,11 was also to include the unprecedented atrocities committed in the shadow of this war, including in particular the Shoah. In fact, the ‘Declaration on Liberated Europe’ adopted at the Yalta Conference (February 1945) is unequivocal in the approval, at least in principle, of such a broad approach: ‘By this declaration we [the Three Powers] reaffirm our faith in the principles of the Atlantic Charter, our pledge in the Declaration by the United Nations, and our determination to build in co-operation with other peace-loving nations world order under law, dedicated to peace, security, freedom and general well-being of all mankind.’12

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4  Although the League was undoubtedly already doomed to failure at the latest with the outbreak of World War II (September 1939), it was only with the entry of the United States into the war (December 1941) that the discussion on patterns for a post-war organization was really set in motion. From the very beginning, the idea of a new world peace organization emanated from and was incorporated in the war aims of the Allied nations fighting the Axis powers. Public discussion, discrete planning, and finally diplomatic exchanges played a role in the drafting of the Charter and its adoption by the fifty founding member States at the San Francisco Conference in 1945. Four phases may be identified and distinguished in which the constitutive instrument of the UN was conceived, negotiated, drafted, signed, and ratified. One must add to these (final) phases a preliminary stage of post-war planning, in particular within the US Administration.13 Although at the time of its delivery on 5 October 1937 prompting an almost violently hostile reaction by the American public, in its great majority still favouring a strict policy of non-involvement, President Roosevelt’s famous ‘Quarantine (p. 4) Speech’ may for good reasons be considered a programmatic starting point of this early stage of post-war planning. Against the background of the Spanish Civil War and Japan’s aggressive politics in the Far East, the President advocated in rather clear terms for the 90 per cent of ‘peace-loving nations [to] make a concerted effort…to make their will prevail…against the remaining 10 per cent, who are threatening a breakdown of all international order and law’.14 With the continuous, although for obvious political reasons not always overt backing of the President, and in close interaction with him, the planning of the ways and means of such efforts has continued ever since and has gradually intensified.15 5  The first phase began in August 1941, and was terminated by the diplomatic preparatory Conference held during the summer of 1944 at Dumbarton Oaks (the seat of a private foundation, located within a spacious estate in Georgetown, on the outskirts of the American capital). The six and a half weeks of this Conference constituted the second phase in the history of the origin and elaboration of the Charter. The third phase was an interim one, consisting of intense diplomatic exchanges between the capitals of the three principal Allies—Washington, London, and Moscow. In this phase, the controversial left-overs from the preceding phase had to be clarified and resolved. This phase culminated in the Yalta Conference of February 1945. The fourth and final phase began with the opening of the San Francisco Founding Conference on 25 April 1945; it ended with the signing of the Charter on 26 June 1945. 6  During each of these four phases, parallel discussions were held at various levels regarding the proposed Organization. These discussions occurred in the context of proposals and publications by private individuals and groups, were crystallized in memoranda and planning papers by governmental bodies of experts, and were reflected in communiqués and official declarations by the leading statesmen of the war coalition on the occasion of their meetings and conferences. 7  In the course of the first phase, discussion initiated by private individuals or groups was often characterized by general, often speculative or even utopian proposals as to how world peace could be assured in the best and most effective way. At the same time, but independently and without close contact with private groups, governmental expert (p. 5) bodies began to study the problem and to formulate the results of their studies in the form of planning papers. These were national studies, and it was only towards the end of the first phase and at the beginning of the second phase that a diplomatic exchange of ideas was set in motion. During this phase, the more substantial and (compared with the private proposals) more realistic work by the experts, performed without publicity and fanfare, was overshadowed by the proclamations of the heads of governments regarding the general war aims. Such proclamations continued into the second and third phase, but neither the

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Moscow Communiqué nor those of Tehran, Cairo, or Yalta were very precise or substantial with regard to our issue. 8  It was only after the second phase, following the Dumbarton Oaks Conference (August/ October 1944) that the separate tracks of the discussion merged: scholars and committed private groups were able to study the results of this conference and to submit these results to critical examination, while heads of State referred to them in their statements.

B.  Stages in the Creation of the New World Organization I.  Proposals by Individuals and Private Groups 9  The intellectual climate in which the discussion of the post-war world order developed differed on the two sides of the Atlantic. 10  Until Japan’s surprise attack on Pearl Harbor on 7 December 1941, the American public had been split over the controversies regarding intervention in the European war, over the priority of neutrality or collective security, and over the choice of isolationism or international solidarity.16 It was only after the events of December 1941 that these polarizations were resolved and a consensus developed, unifying the nation in the effort to repel the enemy. 11  The European nations, on the other hand, were much too busy coping with the acute needs and challenges of the war triggered by the aggression of the Axis powers to devote energy and intellectual work to the problems of the post-war period.17 Their governments remained members of the League of Nations, which still existed though only as a shadowy and illusory vestige of its former self. 12  Nevertheless, the formal continuation of the existence of the League did not prevent Europeans, at least as far as they were not under fascist prodding, from producing and presenting suggestions and proposals for a new post-war organization. In fact, such proposals often emanated from the ranks of those who had been sympathizers and active supporters of that shipwrecked institution. In 1943 resolutions and manifestations of this kind originated in the Swedish and the Swiss Association for the League of Nations.18 It is true that there was no contact, cooperation or exchange between the proponents of such initiatives. At most, there was some cooperation among the ecumenical church groups active in this field. The only international body which took a proper initiative in this area was the Inter-American Juridical Committee, instituted and commissioned by (p. 6) the Inter-American Conference of Foreign Ministers at the occasion of its January 1942 Rio de Janeiro meeting.19 On the basis of an in-depth analysis of the factors which contributed to the breakdown of international law and order,20 the Committee formulated in fourteen points a rather ambitious and visionary catalogue of general principles upon which law and order should be based in a post-war world order.21 13  By far the most important private contribution was a memorandum drafted over the course of two years by 200 prominent members of the American legal profession, entitled ‘The International Law of the Future: Postulates, Principles and Proposals for the International Law of the Future’.22 At the 38th meeting of the American Society of International Law in Washington on 28 April 1944 this memorandum was presented to the public by Professor Manley O Hudson, Judge at the PCIJ.23 No other nation belonging to the group of founding members of the UN accomplished a comparable preparatory contribution. Even though some twelve Canadians and a few emigrants from Europe (inter alia, Hans Kelsen and Max Rheinstein) cooperated in the elaboration of that memorandum, it remained a document prepared essentially by citizens of the United States and it was regarded as such everywhere. On the other side of the Atlantic, the proposal led to a very critical assessment by the community of leading British international lawyers (H Lauterpacht, Hurst, McNair, Brierly).24 Lauterpacht’s rather harsh criticism (‘rather timid and uninspired document’) culminated in the remark: ‘there is room for a parallel and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

perhaps better effort in this country’.25 However, respective efforts by a ‘British International Law Committee’26 never really left the studies in Oxford, Cambridge, and elsewhere and never even came close to the public impact of the memorandum of its American counterpart. 14  By 1944 the vision of and the struggle for a new world organization was remarkably firmly anchored in American civil society:27 On 16 October 1944, to the great surprise of the organizers, members of almost 100 organizations interested in world security followed the invitation of two leading interest groups for an off-the-record discussion of the Dumbarton Oaks proposals under the auspices of the US State Department (UnderSecretary Stettinius present).28 (p. 7) 15  It is, however, difficult to attribute with any accuracy to particular individuals or groups the ‘origins’ of particular ideas finally adopted by the US government and29 even more so to estimate the influence of these proposals on the ultimate shape of the Charter, let alone to prove such influence by documentary evidence. No doubt these proposals contributed to the creation of a general intellectual climate from which the pragmatists in the expert committees and in the diplomatic negotiating delegations could not escape. On the other hand, it is striking that a prominent British expert who participated actively through the several years of elaboration and drafting of the Charter, the renowned historian Sir Charles Kingsley Webster in his 1947 lectures on ‘The Making of the Charter of the UN’ at the University of London, did not devote a single word to all these suggestions.30 16  It is indeed hardly surprising that, when entering the political arena at Dumbarton Oaks and later in San Francisco, some of the most innovative and forward-looking ideas contained in the ‘Postulates, Principles and Proposals’ of the 200 jurists had no chance of realization within a project still ‘based on the principle of the sovereign equality of all its Members’ (Art. 2 (1) of the Charter). The rather long list of non-considered proposals includes, inter alia: the rule that a member of the SC involved in a dispute was to abstain from voting; the principle of compulsory dispute settlement; automatic membership of all existing States in the Organization; the power of a two-thirds majority of the GA (with the consent of the Executive Council) to change general rules of international law or to create new rules; and a procedure for peaceful change. 17  It is true that some individual authors, among them scholars and politicians, developed and published ideas which flowed into the general discussion. Outstanding amongst them were a number of Swiss jurists and political scientists once closely connected with the League of Geneva, such as Hans Wehberg, Paul Guggenheim, and William E Rappard. Other names often mentioned as having been actively engaged in similar pursuits include Lord Robert Cecil, Edward H Carr, Harold Butler, Herbert Hoover, Hugh Gibson,31 and Hersch Lauterpacht. The latter, sometime in 1942–43, wrote a remarkable study on the principles of international organization,32 which, however, had no visible impact outside the narrow circle of specialists.33 It is indeed virtually impossible to establish with clarity a direct link between the intellectual work of any of these individuals (and many others) and the concrete shape of the final text of the Charter. 18  It is hardly necessary to point out that no such private discussion occurred—nor could it have occurred—in the Soviet Union. However, owing to the war conditions in their countries, French and Chinese nationals also failed to substantially contribute to the project.

(p. 8) II.  Planning by the Experts

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19  Parallel to discussions among private individuals and groups, expert bodies began to study the problem and to reflect on options and solutions. It was at this level of diplomats and bureaucrats in the ministries of Washington and London, under the leadership of the US Department of State and the British Foreign Office, that some rough outlines of the new Organization gradually took shape. Within two and a half years these governmental experts produced a series of working papers and memoranda, serving first to clarify their own positions and to examine the political aims of their respective governments and, secondly, as a means of securing domestic support for their diplomatic aims. During the second stage, such documents became the subject of a diplomatic exchange among the Allied Powers and, finally, the agenda of the Dumbarton Oaks Conference. 20  In the United States, the Advisory Committee, which Secretary of State Cordell Hull had established as early as January 1940,34 remained but a prelude to the concrete planning and eventually became dormant.35 It was not until the American entry into the war that planning activities in Washington were resumed and intensified.36 Before 1941 came to a close, Secretary Hull convened a new Advisory Committee and took over the chairmanship himself. However, Under-Secretary Sumner Welles gradually assumed the leading role on this committee.37 Technical sub-committees were established in order to study the legal, economic, and organizational aspects of the project. It was only in 1943, when Hull, after some differences with Welles,38 personally resumed direction of the work, that substantial results became visible. A paper entitled Draft Constitution of an International Organization, framed under the auspices of Welles, was thoroughly revised. Completed in August 1943 under the dominating influence of Hull, it was renamed ‘Charter of the UN’. This is the first time that the term ‘Charter’ appeared as the label of the constitutional document of the future world organization.39 21  In order to clear the path for US participation in the envisaged international body, early approval by Congress for the quest for a general international organization was desirable and—to the surprise of many—granted expeditiously and in very clear terms: on 21 September 1943 the House of Representatives adopted a Resolution (the Senate concurring) ‘favoring the creation of appropriate international machinery with power adequate to establish and to maintain a just and lasting peace, among the nations of the world, and as favoring participation by the United States therein through its constitutional processes’. In exactly one long sentence (or fifty words), this so-called ‘Fulbright Resolution’40 definitely brought to an end twenty years of US isolationism and helped to put US foreign policy on a broad, popular base. The final breakthrough was reached on (p. 9) 5 November 1943, when the Senate, by an overwhelming majority of 85:5, adopted the socalled ‘Connally Resolution’ in which ‘the Senate recognizes the necessity of there being established at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving states, and open to membership by all such states, large and small, for the maintenance of international peace and security’.41 A dialogue with the competent committees of the Congress (in particular the Committee of Eight, which was installed by the Foreign Relations Committee of the Senate) on the concrete projects elaborated by the Administration, however, took place only as late as May 1944. 22  After the conferences of Quebec (August 1943) and Moscow (October/November 1943) work was intensified. The technical sub-committees disappeared. Work was concentrated with a small core group of senior officials in the State Department, all of whom enjoyed Hull’s confidence. Members of this group, called the ‘Informal Political Agenda Group’, were the directors of the European and Far Eastern sections of the State Department, James C Dunn and Stanley K Hornbeck; the Legal Advisor, Green H Hackworth; and the ‘special assistants’ of the Secretary, Leo Pasvolsky and Joseph C Green. They were joined by some prominent outsiders, including: Isaiah Bowman, President of the Johns Hopkins University; Benjamin V Cohen, from the staff of the White House; Norman H Davis, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

President of the Council on Foreign Relations in New York; and Myron C Taylor, the President’s personal representative to the Vatican. 23  Soon after the Conference of Tehran (December 1943), a memorandum emanated from this group, linked with a ‘Plan for the Establishment of an International Organization for the Maintenance of International Peace and Security’. This working paper was submitted to the President and approved by him on 3 February 1944.42 In contrast to certain earlier papers, this was not a complete draft treaty, but a collection of principles, compiling a list of decisions to be made. However, the so-called ‘Outline Plan’ not only clearly named the two major purposes of the future organization (‘to establish and maintain peace and security, by force if necessary’ and ‘to foster cooperative effort among the nations for the progressive improvement of the general welfare’), but also contained essential elements regarding its institutional structure. 24  At the end of May 1944 Hull met the ambassadors of Great Britain, the Soviet Union, and China and informed them of the American preparedness to enter into diplomatic conversations on the problem of a post-war organization for the maintenance of peace. The British and Chinese governments reacted quickly and positively. The Soviet government remained silent at first but finally agreed on 9 July 1944.43 It was now possible to announce that formal exchanges between the principal Allied Powers on the UN project would begin in August. The United States immediately transmitted its ‘Tentative Proposals for a General International Organization’ to the other governments.44 Britain replied by sending five memoranda relating to various subjects which it considered essential.45 Moscow dispatched one single ‘Memorandum on the International Security (p. 10) Organization’; it was handed over on 21 August, when talks in Dumbarton Oaks began. China presented its paper even later, on 22 August. It was entitled ‘Essential Points in the Charter of the International Organization’.46 25  These reactions were significant for the overall picture of the preparatory work: the initiation, detailed elaboration, and formulation of the material lay primarily in American hands. No other government performed comparable advanced preparatory work. The Soviet government, as was evident from the timing and the content of its contribution, indicated that this was not one of its most favoured projects. It showed neither haste nor eagerness, nor a special commitment in this field. The Chinese government showed willingness to follow the American lead in this matter, but it was not inclined, and at the time probably not able, to engage in much activity. The British interest, strong from the outset, lasted up to the final phase, but it never led to the high degree of perfection reached by the American expert groups. For a long time, the officials and experts of the Foreign Office engaged in this field could not make themselves heard by the cabinet and the Prime Minister, which would have given weight to their proposals and considerations as having official government support. In August 1942 they completed a paper—called the ‘Four Power Plan’—suggesting that responsibility for the maintenance of peace was, in the last resort, to be conveyed to the four principal powers. Submitted to the war cabinet in October, the paper did not meet with complete approval. Prime Minister Churchill did not even read it, neither in its complete version nor in a short version.47 Another paper, dated 16 January 1943 and entitled ‘The United Nations Plan’, was no more effective.48 The first memorandum authorized for transmittal to the US government, dated 14 July 1943 and entitled ‘The United Nations Plan for Organizing Peace’, originated from a draft conceived by Gladwyn Jebb,49 Chief of the Economic and Reconstruction Department of the Foreign Office (in later years ambassador in Paris and thereafter, having been raised to the peerage as Lord Gladwyn, one of the most influential promoters of European unity in Great Britain). One of his collaborators, who contributed significantly to the revision and final shaping of this paper, was Sir Charles Kingsley Webster, the renowned historian from the London School of Economics, author of the standard work on the foreign policy of Castlereagh, and the leading mind in all post-war planning activities of the research department at the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Foreign Office. The team of Gladwyn and Webster, together with the Permanent UnderSecretary Sir Alexander Cadogan, must be regarded as having been the intellectual focus of the British contribution to the concept of the UN.50 26  On the level of bureaucratic and diplomatic planning bodies, one would encounter difficulties in trying to attach specific concepts to specific persons. This applied even more to the American than to the British participation in the conceptual development process from which the Charter emerged—a process mostly hidden in clouds of anonymity. In the committee protocols of the Department of State, specific proposals and ideas were never attached to specific persons identifiable by name, or to specific groups. The explanation has been given that never before had a major concept in American official policy been the product of so many minds as in this case of post-war planning. In most (p. 11) cases it was impossible to ascertain where an idea originated, and it was not deemed of great importance to verify its origin. The crucial point was not from where an idea came but where it led, eg whether it was adopted and became part of official policy.51

III.  The United Nations in the Proclamations of the Leading Statesmen on the War Aims 27  Understandably enough, the heads of government of the belligerent nations of the antiHitler coalition were influenced, and often hampered, by the actual events of the war when they should have been trying to reflect, to discuss, and to decide on questions of the postwar world and the institutions necessary to guarantee a more secure world peace than had existed before the war. The fact that their primary task was the conduct of a war and that every day new vital decisions of immediate import had to be made, limited their commitment to post-war problems and compelled them to push visions of the future into the background. Even if they occasionally dealt with the questions of the future, it was only towards the end of the war that they devoted significant attention to the questions of a future world organization. Prior to that time, it was up to the expert groups to study, elaborate, and formulate outlines for the UN project. Beginning in 1943, however, the war aim of establishing a future world organization appeared in conference protocols and communiqués of foreign ministers and Heads of State. 28  As in the case of experts, it is difficult to single out an individual statesman as the intellectual father of the Charter or of one of the UN institutions. It is true that President Roosevelt played a special role in the creation of the UN, but his role was not that of a contributor of specific ideas. Once aptly described as the ‘practical idealist’,52 his indeed highly important role was merely one of a propagator and political promoter of a peace organization as such. As early as in his October 1937 speech in Chicago (the famous ‘Quarantine Speech’),53 he had stated that it would be desirable to create a new peace organization—a truly universal and more effective institution than the League of Nations had been. However, given the strong resistance to be expected from the isolationist quarters of the American public, his appeal remained cautious in those early years. During the war years, President Roosevelt continued to press in the same direction and he succeeded in persuading his Allies—first Churchill, later Stalin and the smaller Allies. 29  As far as Churchill is concerned, we know that he originally visualized a concept of the post-war world which differed from the American one. He sympathized, it is true, with Roosevelt’s concept of the four Great Powers as a kind of directorate leading a world of nation-states and guaranteeing their peaceful behaviour. Deviating from this concept, however, Churchill wanted to entrust the peacekeeping function to regional organizations— a Council of Europe and a Council of Asia under the common roof of the world Organization.

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30  Stalin’s interest, on the other hand, was focused on the preservation of the independent Great Power position of the Soviet Union, free from restrictions on her sovereignty, protected against intervention and supervision by any international authority, shielded against majority votes of the ‘capitalist’ States, and equipped with a sufficiently strong (p. 12) voting potential. To ensure the latter point, Stalin argued for the membership of and voting rights for all sixteen of the constituent republics of the Soviet Union. When he requested such rights in the last negotiating stage at Yalta, the United States and Great Britain finally conceded three votes to him. 31  In general, the role of the Allied heads of government cannot be compared with the commitment shown by President Woodrow Wilson at the Paris Peace Conference in 1919. It was only in one short single meeting that they were personally confronted with a controversial issue of the UN project: at the Yalta (Crimean) Conference, where a compromise formula for the voting procedure in the SC was discussed and agreed upon. In their earlier meetings they had restricted themselves to proclaiming the creation of a postwar peace organization in rather vague language as one of their war aims. 32  Even the Atlantic Charter of 14 August 1941 (‘Joint Declaration of the President of the United States and the Prime Minister of Great Britain’), often regarded as a kind of birth certificate of the UN, a ‘blueprint for the post-war future’,54 or containing ‘the germs of many of the multilateral instruments adopted after the war’,55 mentioned only very cautiously and in a single clause of its point 8 the belief of the Allies that ‘pending the establishment of a wider and permanent system of general security’ the disarmament of aggressor nations would be essential.56 It was in fact Theodor Roosevelt who demurred from Winston Churchill’s initial proposal to include within the document a much more explicit commitment towards an ‘effective international organization’. Isolationism still being a potent force, the relatively innocuous formulation eventually chosen was probably the only political option for the President of the still non-belligerent United States in order to avoid feelings that the government was planning to sacrifice national sovereignty in the creation of a world super-state to regain strength.57 Nevertheless, the formula ‘pending the establishment of a wider and permanent system of general security’ soon became the ‘key intellectual underpinning for the State Department’s covert labors’.58 The quality of the document—as a legal or purely political document—remained in limbo, too.59 Whereas the publication of the Charter (as well as the later ‘Declaration by United Nations’ of 1 January 1942) in the League of Nations Treaty Series60 may speak in favour of its legal character, formal considerations (no signatures by participants, absence of approval by legislatures) and the rather ‘programmatic’ contents and language support the view that the Atlantic Charter must be considered a merely political document lacking obligatory force.61 (p. 13) 33  The (Joint) Declaration by United Nations, signed and proclaimed in Washington on 1 January 1942, simply confirmed that the signatories—twenty-six nations at war with the parties of the Tripartite Pact—agreed with the war aims programme of the Atlantic Charter, the formula in point 8 of which was neither repeated nor amended.62 34  The first somewhat more precise expression of the intention to establish a new world peace organization after the war was the Declaration of Four Nations on General Security, agreed and published by the foreign ministers of the United States, the United Kingdom, the Soviet Union, and China in Moscow on 30 October 1943. In the fourth section of that Declaration, the governments ‘recognize the necessity of establishing, at the earliest practicable date, a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security’.63 This text, agreed upon by Roosevelt and Churchill at their bilateral meeting in Quebec in August of the same year, was subsequently accepted by Moscow—but only after the word ‘peaceloving’ had been added before ‘States’. In this way, a criterion of qualification for

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membership was introduced which could be used—and was indeed used in later years—for political manipulation. 35  In the communiqué of the summit conference (United States, United Kingdom, and China) held at Cairo on 26 November 1943 no mention was made of the UN project. The subsequent summit with Stalin in Tehran (without Chinese participation) was concluded with a common declaration on 1 December 1943, in which the following rather imprecise statement was included: ‘And as to peace we are sure that our concord will make it an enduring peace. We recognize fully the supreme responsibility resting upon us and all the United Nations to make a peace that will command the good will of the overwhelming masses of the peoples of the world and banish the scourge and terror of war for many generations.’64 More clearly, the Prime Ministers of the British Commonwealth declared on 18 May 1944: ‘We affirm that after the war a world organization to maintain peace and security should be set up and endowed with the necessary power and authority to prevent aggression and violence.’65 36  When the Big Three convened for their last war summit at Yalta (the ‘Crimean Conference’, 3–11 February 1945), the war aims discussion was already far advanced. A general agreement relating to the UN project had been reached at Dumbarton Oaks. Thus, the fourth section of the Yalta communiqué could refer to this agreement in principle and it was possible to announce the convocation of the Founding Conference on 25 April 1945. It was also possible to reveal that a compromise on the question of the voting procedure in the SC had been reached. The fourth section of the Yalta communiqué reaffirmed: We are resolved upon the earliest possible establishment with our allies of a general international organization to maintain peace and security. We believe that this is essential both to prevent aggression and to remove the political, economic, and social causes of war through the close and continuing collaboration of all peaceloving peoples.(p. 14) The foundations for the new world organization, however, were laid at Dumbarton Oaks.66 Before discussing the details of the Yalta negotiations, it is thus necessary to go back to the preceding Dumbarton Oaks Conference.

IV.  The Dumbarton Oaks Conference67 37  The most important stage in the preparatory process preceding the San Francisco Conference and the adoption of the Charter was undoubtedly the double conference of Dumbarton Oaks in late summer of 1944, where the American and British delegations first met with their Soviet counterpart (21 August to 28 September), and subsequently with a Chinese delegation (29 September to 7 October). This division into two virtually separate conferences was due to the fact that the Soviet Union, sympathizing (to say the least) with the cause of Mao’s Communist Party of China, did not accept the Chiang Kai-shek government as the legitimate representative of the Chinese people. The official explanation for the Soviet position, however, was that, being (still) a non-belligerent party vis-à-vis Japan, it could not cooperate with a Chinese government that was actually at war with that country. Although the conference was based on the assumption that the Big Four should undertake to establish the Organization and to exert their influence upon its future course of action, it became evident, even at this early stage, that such cooperation would be fraught with problems. However, the ‘exploratory conversations on international organization’68 were led ‘energetically and with common desire for success’.69 The mission of the conference was not to elaborate a completely worded Draft Charter but to agree on an understanding in principle and to produce some sort of recommendations to the governments of participating States for further study.70 After the conclusion of the second part of the series of preliminary consultations, in which the Chinese delegation was merely informed about what had been agreed upon in the preceding phase, such a paper was From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

published on 9 October 1944 under the heading ‘Proposals for the Establishment of a General International Organization’.71 It was accompanied by the following ‘Statement issued simultaneously by the Participating Governments’: ‘… The Governments which were represented in the discussions in Washington [ie ‘Dumbarton Oaks’] have agreed that after further study of these proposals they will as soon as possible take the necessary steps with a view to the preparation of complete proposals which could then serve as a basis of discussion at a full United Nations Conference.’72 Six months later the Dumbarton Oaks proposals, regardless of their many deficiencies and lacunae, were indeed to serve as the key reference document for the Founding Conference at San Francisco. (p. 15) 38  Although the Conference disposed of a certain organizational structure—a steering committee was to make the substantial decisions and negotiate the necessary compromises and a Joint Formulation Group was entrusted with the task of transforming the decisions into treaty language—informality was the keynote of the Dumbarton Oaks Conversations: ‘the arrangements were simple and informal, designed to facilitate frank and rapid exchange of views.’73 The steering committee consisted of the heads of delegations and, on a rotating basis, some of their collaborators. In the first and decisive phase of the Conference the head of the American delegation was Under-Secretary Edward R Stettinius (who became Secretary of State in November 1944). The British delegation was headed by the Permanent Under-Secretary of the Foreign Office, Sir Alexander Cadogan, and the Soviet delegation by the ambassador in Washington, Andrei A Gromyko, later Foreign Minister. In the second phase, when negotiations were held with a Chinese delegation headed by the Chinese ambassador to Washington, Wellington Koo, Lord Halifax, the British ambassador to Washington and former Foreign Minister, replaced Cadogan as the leader of the British delegation. 39  The paper of 9 October 1944 summarizing the results of the Conference does not leave any doubt that a good proportion of the more lofty ideas discussed in the earlier stages had disappeared, while another, more pragmatic, tendency prevailed. Utopian visions of a world government with direct representation of the peoples in a world assembly, and supported by an international police force controlled by this body, faded away. So did the wishful thinking of some League veterans. ‘Deeply disappointed by the weaknesses of the Dumbarton Oaks Proposals’, Hans Wehberg criticized the character of the planned Organization as an ‘Alliance of the Great Powers’, symbolized by the voting procedure in the SC, and complained about the optional character of the procedures for the peaceful settlement of disputes.74 40  On the other hand, the ideas of some realists (like Churchill), aiming at regional agencies for the preservation of peace, also did not succeed. The promoters of such ideas were forced to recognize that the United States was aiming firmly at a universal peaceenforcing mechanism which would accommodate regional agencies only under the roof of the central authority and, in particular, under the guidance of the SC. However, the American proposal that the GA should study and recommend measures for promoting the observance of human rights was defeated due to British and Soviet opposition. 41  On one crucial point the participants at the conference were unable to reach any agreement, the question of voting in the Security Council,75 and here in particular the question remained open as to whether or not the Great Powers were to be allowed to exercise their veto rights in cases in which they were involved in a dispute. This matter was to be left to be decided later at the highest level. This placed the project of the (p. 16) UN Charter on the agenda of the next summit conference; a final decision would have to be made at the meeting at Yalta.

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V.  The Yalta Compromise 42  The Yalta Conference (February 1945) was the most important step (and indeed the only one of crucial significance) in the interim period between the preparatory and the founding conferences. The Proposals of Dumbarton Oaks had been published and were the subject of an intensive public discussion.76 Governmental experts everywhere were busy examining them and preparing opinions to be submitted by their governments to the Founding Conference by 4 May 1945. Most of them were irritated by the compromise formula which the Big Three had produced at Yalta and which fitted the principle of Great Power supremacy firmly into the new structure of world organization. 43  This formula, which eventually became Art. 27 of the Charter,77 emerged after a lengthy controversy between the United States and the United Kingdom on the one side, whose governments were convinced that a veto power for the permanent members of the SC was incompatible with the fundamental principles of the UN, and the Soviet Union on the other, which was firmly resolved to resist procedures whereby it would have to submit to majority decisions on questions of essential importance. In December 1944, in a letter to Stalin, Roosevelt suggested a compromise which became the basis of the Yalta agreement. At this conference, the last before Roosevelt’s death, Stalin was still adamant and for some time refused to agree to the compromise. When at last he gave in, he had exacted a considerable price. After protracted bargaining, his opponents agreed to concede membership rights not to all sixteen, but at least to two of the constituent republics of the Soviet Union—the Ukraine and Byelorussia. 44  It was no surprise that the compromise formula was opposed by many other nations at the San Francisco Conference. Many States remained sceptical whether the US Department’s somewhat narrow interpretation of the prerogatives of the Great Powers— when the Council is performing its ‘quasi-judicial’ function of promoting the pacific settlement of disputes, no nation, whether large or small, can be a judge in its own case78— would really stand the test of practice. In retrospect, the sceptics proved to be right. The wording of the invitation to this conference constituted the last UN-related topic on the Yalta agenda. The mandate for the San Francisco Conference read: ‘to prepare the (p. 17) Charter of such an organization along the lines proposed in the informal conversation of Dumbarton Oaks’.79 China and the provisional government of France were invited to join the sponsoring governments. China accepted; France, still irritated that she had not been invited to Yalta, refused. France went to San Francisco as an ordinary participant.

VI.  The Founding Conference at San Francisco 45  When President Roosevelt quite unexpectedly passed away on 12 April 1945, just two weeks ahead of the scheduled opening of the Founding Conference, the entire project suddenly fell into peril. Fortunately enough, his successor, Harry Truman, immediately approved the starting date and made his firm and unequivocal commitment to San Francisco public the very same evening. Nearly 300 official delegates, accompanied by a large number of technical staff, participated in the Conference.80 It was opened in the San Francisco Opera House by US Secretary of State Edward R Stettinius and concluded with the signing of the Charter by the representatives of fifty nations on 26 June 1945. In the course of two months the Conference succeeded in distilling from the generally worded principles and guidelines of Dumbarton Oaks a treaty text which was far from perfect in terms of legal technique, but which has served the world Organization as its legal basis and constitutional framework for almost seven decades. 46  The work of the Conference was performed on the basis of an organizational structure consisting of a multitude of committees and commissions on various levels.81 The most important function, that of drafting, was delegated to twelve technical committees (with sub-committees where needed). These committees were subordinated to four general commissions in charge of the most important issues to be settled in the Charter.82 All From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

delegations were allowed to be represented in all commissions and committees—but not all delegations were able to send a representative to all of these bodies. 47  On the level above that just described (immediately below the Plenary, the highest level), four other committees were active: a Steering Committee, composed of the heads of all delegations; an Executive Committee of fourteen heads of delegations (from the four sponsoring governments and ten co-elected governments); a Coordinating Committee, where the same fourteen governments were represented by a technically qualified member of their delegation, assisted by a small Advisory Committee of Jurists; and a Credentials Committee, formed by representatives from six delegations. 48  The texts elaborated by the lower committees were passed on to the respective commissions and from there were changed only in exceptional cases upon review by the (p. 18) Coordinating Committee and the Advisory Committee of Jurists. The task of the latter was to examine the language, to eliminate contradictions, to establish a uniform terminology, and to draft the text in technical legal wording. Substantial changes were to be referred back to the basic technical committees. After a text had been cleared by the Coordinating Committee it was up to the Steering Committee to submit it to the Plenary Assembly for vote and adoption. 49  Sessions of the Plenary and the commissions were public, whereas in the committees and sub-committees only members of delegations were admitted. At all levels decisions required a two-thirds majority of the representatives present and voting. The working languages of the conference were English and French, while other official languages were Russian, Spanish, and Chinese. The Coordinating Committee authorized English texts exclusively. 50  Apart from the official structure of the conference, an unofficial one existed. Its most effective element was formed by the consultations among the five principal powers which occurred throughout the conference. The influence of the Five Powers was dominant everywhere. Whenever a difference sharpened and approached a critical threshold, all the participants at the conference were aware of the fact that a veto by the Five—or only one of the Five—could ruin the whole project. This awareness produced a strong pressure towards consensus which, in spite of all the misgivings on the part of the nations not represented at Dumbarton Oaks, contributed to the adoption and enactment of the draft negotiated there by the Great Powers without significant amendments or firm opposition. 51  Ultimately, such pressure for consensus also affected the most sensitive point in the relationship between the sponsors and the other participants of the conference: namely, the struggle over the Yalta formula for the voting procedure in the SC. Its exact wording was to be found in the following conference document available to all delegations: ‘Comments and Proposed Amendments Concerning the Dumbarton Oaks Proposals Submitted by Delegations to the United Nations Conference on International Organization, 7 May 1945’.83 Motivated by the fear that this formula would enable any one of the Great Powers to prevent the discussion of a dispute in the SC, the majority of a sub-committee agreed on 22 May to compile a list of twenty-three penetrating questions to be presented to the sponsors, and in particular to the authors of the formula.84 In a sudden change of position Moscow pleaded in favour of a right to do precisely what the committee’s majority had feared. The Soviet argument stressed the probability that discussion of a dispute in the SC would set in motion a chain of events which could finally culminate in enforcement measures—a consequence which the Soviet Union would never accept against itself at any price. The three Western powers were no less resolved to resist any restriction of freedom of discussion in the SC. In a direct conversation with Stalin, two prominent Americans— Harry Hopkins, on a trip to Moscow, and Averell Harriman, the US ambassador there— succeeded in bringing about a Soviet retreat. As always, the concession had a price, that is, an assurance from the West that the decision of the preliminary question, namely whether

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or not the point under discussion was a matter of substance or of procedure, would require the unanimity of the five permanent Council members.85 (p. 19) 52  Of the five Great Powers, the United States was by far the most dominating and influential party. Thus, all committee chairmen were Americans with the sole exception of the Credentials Committee. The continued presence of the US Secretary of State (Stettinius) and of a delegation of high-ranking politicians (which included Senators Connally and Vandenberg, Congressmen Bloom and Eaton, and as a senior adviser, John Foster Dulles, representative of the Republican Party and symbol of the ‘bipartisan foreign policy’ of that era, while from outside the Congress Dean Virginia Gildersleeve and Harold Stassen joined the group) facilitated a high degree of quick action and freedom for manœuvre. The foreign ministers of the other Great Powers— Eden, Bidault, Molotov, and Soong—had to leave in mid-May and commissioned as their deputies their ambassadors to the United States (Lord Halifax, Gromyko, Wellington Koo) or a special emissary (Paul Boncour). 53  In its last phase, the San Francisco Conference ran into time pressures. The end of the war in Europe created urgent tasks for the nations engaged in it. The shadow of the Potsdam Conference (planned to be convened in July) was already cast in advance; the US government was strongly interested in submitting the Charter to the Senate before the summer recess. Through quick ratification it intended to obviate possible fears of a fall-back into isolationism, as had happened when the Covenant of the League of Nations had been placed before the Senate. Due to this haste, many of the shortcomings and obscurities in the Charter text could not be eliminated. In any case, there was some unfinished business which had been deferred for as long as possible. For example, no text for a Preamble had been prepared. Instead, there existed numerous proposals to amend and expand the Purposes and Principles, mentioned in the first two chapters of the Dumbarton Oaks Proposals. They related to delicate and highly controversial questions, such as, for instance, the ‘domestic jurisdiction reservation’, which was deemed important for a wide variety of reasons. Among the Latin American republics there was a strong fear of intervention by the powerful North American neighbour; the US Congress was always eager to safeguard the unrestricted sovereignty of the United States over its domestic affairs; the Soviet Union was strongly resolved to protect the social and political order of socialism. After difficult and protracted negotiations, Art. 2 (7) of the Charter emerged as an ambivalent compromise. 54  Other questions remaining unsettled related to the election of the SG, the compulsory jurisdiction of the ICJ, and the enforcement of its decisions. 55  As far as the Preamble was concerned, Jan Smuts, Field Marshal and elder statesman from the South African Union and a prominent veteran of the 1919 Peace Conference, submitted a draft,86 ‘in a language which should appeal to the heart as well as the mind of men’.87 It is certainly not without irony that it was the same man ‘whose segregationist policies back home paved the way for the apartheid State’88 who not only emphatically advocated to ‘give expression…in this new Charter of humanity’ of our fight ‘for justice and decency and for the fundamental freedoms and rights of man, which are basic to all human advancement and progress …’89, but eventually even became (p. 20) one of the driving forces behind the United Nation’s strong commitment to universal human rights. Due to the intervention of individual members of the US delegation (in particular Virginia Gildersleeve and Sol Bloom), the draft—although in principle accepted—was not only largely rewritten for linguistic reasons (there was indeed a ‘general feeling…that the phraseology of the Preamble needed to be improved and simplified’90). Rather, there was also a significant change in substance: modelled after the US Constitution’s opening, the initial line was redrafted to now read ‘We, the People of the United Nations’ (replacing the traditional formula proposed by Smuts ‘The high contracting parties’). No wonder that this wording, foreshadowing the existence of a global citizenry and thus a paradigmatic shift in the

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international community’s constitution, triggered a heated debate.91 However, at least with respect to this crucial issue, the US version was eventually accepted by the Conference. 56  In the penultimate Plenary meeting on 25 June 1945, the Charter was unanimously adopted. On the following day the representatives of fifty participating nations92 signed it without reservations in the five conference languages,93 and in a final ceremony US President Truman closed the conference.

VII.  Ratification and Entry into Force 57  On 8 August 1945, the United States was the first signatory to deposit its instrument of ratification94 after the Senate had given its consent by an overwhelming majority of 89:2 votes on 28 July 1945, demonstrating that America’s pre-World War II isolation was truly at an end. Certainly bearing in mind the somewhat humiliating and in the end futile efforts of one of his predecessors, Woodrow Wilson, to attain the Senate’s approval for the League of Nations Covenant some twenty-five years previously, a visibly relieved President Truman declared: ‘It is deeply gratifying that the Senate has ratified the United Nations Charter by virtually unanimous vote. The action of the Senate substantially advances the cause of world peace.’95 According to Art. 110 (3), the Charter was to enter into force as soon as it had been ratified by the five permanent Council members and a majority of all other signatories. This requirement was met on 24 October 1945 with the depositing of the instruments of ratification by the Soviet Union, Byelorussia, the Ukraine, and Poland. Since 1948, this day has been celebrated as United Nations Day (p. 21) and in 1971 the General Assembly recommended that the day be observed by member States as a public holiday.96

C.  Transition from League of Nations to United Nations 58  Throughout the Charter’s entire drafting history there was some sort of tacit agreement to wrap in silence as far as possible the League of Nations, formally still alive at the time of the creation of the United Nations.97 The birth of the new world organization and its early success should simply not be jeopardized by negative associations with the League and its somewhat discredited record.98 The few commentators on the issue were thus primarily concerned with pointing out the differences rather than stressing resemblances between the two organizations.99 No wonder, therefore, that the text of the Charter, too, remained silent on the unprecedented issue of the (de facto) succession of one international organization (the League of Nations) by another (the United Nations).100 The parallel existence of both organizations for almost six months—from October 1945 to April 1946— made indeed unequivocally clear that a (de iure) succession was neither intended nor in fact accomplished. However, burdens and possible conflicting obligations of dual membership for thirty-two out of fifty-one (original) UN members called for a speedy elimination of this dual structure. 59  The transition process had two essential objectives: first, to terminate in as speedy and dignified a manner as possible the existence of the League of Nations, guaranteeing however, as little interruption as possible in the performance of the organization’s nonpolitical and technical work. And, second, to transfer the League’s properties and assets to the United Nations. The combined dissolution of the League and the assumption of its assets and essential functions by a successor was an operation without precedent in history. It involved a variety of actors, facing a whole range of complex legal issues.101 60  In an Interim Arrangement of 26 June 1945, the San Francisco Conference entrusted a so-called Preparatory Commission with the task to, inter alia, ‘formulate recommendations concerning the possible transfer of certain functions, activities, and assets of the League of Nations which it may be considered desirable for the new Organisation (p. 22) to take over on terms to be arranged’.102 In pursuance of this broad mandate, the Commission itself and its rather complex organizational sub-structure (Executive Committee, Committee on the League of Nations, Committee on Transfer of League Assets (co-appointed with the League From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

of Nations Supervisory Commission), Committee to discuss and establish with the Supervisory Commission of the League of Nations a common plan for the transfer of the assets of the League of Nations) was unanimous in separating very clearly the question of transfer of functions and activities of the League of Nations from the question of transfer of assets. Whereas with respect to the latter issue a so-called ‘en bloc transfer formula’ was eventually adopted, a much more selective approach was favoured with respective to the assumption of functions, powers, and activities of the League (‘selective formula’).103 After intense deliberations and negotiations on various levels,104 the General Assembly, on 12 February 1946, approved105 a respective proposal106 and set up a ‘small negotiation committee to assist the Secretary-General in negotiating further agreements in connexion with the transfer of certain assets in Geneva, and in connexion with the premises of the Peace Palace in the Hague’. After the successful conclusion of these negotiations (including League, Swiss, and Dutch authorities as well as the Carnegie Foundation at The Hague), the way was paved for the dissolution of the League of Nations. 61  At the final meeting on 18 April 1946 of the 21st and last session of the General Assembly of the League of Nations, the thirty-four States present, ‘desiring to promote, so far as lies in their power, the continuation, development and success of international cooperation in the form adopted by the United Nations’, decided to dissolve the League of Nations107 with effect from the following day ‘except for the sole purpose of the liquidation of its affairs …’.108 It is significant in this respect to recall that all that was done in this carefully drafted resolution (prepared by the UK Foreign Office) was to dissolve the League of Nations without, however, explicitly touching on the validity of the Covenant itself, nor— in particular—the (peace) treaties annexed to it. 62  On 19 April 1946, almost six months after the creation of the United Nations, the League of Nations ceased to exist. At the final (21st) session of the League’s Assembly in April 1946, one of its founding fathers, deeply involved ever since in the efforts to make the first world peace organization a success story, the British diplomat Viscount Robert Cecil, ended his speech with the famous words: ‘The League is dead. Long live the (p. 23) United Nations.’109 In view of the Organization’s almost seventy years of arduous work for the benefit of humankind, one cannot but subscribe to this wish. It is further to be hoped that in the long run this ‘mighty combination of nations’ proves a valuable tool to realize a dream formulated in somewhat lofty words by Harry Truman at the opening of the San Francisco Conference: ‘Justice remains the greatest power on earth. To that tremendous power alone will we submit.’110 However, the somewhat more realistic remarks at the closing ceremony of the Conference on 26 June 1945 by the British ambassador to the United States and chairman of the United Kingdom’s delegation, Lord Halifax, should still serve as a haunting reminder that in the end it is up to each of us to make the United Nations a success story: We cannot indeed claim that our work is perfect or that we have created an unbreakable guarantee of peace. For ours is no enchanted palace to ‘spring into sight at once,’ by magic touch or hidden power. But we have, I am convinced, forged an instrument by which, if men are serious in wanting peace and are ready to make sacrifices for it, they may find means to win it.111(p. 24)

Footnotes: *  The author acknowledges that the following text contains elements of the respective comments on History co-authored by Wilhelm Grewe† and himself in the previous edition of this commentary.

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1

  Although the founding of the League of Nations in 1919 marked a radical departure from previous methods of diplomacy, Woodrow Wilson’s arguments in favour of the League did indeed strongly echo Immanuel Kant’s 1795 proposal for an institutional framework to secure perpetual peace (see VM Hackel, Kants Friedensschrift und das Völkerrecht (Duncker & Humblot 2000) 170ff and K Vorländer, Kant und der Gedanke des Völkerbundes (with an appendix ‘Kant und Wilson’) (Felix Meiner 1919). Trained as historian and political scientist, Wilson’s famous dictum at the occasion of the League’s founding (‘A living thing is born’), too, must be read as a reference to the rich intellectual heritage of peace projects (see also the meticulous study by C Chabrun, ‘Kant et M. Wilson’ (1917) XXXVII Revue des Deux Mondes 848ff). 2

  At the time, it was widely recognized that ‘he [Immanuel Kant] was right, or rather, he was more nearly right than anyone else at that time or since’. (CJ Friedrich, ‘The ideology of the United Nations Charter and the philosophy of peace of Immanuel Kant 1795– 1945’ (1947) 9 The Journal of Politics 11; J Rawls, too, is inspired by Kantian ideas ‘The Law of Peoples’ (1993) 20 Critical Inquiry 46 with further references in note 12). See also O Höffe, ‘Ausblick: Die Vereinten Nationen im Lichte Kants’ in O Höffe (ed), Immanel Kant: Zum ewigen Frieden (Akademie Verlag 2004) 245 and—for a somewhat broader perspective —J Delbrück, ‘“Das Völkerrecht soll auf einen Föderalismus freier Staaten gegründet sein”—Kant und die Entwicklung internationaler Organisation’ in K Dicke and KM Kodalle (eds), Republik und Weltbürgerrecht (Böhlau Verlag 1998) 181ff. 3

  J Rauber, ‘The United Nations—a Kantian Dream Come True? Philosophical Perspectives On The Constitutional Legitimacy Of The World Organisation’ (2009) 5 Hanse Law Review 52 accessed 5 June 2012. 4

  M Mazower, No Enchanted Palace, 9, who offers a number of exciting insights in this respect. 5

  In the words of Mazower (n 4) 14.

6

  See eg (2010) XI H-Diplo Roundtable Review No 47 (Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations. Princeton: Princeton University Press, 2009—with contributions by T Maddux, C Aydin, N Guilhot, R Thakur, J Winter, and M Mazower) accessed 5 June 2012. 7

  O Schachter, ‘The Charter’s Origins in Today’s Perspective’ (1995) 89 ASIL 46, 50.

8

  The Soviet Union initially held the position that the ‘primary and indeed the only task’ of the international organization should be the maintenance of peace and security and for economic and social matters a separate organization should be created (Hilderbrand, 87– 88). 9

  J MacLaurin, The United Nations and Power Politics (George Allen & Unwin Ltd 1951) 10.

10

  UNGA Res 60/7 (1 November 2005) UN Doc A/RES/60/7.

11

  ibid, Preamble, para 4.

12

  Foreign Relations of the United States Diplomatic Papers, The Conferences at Malta and Yalta 1945 (US GPO 1955) 977ff. 13

  Some early thoughts were also made in the British Foreign Office, albeit—as is reported (P Kennedy, The Parliament of Man. The United Nations and the Quest for World Government (Allen Lane 2006) 25)—‘with Churchill’s tart proviso that this was only for those who had time on their hands’. And they were indeed very few.

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14

  FD Roosevelt, The Public Papers and Addresses of Franklin D. Roosevelt (1937)— vol 1: The constitution prevails(Macmillan 1941) 405, 408, 410. Among the many protagonists in the quest for a new world organization in the US administration, special tribute should be paid to Leo Pasvolsky, from the very beginning (December 1939/January 1940) a driving force in the organizing of the US Department of Foreign Affairs’ post-war preparations (‘Advisory Committee on Problems of Foreign Relations’) and later (3 February 1941) as chief of the ‘Division of Special Research’ in the intensified study of possible solutions for postwar problems (C Hull, The Memoirs of Cordell Hull (2 vols, The Macmillan Company 1948) 1626ff (vol 2), see also JP Cot, ‘United Nations Charter, History of’ MPEPIL (online edn) MN 13 and Schlesinger, 33–51). It seems therefore wholly justified that the standard work on the founding history of the United Nations (Russell and Muther, A History of the United Nations Charter (1958)) is dedicated to this man for his tireless backstage work. 15

  Thus, the founding of the ‘Advisory Committee on Problems of Foreign Relations’ in early 1940 was seconded by Roosevelt’s carefully worded message to Congress on 3 January 1940: ‘We do not have to go to war with other nations, but at least we can strive with other nations to encourage the kind of peace that will lighten the troubles of the world, and by so doing help our Nation as well.’ (FD Roosevelt, The Public Papers and Addresses of Franklin D. Roosevelt (1940)—War and aid to democracies(Macmillan 1941) 2 (emphasis added). And the creation of the ‘Division of Special Research’ was a direct reaction on the President’s 1941 State of the Union Message (6 January, ‘Four Freedoms Speech’ [freedom of speech and expression, freedom of every person to worship god in his own way, freedom from want, freedom from fear]; ‘The promotion of these human freedoms became the basis for our consideration of a future world order’, see Hull (n 14) 1630 (vol 2); see also FR Donovan, Mr. Roosevelt’s Four Freedoms: The Story Behind the United Nations Charter (Dood, Mead 1966). 16

  For details see WL Langer and SE Gleason, The Challenge to Isolation, 1937–1940 (Harper 1952) and—as a first hand source—the interesting insights in Hull (n 14). 17

  B Fassbender, ‘The Better Peoples of the United Nations? Europe’s Practice and the United Nations’ (2004) 15 EJIL 860 rightly points to ‘Europe’s marginal role’. 18

  H Wehberg, ‘Zum gegenwärtigen Stande des Problems einer künftigen Weltorganisation’ (1943) 43 Friedens-Warte 205, 210. 19

  (1942) 36 AJIL (Supp) 85. All American republics being represented on the Committee, it can of course not be qualified as ‘private’ in the proper sense. 20

  (1944) 38 AJIL (Supp) 14.

21

  (1944) 38 AJIL (Supp) 12, 28. Although there are no proofs for this assumption, it seems likely that the numbering (‘14-points’) was chosen to elicit associations with Woodrow Wilson’s ‘Fourteen Points Speech’ of 8 January 1918, where he developed standard-setting criteria for a successful post-war order. 22

  (1944) 38 AJIL (Supp) 41. Published in the journal’s ‘official documents’ section, an asterisk clarifies in fact the ‘non-official’ character of the document. However, a prefatory note establishes an explicit relation to official US policy statements: ‘This statement of community views by a number of North Americans actively interested in international law has been formulated to aid in “revitalizing and strengthening international law”, and in “laying the base of a just and enduring world peace securing order under law to all nations”’ (see ibid, notes 1 and 2). 23

  MO Hudson, ‘The International Law of the Future’ (1944) 38 ASIL Proc 9.

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24

  See M Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870–1960 (CUP 2001) 389ff (with further references). 25

  ibid, 390.

26

  ibid, 391.

27

  Private American groups and organizations most active in the debate included: the Commission to Study the Organization of Peace, the Council on Foreign Relations, the American Association for the United Nations, the Federal Council of Churches of Christ in America, Americans United for World Organization, and the Foreign Policy Association; see RM, 215. 28

  For a complete list of participating organizations (1944) XI US Dept St Bull 450f: ‘The number is indicative of the very deep concern you feel…. let me say again that I am most impressed by your very evident determination…to do all what we can for the establishment of peace—peace in our time and for our sons and grandsons and so on through successive generations.’ (Ernest Hopkins, chairman of one of the co-sponsors of the venue, Americans United for World Organization, ibid, 451). 29

  RM, 217: ‘What mattered, in any event, in terms of the development of government policy, was not so much where ideas started, as where they ended.’ 30

  History 32 (Berkeley 1947) 16–38.

31

  Wehberg (n 18) 211.

32

  H Lauterpacht, International Law—Collected Papers, vol 3 (CUP 1977) 461ff.

33

  Koskenniemi (n 24) quotes from an (unpublished) letter of 15 December 1943, in which Brierly commented on the scheme’s liberal, cosmopolitan credo that the ‘proposals might be more effective if they were less ambitious’. 34

  See MN 4, nn 14 and 15.

35

  RM, 17ff, 218; US Dept of State (ed), Postwar Foreign Policy Preparation 1939–1945 (Publication 3580, 1950). 36

  See for details of the entire process: SJ Schwark, The State Department Plans for Peace, 1941–1945 (unpublished PhD thesis, Harvard University 1985). 37

  RM, 218.

38

  See Schlesinger, 41ff.

39

  RM, 219ff.

40

  At the time, a member of the Foreign Affairs Committee, the young Democrat James William Fulbright not only introduced the resolution, but also managed to carry the resolution across party lines and eventually assured a spectacular unanimous vote in the Committee (for the background story see: ‘U.S. At War: Postwar Catalyst’ (28 June 1943) Time Magazine and ‘Editorial: Fulbright’s Resolution. A Young Congressman offers a Foreign Policy Plank That Both Parties can Accept (28 June 1943) LIFE 28). 41

  For the text in English and German see (1944) 44 Friedens-Warte37.

42

  For the text see RM, app F, 991ff.

43

  Luard, 25.

44

  For the text see RM, app 6, 995ff.

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45

  The five topics were as follows: (a) scope and nature of an international organization, (b) guarantees and the pacific settlement of disputes, (c) security, (d) coordination of economic and political international machinery, (e) method and procedure for establishing a world organization. See Reynolds and Hughes, 136. 46

  RM, 393.

47

  Luard, 18.

48

  For the text see Reynolds and Hughes, app A, 121ff.

49

  For the text see Reynolds and Hughes, app B, 126ff.

50

  On Webster and his role in the making of the UN Charter see Reynolds and Hughes.

51

  RM, 215, 217, app A, 969.

52

  F Donovan, Mr Roosevelt’s Four Freedoms. The Story Behind the United Nations Charter (Dodd, Mead 1966) 1. 53

  See already MN 4.

54

  E Laing, ‘Relevance of the Atlantic Charter for a New World Order’ (1989) 29 IJIL 298, who comments that the ‘facial generality and simplicity’ of the eight short points contained therein often masks their profundity (ibid). See in general on the purpose and outcome of the Atlantic Conference T Wilson, The First Summit: Roosevelt and Churchill at Placentina Bay(Houghton Mifflin 1969). 55

  M Bennouna, ‘Atlantic Charter (1941)’ MPEPIL (online edn) MN 17.

56

  Message of the President to the Congress (21 August 1941) House Doc No 358, 77th Congress, 1st Session; (1941/42) IV Documents on American Foreign Relations 10; LNTS 204, 384. 57

  For a detailed account of the genesis and negotiation of the Atlantic Charter see Summer Welles, Where Are We Heading? (Harper 1946) Chapter 1: Progress Toward World Order. 58

  Schlesinger, 37. See also Hoopes and Brinkley, 36ff.

59

  In relation to ‘well-known political agreements during the Second World War’, O Schachter speaks of a ‘calculated ambiguity about the obligatory force of these instruments at least in regard to some of their provisions …’ (‘The Twilight Existence of Nonbinding International Agreements’ (1977) 71 AJIL 297f). 60

  204 LNTS 381.

61

  For a more detailed discussion M Bennouna, ‘Atlantic Charter (1941)’ MPEPIL (online edn) MN 13. 62

  US Dept of St Bull (3 January 1942) 3.

63

  US Dept of St Bull (16 November 1943) 307.

64

  Foreign Relations of the US, Diplomatic Papers: The Conferences at Cairo and Tehran 1943 (1961) 641. 65

  The Times, No 49(18 May 1944)359.

66

  US Dept of State (ed), The Conferences of Malta and Yalta(1955) 968–75. See A Fischer (ed), Teheran—Jalta—Potsdam. Die sowjetischen Protokolle von den Kriegskonferenzen der ‘Großen Drei’(Verlag Wissenschaft und Politik 1985).

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67

  See for details of the course of this conference and its results R Hilderbrand, Dumbarton Oaks. The Origins of the United Nations and the Search for Postwar Security (The University of North Carolina Press 1990) and the contributions in May and Laiou. 68

  Chairman of the American Delegation to the Washington Conversations on International Organization, ‘Report to the Secretary of State, October 7, 1944’ (1945) 39 AJIL (Supp) 45. 69

  Harley Notter (US State Department) cited after Hilderbrand, 85. In fact, at the conclusion of the first phase of the conversations, participants had ‘every reason for satisfaction with what has been accomplished’ (Stettinius, Remarks at the Closing Session) (1944) 11 US Dept St Bull 341. 70

  B Fassbender, ‘Dumbarton Oaks Conference (1944)’ MPEPIL (online edn) MN 3.

71

  (1943) 39 AJIL (Supp) 46.

72

  (1944) 11 US Dept St Bull 367.

73

  JF Green, ‘The Dumbarton Oaks Conversations’ (1944) 11 US Dept St Bull 459; see also B Fassbender, ‘Dumbarton Oaks Conference (1944)’ MPEPIL (online edn) MN 3. 74

  H Wehberg, ‘Die Vorschläge der 200 amerikanischen Juristen und Publizisten und die Empfehlungen von Dumbarton Oaks’ (1944) 44 Friedens-Warte 369ff. A more balanced view on the pros and cons of the draft prevailed in the American discussion: cf MO Hudson, ‘An Approach to the Dumbarton Oaks Proposals’ (1945) 39 AJIL 95ff; E Borchard, ‘The Dumbarton Oaks Conference’ (1945) 39 AJIL 97–101; PB Potter, ‘The Dumbarton Oaks Proposals Viewed Against Recent Experience in International Organization’ (1945) 39 AJIL 103–07; H Kelsen, ‘The Old and the New League: The Covenant and the Dumbarton Oaks Proposals’ (1945) 39 AJIL 45–83. 75

  The Dumbarton Oaks Proposals simply noted in this respect: ‘Section C. Voting (NOTE: the question of voting procedure in the Security Council is still under consideration).’ 76

  In order to stimulate discussion of the Dumbarton Oaks proposals and in order to back a common campaign for the organization, the State Department’s Office of Public Affairs had printed thousands of copies of the proposals and a question-and-answer sheet on the Draft UN Charter was distributed in great numbers (200,000 copies). On these and other promotion measures in the US see: Schlesinger, 53ff. 77

  The text of the formula was fixed in the (secret) ‘Protocol of Proceedings’ (see also—with respect to the formula itself—the President’s Message to the Congress (released to the press on 1 March 1945)): ‘It is not possible to announce the terms of that agreement publicly, but it will be in a very short time.’ (1945) 12 US Dept St Bull (4 March 1945, 324), in its entirety published only two years later, on 24 March 1947, in Washington, DC (for the text see: Foreign Relations of the United States. Diplomatic Papers: The Conferences at Malta and Yalta 1945 (1955) 975–82; for an exhaustive account of the proceeding from a US perspective, see ibid, 547ff). A comprehensive overview of all aspects of the conference is given by ER Stettinius, Roosevelt and the Russians: The Yalta Conference(Cape 1950) and with special emphasis on the formula itself FO Wilcox, ‘The Yalta Voting Formula’ (1945) 39 Am Polit Sci Rev (1945) 943ff. See also (with extensive references) I Couzigou, ‘Yalta Conference (1945)’ MPEPIL (online edn). Focusing on the legal significance of the Yalta agreements cf K Marek, ‘Retour sur Yalta’ (1982) 86 RGDIP 457ff. For details of the coming into being of the formula: Zimmermann on Art. 27 MN 17ff and Annex. 78

  (1945) 12 US Dept St Bull 394.

79

  Report on the Crimean Conference, 4–11 February 1945, s 4; US Dept St Bull12, 213.

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80

  A total of 5,000 people attended the Conference in different capacities, including 1,000 members of the Secretariat (cf JP Cot, ‘United Nations, History of’ MPEPIL (online edition) MN 73). Figures on logistics behind the conference are indeed impressive: ‘In order to fulfill the usual pattern of requests for a document, 5,000 copies in English were provided (1,500 in French, 500 each in Chinese, Spanish, or Russian) if the report was to receive unrestricted distribution’ (WJ Bruce ‘The San Francisco UNCIO Documents’ (1946) 9 The American Archivist 6, 15). Shipped to London aboard the Queen Elizabeth for use by the Preparatory Commission (cf MN 60), the official archives of the UNCIO Conference amounted to a total of 3,500 cubic feet (ibid, 7). 81

  GHS, 12–20; RM, 633–45. US Dept of State (ed), The UN Conference on International Organization: Selected Documents(Publication 2490, Conference Ser 83, 1946). For details concerning the structure of the conference and the course of negotiations see JP Cot, ‘United Nations, History of’ MPEPIL (online edn) MN 71 (with further references). 82

  Commission I: General Provisions; Commission II: General Assembly; Commission III: Security Council; Commission IV: Judicial Organization. 83

  Documents of the UN Conference on International Organization (San Francisco) UNCIO III, 10. 84

  UNCIO XI, 699–709.

85

  Luard, 46ff; RM, 713ff.

86

  Doc 2 G/14 (d) (1) May 3, UNCIO III, 476. See also C Heyns, ‘The Preamble of the United Nations Charter: the Contribution of Jan Smuts’ (1995) 7 AfJICL 329ff. For a more comprehensive account of the drafting history see Wolfrum on Preamble. 87

  Cited after Schlesinger, 236.

88

  Mazower, No Enchanted Palace, 19.

89

  UNCIO I, 425 (Speech of 1 May 1945 at the 6th Plenary Session of the San Francisco Conference). 90

  UNCIO I, 614. Virginia Gildersleeve, a former professor of literature and member of the US Delegation complained: ‘Worst of all, The English words and rhythm rarely stir the heart’ (UNCIO VI, 19). 91

  The explanation given on behalf of the US delegation by Virginia Gildersleeve (‘For these [opening words] seem to us to express the democratic basis on which rests our new Organization’, UNCIO VI, 19) was criticized as undermining the authority of sovereign governments. See on the whole issue: Russell and Muther, 910ff. 92

  From the beginning of the Conference, no agreement could be reached on which government—Lublin or London—was to be regarded as the de iuregovernment of Poland. Poland, therefore, did not participate in the Conference, but ‘original membership’ was expressly reserved for it, cfFastenrath on Art. 3 MN 4. After the establishment of a Provisional Government of National Unity, the Polish foreign minister signed the Charter in Washington on 15 October 1945, for Poland as the United Nations’ 51st member State. 93

  UNCIO XV, 336 (English text), 366 (French text), 398 (Chinese text), 424 (Russian text), 456 (Spanish text). 94

  Although the United States was in fact not the first State to actually ratify the Charter, the unusual hurry in the final act of the creation process, the deposit of the act of ratification (see Art. 110 (2)), was meant to send a clear signal to the world of the United States’ strong commitment towards the new World Organization.

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95

  Statement dispatched to the press in the early hours of 29 July 1945 (Foreign Relations of the United States, Diplomatic Papers: The Conference of Berlin (Potsdam Conference) 1945 (1945) 22. 96

  UNGA Res 2782 (XXVI) (6 December 1971) UN Doc A/RES/2782(XXVI) declaring United Nations Day (24 October) an international holiday. This recommendation, however, has been implemented by very few States. 97

  It is significant in this respect that in their addresses to the opening session of UNCIO on 25 April 1945, both US President Harry Truman and his Secretary of State, Edward Stettinius, carefully avoided any reference to the League of Nations (cf 1 UNCIO, 111ff). 98

  See LM Goodrich, ‘From League of Nations to United Nations’ (1947) 1 IO 3.

99

  See eg C Eagleton, ‘Covenant of the League of Nations and Charter of the United Nations: Points of Difference’ (1945) XIII Dept of St Bull 263: ‘Although there is a resemblance between the two systems in structure and general appearance, fundamental differences show, when added up, that the United Nations is quite different in concept and character …’ JB Brierly, too, confines his comparative analysis to ‘important differences of principle’ (‘The Covenant And The Charter’ (1946) 23 BYIL 84). 100

  JL Brierly even speaks of ‘an obvious and rather childish attempt to get away from the associations of the Covenant even in small points of terminology …’ (‘The Covenant And The Charter’ (1946) 23 BYIL 83). 101

  For details see: H Reiff, ‘Transition of League of Nations to United Nations’ (1946) XIV Dept of St Bull 691ff; DP Myers, ‘Liquidation of League of Nations Functions’ (1948) 42 AJIL 320ff; VY Ghebali, ‘La transition de la Société des Nations à l’Organisation des Nations Unies’ in United Nations Library/Graduate Institute of International Studies (eds), The League of Nations in Retrospect (de Gruyter 1983) 73ff. 102

  UNCIO XV, 512f.

103

  For a meticulous account of the take-over of functions and activities not performed strictly within the League of Nations organizational framework but exercised pursuant to international agreements or entrusted to specialized agencies (eg intellectual property, ILO, PCIJ and many others) see MM Whiteman (1968) 13 Digest of International Law 278ff. 104

  See for details: MM Whiteman (1968) 13 Digest of International Law 263ff.

105

  UNGA Res 24 (I) (12 February 1946) UN Doc A/RES/24(I); GAOR I (First Art) Annex 16 (598ff). 106

  Comprehensive documentation in H Reiff, ‘Transition of League of Nations to United Nations’ (1946) 14 Dept of St Bull 743ff. 107

  Alternatives to this unprecedented and, from a theoretical perspective not unproblematic procedure, were waged, but eventually repudiated essentially for pragmatic reasons (States were anxious for a speedy termination of their commitments to the League ( cf M Wood, ‘The Dissolution of the League of Nations’ (1946) 23 BYIL 321)). 108

  The respective task of the Board of Liquidation eventually set up for this purpose was completed on 31 July 1947 (see: Board of Liquidation, ‘Final report presented to states members of the League of Nations in accordance with the requirement of the final article of the Resolution for the dissolution of the League of Nations adopted by the Assembly on April 18th, 1946 at its Twenty-first ordinary session’ (1947)). 109

  Cited after FP Walters, A History of the League of Nations (Oxford 1952) 815.

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110

  UNCIO I, 113. Unfortunately enough, it seems that in the last seventy years US politics itself has not always met this high moral and legal standard. 111

  EF Lindley Wodd (ed), The American Speeches of the Earl of Halifax (OUP 1947) 407f.

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Reform Thilo Rensmann From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — Vienna Convention on the Law of Treaties — Collective security — Self-determination

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(p. 25) Reform Prof. Dr. Thilo Rensmann A.  Notion of Reform 1–3 B.  Reform and the Charter 4–29 I.  The Charter as a Programme For Reform 5–9 II.  The Charter as a Constraint on Reform 10–29 1.  UN Reform Without Reforming the Charter 11–12 2.  UN Reform By Means of Reforming the Charter 13–28 (a)  Reform Through Formal Amendment 13–14 (b)  Reform Through Practice 15–19 (c)  Reform Through (Re-)Interpretation 20–22 (d)  Reform through Informal Charter Amendment 23–28 3.  Reform of the UN and Reform of the UN System 29 C.  Phases of Reform 30–147 I.  Collective Security and Cold War 30–58 1.  The Ideal of Collective Security and the Reality of Cold War 30–31 2.  Unredeemed Promise of a Review Conference 32–34 3.  Informal Adaptation of the Collective Security System to the Exigencies of the Cold War 35–58 (a)  Limitation of the Veto Power 38–41 (b)  Introduction of the ‘Franchise Model’ 42 (c)  Shift of Power from the SC to the GA 43 (d)  The ‘Invention’ of Peacekeeping Forces 44–48 (e)  The Enhanced Political Role of the SG 49–52 (f)  The ‘Intergovernmentalization’ of the Secretariat 53–58 II.  Decolonization and the Shift to Development 59–79 1.  From War-Time Alliance to Universal Membership: Reform of the Admissions Procedure 59–60 2.  Self-determination and Human Rights: The Constitutional Underpinnings of Decolonization 61–63 3.  Equitable Representation of the Newly Independent Member States in the SC and ECOSOC 64 4.  Shift of the Reform Agenda to Development 65–79 (a)  Original Design: Functional Decentralization and Economic Liberalism 66–67

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(b)  Diversification and Duplication within the UN Development System 68–69 (c)  The Challenge of Coordination: Study on the Capacity of the UN Development System 70–74 (d)  Reforming Global Economic Governance: the Attempt to Establish a New International Economic Order 75–76 (e)  Adapting the Structure of the UN System to the New International Economic Order 77–79 III.  Reforming for Survival: Focus on Administrative and Budgetary Reform 80– 86 IV.  End of the Cold War and the Revitalization of the Collective Security System 87– 111 1.  Continuity and Change in the Post-Cold War Era 87–91 2.  The New Activism of the SC 92–94 3.  An Agenda for Peace 95–97 4.  SC Reform 98–100 (p. 26) 5.  An Agenda for Development 101–102 6.  A New SG and a New Millennium: UN Reform Regains Momentum 103– 111 V.  New Threats to Collective Security and the 2005 World Summit 112–124 1.  A Fork in the Road 112–115 2.  2005 World Summit Outcome 116–124 (a)  Peace and Security 117–121 (b)  Development 122–123 (c)  Human Rights 124 VI.  World Summit Follow-Up and Future Prospects for Reform 125–147 1.  Peace and Security 125–140 (a)  SC Reform 125–134 (b)  Peacekeeping 135–137 (c)  Responsibility to Protect 138–140 2.  Development and System-Wide Coherence 141–143 3.  Human Rights 144–145 4.  Environment 146 5.  Management 147 D.  Outlook 148–149

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Select Bibliography Bertrand M, ‘The Historical Development of Efforts to Reform the UN’ in A Roberts and B Kingsbury (eds), United Nations, Divided World: The UN’s Roles in International Relations (2nd edn, OUP 1993) 420–36. ——— The United Nations: Past, Present and Future (Kluwer 1997). Bourantonis D, The History and Politics of UN Security Council Reform (Routledge Chapman & Hall 2005). Center for UN Reform Education, Managing Change at the United Nations (Center for UN Reform Education 2008). Cot JP, ‘United Nations, Reform’ MPEPIL (online edn). Danchin PG and Fischer H (eds), United Nations Reform and the New Collective Security (CUP 2010). Dicke K and Fröhlich M, ‘Reform of the UN’ in Helmut Volger (ed), A Concise Encyclopedia of the United Nations (2nd edn, Nijhoff 2010) 587. Engel S, ‘Procedures for the De Facto Revision of the Charter’ (1965) ASIL Proc 108. Fassbender B, UN Security Council Reform and the Right of Veto: A Constitutional Perspective (Kluwer 1998). Franck TM, Nation Against Nation: What Happened to the U.N. Dream and What the U.S. Can Do About It (OUP 1985). Knight WA, A Changing United Nations: Multilateral Evolution and the Quest for Global Governance (Palgrave 2000). Lowe V, Roberts A, Welsh J, and Zaum D (eds), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (OUP 2008). Luard E, A History of the United Nations, vol 1, The Years of Western Domination, 1945–1955 (Macmillan 1982). ——— A History of the United Nations, vol 2, The Age of Decolonization, 1955–1965 (Macmillan 1989). Luck EC, Reforming the United Nations: Lessons from a History in Progress (The Academic Council on the United Nations System, International Relations Studies and United Nations Occasional Papers No 1, 2003).(p. 27) ——— ‘Prospects For Reform: Principal Organs’ in TG Weiss and S Daws (eds), The Oxford Handbook on the United Nations (OUP 2007) 653. Müller J (ed), Reforming the United Nations: New Initiatives and Past Efforts, vols 1–3 (Kluwer 1997). ——— (ed), Reforming the United Nations: The Quiet Revolution (Kluwer 2001). ——— (ed), Reforming the United Nations: The Struggle for Legitimacy and Effectiveness (Nijhoff 2006). ——— (ed), Reforming the United Nations: The Challenge of Working Together (Nijhoff 2010). Schrijver NJ, ‘The Future of the Charter of the United Nations’ (2006) 10 Max Planck YB UN L 1. Sohn LB, ‘Important Improvements in the Functioning of the Principal Organs of the United Nations That Can Be Made without Charter Revision’ (1997) 91 AJIL 652. Varwick J and Zimmermann A (eds), Die Reform der Vereinten Nationen—Bilanz und Perspektiven (Duncker & Humblot 2006). Volger H, ‘Die Reform der Vereinten Nationen’ in Helmut Volger (ed), Grundlagen und Strukturen der Vereinten Nationen (Oldenbourg 2007) 487–571. Weiss TG, Forsythe DP, Coate RA, and Pease KK, The United Nations and Changing World Politics (6th edn, Westview Press 2010).

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Wilde R (ed), United Nations Reform Through Practice—Report of the ILA Study Group on United Nations Reform (2011) accessed 7 June 2012. Wolfrum R (ed), Die Reform der Vereinten Nationen: Möglichkeiten und Grenzen (Duncker & Humblot 1989).

Main Text A.  Notion of Reform 1  The notion of ‘reform’ connotes ‘the removal of faults or errors’, a ‘change for the better’.1 In relation to the UN ‘reform’ hence describes any change within its institutional, procedural or programmatic structure introduced with a view to improving its capability to discharge its mandate.2 2  In this sense reforming the UN conjures up the idea of a planned, purposive transformation aimed at strengthening the effectiveness and efficiency of the Organization.3 Whilst reform is primarily characterized by a progressive telos, it is at the same time conservative in that it does not seek total revision but improvements within a given framework.4 Reform is an evolutionary rather than a revolutionary process.5 (p. 28) 3  The term ‘reform’ may either describe a continuous process of transformation and adaptation6 or the individual changes (‘reforms’) within that process. An additional ambiguity is introduced by the fact that the notion of ‘reform’ may refer to both actual and proposed changes.7 This double meaning reflects the procedural nature of reform. Whereas many reform initiatives do not lead to immediate change, they form an integral part of the overall process of finding ways of improving the Organization’s effectiveness and efficiency.8

B.  Reform and the Charter 4  Reform is a process in which political and legal elements are inextricably intertwined.9 What measures will improve the UN’s effectiveness and efficiency and hence constitute a ‘change for the better’ is largely a matter of political judgement.10 The process of reforming the UN has a distinct political dimension insofar as it responds to changes in political reality, requires political judgement and initiative and is dependent on mustering the requisite political support amongst the member States. At the same time, however, it remains firmly embedded in the ‘constitutional’11 framework of the Charter. The role of the Charter within this process encompasses three dimensions: the Charter is a programme for reform, it imposes limits on reform and it may itself be the object of reform.

I.  The Charter as a Programme For Reform 5  In laying down ‘the purposes and principles’ of the UN (Arts 1 and 2) and in establishing its principal organs with their concomitant competences and procedures (Art. 7, Chapters IV, V, X, XIII, XIV, XV) the Charter merely created the outer contours of the future organization. The task of fleshing out this framework in order to make the UN operational lay and continues to lie with the principal organs and the member States. Important issues, such as the creation of subsidiary organs (Art. 7 (2)), rules of procedure (Arts 21, 30, 72, 90), budgetary procedure (Art. 17), and staff regulations (Art. 101 (1)) or the negotiation and conclusion of ‘special agreements’ under Art. 43 are largely left to the political discretion of the various actors concerned. The Charter thereby ensures that the organizational structure remains adaptable and responsive to changes in its political

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environment. It reserves considerable space for reform below the threshold of constitutional amendment (Arts 108, 109).12 6  From a legal perspective both the initial process of making the UN operational and the subsequent process of adapting the Organization to changing circumstances are not entirely discretionary. The Charter places the organs of the UN and the member States (p. 29) under an obligation to ensure that the Organization is and remains endowed with the structure and instruments which allow it effectively and efficiently to ‘attain the common ends’13 formulated in Arts 1 and 2.14 This ‘promotional obligation’ is inherent in the purposes and principles set forth in Arts 1 and 2 which constitute the fundamental values to be realized progressively by the UN.15 7  The duty to ensure that the UN is provided with the structural means to discharge its mandate effectively is a continuous obligation. In the light of ever-changing factual circumstances the organs of the UN and the member States are charged with the responsibility of permanently monitoring and reviewing the effectiveness of the Organization and, if necessary, of making adjustments to ensure its proper functioning. In this sense the Charter may be said to establish a ‘responsibility to reform’. 8  As Art. 109 underlines, this obligation also extends to the constitutional foundations laid down in the Charter itself. In this context it is significant to note that Art. 109 (3) makes special arrangements for the contingency of a review conference not having been convened within ten years of the entry into force of the Charter. This provision highlights the fact that the Charter considers the responsibility for reviewing the ability of the Organization to realize its purposes and principles effectively to be permanently on the agenda of the Organization and its member States. 9  The substantive yardstick against which the effectiveness of the UN is to be assessed is primarily provided by the ‘purposes and principles’ set forth in Arts 1 and 2. In this sense the Charter provides a stable normative reference point in the process of reforming the UN. This observation, however, should not lead to the assumption that the Charter somehow foreshadows the specific substantive contours of any necessary reforms.16 It only indicates the direction in which to move.17 The ways and means by which the purposes and principles of the Charter are to be accommodated and realized remain first and foremost a matter of political judgement.18

II.  The Charter as a Constraint on Reform 10  Whilst the Charter provides a normative impetus for reform it also establishes legal limits to reform. In mapping out the constraints imposed by the Charter on reforming the UN, a basic distinction must be drawn between reform measures which can be effectuated without reforming the Charter and those which require a Charter amendment.

1.  UN Reform Without Reforming the Charter 11  Many reforms, such as those relating to the establishment of subsidiary organs, to the formulation of rules of procedure, of budgetary procedure, or of staff regulations can (p. 30) be implemented by the principal organs without Charter amendment,19 so long as such reforms stay within the ‘organisational power’20 of the organ in question and are otherwise consistent with the Charter.21 In relation to these matters the Charter merely establishes a framework within which the UN is permitted and intended to evolve and adapt to changing circumstances. 12  Beyond such cases of reform by virtue of ‘organisational power’, the broad formulation of certain Charter provisions gives UN organs and the member States considerable leeway for reform without formal Charter amendment. However, such ‘reform through interpretation’ inevitably involves a creative element which modifies the (original) meaning

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of the Charter.22 Consequently this category will be dealt with in the following section as an instance of reform of the Charter.

2.  UN Reform By Means of Reforming the Charter (a)  Reform Through Formal Amendment 13  If a reform measure is aimed at altering the ‘constitutional’ foundations of the UN (eg institutional changes with regard to the principal organs or reforms affecting the institutional balance within the UN23), such change in principle necessitates a Charter amendment. 14  The Charter sets a very high procedural threshold for such ‘constitutional’ amendments. Arts 108 and 109 (2) require a two-thirds majority in the GA or at a specially convened review conference respectively as well as the subsequent ratification by twothirds of the member States, including all the permanent members of the SC. Due to these strict conditions such ‘big ticket reform’24 has remained a rare occurrence. To date the Charter has only been formally amended three times, once to increase the size of the SC from eleven to its present fiften members25 and twice to expand the membership of ECOSOC from the original eighteen to twenty-seven and then subsequently to fifty-four.26

(p. 31) (b)  Reform Through Practice 15  Given the strict conditions imposed on formal Charter amendments on the one hand and the pressing need to adapt the UN to the seismic changes in the global political environment since 1945 on the other, alternative, ‘informal’ approaches to constitutional reform have gradually evolved.27 16  In many instances constitutional reform is simply effectuated by means of pertinent practice of the competent UN organs and the member States.28 Examples in point are the treatment of abstentions by the permanent members of the SC as ‘concurring votes’ within the meaning of Art. 27 (3),29 the introduction of UN peacekeeping forces,30 or the expansive reading of ‘threats to the peace’ in Chapter VII.31 17  A variation of ‘reform through practice’32 is the non-application or non-implementation of Charter provisions.33 The continuous non-application of a provision over a substantial period of time may affect its normative validity.34 Such desuetudo is in particular discussed with regard to the enemy States clauses in Arts 53 and 107.35 A pertinent instance of nonimplementation which had a profound impact on the constitutional structure of the UN is the persistent unwillingness of the member States to contribute contingents to standing UN forces as envisaged by Art. 43.36 18  Even if supported by a broad consensus amongst the member States, from a legal point of view such ‘reform through practice’ raises a number of complex issues. 19  At the outset a basic distinction needs to be drawn between practice which remains within the confines of legitimate Charter interpretation on the one hand and practice which exceeds these limits and hence amounts to a de facto Charter amendment on the other.

(c)  Reform Through (Re-)Interpretation 20  The extent to which changes in the practice of UN organs and/or the member States may still be considered to be within the substantive ambit of the applicable Charter provisions depends to a large extent on the general interpretative approach chosen. The prevailing view today is that the Charter must be interpreted in a purposive-dynamic rather than an originalist-static manner.37 As is evidenced by the Vienna Convention on the Law of Treaties, modern treaty interpretation generally puts a stronger emphasis on object and purpose (Art. 31) and relegates the travaux préparatoires to a merely (p. 32) supplementary status (Art. 32). The particular quality of the UN Charter as the constitution of the UN and the international community at large provides additional support for considering the

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Charter to be a ‘living instrument’ which must be ‘capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers’.38 21  The Charter accordingly leaves a broad corridor for reform through (re-)interpretation. At least in practical terms, an additional measure of flexibility is introduced by the fact that the UN (given the limited jurisdiction of the ICJ) lacks a central judicial authority with a comprehensive mandate to interpret the Charter authoritatively.39 Hence, in applying and interpreting the Charter, each organ in principle remains iudex in sua causa.40 22  The Vienna Convention on the Law of Treaties attaches particular significance to ‘any subsequent practice in the application of the treaty’ as a means of interpretation (Art. 31 (3) (b) VCLT). In this sense the member States and the UN organs possess a certain power to reform the Charter by virtue of their practice as long as such practice can be considered to ‘establish…the agreement of the parties [ie the member States] regarding its interpretation’ (Art. 31 (3) (b) VCLT).41 With regard to UN organs it is, however, difficult to argue that their practice may in itself be equated with a corresponding agreement amongst the member States, in particular if the organ in question does not represent all member States or decides on the basis of a majority vote.42 At the same time it must be borne in mind that, under the UN Charter, the member States themselves have entrusted the UN organs with the task of applying and interpreting the Charter.43 Against this backdrop tacit approval or acquiescence should be considered sufficient in order to establish that a certain UN practice relating to the application of the Charter is covered by the ‘agreement’ of the member States.44

(d)  Reform Through Informal Charter Amendment 23  If a certain practice within the UN cannot be reconciled with the Charter by means of interpretation, such practice is in principle unlawful unless it can be considered to constitute a corresponding (informal) Charter amendment. 24  Since Arts 108 and 109 set forth specific amendment procedures, it is, however, highly disputed whether and to what extent recourse to informal procedures pursuant to general treaty law (Arts 39, 40 in conjunction with Art. 5 VCLT) is permissible.45 (p. 33) 25  Some authors argue that due to the constitutional nature of the Charter the members of the UN must be deemed to have subjected themselves to the exclusive regime of the amendment procedure prescribed in Arts 108 and 109.46 According to this view any reform through practice exceeding the limits of legitimate Charter interpretation would be unlawful, and could be challenged as such, unless it were formally endorsed under the procedures laid down in the Charter.47 26  However, such a ‘constitutional’ approach carries the analogy with domestic constitutional law too far. The categorical exclusion of any ‘reform through practice’ beyond legitimate Charter interpretation would also risk delegitimizing the UN since, as it stands today, the UN operates on the basis of a number of informally accepted rules and principles which significantly deviate from the original constitutional blueprint adopted at the San Francisco Conference in 1945.48 27  In consequence the prevailing view assumes that under exceptional circumstances the member States possess the power to override the procedural restraints set forth in Arts 108 and 109.49 This view is based on the premise that the Charter, despite its constitutional character, retains its quality as a treaty and remains as such subject to general principles of treaty law (in particular Arts 39, 40 in conjunction with Art. 5 VCLT). 28  The conceptualization of such informal Charter amendments through practice is the subject of considerable dispute. While some assume that such practice may consolidate into an overriding norm of customary international law50 others maintain that it may lead to a Charter amendment by virtue of ‘spontaneous consent’.51 The latter view is preferable since it opens up the possibility of applying, by analogy, the majority requirement applicable to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

formal amendments under Arts 108 and 109.52 In contrast, the customary law approach would require the consent of all States.53 This would in turn endow each member State with a veto right and unduly restrict the possibility of informal Charter amendments.54

3.  Reform of the UN and Reform of the UN System 29  Certain reform measures and reform proposals not only affect the UN as such but also the UN System, ie the overarching institutional relationship between the UN and its specialized agencies (see Arts 57, 63). To the extent that such reforms touch upon the coordinating function of the UN within the UN System they will be dealt with in this commentary.

(p. 34) C.  Phases of Reform I.  Collective Security and Cold War 1.  The Ideal of Collective Security and the Reality of Cold War 30  The proper functioning of the UN, and in particular the system of collective security, was predicated on the continuing cooperation of the Big Powers. While serious cracks in the wartime alliance had already become visible during the drafting process,55 it became apparent soon after the Charter entered into force that an insurmountable rift separated the Western Allies from the Soviet Union. The bold idea of collective security gave way to the stark reality of the Cold War.56 31  The entire mechanism of collective security, which was the centrepiece of the new world order conceived at Dumbarton Oaks and San Francisco, quickly turned out to be stillborn. The SC which had been entrusted with the ‘primary responsibility for the maintenance of international peace and security’ (Art. 24) was immobilized by the excessive use of the veto power (Art. 27 (3)) granted to its permanent members.57 The mutual distrust between East and West also stood in the way of concluding agreements on the contribution of national contingents to standing UN forces (see Art. 43)58 without which, according to the original design of the Charter, the SC was not in a position to take military enforcement measures under Art. 42.

2.  Unredeemed Promise of a Review Conference 32  Virtually from the moment of its inception therefore the UN was in dire need of fundamental reform.59 The formal Charter amendments which would have been necessary in order to facilitate the adjustment of the system of collective security to the new reality of the Cold War were, however, in effect themselves subject to the veto of the Big Powers (see Arts 108, 109 (2)). The ‘international circumstances’ were thus indeed—as the GA put it— not ‘auspicious’ for any attempt to formally amend the Charter.60 33  Given that the UN at the time was dominated by the Western States, the Soviet Union felt no inclination to increase the Organization’s ability to regulate world affairs effectively. In particular the veto power was jealously guarded by the Soviet Union as an essential tool to protect its interests against the Western majority in the UN. Not surprisingly the Soviet Union and its allies maintained that the Charter was ‘fully adequate for its purposes’ and accordingly saw no need for reform.61 34  Against this backdrop it would have been a futile exercise to redeem the promise, made at the San Francisco Conference in return for acceptance of the ‘Yalta Formula’,62 to review the Charter comprehensively within the first decade after its entry into force (see Art. 109). When enjoined by Art. 109 (3) to consider the convention of a review (p. 35) conference, the GA, at its 10th session in 1955, deferred the issue until a more ‘appropriate time’.63 A committee was set up ‘to consider…the question of fixing a time and place for the Conference, and its organization and procedures’.64 Until its disbandment in 1967 the

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committee, in six consecutive sessions, reached the conclusion that the time was not yet ripe for such a conference.65

3.  Informal Adaptation of the Collective Security System to the Exigencies of the Cold War 35  Since there was no prospect of a formal Charter amendment, the Western allies pursued other avenues in their effort to unlock the stalemate which had paralysed the collective security system. In particular the United States government worked on the assumption that ‘[t]he Charter adopted in San Francisco [was]…a better and more workable charter than could have been agreed upon at any time since’.66 Drawing on analogies to US constitutional law the Charter was considered to be ‘flexible enough to be adapted to exigencies, which…could not have been completely foreseen by the most gifted of its begetters’.67 36  By making use of their majority position in the UN and the room for manoeuvre which in their view the Charter allowed as a ‘living constitution’,68 the United States and its allies set out to remodel the collective security system. The practice thus established within the UN significantly changed the constitutional design of the Charter. Despite the fact that these informal ‘reforms through practice’69 evolved under the specific conditions of the Cold War, most of them are today recognized as having become an integral part of the constitutional acquis of the UN. 37  Although the establishment and the later acceptance of this practice constituted an incremental process which commenced soon after the Charter entered into force, the Korean War (1950–53) and the ‘Suez crisis’ (1956) stand out as the focal points and main catalysts for the fundamental reform undergone by the Charter system of collective security during the first two decades of its existence.

(a)  Limitation of the Veto Power 38  The massive international crisis precipitated by the North Korean People’s Army crossing the 38th parallel on 25 June 1950 met with a surprisingly swift response from the SC.70 Within a few days of the North Korean attack a multinational force operating under a unified command and flying the UN flag was deployed to the Korean peninsula.71 The ability to react resolutely to a flagrant breach of the peace was, however, due to the (p. 36) unusual circumstance of the Soviet Union having temporarily withdrawn its representative from the SC. The Soviet Union had resorted to this measure in protest against the denial of its motion to allow the Beijing government rather than Taiwan to represent China in the SC.72 Despite this extraordinary constellation, considerable legal obstacles stood in the way of decisive action by the SC against the North Korean attack. 39  Procedurally the absence of the Soviet representative from the SC needed to be reconciled with the clear and unambiguous requirement laid down in Art. 27 (3) that nonprocedural decisions can only be made if supported by the ‘affirmative’ or ‘concurring’ votes of the permanent members. The Soviet Union insisted that the resolutions adopted in its absence were not in conformity with this requirement and hence devoid of legal force.73 The other members of the SC, however, could point to the fact that at the time it had already been an established practice within the SC not to treat the voluntary abstention of a permanent member as constituting a veto.74 The SC therefore proceeded on the assumption that the deliberate absence of a permanent member was to be equated to its voluntary abstention and would hence not bar the adoption of resolutions under the voting procedure of Art. 27 (3).75 40  Since neither the voluntary abstention nor the deliberate absence of a permanent member can be said to constitute an ‘affirmative’ or ‘concurring’ vote as required by Art. 27 (3) the practice established by the SC in this regard was a clear example of an ‘informal’ Charter amendment.76 The de facto modification of Art. 27 (3) has subsequently been

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endorsed by the ICJ in its Namibia opinion, at least insofar as the voluntary abstention of a permanent member is concerned.77 41  By providing the permanent members with the additional option of allowing the SC to act without their active agreement, the modified understanding of Art. 27 (3) made a significant contribution to mitigating the effects of the veto power. Throughout the history of the UN the permanent members have made frequent use of this option.78 In this sense the introduction of the ‘abstention power’ by means of an ‘informal’ Charter amendment constituted a key factor in increasing the ability of the SC to fulfil its mandate to maintain international peace and security.

(b)  Introduction of the ‘Franchise Model’ 42  The North Korean attack on its Southern neighbour confronted the SC with the substantive problem that, notwithstanding the expectation underlying Arts 43–47, no standing forces had been placed at the disposal of the SC by the member States. The SC was hence deprived of the ability to take military action itself to maintain and restore international peace and security as envisaged by Art. 42. Instead, for the first time the (p. 37) SC adopted a ‘franchise’ approach79 by calling on willing member States to step in on its behalf.80 Whilst it is still disputed whether the SC simply recommended action which would have found an independent legal basis as collective self-defence under Art. 51 or rather authorized enforcement action under Chapter VII,81 the pertinent SC resolutions constituted an important assertion of the SC’s resolve not to be left ‘impotent in the face of an emergency situation when agreements under Article 43 have not been concluded’.82 Following this precedent the SC authorized the British navy in 1966 to enforce economic sanctions imposed against Rhodesia.83 It was, however, not until after the end of the Cold War that the SC was in a position vigorously to pursue this line of constitutional reform further.84

(c)  Shift of Power from the SC to the GA 43  With the return of the Soviet representative to the SC in August 1950 any further intervention of the SC in the Korean conflict was forestalled by the Soviet veto. The Western powers therefore turned to the GA instead, which by UNGA Res 376 (V) significantly expanded the scope of the SC’s original ‘recommendation’ for collective action.85 This strategy of circumventing the veto power within the SC by shifting the issue to the GA had already been rehearsed on previous occasions.86 In the ‘Uniting for Peace’ resolution the GA set out to institutionalize this practice.87 If the SC ‘because of lack of unanimity of the permanent members’ failed to exercise its primary responsibility, the GA asserted the right to ‘consider immediately’ any apparent threat to the peace, breach of the peace, or act of aggression ‘with a view to making appropriate recommendations to Members for collective measures, including…the use of armed force when necessary…’. Despite paying lip service to the Charter by emphasizing the ‘primary responsibility’ of the SC for the maintenance of international peace and security (Art. 24) and confining itself to claiming the power to convene ‘Emergency Special Sessions’ and ‘recommend’ rather than to ‘order’ collective measures, the ‘Uniting for Peace’ resolution marked a shift of power from the SC to the GA which was ‘hardly reconcilable with the Charter’.88 The ‘Uniting for Peace’ resolution and subsequent practice significantly eroded the separation of powers between the SC and the GA as envisaged by the Charter. The ensuing readjustment of the institutional balance within the UN is generally accepted today and has been endorsed by the ICJ. Relying, inter alia, on the ‘practice of the Organization (p. 38) throughout its history’ the ICJ in the Certain Expenses opinion held the transferral of operative responsibility to the GA to be compatible with Art. 11 (2) in principle.89 Similarly, despite Art. 12 (1), the ICJ in the Wall opinion gave its imprimatur to the practice which evolved in the wake of the ‘Uniting for

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Peace’ Resolution according to which the GA and the SC ‘deal in parallel with the same matter concerning the maintenance of international peace and security’.90

(d)  The ‘Invention’ of Peacekeeping Forces 44  The ‘Uniting for Peace’ procedure was put to its first decisive test during the ‘Suez Crisis’ following the invasion of Egypt in October 1956 by Israeli, French, and British forces.91 The SC was unable to intervene in the conflict because France and the United Kingdom cast their veto. Invoking the ‘Uniting for Peace’ Resolution the SC instead ‘call[ed] an emergency special session of the General Assembly…in order to make appropriate recommendations’.92 45  The GA, on the basis of Lester Pearson’s initiative93 and SG Hammarskjöld’s conceptual groundwork,94 established the United Nations Emergency Force (UNEF), the first fullyfledged peacekeeping operation.95 Since peacekeeping forces were not as such contemplated by the Charter, UNEF was a major ‘institutional innovation’.96 46  The stated purpose of UNEF was ‘to secure and supervise the cessation of hostilities’ in accordance with the terms negotiated by the SG and set out in a previous UNGA resolution.97 Unlike the UN forces deployed in Korea, UNEF’s task was thus not to repel an armed attack but simply to oversee the disengagement of the parties to the conflict once hostilities had ceased. UNEF was accordingly not concerned with enforcement measures under Chapter VII.98 Rather it operated ‘with the consent of the nations concerned’,99 in particular of the parties to the conflict,100 it was to be impartial,101 and not to use force other than in self-defence.102 (p. 39) 47  Since Chapter VII was inapplicable to peacekeeping operations, the contribution of national contingents to the UN forces was, in contrast to the binding undertaking made by all member States under Art. 43 (1), completely voluntary.103 Equally, the control of the peacekeeping forces did not lie with the Military Staff Committee established pursuant to Art. 47, but was instead bestowed upon the SG.104 48  UNEF was to become the conceptual blueprint for many subsequent peacekeeping missions. Despite the many differences between the peacekeeping operations undertaken by the UN since the ‘Suez Crisis’ the ‘Summary Study’ drawn up by SG Hammarskjöld in 1958 on the basis of the experiences derived from UNEF can still be considered an authoritative restatement of the constitutional ‘principles and rules’ which underpin ‘classical’ UN peacekeeping operations to this day.105 The addition of peacekeeping forces to its arsenal of operative measures was perhaps the most fundamental reform the UN has undertaken so far.106 The fact that UN peacekeeping forces were awarded the Nobel Peace Prize in 1988 bears witness to the unparalleled success of this reform.

(e)  The Enhanced Political Role of the SG 49  The ‘Suez Crisis’ highlighted another significant ‘reform through practice’107 which substantially modified the original design of the Charter: the pronounced political role assumed by the SG in maintaining international peace and security.108 The Charter—unlike the Covenant of the League of Nations—does not confine the SG’s role to that of ‘chief administrative officer’ (Art. 97) but also provides for the delegation of ‘other functions’ to him by the political organs (Art. 98) and for an autonomous right to bring matters which may threaten international peace and security to the attention of the SC (Art. 99). This limited political role, however, contrasts sharply with the wide array of functions which were to accrue to the SG in the area of peace and security soon after the Charter entered into force.

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50  The enhanced political responsibilities of the SG were to a large extent due to the extensive powers delegated by the SC and the GA to the first two office-holders, Trygve Lie and Dag Hammarskjöld. An early example is provided by the 1949 armistice agreement between Israel and its neighbours which was negotiated by a representative appointed by the SG on the basis of a mandate given by the SC.109 In the aftermath of the Korean War the GA called upon the SG to seek the release of captured US airmen from the People’s Republic of China ‘by the means most appropriate in his judgement’.110 During the Suez crisis the SG’s political role was particularly pronounced. As tensions between Israel and Egypt rose in early 1956 he was requested by the SC ‘to arrange with the parties for the adoption of any measures which…would reduce existing tensions’.111 (p. 40) After the outbreak of hostilities in October 1956 the GA authorized the SG ‘to obtain compliance with the withdrawal of all forces behind the armistice lines’ and requested ‘to submit a plan for the setting up of…[a]…United Nations Force to secure and supervise the cessation of hostilities’.112 The plan drawn up by him was subsequently endorsed by the GA and the SG was authorized ‘to take all…necessary administrative and executive action’ to set up and dispatch UNEF.113 In relation to the establishment and operation of the peacekeeping forces in Congo (ONUC) between 1960 and 1964, the SC and the GA granted even more leeway to the SG.114 51  In particular the USSR and its allies argued that the transferral of such broad powers to the SG was incompatible with the institutional balance between the principal organs established by the Charter in relation to the maintenance of international peace and security.115 Referring to Art. 98 and the ‘reiterated consideration, confirmation, approval and ratification by the Security Council and by the General Assembly’ the ICJ in its Certain Expenses opinion insisted, however, that the powers exercised by the SG with regard to the peacekeeping operation in Congo did not ‘usurp…or impinge…upon the prerogatives conferred by the Charter on the Security Council’.116 52  While the exercise of delegated political authority by the SG found a relatively firm basis in Art. 98, Trygve Lie and in particular Dag Hammarskjöld increasingly engaged proprio motu in fact-finding or mediating activities.117 An example in point for such ‘good offices’ unauthorized by the political organs is provided by SG Hammarskjöld’s efforts, immediately after the nationalization of the Suez Canal Company by the Egyptian government in July 1956, to negotiate a peaceful settlement with the foreign ministers of Britain, France, and Egypt.118 Lie and Hammarskjöld perceived such autonomous good offices as being inherent in the power granted to the SG under Art. 99 to bring any threat to the maintenance of international peace and security to the attention of the SC.119 Despite the somewhat tenuous support provided by Art. 99, the autonomous political role which Hammarskjöld and his successors assumed in many instances without concomitant authorization by the intergovernmental organs, has long been recognized as a firmly entrenched and indispensable tool in fulfilling the UN’s task of maintaining international peace and security.120

(f)  The ‘Intergovernmentalization’ of the Secretariat 53  The increased political role played by the SG led to a reform initiative launched by the Soviet Union which fundamentally challenged the Charter concept of the Secretariat being an international civil service.121 Pursuant to Art. 100 the SG and the other (p. 41) members of the Secretariat are ‘international officials responsible only to the [UN]’ who in the discharge of their functions should not be influenced by the member States. 54  The Soviet Union was dissatisfied with the fact that the Secretariat was dominated by staff recruited from the United States, Canada, and Western Europe.122 However, while Art. 101 calls for ‘due regard’ being paid to the importance of recruiting the Secretariat staff on as wide a geographical basis as possible, it emphasizes at the same time that ‘the

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paramount consideration’ is ‘the necessity of securing the highest standards of efficiency, competence, and integrity’. 55  To ensure more staff from the socialist States being employed the Soviet Union called for a reorganization of the entire Secretariat ‘so that the three main groups of States [ie the Western States, the socialist States and the growing number of non-aligned States]…are represented in it on an equal footing’.123 The Soviet Union and its allies explicitly denounced ‘the conception of an international civil service’ and argued that there should be ‘a larger place for the fixed-term official who comes from his national administration…and at the end of a period of service expects to return to it’.124 56  In response to these demands the GA requested the SG to appoint a Committee of Experts (‘Group of 8’) charged inter alia with the task of making recommendations as to how to secure a wide geographical distribution of staff within the Secretariat.125 57  While the Soviet Union did not succeed in its more radical demands to replace the SG by a ‘troika’ representing the three main groups of member States,126 the recommendations made by the Committee of Experts eventually led to a larger number of Secretariat posts being filled with nationals from socialist and non-aligned countries. Since staff from the Soviet Union and its allies were allowed to be seconded by their own countries on the basis of fixed-term contracts, the Secretariat was as a result, in a significant departure from Arts 100 and 101, to a certain extent ‘intergovernmentalized’.127 58  It was the beginning of a theme that has run through the entire life of the UN Secretariat: ‘a battle of its independent nature and an almost constant restructuring accompanied by calls for its reform’.128

II.  Decolonization and the Shift to Development 1.  From War-Time Alliance to Universal Membership: Reform of the Admissions Procedure 59  The Cold War had not only prevented the system of collective security from operating as originally intended. The ideological rift between East and West also stood in the way (p. 42) of realizing the ideal of universal membership which is only qualified by the substantive conditions set forth in Art. 4 (1). Since according to Art. 4 (2) new members can only be admitted upon the recommendation of the SC, both the Soviet Union and the Western powers were in a position to veto the accession of new members from the opposite ideological camp. As a consequence most applications for membership in the UN faltered during the first decade.129 The logjam was only broken in 1955 when a ‘package deal’ was negotiated according to which sixteen new member States were admitted en bloc.130 This compromise seriously departed from the letter of the Charter. By making the admission of each of the membership candidates contingent on the acceptance of the other members the substantive conditions set forth in Art. 4 (1) were in effect abandoned. 60  The ‘informal’ reform the admissions process underwent at this ‘constitutional moment’ fundamentally changed the UN. The wartime alliance of 1945 was gradually transformed into a universal organization. In the subsequent admissions practice the letter of Art. 4 (1) was routinely disregarded in favour of the spirit of universality.131 This paved the way for a rapid increase in membership. Coupled with the process of decolonization the shift to ‘absolute universality’132 radically altered the political balance within the Organization. The newly independent States were soon to command the majority within the UN and to rewrite its agenda.

2.  Self-determination and Human Rights: The Constitutional Underpinnings of Decolonization

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61  At the San Francisco Conference neither human rights nor self-determination were included in the list of fundamental normative ‘principles’ upon which, according to Art. 2, the UN and its members are to base their actions. Human rights and self-determination were rather relegated to the more aspirational sphere of the Preamble and the ‘purposes’ of Art. 1. In addition, Chapters XI, XII, and XIII suggested that the existence of ‘non-selfgoverning territories’ was not as such incompatible with the principle of self-determination as originally understood by the drafters of the Charter. 62  The gradual emergence of human rights and self-determination as ‘hard’ constitutional principles underpinning the entire constitutional order of the UN was the result of an incremental reform process which stood in a dialectical relationship to the process of decolonization.133 On the one hand it was the promise of ‘human rights…for all without distinction as to race’ and ‘self-determination of peoples’ which lent legitimacy to the colonial peoples’ call for independence. On the other hand it was the growing influx of newly independent States into the UN which provided the necessary political support for the ‘constitutionalization’ of self-determination and human rights within the UN legal order. In 1960 the GA broke new ground by declaring that ‘all peoples have the right to selfdetermination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’.134 (p. 43) This new understanding of self-determination which went far beyond the original meaning of Art. 1 (2) was subsequently consolidated in common Art. 1 of the Human Rights Covenants135 and in the Friendly Relations Declaration of 1970.136 63  Although the GA succeeded as early as 1948 in formulating a ‘common understanding’ of human rights in the UDHR, the rights solemnly proclaimed in the declaration only gradually crystallized into ‘hard’ legal rules and principles. The breakthrough was marked by the adoption of the two Human Rights Covenants in 1966 in the evolution of which the new majority from the developing countries played a key role. ‘[I]t was precisely this new majority which put the two antagonistic blocs [of East and West] under pressure to end their doctrinal fighting and to consent to the adoption of the two draft International Covenants.’137

3.  Equitable Representation of the Newly Independent Member States in the SC and ECOSOC 64  Following the ‘package deal’ of 1955138 the number of accessions to the UN had risen dramatically. By 1963 the membership had more than doubled (from the original fifty-one to 114). The newly independent States which by now constituted the majority within the GA demanded to be adequately represented in the other principal organs, in particular in the SC and ECOSOC.139 The mounting pressure by the newly independent States eventually led to the first formal amendments of the Charter in accordance with Art. 108 by virtue of which the SC and ECOSOC were enlarged in order to allow a more equitable representation of the new members. At its 18th session in 1963 the GA adopted a resolution with the requisite majority which amended Arts 23, 27, and 61 with a view to increasing the SC from eleven to fifteen members by the creation of four new non-permanent seats, and ECOSOC from eighteen to twenty-seven members. The GA called upon the member States to ratify the amendments by 1 September 1965. Surprisingly, despite the fact that in the GA none of the permanent members had voted in favour of the amendments, they eventually decided to ratify the expansion of the SC and ECOSOC.140 By 31 August 1965 the ratification requirements set forth in Art. 108 had been fulfilled and the first formal Charter amendments entered into force. In 1973 ECOSOC was further expanded by doubling its size from twenty-seven to fifty-four members.141

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4.  Shift of the Reform Agenda to Development 65  With the increasing admission of newly independent States, the reform agenda within the UN shifted from peace and security to economic development.

(p. 44) (a)  Original Design: Functional Decentralization and Economic Liberalism 66  While the solution of ‘international problems of an economic [and] social character’ and the promotion of ‘economic and social progress and development’ belong to the fundamental purposes of the UN (Art. 1 (3), Art. 55 (a) and (b)), the Charter only provides for a loosely knit institutional structure to realize these goals. Chapters IX and X of the Charter are based on the concept of functional decentralization. Economic, social, and related matters are primarily entrusted to the cooperation amongst member States (Art. 56) who are, for this purpose, expected to establish ‘specialized agencies’ as separate international organizations (Arts 57, 59). According to the original design of the Charter the role of the UN in the economic and social field was thus essentially confined to coordinating ‘the policies and activities of the specialised agencies’ (Art. 58). By virtue of special agreements the specialized agencies were to be brought into a closer relationship (Arts 57, 63 (1)) with a view to creating a ‘UN family of organizations’142 or ‘UN System’. The Charter assigns the political and operational coordination to the GA and ‘under its authority’ to ECOSOC (Art. 60, Chapter X). 67  The original architecture of the UN System in the field of economic and social cooperation was informed by the idea that the ‘political’ issues of international peace and security should in principle be separated from the ‘technical’ matters of economic and social cooperation.143 This approach was coupled with a philosophy of state-centred economic liberalism144 according to which the primary goal of economic development assistance was to strengthen domestic infrastructures as a basis for the creation of economic growth by the private for-profit sector.145 The international economic environment was essentially regarded as ‘benign’ or ‘neutral’.146 The task of international economic cooperation was therefore restricted to maintaining a stable framework (in particular in relation to international monetary policy and international trade) for the smooth operation of domestic infrastructures and to provide financial and technical assistance to reconstruct disrupted national economies.147 Within the UN System, as conceived at the San Francisco Conference, these tasks were primarily to be discharged by the Bretton Woods institutions (IBRD and IMF) and the other ‘specialized agencies’ (Art. 57).

(b)  Diversification and Duplication within the UN Development System 68  In the wake of the process of decolonization and the massive influx of newly independent States into the UN the original concept of functional decentralization, which in the area of economic and social development assigned operational activities to the ‘specialised agencies’ and restricted the role of the UN to mere coordination and political guidance, was increasingly challenged. The desire of the developing States to secure greater control (p. 45) over international development cooperation led to the creation of numerous new programmes, funds, and organs under the auspices of the GA which by the mid-1960s was dominated by a solid majority of developing States. The establishment of new administrative units reporting directly to the GA, such as UNCTAD, UNDP, UNIDO, and the UN Capital Development Fund, was primarily aimed at shifting responsibilities from the specialized agencies to the UN.148 Of particular concern to the developing States were the Bretton Woods institutions which, due to the system of weighted voting, operated under the firm control of the major contributing States from the developed world. The creation of a new development infrastructure under the direct responsibility of the GA was, however, also

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intended to bypass ECOSOC, which the developing States, despite the expansion of its membership,149 did not consider as sufficiently representing their interests.150 69  The resulting change of the UN’s role from mere coordination to active participation in development assistance and the creeping disempowerment of ECOSOC constituted significant departures from the original institutional design of the UN System and may therefore as such be considered ‘reform through practice’.151 The institutional diversification and duplication within the UN development system, however, immediately created the need for renewed reform.

(c)  The Challenge of Coordination: Study on the Capacity of the UN Development System 70  By the mid-1960s there was a growing awareness of the fact that the complexity which the UN System had reached in the field of economic and social development seriously compromised its ability to deliver development assistance effectively. It was recognized that its institutional structure and the activities of the development ‘system’ had ‘evolved…on the basis of unrelated proposals rather than in accordance with a co-ordinated plan’152 and therefore required a thorough review. 71  In 1969 Sir Robert Jackson presented his influential ‘Study on the Capacity of the United Nations Development System’153 which had been commissioned by UNDP. Jackson’s task was to assess the effectiveness of the delivery of development assistance within the UN System and to project whether the UN development system had the ‘capacity to handle a programme approximately double that of the present operation within the next five years’.154 72  The Study came to a damning assessment of the status quo. The UN development system, as it stood at the time, was described as ‘the most complex organization in the world’, as a system which had become ‘unmanageable’ and, as a result was ‘becoming slower and more unwieldy, like some prehistoric monster’.155 (p. 46) 73  Jackson suggested a sweeping reform of the UN System which in his opinion would not require any amendment of the Charter or of the constituent instruments of the specialized agencies. The core of his reform strategy was the combination of maximum ‘horizontal’ centralization at the level of the UN System with maximum ‘vertical’ decentralization at the field level.156 Jackson’s view was that development projects within the UN System had previously been the result of uncoordinated and competing ‘salesmanship’ by various organs and agencies157 and he proposed instead a programming approach (‘UN Development Co-operation Cycle’) which would be led by the specific needs of each country and integrate all inputs from the various components of the UN System.158 The Capacity Study advocated the centralization of all policy decisions affecting technical cooperation in UNDP which would thus ‘operate effectively as the hub of the UN development system’. At the same time under the ‘country centred approach’ it was proposed to delegate as much authority as possible to the country level, ie to the UNDP’s Resident Representative.159 Last but not least, the study proposed to invest UNDP to the greatest extent possible with ‘the power of the purse’ which Jackson regarded as ‘a vital factor’ in effective management.160 While recognizing that it would be difficult to give UNDP control over funds from regular assessed budgets he stressed the importance of eventually channelling all other funds entrusted to the UN development system through UNDP.161 ‘In a longer perspective’ Jackson developed a vision of revitalizing ECOSOC as a ‘one-world parliament’ which would review and approve the development policies of all other components of the reformed UN development system.162

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74  While UNDP adopted and implemented some of Jackson’s core recommendations, in particular the system of country-oriented programming and the concomitant strengthening of the authority of the Resident Representative, the reform proposals relating to the integration and rationalization of the overall UN development system went largely unheeded. Its failure in this respect, however, ensured the lingering relevance of the Capacity Study to the UN reform process.163 Some forty years later, the High-level Panel on UN System-Wide Coherence164 would revisit the central ideas of Jackson’s study.165

(d)  Reforming Global Economic Governance: the Attempt to Establish a New International Economic Order 75  Whilst Jackson’s reform proposals were aimed at improving the UN development system as it stood at the time, more radical reform initiatives sought to establish an entirely new system of international economic governance. What previously had been mainly viewed by the UN through the lens of ‘technical’ assistance suddenly assumed a highly political quality. In calling for a ‘New International Economic Order’ the developing (p. 47) States aimed to change the economic development philosophy of the UN System.166 The post-war international economic order was no longer perceived as ‘neutral’ and ‘benign’. The liberal economic approach on which the Bretton Woods System and the GATT were based was considered to be inherently biased against the developing States. The market forces were deemed insufficient to promote development. The developing States argued that the structure and operation of the international economic system needed to be changed in order to create a level playing field.167 The development agenda thus suddenly reached far beyond technical and financial assistance and extended to issues such as trade, monetary policy, investment protection, transfer of technology, and the regulation of transnational enterprises. 76  This far-reaching approach to development found its first clear expression at the United Nations Conference of Trade and Development (UNCTAD) in New Delhi in 1964.168 The Group of 77 (G-77) emerging from this conference set out to shift global economic governance within the UN System from the Bretton Woods institutions and the GATT to the UN.169 In pursuing this strategy the G-77 succeeded in establishing UNCTAD as a permanent organ of the GA.170 The push for changing the UN System’s approach to international economic governance culminated in the adoption of the Declaration and Programme of Action on the Establishment of a New Economic Order by the GA in 1974.171

(e)  Adapting the Structure of the UN System to the New International Economic Order 77  In its attempt to implement the new development philosophy of the New International Economic Order in 1974 the GA requested the SG to appoint a Group of Experts (‘Group of 25’) charged with the task of elaborating ‘proposals on structural changes within the UN system so as to make it fully capable of dealing with problems of economic cooperation in a comprehensive manner’.172 The report entitled ‘A New United Nations Structure For Global Economic Cooperation’ (Gardner Report)173 was presented to the GA at its seventh special session in 1975. Although the Expert Committee confined itself to recommending reforms which could be implemented without Charter amendment,174 the proposals contained in its report amounted to a major structural overhaul of the United Nations. 78  The Committee recommended in particular the streamlining of the decision-making process in the GA with regard to economic issues, major structural adjustments within ECOSOC and its subsidiary bodies, the creation of a new post of ‘Director-General for Development and International Economic Co-operation to provide leadership to the… Secretariat and the entire UN system’, and the consolidation of funds for (p. 48) technical cooperation and preinvestment activities in a ‘United Nations Development Authority’.175 In relation to the Bretton Woods institutions the Committee suggested ‘that the weighted voting system…should be revised to reflect the new balance of economic power and legitimate interest of developing countries in a greater voice in the operations of [these]

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institution[s]’. As a long-term objective the Committee recommended the transformation of UNCTAD into an ‘International Trade Organization’. 79  After extensive deliberation the GA, in 1977, adopted a considerably watered-down version of the proposed reform programme in UNGA Res 32/197.176 Most of the recommendations relating to the improvement of the decision-making process and the organizational structure within the GA and ECOSOC were carried over into the resolution. The post of Director-General for Development and International Economic Co-operation was created, however, without the authority and support structures to exercise the leadership function envisaged by the ‘Group of 25’. Many other suggestions, including the creation of a ‘United Nations Development Authority’, were not taken up by the GA.177

III.  Reforming For Survival: Focus on Administrative and Budgetary Reform 80  The third phase of UN reform was closely linked to the growing dissatisfaction with the UN which became prevalent in the United States after Ronald Reagan became President in 1981.178 Within the United States the UN was increasingly perceived as hostile to the national interest. The political and economic agenda of the UN set in the GA by the dominant developing States stood in stark contrast to the neoliberal and anti-communist political platform on which Reagan had been elected.179 The cosmopolitan idealism which had informed the early policy of the United States towards the UN180 gave way to sceptical realism. The ‘UN dream’ seemed to be shattered.181 The Heritage Foundation, a conservative think-tank which exerted strong influence on the Reagan administration and political opinion in Congress, went so far as to develop the scenario of ‘A world without a UN’.182 But also from within the UN System the viability of the UN, as it stood at the time, was put into question. A widely noted report prepared by the Joint Inspection Unit suggested that the structural shortcomings of the UN were such that they could only be remedied by the establishment of a new ‘third-generation world organisation’ to succeed the UN in the same way as the UN had superseded the League of Nations.183 (p. 49) 81  The US administration and Congress were particularly frustrated by the fact that the United States, despite being the largest contributor, had no decisive influence on the budgetary process in the GA.184 In addition to objections to the allocation of funds to purposes considered harmful to US political interests, it was felt that large portions of the budget were being misspent due to the inefficiency of the Secretariat and the intergovernmental structure. In the view of the United States and other major contributors the fundamental structural problem lay in the fact that the majority of the UN members contributed so little to the budget as to give them no real incentive to increase the Organization’s efficiency and make responsible budgeting decisions. 82  In 1985 the US Congress passed the Kassebaum-Solomon Amendment185 by virtue of which the United States withheld 20 per cent of its assessed contributions to the UN and its specialized agencies until they introduced, ‘on matters of budgetary consequence’, weighted voting ‘proportionate to the contribution of each…member state to the budget’. The amendment was based on the finding ‘that the UN and its specialized agencies which are financed through assessed contributions of member states have not paid sufficient attention in the development of their budgets to the views of the member governments who are major financial contributors to those budgets’. 83  The call for weighted voting was perceived by the developing States as a frontal assault on the principle of sovereign equality which pursuant to Art. 2 (1) constitutes the cornerstone of the international legal order. However, the withholding policy of the United States threw the UN into an acute financial crisis which in the eyes of some member States raised the ‘spectre of a collapse of the UN’.186 At a special session held in October 1985 to commemorate the 40th anniversary of the UN the GA, following a proposal by the Japanese government, initiated a major reform initiative with a view to securing the UN’s survival. In From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

order to rebuild ‘the confidence in the UN and enhance the political will of the Member States to render more positive support to the Organisation’ the GA established ‘a Group of High-level Intergovernmental Experts to Review the Efficiency of the Administrative and Financial Functioning of the United Nations’.187 The Group consisted of eighteen government representatives appointed by the President of the GA. As required by its mandate, the ‘Group of 18’ finalized its report within the short span of six months and submitted seventy-one recommendations to be considered by the GA at its 41st session.188 84  The reform proposals of the Group of 18 related to the ‘intergovernmental machinery’, the Secretariat, personnel, monitoring, evaluation and inspection, as well as the planning and budget procedure. The most important and far-reaching recommendations concerned the Secretariat and the budget procedure. Maintaining that the Secretariat was both ‘too top-heavy and too complex’, the experts called for a reduction of regular budget posts by 15 per cent and a 25 per cent cut at the level of Under-Secretary-General and Assistant Secretary-General.189 In addition a regrouping and (p. 50) consolidation of the organizational structure and a streamlining of the administrations were proposed.190 85  In UNGA Res 41/213 the GA endorsed the key recommendations of the Group of 18.191 With regard to the planning and budgetary procedure the GA, on the basis of a number of different options suggested by the Group of 18,192 managed to hammer out a compromise which accorded more influence to the larger contributors without formally departing from the principles set forth in Arts 17 and 18.193 The decisive element of the compromise was the increased role of the Committee for Programme and Coordination (CPC) in the budget process. Since traditionally all major contributors were represented in the CPC and decisions were to be taken by consensus,194 UNGA Res 41/213 considerably strengthened the position of the United States. 86  Although the consensus-based budgeting process did not amount to weighted voting as demanded by the US Congress, it was recognized that the new process had ‘the effect of reducing the ability of the numerical majority to dictate decisions about the size and use of UN resources’.195 The United States resumed full payment of the assessed contributions and a plan for the repayment of the arrears developed.196

IV.  End of the Cold War and the Revitalization of the Collective Security System 1.  Continuity and Change in the Post-Cold War Era 87  The end of the Cold War created ‘new favourable international circumstances’197 which afforded the international community with a ‘second chance’198 to realize the vision of the UN as captured by the San Francisco Conference in the Charter. In the early 1990s the member States appeared to be resolved to seize the moment. The primary thrust of this phase of reform was thus not to change the Charter but rather to rekindle and revitalize its original design.199 88  However, the challenge of adapting the constitutional framework of the UN to the new post-Cold War reality was a lot more complex than simply the implementation of the founders’ original intent. Both the Charter and the world had changed considerably since 1945. 89  During the Cold War new mechanisms not foreseen by the Charter had been firmly established through practice, such as the good offices function of the SG200 and the (p. 51) deployment of peacekeeping forces201 or the ‘franchising’ approach to enforcement action by the SC.202 These novel means of securing international peace and security had not lost their significance. On the contrary, they regained new currency in the post-Cold War era but needed to be adapted to the new reality. In this sense many evolutionary patterns of ‘reform

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through practice’203 were simply continued despite the momentous change precipitated by the end of the Cold War. 90  In redeeming the ‘original promise’204 of the Charter, fundamental changes in the nature of threats to international peace and security also had to be taken into account. While the collective security system of the Charter was primarily aimed at containing interState conflicts, the main threat to international peace and security was now posed by the collapse of State structures and civil strife within States.205 This meant that the UN, in its mandate to maintain and restore peace, was increasingly intruding into matters which were originally thought to be ‘within the domestic jurisdiction’ of the States concerned (Art. 2 (7)). As the experience in the Congo in the 1960s had already taught,206 peacekeeping in such situations created a host of complex problems. In addition, there was a rising awareness that sustainable peace would only be realized if the UN were prepared to lend a helping hand in rebuilding the collapsed State structures.207 The UN therefore had to approach the task of defining certain minimum standards of ‘good governance’208 which had traditionally been largely shielded from view by the veil of State sovereignty (Art. 2 (1)). 91  In the post-Cold War era the UN therefore increasingly had to look beyond State sovereignty and assess not only the effectiveness but also the legitimacy of the exercise of governmental power. The ‘time of absolute and exclusive sovereignty ha[d] passed’.209 The ideological rapprochement between East and West since the end of the Cold War finally led to the entrenchment of human rights210 and the right of all peoples to self-determination (ie also beyond the colonial context) as fundamental constitutional principles of the UN set at a par with the sovereignty of States which the founders in Art. 2 (1) had placed at the pinnacle of the UN’s principles. Claims to respect for State sovereignty would find their limits from now on in the prescriptions of fundamental human rights and the right to self-determination.211 In addition the right to democratic governance gained increasing recognition within the UN.212 This fundamental change in the constitutional framework of the Charter, which was the result of an incremental process reaching far back into the history of the UN,213 was probably the most far-reaching ‘reform through practice’ the post-Cold War era has (p. 52) brought about.214 At the same time it constitutes a pressing and ambitious ‘program for reform’215 which is still high on the agenda of the UN.

2.  The New Activism of the SC 92  The newly found consensus amongst its permanent members allowed the SC to fulfil its primary responsibility more effectively.216 By mid-1992 thirteen new peacekeeping operations had been launched by the SC, as many as during the entire Cold War period between 1945 and 1987.217 Responding to the new challenges posed to international peace and security, the nature of the peacekeeping mandates broadened considerably including tasks such as election monitoring, human rights verification, and the repatriation of refugees.218 93  The most dramatic change, however, was the extensive use the SC made of its powers under Chapter VII.219 The most spectacular display of the new resolve resolutely to discharge its responsibility for the maintenance of international peace and security was the SC’s swift and successful response to the Iraqi aggression against Kuwait in 1990. Since the SC still had no standing forces at its disposal the SC had recourse to the ‘franchise’ approach it had previously employed in the Korean War.220 UNSC Res 678 (1990) authorized ‘Member states co-operating with the Government of Kuwait to use all necessary means’ to repel the Iraqi attack.221 This resolution became the template for many subsequent authorizations of ‘coalitions of the willing’ to employ ‘all necessary means’ to restore peace and security.222 While with regard to UNSC Res 678 (1990) some had argued that the SC had merely endorsed the exercise of collective self-defence (Art. 51),223 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

subsequent practice confirmed a broad reading of Art. 42 as an independent basis for the delegated use of force under Chapter VII (despite the lack of agreements pursuant to Art. 43).224 94  The dynamic approach taken by the SC with regard to the interpretation of its powers under Chapter VII constitutes a prime example of ‘large-scale reform through practice’.225 By its broad approach both to the threshold notion of ‘threat to the peace’226 and to the permissible ‘measures…to restore international peace and security’,227 the SC responded to the new security challenges increasingly facing the international community after the end of the Cold War world. The post-Cold War practice of the SC under Chapter VII also reflected the more prominent role accorded to human rights (p. 53) and self-determination as principles underpinning the constitutional order of the UN. Under the newly expanded reading of Art. 39 the SC qualified internal conflicts, serious human rights abuses, the deposition of an elected government, and acts of terrorism as ‘threats to the peace’.228 The SC extended the permissible arsenal of measures to the creation of international criminal tribunals, the administration of territories, quasi-legislative measures, and sanctions directly targeting individuals rather than States.229

3.  An Agenda for Peace 95  It was against the backdrop of this new activism that the SC, at its first ever meeting at the level of Heads of State and Government in January 1992, invited the SG to prepare a study ‘on ways of strengthening and making more efficient within the framework and provisions of the Charter the capacity of the UN for preventive diplomacy, for peacemaking and for peace-keeping’.230 In response to this request SG Boutros-Ghali submitted his Agenda for Peace, a visionary conceptual framework aimed at providing the UN with the institutional structures and operative instruments necessary to seize the opportunities and meet the new challenges of the post-Cold War era in discharging its responsibility to secure international peace and security. His detailed reform proposals built on the three categories of preventive diplomacy, peacemaking, and peacekeeping which the SC had included in his mandate, to which he added the novel concept of ‘post-conflict peacebuilding’.231 The latter category was considered to be an essential and integral part of peacemaking and peacekeeping since only by means of restoring and establishing the necessary structural preconditions could peace be made sustainable.232 96  In the area of preventive diplomacy the study emphasized the importance of confidencebuilding measures, fact-finding, and early warning.233 SG Boutros-Ghali introduced several innovative proposals, namely the preventive deployment of a UN presence and the creation of demilitarized zones as a part of peacekeeping operations.234 With regard to peacemaking the Agenda for Peace emphasized the significance of the SG’s good offices235 as an effective means to resolve disputes and advocated the increased use of the World Court.236 As to the use of military force as a means of peacemaking the SG’s study took note of the authorization approach employed by the SC but recommended that the standing UN forces envisaged by the Charter should be created and that the SC for this purpose should initiate negotiations on special agreements with the member States pursuant to Art. 43.237 In addition to ‘classical’ peacekeeping operations SG Boutros-Ghali suggested the creation of peace-enforcement units authorized by the SC but under the command of the SG which would operate under a mandate to restore and maintain a ceasefire by military force.238 The SG acknowledged that such a robust mandate blurred the line between peacekeeping and peacemaking.239 Another departure (p. 54) from the ‘classical’ concept of peacekeeping lay in the suggestion that peacekeeping would, according to the SG’s new concept, not always require ‘the consent of all parties concerned’.240 The SG acknowledged the challenge that

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the increase and broadening of peacekeeping and peacebuilding posed to the UN and in particular highlighted the problem of making adequate resources available. 97  The conceptual framework of the Agenda for Peace and many of the specific recommendations made by SG Boutros-Ghali such as the increased attention to post-conflict peace-building constituted an important point of reference for subsequent reform in the area of peace and security. Some proposals, in particular those which departed from the ‘classical’ concept of peacekeeping, also, however, met with severe criticism241 to which SG Boutros-Ghali responded in a ‘Supplement’ to the Agenda for Peace.242

4.  SC Reform 98  The revitalization of the SC created renewed calls for a substantial reform of the Council in order to adapt its size, composition, voting procedure, and working methods to the new geopolitical realities of the post-Cold War era.243 In particular Germany and Japan as the second and third largest contributors to the UN budget respectively pressed for a permanent seat. But other countries, namely Brazil, Egypt, India, and Nigeria, also laid claim to permanent membership. The GA called for reform proposals to be submitted to the Secretariat244 and in December 1993 established an ‘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’ to discuss and consolidate the proposals received from the member States.245 99  In March 1997 the then President of the GA and chairman of the Open-Ended Working Group, Ismail Razali, presented a draft resolution which is commonly known as the ‘Razali plan’ in order to break the deadlock in the reform discussions.246 The draft proposed the expansion of the SC from fifteen to twenty-four members by creating five new permanent seats (two for industrialized States and one each for States from the African, Asian, and Latin American (including Caribbean) regions) as well as four non-permanent seats (one each for countries from Africa, Asia, Latin America (including the Caribbean), and Eastern Europe). The new permanent members were not to have a veto right. Razali suggested an innovative procedure for the adoption of the reform proposal. In a first step a framework resolution on the overall reform was to be put to a vote to be approved on the basis of Art. 18 (2), ie by a two-thirds majority of the members present and voting. Subsequently the five new permanent members would be endorsed by a two-thirds majority of the entire membership. Lastly, the required Charter amendments would be decided on in accordance with the procedure set forth in Art. 108. After ten years a conference would be convened to review the reform. (p. 55) 100  The ‘Razali plan’ did not succeed in reconciling the differing positions and interests amongst the member States. Any hope of reaching an agreement on the basis of the step-by-step process carefully devised by Razali was dashed when the GA in 1998 decided that any future decision on SC reform would require the affirmative vote of twothirds of the members (as opposed to those ‘voting and present’ pursuant to Art. 18 (2)).247 The SC reform process stalled and only regained momentum in the run-up to the 2005 World Summit.248

5.  An Agenda for Development 101  Since the end of the Cold War developing countries were concerned that, due to the revitalization of the collective security, development issues would be increasingly side-lined within the UN. This concern was reinforced by the vigorous restructuring of the Secretariat which SG Boutros-Ghali embarked on shortly after taking office.249 The SG consolidated the economic and social administrative units first into one and later into three departments. The post of Director-General for Development and Economic Cooperation, which in the 1970s had been established as a concession to the G-77,250 was abolished. At the same time the departments relating to peace and security were strengthened in order to meet the

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demands put on the Secretariat by the rapid increase in peacekeeping and humanitarian missions. 102  Soon after the SG had submitted his ‘Agenda for Peace’251 the GA requested him to draw up an ‘Agenda for Development’.252 The SG presented his report in May 1994.253 In contrast to the ‘Agenda for Peace’ the report did not contain any specific recommendations. The report proposed a multi-dimensional, integrated approach to development which emphasized the interdependence between development, peace, the economy, the environment, justice, and democracy.254 In addition, the report highlighted the pivotal role of the UN in promoting coherence and cooperation with regard to development assistance.255 The developing countries criticized the report as too conceptual and not sufficiently ‘action-oriented’.256 In a follow-up report257 the SG submitted a series of recommendations which were, however, not approved by the GA. Instead an Ad hoc OpenEnded Working Group was established in order ‘to elaborate further an action-oriented, comprehensive Agenda for Development’.258 It took the Working Group another three years to finalize its draft.259 In 1997 the GA finally adopted the Agenda (p. 56) for Development.260 The 1997 Agenda was, however, soon superseded by the more pragmatic and ‘result-oriented’ Millennium Development Goals which have since become the focal point for development cooperation within the UN System.261

6.  A New SG and a New Millennium: UN Reform Regains Momentum 103  The impending new millennium and the advent of Kofi Annan as the new SG provided reform efforts within the UN with new momentum.262 Upon taking office the SG undertook ‘to lead a thorough and wide-ranging’ reform process with a view to enabling the UN to meet ‘the changing needs of the world community as it moves into the next millennium’.263 He proposed ‘a two-track reform process’.264 The first track related to managerial initiatives and decisions which fell into the SG’s own authority, the second track concerned longer-term reform measures which required guidance from member States or could only be decided by them.265 Amongst the immediate measures introduced by the SG were the creation of a cabinet-style Policy Coordination Group to assist him in the executive direction of the UN (subsequently renamed Senior Management Group) and the grouping of all UN departments, offices, funds, and programmes into four sectorial areas, each headed by an Executive Committee.266 104  In July 1997 the SG followed up his initial reform steps with a comprehensive reform agenda entitled ‘Renewing the UN: A Programme for Reform’.267 The measures and proposals were in particular aimed at strengthening leadership capacity in the Secretariat (inter alia by establishing the position of Deputy Secretary-General),268 ‘acting as one’ at the country level,269 increasing administrative effectiveness and efficiencies,270 and reaching out to civil society and the private economic sector.271 105  Prominent examples of the innovative approaches since taken by the UN in its effort to reach out to civil society and the private sector are provided by the UN Fund for International Partnership established in 1998272 and the Global Compact initiative launched in 2000.273 106  In his 1997 report on ‘Renewing the UN’ the SG emphasized that he considered his reform proposals only the beginning of a process during which more fundamental changes would have to be considered.274 For the purpose of such a fundamental review (p. 57) of the UN he suggested the convention of a Millennium Summit of the member States’ Heads of State and Government in the year 2000.275 107  The Millennium Summit which was held in September 2000 and formed an integral part of the Millennium session of the GA (‘Millennium Assembly’) adopted the Millennium Declaration by consensus.276 In this declaration the attending Heads of State and Government reaffirmed their commitment to the ‘values and principles’ of the UN and mapped out their vision for the Organization’s future. The most important impulse for the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

reform set out in the Declaration concerned the area of development. Building on the GA’s 1997 Agenda for Development277 the Millennium Summit formulated a set of specific benchmarks278 as the basis for the ‘Millennium Development Goals’ which have since become the conceptual focal point of the UN System’s activities in the field of development and poverty eradication.279 108  In March 2000, against the backdrop of the difficulties UN peace missions had encountered in Ruanda, Somalia, and the former Yugoslavia, the SG convened a high-level panel of experts to review the UN’s peace and security activities and to submit specific reform proposals with a view to enhancing the effectiveness of future peace operations. The Panel on United Nations Peace Operations under the chairmanship of the former Algerian Foreign Minister Lakhdar Brahimi presented its report (‘Brahimi Report’) in time for consideration by the Millennium Assembly in August 2000.280 The frank and thorough report was to become ‘the main frame of reference for…reform of peacekeeping capacities within the UN’.281 The recommendations submitted by the expert panel emphasized at the strategic level the need for ‘clear, credible and achievable mandates’282 the lack of which had been the root cause of the failure of previous peace operations in the 1990s. At the operational level the Brahimi Report suggested a number of measures aimed at providing UN peace operations with the resources, deployment capacities, as well as planning283 and support structures at headquarters level necessary to fulfil their mandates effectively.284 The expert panel’s recommendations were endorsed by the SG, the GA, and the SC.285 A substantial number of the proposals contained in the Brahimi Report were subsequently implemented and acted upon.286 (p. 58) 109  In response to the ‘Helms-Biden UN Reform Act of 1999’287 which had made the payment of US arrears contingent on the UN achieving certain reform benchmarks288 the GA decided in December 2000 to reduce the maximum assessment rate applicable to the regular budget from 25 to 22 per cent289 and reduce that applicable to the expenses for peacekeeping operations from about 30.4 per cent to about 26.5 per cent.290 110  In 2002 the SG launched a reform initiative under the title ‘Strengthening the United Nations: An Agenda for Further Change’.291 The broad aim of the SG’s second reform agenda was to align the UN with the principles and priorities defined in the Millennium Declaration and in particular to make the Organization ‘a more effective instrument for pursuing all of these priorities’.292 The specific measures proposed concerned in particular coordination within the UN System at headquarters, regional, and field level;293 the integration of human rights throughout the UN System;294 partnerships with civil society and the private sector;295 the planning and budgeting process;296 and human resources.297 The GA endorsed most of the SG’s proposals at its 57th session.298 111  Having satisfied itself that the UN had met the reform benchmarks defined in the 1999 UN Reform Act the US Congress in 2002 authorized the payment of the last instalment of $1 billion in arrears owed to the UN.299

V.  New Threats to Collective Security and the 2005 World Summit 1.  A Fork in the Road 112  The 1999 NATO intervention in Kosovo and the US-led invasion of Iraq in 2003 fundamentally challenged the legitimacy and effectiveness of the UN’s collective security system since both military operations had been conducted without prior authorization by the SC. SG Kofi Annan recognized that the tide of unilateralism could only be stemmed by radical reform: ‘[I]t is not enough to denounce unilateralism, unless we also face up squarely to the concerns that make some States feel uniquely vulnerable, since it is those concerns that drive them to take unilateral action.’300 At the same time Annan saw the very raison d’être of the UN at risk if the world organization, as in the case of Somalia, Ruanda, and the former Yugoslavia, failed to respond to the ‘universally recognized imperative of

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effectively halting gross and systematic violations of human rights’.301 In his view the authority and legitimacy of the UN could only be reinstated if it was demonstrated that ‘those concerns can, and will, be addressed effectively through (p. 59) collective action’.302 The SG warned the member States that the UN had ‘come to a fork in the road’, that ‘a moment no less decisive than 1945 itself, when the UN was founded’ had been reached.303 113  Given this critical situation the SG launched a comprehensive initiative to reform the UN collective security system. He convened a high-level panel of sixteen eminent persons, chaired by the former Prime Minister of Thailand Anand Panyarachun, ‘to make recommendations for strengthening the United Nations so that it can provide collective security for all in the twenty-first century’.304 In December 2004 the High-level Panel on Threats, Challenges and Change submitted its report to the SG.305 Under the title ‘A More Secure World: Our Shared Responsibility’ the panel attempted to lay the groundwork for ‘a new security consensus’306 and formulated a catalogue of 101 specific reform measures307 designed to adapt the UN collective security system to the complex contemporary challenges to international peace and security identified in the report.308 114  The 2005 World Summit at which the SG, on the occasion of the UN’s 60th anniversary, was to present his comprehensive reform package should have originally focused on reviewing the progress made towards achieving the Millennium Development Goals.309 Therefore, in a second prong of his reform initiative the SG commissioned the UN Millennium Project, an independent advisory group which brought together 250 experts under the chairmanship of Jeffrey Sachs, to develop a concrete action plan for the world to achieve the Millennium Development Goals by 2015 at the country, regional, and global levels. The advisory group’s recommendations and the accompanying report ‘Investing in Development: A Practical Plan to Achieve the Millennium Development Goals’ were presented to the SG in January 2005.310 115  SG Annan envisaged the ‘once-in-a-generation-opportunity’311 of striking a ‘grand bargain’ between North and South at the World Summit. The developed countries would make a strong commitment to fostering development and the G-77 States in return would agree to decisive reforms in the areas of security, human rights, and management. Building on the recommendations received from the High-level Panel and the Millennium Project he developed this integrated approach in his comprehensive report ‘In Larger Freedom: (p. 60) Towards development, security and human rights for all’312 which formed the basis for the intergovernmental negotiations leading up to the 2005 World Summit.

2.  2005 World Summit Outcome 116  The 2005 World Summit did not live up to the great expectations of a ‘San Francisco II’.313 The agreement reached by the Heads of State and Government in the World Summit Outcome314 represented the lowest common denominator315 rather than a ‘grand bargain’. Nevertheless the World Summit Outcome document contained a number of significant reforms, mainly in the area of peace and security.316

(a)  Peace and Security 117  The World Summit stressed the need for an effective and efficient collective security system to address the multifaceted and interlinked threats to international peace and security.317 The Outcome document reaffirmed the ‘commitment to multilateralism’ and the primary responsibility of the SC for the maintenance of international peace and security.318 Although the World Summit recognized that it was ‘essential’ to enhance the effectiveness and legitimacy of the SC and despite the fact that the High-level Panel,319 with the endorsement of the SG,320 had elaborated two alternative models for the enlargement of the SC321 the world leaders could not agree on any substantial reform.322 Pending an agreement on the future composition of the SC the World Summit recommended the continued adaptation of the SC’s working methods with a view to increasing the

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involvement of States which were not members of the Council as well as enhancing its transparency and accountability.323 118  The World Summit endorsed, albeit cautiously, the concept of the ‘responsibility to protect’324 which had first been developed by the International Commission on Intervention and State Sovereignty (ICISS) both in response to the failure of the UN to prevent the genocide in Rwanda in 1994 and to the ‘humanitarian intervention’ by NATO in Kosovo.325 The Outcome document, however, took pains to emphasize that in the case of the failure of a State to protect its population the ‘responsibility to protect’ may only be discharged ‘through the United Nations’, thereby unambiguously ruling (p. 61) out any unilateral recourse to force by individual States or regional organizations should the SC fail to act.326 119  By stating ‘that the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security’327 the World Summit also gave short shrift to any other attempt to extend the legality of the unilateral use of force beyond the accepted limits of the right to self-defence pursuant to Art. 51,328 in particular the wideranging claims to ‘preventive’ self-defence put forward in the 2002 National Security Strategy of the United States329 (‘Bush Doctrine’). The World Summit also refrained from including criteria on the legitimacy of the collective use of force which had been proposed by the High-level Panel330 and the SG.331 120  The Peacebuilding Commission constituted a major institutional innovation introduced by the World Summit in the area of peace and security.332 Initially it had been conceived by the High-level Panel as a subsidiary organ of the SC pursuant to Art. 29 with a wide-ranging mandate which, in addition to post-conflict peacebuilding, would allow for preventive action ‘in countries which are under stress and risk sliding towards State collapse’.333 Responding to objections by the developing countries the mandate of the Peacebuilding Commission ‘as an intergovernmental advisory body’ was eventually restricted to coordinating the UN’s efforts to establish sustainable peace in post-conflict situations.334 In a unique move, the dispute between North and South as to whether to link the Commission to the SC or the GA was eventually resolved by establishing it as a joint subsidiary organ of both principal organs pursuant to Arts 7, 22, and 29.335 121  The World Summit called for the swift conclusion of a comprehensive convention on international terrorism.336 However, despite pertinent recommendations by the High-level Panel337 no agreement could be reached on a definition of terrorism. Such an agreement was widely viewed as a precondition for succeeding in negotiating a comprehensive antiterrorism convention. Equally the proposals by the SG and the High-level Panel with regard to the non-proliferation of weapons of mass destruction and disarmament338 were not taken up by the World Summit.

(b)  Development 122  Although the 2005 World Summit had originally been convened with a view to assessing the progress achieved in the fulfilment of the commitments made in the Millennium Declaration, in particular the ‘internationally agreed development goals’,339 hardly any of the reforms agreed upon in the Outcome document relate to economic and social (p. 62) development. The lengthy chapter on development340 is largely confined to the reaffirmation of previous commitments undertaken at the Millennium Summit, the International Conference on Financing for Development (Monterrey Consensus), and the World Summit on Sustainable Development.341 In view of the resistance of the United States to any references to the Millennium Development Goals in the Outcome document, it is, however, significant that the World Summit eventually endorsed them albeit as part of

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the compromise formula ‘the internationally agreed development goals, including the Millennium Goals’.342 123  Certain steps were, however, taken at the World Summit to ‘revitalize’ ECOSOC as ‘a principal body for coordination, policy review, policy dialogue and recommendations on issues of economic and social development’.343 Specific measures included the introduction of the Annual Ministerial Review344 and the creation of the biennial Development Cooperation Forum as a global forum for multi-stakeholder dialogue on international development cooperation.345

(c)  Human Rights 124  At the 2005 World Summit the world leaders reaffirmed their commitment to the universal and indivisible nature of human rights.346 The increased significance attributed to human rights within the constitutional structure of the UN is in particular evidenced by the creation of a Human Rights Council alongside the SC and ECOSOC.347 Taking up the recommendations of the High-level Panel and the SG, the World Summit expressed its ‘resolve to create a Human Rights Council’348 and set in motion a negotiation process which in 2006 led to the establishment of the new Council as a replacement for the discredited Human Rights Commission.349 Although the Human Rights Council was not elevated to a principal organ, which would have required an amendment of Art. 7, its status was markedly raised not only by being knighted as a ‘Council’350 but also by establishing it as a subsidiary organ of the GA rather than ECOSOC.351 As a subsidiary organ of the GA the Human Rights Council and its forty-seven members are directly accountable to the entire membership of the UN. The Council’s legitimacy was in addition significantly increased as compared to the old Commission by allowing (p. 63) for the suspension of the membership of any State ‘that commits gross and systematic violations of human rights’.352

VI.  World Summit Follow-Up and Future Prospects for Reform 1.  Peace and Security (a)  SC Reform 125  The 2005 World Summit had failed to reach an agreement on the key issue of SC reform.353 Building on the Razali Plan354 the High-level Panel had suggested two alternative models which each involved the expansion of the SC by nine new members.355 Model A resembled the Razali Plan but stipulated six new permanent seats without a veto right (two each for Africa and Asia/Pacific, one each for Europe and Latin America/Caribbean) and three new non-permanent seats. Model B did not provide for new permanent seats. Instead it created only one new non-permanent seat and a new category of eight four-year renewable-term seats which were to be distributed amongst ‘medium-sized’ States according to certain criteria spelled out in the proposal. Although the two alternative proposals were endorsed by the SG356 they were not taken up by the World Summit. Instead the Outcome document merely called for ‘early reform’ of the SC.357 126  The continuing discussions in the Open-Ended Working Group (OEWG) did not succeed in bridging the deep divisions amongst the member States on the key aspects of SC reform.358 In a decisive development the GA decided in September 2008 to continue the debate on SC reform in an ‘informal plenary’ of the GA.359 The reform process thereby moved from the consensus-based OEWG to intergovernmental negotiations within the ‘informal plenary’ which allow decisions to be taken by a two-thirds majority vote. 127  After four rounds of negotiations the G-4 States (Brazil, Germany, India, and Japan) and South Africa in a letter signed by 140 States requested the Chair of the intergovernmental negotiations, Ambassador Zahir Tanin of Afghanistan, to present a text consolidating the different proposals made thus far by the member States as a basis for

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further negotiations. In May 2010 the Chair presented the first consolidated ‘negotiating text’.360 128  The current negotiations in the ‘informal plenary’ centre on the initiatives of five different groupings of member States.361 The G-4 propose the expansion of the SC by six (p. 64) permanent seats (two each for Africa and Asia/Pacific, one each for the Western States and Latin America/Caribbean) and four non-permanent seats (one each for Africa, Asia, Latin America/Caribbean, and Eastern Europe).362 The new permanent members would initially not be endowed with a veto right. However, after fifteen years a review conference would decide whether to extend the veto power to the new permanent members. 129  The African C-10 States (Committee of Ten African Permanent Representatives) largely follow the G-4 position.363 They insist, however, on the new permanent members also being granted the veto right and claim an additional non-permanent seat for Africa. 130  In seeking the expansion of both the permanent and non-permanent categories of membership the G-4 and C-10 States are supported by the L.69 Group, a grouping of States under the leadership of Jamaica and India which emerged during the push for intergovernmental negotiations in 2007.364 131  The fourth group of States ‘Uniting for Consensus’ (which comprises inter alia Italy, Pakistan, Argentina, and Canada) advocates restricting the expansion of the SC to the category of non-permanent seats. Their proposal foresees the admission of ten additional non-permanent members which would be eligible for immediate re-election.365 132  The ‘Small 5’ (S-5) States (Costa Rica, Jordan, Liechtenstein, Singapore and Switzerland) argue in favour of focussing the reform effort at the current stage on the working methods of the SC since such a measure could be easily implemented ‘here and now’.366 133  Despite the fact that the ‘informal plenary’ has been working on the basis of a ‘negotiating text’ provided by the Chair, hardly any convergence between the different positions can be observed to date. The difficulty of entering into truly ‘text-based’ negotiations is illustrated by the fact that the ‘negotiating text’ in its current third revised version has hardly been shortened in comparison to the initial text and therefore still contains more than thirty pages.367 As such it is rather a compilation of the different proposals made by the member State groupings than a consolidated negotiating text. 134  Some progress has been made with regard to the working methods of the SC. In July 2006, in response to the proposals tabled by the S-5 States, the SC adopted a series of measures with a view to improving its working methods.368

(b)  Peacekeeping 135  Following up on the Brahimi Report369 the Department of Peacekeeping Operations in 2005 embarked upon a comprehensive programme for reform, ‘Peace Operations (p. 65) 2010’,370 aimed at strengthening the planning, management, and conduct of UN peacekeeping operations. One of the key objectives of this reform process was to provide clear conceptual guidance to the increasingly complex, multi-dimensional peacekeeping operations.371 As part of this effort Principles and Guidelines for UN Peacekeeping Operations (‘Capstone Doctrine’) were drawn up based on the ‘lessons learned’ during the previous sixty years of UN peacekeeping.372 The Capstone Doctrine has become an important conceptual reference point following the tradition of Dag Hammarskjöld’s ‘Summary Study’.373

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136  In 2007 the SG restructured the peacekeeping architecture within the Secretariat by creating a new Department of Field Support alongside the Department of Peacekeeping Operations.374 137  The most recent agenda for peacekeeping reform, building on the Brahimi Report,375 is the ‘New Horizon’ initiative which was launched in July 2009 by the Department of Peacekeeping Operations and the Department of Field Support.376 In view of the continuing challenges posed by the scale and complexity of UN peacekeeping the ‘New Horizon’ process is aimed at reinvigorating the dialogue between all stakeholders in the ‘global peacekeeping partnership’ in order to develop a shared perspective of its future direction.377

(c)  Responsibility to Protect 138  When endorsing the responsibility to protect, the 2005 World Summit stressed the need for continued consideration of the concept with a view to operationalizing it within the UN System.378 Only a few months later the SC in Res 1674 reaffirmed the responsibility to protect with express reference to the pertinent paragraphs of the World Summit Outcome document.379 Since then the SC has made references to the concept on a number of occasions.380 In UNSC Res 1970 (2011)381 and 1973 (2011)382 the SC for the first time invoked the responsibility to protect when acting under Chapter VII. (p. 66) 139  In 2008 the SG appointed a Special Adviser on the Responsibility to Protect in order to assist him in further developing and refining the concept.383 The Special Adviser collaborates closely with the Special Adviser on the Prevention of Genocide within a joint institutional framework. 140  In 2009 the SG presented a report on ‘implementing the responsibility to protect’ to the GA during an ‘informal interactive dialog’. Building on the World Summit Outcome document384 the SG introduced a three-pillar model distinguishing the primary responsibility of the State to protect its population from genocide, war crimes, ethnic cleansing (pillar one); the responsibility of the international community to assist States to meet their primary responsibility to protect (pillar two); and the responsibility of the UN to respond with ‘timely and decisive’ action should a State fail to fulfil its primary responsibility to protect (pillar three).385 In subsequent reports on early warning386 and the role of regional and sub-regional arrangements387 the SG further developed his strategy for operationalizing the responsibility to protect.

2.  Development and System-Wide Coherence 141  Whilst at the 2005 World Summit the Millennium Development Goals were only cautiously reaffirmed388 they received full endorsement by the Heads of State and Government at the 2010 Millennium Development Goals Summit.389 At the same time the SG was requested to make appropriate preparations for the intergovernmental debate on the post-2015 UN development agenda.390 142  Picking up on previous reform efforts391 the 2005 World Summit invited the SG ‘to launch work to further strengthen the management and coordination of UN operational activities so that they can make an even more effective contribution to the achievement of the internationally agreed development goals, including the Millennium Development Goals’.392 In response to this request the SG established the ‘High-level Panel on United Nations System-wide Coherence in the areas of development, humanitarian assistance and the environment’ which presented its report with the programmatic title ‘Delivering as One’ in November 2006.393 In relation to the operational activities in the development area the key recommendation of the High-level Panel was that the UN System should ‘deliver as one’ at the country level.394 Unified UN country teams should be established (p. 67) ‘with one leader, one programme, one budgetary framework and, where appropriate, one office’. At the same time the High-level Panel made a number of recommendations with a view to

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streamlining and consolidating the central governance structures.395 Eight countries were subsequently designated as pilot projects for the ‘Delivering as One’ approach. Currently the pilot projects are undergoing an independent evaluation.396 143  In terms of streamlining and consolidating governance structures within the UN the creation of ‘UN Women’ may serve as an important precedent. Following the recommendation of the High-level Panel on System-wide Coherence397 in 2010 the GA merged three previously independent units to form the ‘United Nations Entity for Gender Equality and the Empowerment of Women’.398

3.  Human Rights 144  In the 2005 World Summit Outcome document the Heads of State and Government recognized that the UN and the UN System are built on three—interlinked and mutually reinforcing—‘pillars’: peace and security, development, and human rights.399 Despite being thus unequivocally recognized as one of the main constitutional foundations, ‘mainstreaming’ human rights throughout the entire UN System remains a considerable challenge.400 Human rights have been aptly described as the ‘pillar of glass’ in the constitutional architecture of the UN, much more fragile and much less visible than the other two pillars.401 However, some progress has been made in taking human rights seriously in the fields of peace and security on the one hand and development on the other. In the sanctions regime of the SC much more sensitivity has been developed with respect to the legitimate human rights concerns of those affected by such measures.402 Mainstreaming human rights in the development operations appears to be an even more difficult task.403 Against this backdrop the unequivocal articulation of global human rights commitments in the 2010 Outcome document of the Millennium Development Goals Summit404 must indeed be considered ‘a pivotal achievement’.405 145  Five years after its inception the status, work, and functioning of the Human Rights Council were reviewed by the GA as envisaged by its constituent resolution.406 The GA in UNGA Res 65/281, which was adopted by a vote of 154 in favour and four against (Canada, Israel, Palau, and the United States) with no abstentions, decided to maintain the status of the Human Rights Council as a subsidiary organ of the GA.407 A sufficient majority for substantive adjustments to improve the Council’s efficiency and legitimacy (p. 68) could not be mustered. The member States could only agree on certain technical improvements to the working methods and functioning of the Human Rights Council.

4.  Environment 146  The protection of the environment has gradually become one of the principal objectives of the UN although it is not mentioned in the Charter.408 In this sense the rise of environmental conservation as a fundamental objective or value of the UN must be considered a highly significant ‘reform through practice’.409 Against this backdrop calls have been made from various quarters to create a strong UN World Environment Organization both to give institutional expression to the pivotal importance of environmental protection and to consolidate the fragmented environmental governance structure within the UN System.410 Although the mandate of the High-level Panel on System-wide Coherence also encompassed the field of environment the experts stopped short of recommending the creation of a World Environment Organisation.411 However, the High-level Panel on Global Sustainability appointed by the SG in the run-up to the ‘Rio+20’ Conference has given a new impetus to the debate about global environmental governance. In its report ‘Resilient People, Resilient Planet: A Future worth Choosing’ support was given to the transformation of UNEP into a specialized agency.412 In addition the High-level Panel advocates the replacement of the Commission on Sustainable Development by a

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‘Sustainable Development Council’ in the same way as the Human Rights Council replaced the former Commission on Human Rights.413

5.  Management 147  The 2005 World Summit had called for a series of Secretariat and management reforms.414 Some of these recommendations have since been implemented, such as the establishment of a UN Ethics Office, whistleblower protection, and improved financial disclosure policies for UN staff.415 Other proposed reforms, such as mandate review,416 have stalled.417

(p. 69) D.  Outlook 148  Looking back at the history of UN reform the prospects for the future do not appear all that bleak. The UN has demonstrated an astonishing ability to adapt to the dramatic changes it has been exposed to since its inception. On the strength of this record the UN is well equipped to face the challenges ahead. 149  However, to date reform has been principally pragmatic; it has been fire-fighting rather than following a grand design. Properly understood, reform should be more than a technique for survival. It should be a change for the better, a proactive strategy for realizing the ideals of the Charter, a means of improving upon the achievements of previous generations. Kofi Annan, at times unjustly chided for an over-optimistic approach to reform, aptly captured the essence of true UN reform when he addressed the GA in 2003: The United Nations is by no means a perfect instrument, but it is a precious one. I urge you to seek agreement on ways of improving it, but above all of using it as its founders intended—to save succeeding generations from the scourge of war, to reaffirm faith in fundamental human rights, to re-establish the basic conditions for justice and the rule of law, and to promote social progress and better standards of life in larger freedom. The world may have changed…but those aims are as valid and urgent as ever. We must keep them firmly in our sights.418(p. 70)

Footnotes: 1 

‘Reform’, The Shorter Oxford Dictionary of Current English (6th edn 2007).

2

  As to various definitions of reform with regard to the United Nations see M Bertrand, ‘The Historical Development of Efforts to Reform the UN’ in A Roberts and B Kingsbury, United Nations, Divided World: The UN’s Roles in International Relations (2nd edn, OUP 1993) 420–22; L Blanchfield, United Nations Reform: US Policy and International Perspectives (Congressional Research Service RL33848 21 December 2011) 16–17, 23; JP Cot, ‘United Nations, Reform’ MPEPIL (online edn) MN 4; J Klabbers, ‘General Principles and Theories of UN Reform’ in R Wilde (ed), United Nations Reform Through Practice— Report of the ILA Study Group on United Nations Reform (2011) accessed 7 June 2012; WA Knight, A Changing United Nations: Multilateral Evolution and the Quest for Global Governance (Palgrave 2000) 41–50; EC Luck, Reforming the United Nations: Lessons from a History in Progress (The Academic Council on the United Nations System, International Relations Studies and United Nations Occasional Papers No 1, 2003) 3–5. 3

  Knight (n 2) 50; Luck (n 2) 43–44. As to the idea of UN reform being a process of ‘strengthening the United Nations’ see United Nations Millennium Declaration, UNGA Res 55/2 (18 September 2000) paras 29–32; Report of the Secretary-General, ‘Strengthening the United Nations: an Agenda for Further Change’ (2002) UN Doc A/57/387; ‘In Larger

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Freedom: Towards Development, Security and Human Rights for All’ (2005) UN Doc A/ 59/2005 paras 153–157. 4

  Knight (n 2) 50.

5

  ibid, 50.

6

  ‘Reform is not an event; it is a process.’ Report of the Secretary-General, ‘Renewing the United Nations: A Program for Reform’ (1997) UN Doc A/51/950 para 25. See also Cot (n 2) MN 9: ‘The UN has never stopped reforming’. 7

  Shorter Oxford Dictionary (n 1); Cot (n 2) para 4.

8

  Cot (n 2) MN 10 (‘belated or indirect effect of reform proposals’).

9

  Cot (n 2) MN 103, 105; Klabbers (n 2) 7.

10

  Blanchfield (n 2) 16–17; Cot (n 2) MN 103; Klabbers (n 2) 7; Luck (n 2) 4–5.

11

  As to the different connotations associated with the ‘constitutional’ nature of the Charter see B Fassbender, The United Nations Charter as the Constitution of the International Community (Nijhoff 2009) 27–51. 12

  Bertrand (n 2) 420–21; Blanchfield (n 2) 22–23; Luck (n 2) 3–4.

13

  Art. 1 (4).

14

  See B Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective (Kluwer 1998) 284; S von Schorlemer, ‘Chancen für die Umsetzung der Reformvorschläge des UN-Generalsekretärs’ in J Varwick and A Zimmermann (eds), Die Reform der Vereinten Nationen—Bilanz und Perspektiven (Duncker & Humblot 2006) 293, 309–13. 15

  On the nature of principles as optimization requirements, ie ‘norms which require that something be realized to the greatest extent possible given the legal and factual possibilities’, see R Alexy, A Theory of Constitutional Rights (OUP 2002) 47–48. 16

  See Fassbender (n 14) 284.

17

  R Wolfrum, ‘Vorwort’ in R Wolfrum (ed), Die Reform der Vereinten Nationen: Möglichkeiten und Grenzen (Duncker & Humblot 1989) 5. 18

  See references in n 10.

19

  Bertrand (n 2) 420–21; Blanchfield (n 2) 22–23; N Krisch, ‘Informal Reform in the Security Council’ in R Wilde (ed), United Nations Reform Through Practice—Report of the ILA Study Group on United Nations Reform (2011) accessed 7 June 2012, 44–45; Luck (n 2) 3–4; LB Sohn, ‘Important Improvements in the Functioning of the Principal Organs of the United Nations That Can Be Made Without Charter Revision’ (1997) 91 AJIL 652–62. 20

  Khan on Art. 22 MN 25–27.

21

  As to possible substantive constitutional limits imposed by the Charter and general international law see Klabbers (n 2) 10–13. 22

  See R Kolb, Interprétation et création du droit international—Esquisses d’une herméneutique juridique moderne pour le droit international (Bruylant 2006). 23

  See Klabbers (n 2) 10.

24

  Klabbers (n 2) 9; R Wilde, ‘Introduction’ in R Wilde (ed), United Nations Reform Through Practice—Report of the ILA Study Group on United Nations Reform (2011) accessed 7 June 2012, 2.

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25

  UNGA Res 1991 A (XVIII) (17 December 1963). The amendment entered into force on 31 August 1965, see 557 UNTS 143–52. In 1965 an additional Charter amendment adapted the majority requirement in Art. 109 (1) to the increase in membership of the SC, see UNGA Res 2101 (XX) (20 December 1965). The amendment entered into force on 12 June 1968, see 638 No 8132 UNTS 308–12. 26

  UNGA Res 1991 B (XVIII) (17 December 1963); UNGA Res 2847 (XXVI) (20 December 1971). The amendments entered into force on 31 August 1965 and 24 September 1973 respectively, see 557 UNTS 143–52 and 892 No 8132 UNTS 125–27. 27

  NJ Schrijver, ‘The Future of the Charter of the United Nations’ (2006) 10 Max Planck YB UN L 1, 13–25; R Wilde (ed), United Nations Reform Through Practice—Report of the ILA Study Group on United Nations Reform (2011) accessed 7 June 2012; I Winkelmann, ‘United Nations, Amendment’ MPEPIL (online edn) MN 13–17; Witschel on Art. 108 MN 10–11; R Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (Slijthoff 1968) 171–97. 28

  See R Wilde (ed), United Nations Reform Through Practice—Report of the ILA Study Group on United Nations Reform (2011) accessed 7 June 2012. 29

  See Zimmermann on Art. 27 MN 176–8.

30

  See Bothe on Peacekeeping MN 1–5.

31

  See Krisch on Art. 39 MN 12–15.

32

  See Report of the ILA Study Group (n 27).

33

  Bertrand (n 2) 421–22; S Engel, ‘Procedures for the De Facto Revision of the Charter’ (1965) Proceedings of the ASIL 108, 111; Witschel on Art. 108 MN 11. 34

  Witschel on Art. 108 MN 11.

35

  Witschel on Art. 108 MN 11; Ress and Bröhmer on Art. 53 MN 67 and on Art. 107 MN 2.

36

  See Krisch on Art. 43 MN 10.

37

  See Kadelbach on Interpretation MN 5 with further references.

38

  Canadian Supreme Court, Hunter v Southam 2 SCR 145 (1984). On the application of this dynamic constitutional approach to the Charter see Fassbender (n 14) 131–37; TM Franck, Recourse to Force—State Action Against Threats and Armed Attacks (CUP 2002) 5– 9. 39

  Cot (n 2) MN 5; Fassbender (n 14) 136; Kadelbach on Interpretation MN 46–48.

40

  Report of the Special Subcommittee IV/2 on the Interpretation of the Charter, 13 UNCIO (1945) at 831–32: ‘In the course of the operation from day to day of the various organs of the Organization, it is inevitable that each organ will interpret such parts of the Charter as are applicable to its particular functions. This process is inherent in the functioning of any body which operates under an instrument defining its functions and powers. It will be manifested in the functioning of such a body as the General Assembly, the Security Council, or the International Court of Justice. Accordingly, it is not necessary to include in the Charter a provision either authorizing or approving the normal operation of this principle.’ 41

  Kadelbach on Interpretation MN 36–40.

42

  Kadelbach on Interpretation MN 37–40; Witschel on Art. 108 MN 10.

43

  Fassbender (n 14) 136–37.

44

  ibid.

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45

  Witschel on Art. 108 MN 10–11 with further references.

46

  Fassbender (n 14) 138–41; id (n 11) 136–39; Zimmermann on Art. 27 MN 188.

47

  Fassbender (n 14) 182–83.

48

  As to pertinent examples see MN 35–58.

49

  Winkelmann (n 27) MN 13; Witschel on Art. 108 MN 10.

50

  Witschel on Art. 108 MN 10 with further references. This also appears to be the approach taken by the ICJ with regard to the consistent practice of treating the abstention of a permanent member of the SC as a ‘concurring vote’ within the meaning of Art. 27 (3), see ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, 22: ‘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 of the United Nations and evidences a general practice of that Organization.’ 51

  Simma, Brunner, and Kaul on Art. 27 (2nd edn) MN 56.

52

  M Akehurst, ‘The Hierarchy of the Sources of International Law’ (1974–75) 47 BYIL 273, 277–78; Simma, Brunner, and Kaul on Art. 27 (2nd edn) MN 56. 53

  Witschel on Art. 108 MN 10.

54

  Simma, Brunner, and Kaul on Art. 27 (2nd edn) MN 57.

55

  See E Luard, A History of the United Nations, vol 1 (Macmillan 1982) 95.

56

  R Higgins, Problems & Process (OUP 1994) 174; see also TM Franck, Nation Against Nation (OUP 1985) 33. 57

  See SD Bailey, The Procedure of the Security Council (3rd edn, Clarendon 1998) 227–38.

58

  Luard (n 55) 93–105.

59

  On glimpses of optimism in relation to early efforts of the UN to diffuse threats to international peace and security see Franck (n 56) 25–24. 60

  UNGA Res 992 (X) (21 November 1955), preamb para 3.

61

  See summary of the statements made by the USSR, Poland, Czechoslovakia, the Ukrainian SSR and the Byelorussian SSR at the 10th session of the GA, (1955) UNYB 75. 62

  As to the ‘Yalta Formula’ see Khan on History MN 42–44.

63

  UNGA Res 992 (X) (21 November 1955) para 1.

64

  ibid, para 2.

65

  See Witschel on Art. 109 MN 21 with further references. In 1974 the committee was succeeded by the Ad Hoc Committee on the Charter of the UM. The mandate, inter alia, requested the Committee to consider suggestions ‘for the more effective functioning of the United Nations that may not require amendments to the Charter’ UNGA Res 3349 (XXIX) (17 December 1974). In 1975 the committee was renamed ‘Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization’ UNGA Res 3499 (XXX) (15 December 1975). 66

  BV Cohen, United Nations: Constitutional Developments, Growth, and Possibilities (Harvard UP 1961) 5. 67

  ibid, 5–6 (citing Missouri v Holland 252 US 416, 433). See also Franck (n 56) 39.

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68

  See MN 35.

69

  See MN 15–19.

70

  For a detailed account see Franck (n 56) 33–39; Luard (n 55) 229–74.

71

  See UNSC Res 82 (1950) (25 June 1950); UNSC Res 83 (1950) (27 June 1950); UN Doc S/Res 84 (1950) (7 July 1950). 72

  SCOR 5th Year 461st mtg (13 January 1950) 9.

73

  Cablegram by the Deputy Minister of Foreign Affairs of the USSR (29 June 1950) SCOR 5th year, Supp for June, July, August 1950, 29–30; statement by the representative of the USSR, SCOR 5th Year 480th mtg (1 August 1950) 10. 74

  See eg statement by the representative of Cuba, SCOR 5th Year 476th mtg (7 July 1950)

7. 75

  Although at the time there had already been an established practice to treat the voluntary abstention of a permanent member as a ‘concurring vote’ there had only been a single precedent in which a vote had been taken despite the absence of a permanent member, see Zimmermann on Art. 27 MN 182, 193. 76

  As to ‘informal’ Charter amendments see MN 23–28.

77

  ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, 22. 78

  For references see Zimmermann on Art. 27 MN 182.

79

  TM Franck, ‘The United Nations as Guarantor of International Peace and Security: Past, Present and Future’ in C Tomuschat (ed), The United Nations at Age 50: A Legal Perspective (Kluwer 1950) 25, 31–33. 80

  UNSC Res 82 (1950) (25 June 1950); UNSC Res 83 (1950) (27 June 1950).

81

  See Frowein and Krisch on Art. 39 (2nd edn) MN 30 with further references.

82

  ICJ, Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 167. 83

  UNSC Res 221 (9 April 1966); UNSC Res 232 (16 December 1966).

84

  See MN 93.

85

  UNGA Res 376 (V) (7 October 1950). Whereas the SC in UNSC Res 82 and 83 (see n 80) had called on the assistance of member States to ensure the withdrawal of North Korean forces to the 38th parallel, UNGA Res 376 (V) implied the entitlement of United Nations forces to move beyond the 38th parallel insofar as necessary to facilitate the achievement of the objectives spelled out in the resolution. 86

  See Franck (n 56) 40; Luard (n 55) 124–29 with further references.

87

  UNGA Res 377 A (V) (3 November 1950).

88

  C Tomuschat, ‘Uniting for Peace’, United Nations Audiovisual Library of International Law (2008) accessed 7 June 2012; see also Franck (n 56) 39 (‘certainly not the intent of the drafters’). 89

  ICJ, Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 164–5.

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90

  ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 149–51. 91

  As to the succession of events in relation to the ‘Suez Canal Question’ see (1956) UNYB 19–62; E Luard, A History of the United Nations, vol 2 (Macmillan 1989) 18–57. 92

  UNSC Res 119 (1956) (31 October 1956). The resolution was adopted by seven votes to two with two abstentions. France and the United Kingdom voted against the resolution, while the USSR, despite its initial resistance against the ‘Uniting for Peace’ Resolution, voted in favour. The transferral of the issue to the GA was considered a procedural question within the meaning of Art. 27 (2) and hence not subject to the veto power. 93

  As to the contribution of the Canadian Foreign Minister Lester Pearson see Luard (n 91) 33–35. 94

  See UNGA Res 998 (ES-I) (5 November 1956) requesting the SG to submit a plan ‘for setting up, with the consent of the nations concerned’. 95

  UNGA Res 1000 (ES-I) (5 November 1956). As to previous UN observer missions, see Bothe on Peacekeeping MN 7. 96

  Luard (n 91) 521.

97

  UNGA Res 998 (ES-I) (5 November 1956).

98

  See ICJ, Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 170–72. 99

  UNGA Res 998 (ES-I) (4 November 1956).

100

  Report of the SG, ‘Summary Study of the Experience from the Establishment and Operation of the Force’ (1958) UN Doc A/3943 paras 23, 156. 101

  Summary Study (n 100) para 149.

102

  ibid, paras 178–80.

103

  ibid, para 155.

104

  ibid, paras 168–72.

105

  M Berdal, ‘The Security Council and Peacekeeping’ in V Lowe, A Roberts, J Welsh, and D Zaum (eds), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (OUP 2008) 175, 179–80. 106

  Bertrand (n 2) 420, 421 (‘a fundamental reform’); Luard (n 91) 521.

107

  See MN 15–19.

108

  Luard (n 91) 524 (‘…probably the most important single institutional development of the period.’). 109

  UNSC Res 54 (1948) (15 July 1948).

110

  UNGA Res 906 (IX) (10 Dec 1954).

111

  UNSC Res 113 (1956) (4 April 1956).

112

  UNGA Res (ES-I) (4 November 1956).

113

  UNGA Res 1001 (ES-I) (7 November 1956).

114

  Luard (n 91): ‘the apotheosis of the Secretary General’s personal power’.

115

  See eg Committee of Experts, ‘Review of the Activities and Organization of the Secretariat’ (Separate Opinion AA Roshchin (Soviet expert)) UN Doc A/4776 (14 June 1961).

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116

  ICJ, Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 176–77. 117

  See examples cited in Franck (n 56) 145.

118

  UNSC Res 118 (1956) (13 October 1956). See also Franck (n 56) 135.

119

  Dag Hammarskjöld, ‘The International Civil Servant in Law and in Fact’ in W Foote (ed), Servant of Peace: A Selection of the Speeches and Statements of Dag Hammarskjöld (Harper & Row 1962) 329, 335. As to Lie see Franck (n 56) 145. 120

  See Chesterman on Art. 99 MN 21–23, 31–43.

121

  Franck (n 56) 97; Hammarskjöld (n 119) 329.

122

  Committee of Experts, ‘Review of the Activities and Organization of the Secretariat’ (Separate Opinion AA Roshchin (Soviet expert)) UN Doc A/4776 (14 June 1961) (‘[T]he Secretariat has in effect been transformed into an executive mechanism, not for the UN, but for the Western military allies’). 123

  ibid.

124

  Committee of Experts, ‘Review of the Activities and Organization of the Secretariat’ UN Doc A/4776 (14 June 1961) para 24. 125

  UNGA Res 1446 (XIV) (5 December 1959); UNGA Res 1559 (XV) (18 December 1960).

126

  Roshchin (n 122). See also Franck (n 56) 97.

127

  Franck (n 56) 106.

128

  JOC Jonah, ‘Secretariat: Independence and Reform’, in TG Weiss and S Daws (eds), The Oxford Handbook on the United Nations (OUP 2007) 160. 129

  Fastenrath on Art. 4 MN 7; T Grant, Admission to the United Nations, Charter Article 4 and the Rise of Universal Organisation (Nijhoff 2009) 64–67; Luard (n 55) 361–69. 130

  UNGA Res 918 (X) (8 December 1955); UNSC Res 109 (1955) (14 December 1955); UNGA Res 995 (X) (14 December 1955). 131

  Fastenrath on Art. 4 MN 9–10; Grant (n 129) 145–200.

132

  Fastenrath on Art. 4 MN 1.

133

  R Burke, Decolonization and the Evolution of International Human Rights (University of Pennsylvania Press 2010). 134

  UNGA Res 1514 (XV) (14 December 1960).

135

  International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3. 136

  UNGA Res 2625 (XXV) (24 October 1970).

137

  C Tomuschat, Human Rights: Between Idealism and Realism (2nd edn, OUP 2008) 75.

138

  See MN 59.

139

  See Luck (n 2) 7–9.

140

  As to the reasons for this ‘remarkable about-face’ see Luck (n 2) 9.

141

  See (n 26). As to the discussions leading up to the second expansion of ECOSOC see Luck (n 2) 10–11.

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142

  See eg UNGA Res 2188 (XXI) (13 December 1966).

143

  J Fomerand and D Dijkzeul, ‘Coordinating Economic and Social Affairs’ in TG Weiss and S Daws (eds), The Oxford Handbook on the United Nations (OUP 2007) 561, 562–63; E Klein, ‘Specialized Agencies’ MPEPIL (online edn) MN 6. 144

  WA Lewis, The Theory of Economic Growth (1955); TG Weiss, DP Forsythe, RA Coate, and KK Pease, The United Nations and Changing World Politics (6th edn, Westview Press 2010) 254–56. 145

  K Dadzie, ‘The UN and the Problem of Economic Development’ in A Roberts and B Kingsbury (eds), United Nations, Divided World: The UN’s Roles in International Relations (2nd edn, OUP 1993) 297, 298–300; Weiss and others (n 144) 254–56. 146

  Dadzie (n 145) 330; Weiss and others (n 144) 256.

147

  Dadzie (n 145) 299; IFI Shihata, ‘Development Policies and Strategies—with Emphasis on the World Bank Group’, C Tomuschat (ed), The United Nations at Age 50: A Legal Perspective (Kluwer 1995) 235, 241; Weiss and others (n 144) 256. 148

  Fomerand and Dijkzeul (n 143) 564–65.

149

  See MN 64.

150

  Fomerand and Dijkzeul (n 143) 564–65.

151

  See MN 15–19.

152

  UNGA Res 2188 (XXI) (13 December 1966).

153

  A Study on the Capacity of the United Nations Development System, UN Doc DP/5 (1969). See also Commission on International Development, Partner in Development (Praeger 1969). The Study was commissioned by the World Bank and the Commission was chaired by Lester Pearson. 154

  Capacity Study (n 153) para 1.

155

  ibid, ii–iii.

156

  ibid, para 61.

157

  ibid, para 23.

158

  ibid, paras 61, 64–75.

159

  ibid, paras 61, 95.

160

  ibid, para 124.

161

  ibid, paras 61, 127.

162

  ibid, para 158.

163

  TG Weiss, What’s Wrong with the United Nations and How to Fix It (2009) 104–06.

164

  See MN 142.

165

  MJ Anstee, Remarks made at the UN Forum 2010 (12 June 2010). accessed 7 June 2012: ‘In fact, this report repeats almost exactly the same recommendations as the Capacity Study did 40 years ago.…We seem doomed to keep on reinventing the wheel.’ 166

  Dadzie (n 145) 300–04; Weiss and others (n 144) 259–65.

167

  Dadzie (n 145) 300–01; Weiss and others (n 144) 260–61.

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168

  See Towards a New Trade Policy for Development—Report by the Secretary-General of UNCTAD (United Nations Publication, Sales No 64.II.B.12, 1964). 169

  G Sacerdoti, ‘New International Economic Order (NIEO)’ MPEPIL (online edn) MN 8.

170

  UNGA Res 1995 (XIX) (30 December 1964).

171

  UNGA Res 3201 (S-VI) (1 May 1974); UNGA Res 3202 (S-VI) (1 May 1974).

172

  UNGA Res 3343 (XXIX) (17 December 1974) para 5 (emphasis added).

173

  Group of Experts on the Structure of the United Nations System (‘Group of 25’) ‘A New United Nations Structure for Global Economic Cooperation’ UN Doc E/AC.62.9 (28 May 1975). 174

  Group of 25 (n 173) para 26.

175

  See the summary in Group of 25 (n 173) para 27. For a more detailed discussion of the Gardner Report see Luck (n 2) 23–26. 176

  UNGA Res 32/197 (20 December 1977).

177

  Luck (n 2) 26.

178

  See Higgins (n 56) 177–79; Luck (n 2) 33–41; J Müller (ed), Reforming the United Nations: The Quiet Revolution (Kluwer 2001) 16–20, 25–30; Franck (n 56) 246–69. 179

  Weiss and others (n 144) 42.

180

  Franck (n 56) 20–24.

181

  See the subtitle of Franck’s book (n 56): ‘What happened to the UN Dream and what the US can do about it’. 182

  BY Pines, A World Without a UN—What Would Happen if the United Nations Shut Down? (Heritage Foundation 1984). 183

  M Bertrand, ‘Some Reflections on the Reform of the United Nations’ Report by the Joint Inspection Unit, UN Doc A/40/988 (6 December 1985). 184

  MA Browne, United Nations System Funding: Congressional Issues (Congressional Research Service RL33611 14 January 2011) 42. 185

  Foreign Relations Authorization Act, FY 1986 and 1987 (HR 2068, PL 99–93), s 143 (16 August 1985). 186

  Statement by the representative of Ghana at the 102nd mtg of the 41st session of the UNGA, see (1986) UNYB 1027. 187

  UNGA Res 40/237 (18 December 1985).

188

  Group of High-level Intergovernmental Experts, ‘Efficiency of the Administrative and Financial Functioning of the United Nations’ (1986) UN Doc A/41/49. 189

  ibid, para 35, recommendation 15.

190

  ibid, paras 36–44.

191

  UNGA Res 41/213 (19 December 1986).

192

  Group of 18 (n 188) paras 57–69.

193

  For further details see Woeste and Thomma on Art. 17 MN 159–63.

194

  UNGA Res 41/213 (19 December 1986) II, para 6. As to the decision-making process in the Fifth Committee see ibid, para 7.

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195

  United States Participation in the United Nations, Report by the Secretary of State to Congress for the Year 1986, 306. 196

  Browne (n 184) 42–43.

197

  Statement by the President of the SC made on behalf of the members of the SC meeting at the level of Heads of State and Government UN Doc S/23500 (31 January 1992) 2. 198

  Report of the SG, ‘An Agenda for Peace—Preventive Diplomacy, Peacemaking and Peacekeeping’ UN Doc A/47/277 (17 June 1992) para 75. 199

  On the reform process during the first decade after the end of the Cold War see Cot (n 2) MN 25–35; Müller (n 178) 32–79. 200

  See MN 52.

201

  See MN 44–48.

202

  See MN 42.

203

  See MN 15–19.

204

  Agenda for Peace (n 198) para 2.

205

  SC Summit Statement (n 197) 3.

206

  See Berdal (n 105) 182–84; Bothe on Peacekeeping MN 7.

207

  Agenda for Peace (n 198) paras 5, 55–59.

208

  ibid, paras 17, 59.

209

  ibid, para 17.

210

  See the reaffirmation of the universality and indivisibility of human rights in the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights on 25 June 1993, UN Doc A/CONF. 157/23 (12 July 1993). 211

  See Agenda for Peace (n 198) paras 17–19.

212

  See An Agenda for Democratization—Report of the Secretary-General (United Nations Publication, Sales No 97.I.3, 1996). See also TM Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 AJIL 46–91. 213

  See also MN 61–63.

214

  See Schrijver (n 27) 17; Tomuschat (n 79) 283–87.

215

  See MN 5–9.

216

  See J Greenstock, ‘The Security Council in the Post-Cold War World’, in V Lowe, A Roberts, J Welsh, and D Zaum (eds), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (OUP 2008) 248–62. 217

  Agenda for Peace (n 198) para 47.

218

  SC Summit Statement (n 197) 2; Berdal (n 105) 184–204; Bothe on Peacekeeping MN

9. 219

  Krisch Introduction to Chapter VII MN 8–10.

220

  See MN 42.

221

  UNSC Res 678 (1990) (29 November 1990) para 2.

222

  Krisch on Art. 42 MN 5–7, 12–13; C Gray, International Law and the Use of Force (3rd edn, OUP 2008) 252.

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223

  For references see Krisch on Art. 42 MN 12.

224

  Krisch on Art. 42 MN 12–13 with further references.

225

  Krisch (n 19) 43.

226

  Krisch on Art. 39 MN 12–34.

227

  Krisch on Art. 41 MN 15–18, 26–33.

228

  For references see Krisch (n 19) 43; Krisch on Art. 39 MN 12–34.

229

  Krisch (n 19) 43; Krisch on Art. 41 MN 16, 26–33 and Introduction to Chapter VII MN 25–37, 69. 230

  SC Summit Statement (n 197) 3–4.

231

  Agenda for Peace (n 198) para 21.

232

  ibid, para 55.

233

  ibid, paras 23–77.

234

  ibid, paras 28–32.

235

  ibid, para 37.

236

  ibid, paras 38–39.

237

  ibid, paras 42–43.

238

  ibid, para 44.

239

  ibid, para 45.

240

  ibid, para 20.

241

  See Berdal (n 105) 187–88.

242

  Report of the SG, ‘Supplement to an Agenda for Peace’, UN Doc A/50/60 (3 January 1995). 243

  See Fassbender (n 14) 221–75; J von Freiesleben, ‘Reform of the Security Council’, in Center for UN Reform Education, Managing Change at the United Nations (Center for UN Reform Education 2008) 1, 2–5; Geiger on Art. 23 MN 22–36; J Müller (ed), Reforming the United Nations: The Challenge of Working Together (Nijhoff 2010) 12–18. 244

  UNGA Res 47/62 (11 December 1992).

245

  UNGA Res 48/26 (3 December 1993).

246

  UN Doc A/AC.247/1997/CRP.1 (20 March 1997).

247

  UNGA Res 53/30 (23 November 1998).

248

  See MN 117, 125.

249

  Restructuring of the Secretariat of the Organization. Note by the Secretary-General, UN Doc A/46/882 (21 February 1992). See also Note by the Secretary-General, UN Doc A/ 47/753 (3 December 1992). 250

  See MN 79.

251

  See MN 95–97.

252

  UNGA Res 47/181 (22 December 1992).

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253

  Report of the SG, ‘An Agenda for Development’, UN Doc A/48/935 (6 May 1994). For a more detailed discussion see Müller (n 178) 59–60; NJ Schrijver, ‘Agenda for Development’ MPEPIL (online edn) MN 9–18. 254

  ibid, paras 16–138.

255

  ibid, paras 139–230.

256

  See Müller (n 178) 60.

257

  Report of the SG, ‘An Agenda for Development: Recommendations’ UN Doc A/49/665 (11 November 1994). 258

  UNGA Res 49/126 (19 December 1994) para 1.

259

  Report of the Ad Hoc Open-ended Working Group of the General Assembly on an Agenda for Development, UN Doc A/51/45 (19 September 1997). 260

  UNGA Res 51/240 (20 June 1997).

261

  See MN 107. For a critical appraisal of this paradigm shift Schrijvers (n 253) MN 25.

262

  See Cot (n 2) MN 36–40; Müller (n 178) 83–187; J Müller (ed), Reforming the United Nations: The Struggle for Legitimacy and Effectiveness (Nijhoff 2006) 8–21. As to the failure of previous reform intiatives in the run-up to the 50th anniversary of the UN see Müller (n 178) 66–79. 263

  Letter dated 17 March 1976 from the SG addressed to the President of the GA, UN Doc A/51/829 (17 March 1997) 2. 264

  ibid, 3–4.

265

  ibid, 3.

266

  ibid, 2–3.

267

  Report of the Secretary-General, ‘Renewing the United Nations: A Programme for Reform’, UN Doc A/51/950 (14 July 1997). As to the reform measures taken by the GA in response to the SG’s report see UNGA Res 52/12 A and B (12 November 1997). 268

  ibid, paras 34–39.

269

  ibid, paras 49–51.

270

  ibid, paras 52–56. On the budgeting aspects of the SG’s reform proposals see Luck (n 2) 43. 271

  ibid, paras 59–60.

272

  See ‘Report of the Secretary-General on the Work of the Organization’ UN Doc A/53/1 (27 August 1998) para 12. 273

  See (2000) UNYB 989.

274

  Renewing the UN (n 267) paras 80–81.

275

  ibid, para 91.

276

  UNGA Res 55/2 (8 September 2000). The conceptual groundwork was laid by the SG’s report ‘We the peoples: the role of the United Nations in the 21st century’ UN Doc A/ 54/2000 (27 March 2000). 277

  See MN 101–102.

278

  Millennium Declaration (n 276) Chapter III (paras 11–20).

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279

  For a critical appraisal of this shift from the integrationist and action-oriented approach of the Agenda for Development to the pragmatic and result-oriented Millennium Development Goals see Schrijver (n 253) MN 25. 280

  Report of the Panel on United Nations Peace Operations, UN Doc A/55/305 (21 August 2000). For more detailed discussion of the Brahimi Report see Berdal (n 105) 198–201; WJ Durch, VK Holt, CR Earle, and MK Shanahan, The Brahimi Report and the Future of UN Peace Operations (The Henry L Stimson Center 2003); Gray (n 222) 307–12. 281

  Berdal (n 105) 199.

282

  Brahimi Report (n 280) paras 56–64.

283

  ibid, paras 84–169.

284

  ibid, paras 170–245.

285

  Report of the SG ‘Resource requirements for implementation of the report of the Panel on United Nations Peace Operations’ UN Doc A/55/502 (27 October 2000); UNGA Res 55/135 (8 December 2000); UNSC Res 1327 (2000) (13 November 2000). 286

  Berdal (n 105) 198; Gray (n 222) 307–12.

287

  Title IX Public Law, 106–13.

288

  For details on the Helms-Biden UN Reform Act see Browne (n 184) 43–44; Luck (n 2) 44–46. 289

  UNGA Res 55/5 A (26 October 2000); UNGA Res 55/5 B-F (23 December).

290

  UNGA Res 55/235 (23 December 2000).

291

  UN Doc A/57/387 (9 September 2002).

292

  ibid, paras 1–2, 33–44.

293

  ibid, paras 111–130.

294

  ibid, paras 45–58.

295

  ibid, paras 133–147.

296

  ibid, paras 148–171.

297

  ibid, paras 172–194.

298

  UNGA Res 57/300 (20 December 2002).

299

  US General Accounting Office, United Nations: Reforms Progressing, but Comprehensive Assessments Needed to Measure Impact (GAO-04-339, February 2004) 7; Müller (n 262) 14. 300

  Address by the SG to the GA, UNGA 58th Session, 7th Plen mtg, UN Doc A/58/PV.7 (23 September 2003) 3. 301

  Address by the SG to the GA, UN Press Release SG/SM/7136/GA/9596 (20 September 1999). 302

  Address to the GA (n 300) 3.

303

  ibid, 3.

304

  Note by the SG, UN Doc A/59/565 (2 December 2004) para 3.

305

  High-level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ UN Doc A/59/565 (2 December 2004). 306

  ibid, paras 1–43.

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307

  ibid, Annex I.

308

  For a detailed analysis see MO Chibundu, ‘Assessing the High-Level Panel Report: Rethinking the Causes and Consequences of Threats to Collective Security’ in PG Danchin and H Fischer (eds), United Nations Reform and the New Collective Security (CUP 2010) 117–54; B Fassbender, ‘UN Reform and Collective Security: The Report of the UN Highlevel Panel on Threats, Challenges and Change of December 2004 and the Recommendations of the UN Secretary-General of March 2005’, Global Issue Papers (Heinrich Böll Foundation) No 17 (April 2005); HP Neuhold, ‘High-level Panel on Threats, Challenges and Change’ MPEPIL (online edn); BG Ramchanran, ‘The United Nations and New Threats, Challenges and Change: The Report of the High-level Panel’ in RSTJ Macdonald and DM Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Nijhoff Leiden 2005) 911–26. 309

  UNGA Res 58/291 (6 May 2004).

310

  UN Millennium Project, Investing in Development: A Practical Plan to Achieve the Millennium Development Goals (UNDP 2005) xx–xxii. 311

  Address by the SG to the Center for Strategic and International Studies (20 June 2005) UN Press Release SG/SM/9946 (22 June 2005). 312

  Report of the SG, ‘In Larger Freedom: Towards development, security and human rights for all’ UN Doc A/59/2005 (21 March 2005). The SG was also influenced by the report ‘American Interests and UN Reform’ (United States Institute for Peace June 2005) which was drawn up by a bipartisan Task Force on the United Nations commissioned by the US Congress, see Blanchfield (n 2) 21–22; Müller (n 243) 21–23. 313

  Weiss and others (n 144) xiii.

314

  UNGA Res 60/1 (16 September 2005).

315

  Cot (n 2) MN 51; Neuhold (n 308) MN 28.

316

  On the 2005 World Summit Outcome see Cot (n 2) MN 50–52; Fassbender (n 308); Müller (n 262) 67–80; Schrijver (n 27) 26–30; J Varwick and A Zimmermann (eds), Die Reform der Vereinten Nationen—Bilanz und Perspektiven (Duncker & Humblot 2006). 317

  World Summit Outcome (n 314) paras 69–72.

318

  ibid, paras 78–80.

319

  High-level Panel (n 305) paras 244–260.

320

  In Larger Freedom (n 312) para 170.

321

  See also MN 125.

322

  World Summit Outcome (n 314) para 152.

323

  ibid, para 154.

324

  ibid, paras 138–139. cf High-level Panel (n 305) paras 199–203; In Larger Freedom (n 312) paras 126, 135. 325

  International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (December 2001) UN Doc A/57/303, Annex (14 August 2002). 326

  World Summit Outcome (n 314) para 139.

327

  ibid, para 79.

328

  See also High-level Panel (n 305) paras 188–192; In Larger Freedom (n 312) paras 124– 125.

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329

  The National Security Strategy of the United States (September 2002) 15–16.

330

  High-level Panel (n 305) paras 204–209.

331

  In Larger Freedom (n 312) para 126.

332

  EE Otobo, ‘The New Peacebuilding Architecture: An Institutional Innovation of the United Nations’, in PG Danchin and H Fischer (eds), United Nations Reform and the New Collective Security (CUP 2010) 212–34. 333

  High-level Panel (n 305) paras 263–264. See also In Larger Freedom (n 312) paras 114– 119 334

  World Summit Outcome (n 314) paras 97–105.

335

  See UNGA Res 60/180 (30 December 2005); UNSC Res 1645 (2005) (20 December 2005). 336

  World Summit Outcome (n 314) 83.

337

  High-level Panel (n 305) paras 157–164.

338

  High-level Panel (n 305) paras 107–144; In Larger Freedom (n 312) paras 97–105.

339

  See n 309.

340

  World Summit Outcome (n 314) paras 17–68.

341

  ibid, para 20.

342

  See eg World Summit Outcome (n 314) para 22.

343

  ibid, para 155.

344

  ibid, para 155 (b).

345

  ibid, para 155 (c).

346

  ibid, para 121.

347

  In Larger Freedom (n 312) para 183 (‘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.’); see also High-level Panel (n 305) para 291. Some observers therefore consider the creation of the HRC ‘as the most important change in the institutional structure of the UN since its inception’, B Fassbender, ‘Architectural Clarity or Creative Ambiguity? The Place of the Human Rights Council in the Institutional Structure of the United Nations’ in U Fastenrath, R Geiger, DE Khan, A Paulus, S v Schorlemer, and C Vedder (eds), From Bilateralism to Community Interest—Essays in Honour of Judge Bruno Simma (OUP 2011) 443. 348

  World Summit Outcome (n 314) para 157.

349

  UNGA Res 60/251 (3 April 2006).

350

  See Fassbender (n 347) 444.

351

  See, however, Fassbender (n 347) 449 who argues that this only holds true in political terms since ECOSOC as a principal organ enjoys ‘the same constitutional status’ as the GA. 352

  UNGA Res 60/251 (3 April 2006) para 8.

353

  For a more detailed account see von Freiesleben (n 243) 8–20; Müller (n 243) 40–46. See also Geiger on Art. 23 MN 22–36; Zimmermann on Art. 27 MN 253–264. 354

  See MN 99.

355

  See n 319.

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356

  See n 320.

357

  World Summit Outcome (n 314) paras 152–154.

358

  As to a detailed account of the discussions see von Freiesleben (n 243) 9–15.

359

  UNGA Decision 62/557 (15 September 2008).

360

  Letter to the Membership from the Chair of the Intergovernmental Negotiations on Security Council Reform (10 May 2010) accessed 7 June 2012. 361

  For the current proposals submitted by the Member States to the Chair see attachment to the letter to the Membership from the Chair of the Intergovernmental Negotiations on Security Council Reform (5 February 2010) and accessed 7 June 2012. 362

  UN Doc A/59/L.64 (6 July 2005).

363

  UN Doc A/59/L.67 (14 July 2005).

364

  UN Doc A/61/L.69/Rev. 1 (14 September 2007).

365

  UN Doc A/59/L.68 (21 July 2005); UN Doc A/64/CRP.1 (21 January 2010).

366

  UN Doc A/60/L.49 (17 March 2006); UN Doc A/66/L.42/Rev. 1 (3 May 2012). See also Statement by the Ambassador of Switzerland on behalf of the S-5 Group (4 April 2012) accessed 7 June 2012. 367

  Letter to the Membership from the Chair of the Intergovernmental Negotiations on Security Council Reform (11 February 2011) accessed 7 June 2012. 368

  Presidential Note S/2006/507 (19 July 2006). See also concept paper by the Presidency of the SC on the implementation of the measures, UN Doc S/2010/165 (5 April 2010). 369

  See MN 108.

370

  Report of the Secretary-General, ‘Overview of the financing of the United Nations peacekeeping operations’, UN Doc A/60/696 (24 February 2006) paras 6–21. 371

  ibid, paras 11–15.

372

  United Nations Peacekeeping Operations—Principles and Guidelines (UN Department of Peacekeeping Operations and UN Department of Field Support, 2008). 373

  See MN 48.

374

  Report of the Secretary-General, ‘Comprehensive Report on Strengthening the Capacity of the United Nations to Manage and Sustain Peace Operations’, UN Doc A/61/858 (13 April 2007). 375

  MN 108.

376

  A New Partnership Agenda: Charting A New Horizon for UN Peacekeeping (UN Department of Peacekeeping Operations and UN Department of Field Support, July 2009). 377

  ibid. See also Report of the Secretary-General, Implementation of the Recommendations of the Special Committee on Peacekeeping Operations, UN Doc A/64/573 (22 December 2009). As to the progress made within the framework of this initiative see The New Horizon Initiative: Progress Report No 1 (UN Department of Peacekeeping Operations and UN Department of Field Support, October 2010); The New Horizon

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Initiative: Progress Report No 2 (UN Department of Peacekeeping Operations and UN Department of Field Support, December 2011). 378

  World Summit Outcome (n 314) para 139.

379

  UNSC Res 1674 (28 April 2006) para 4.

380

  See eg UNSC Res 1706 (31 August 2006) and UNSC Res 1894 (11 November 2009). As to further references see Vashakmadze on Responsibility to Protect MN 23–49. 381

  UNSC Res 1970 (26 February 2011).

382

  UNSC Res 1973 (17 March 2011). See also UNSC Res 1975 (30 March 2011).

383

  Exchange of letters between the Secretary-General and the President of the Security Council on the appointment of Francis Deng as Special Adviser on the Prevention of Genocide and Edward Luck as Special Adviser responsible for the conceptual, political and institutional development of the responsibility to protect UN Doc S/2007/721 (7 December 2007) and UN Doc S/2007/722 (7 December 2007). 384

  World Summit Outcome (n 314) paras 138–139.

385

  Report of the Secretary-General, ‘Implementing the Responsibility to Protect’, UN Doc A/63/677 (12 January 2009). 386

  Report of the Secretary-General, ‘Early Warning, Assessment and the Responsibility to Protect’, UN Doc A/64/864 (14 July 2010). 387

  Report of the Secretary-General, ‘The Role of Regional and Sub-regional Arrangements in Implementing the Responsibility to Protect’, UN Doc A/65/877 (27 June 2011). 388

  See MN 122.

389

  Keeping the Promise: United to Achieve the Millennium Development Goals, UNGA Res 65/1 (19 October 2010). 390

  ibid, para 81.

391

  See MN 77–79.

392

  World Summit Outcome (n 314) para 169.

393

  UN Doc A/61/583 (20 November 2006).

394

  High-level Panel (n 393) paras 14–19.

395

  ibid, paras 55–76. For a more detailed analysis see J von Freiesleben, ‘System-Wide Coherence’ in Center for UN Reform Education, Managing Change at the United Nations (Center for UN Reform Education 2008) 37; Müller (n 243) 46–75. 396

  See UNGA Res 64/289 (2 July 2010).

397

  High-level Panel (n 393) paras 46–49.

398

  UNGA Res 64/289 (2 July 2010).

399

  World Summit Outcome (n 314) para 9.

400

  See Report of the SG on the work of the Organisation 2011, UN Doc A/66/1 (26 July 2011) para 62. 401

  M Darrow and L Arbour, ‘The Pillar of Glass: Human Rights in Development Operations of the United Nations’ (2009) 103 AJIL 446–501. 402

  Krisch on Art. 41 MN 19–24.

403

  See Darrow and Arbour (n 401).

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404

  Keeping the Promise (n 389) paras 3, 13, 23 (j), 53.

405

  Report of the SG on the work of the Organisation (n 400) para 62.

406

  UNGA Res 60/251 (3 April 2006).

407

  UNGA Res 65/281 (20 July 2011).

408

  Schrijver (n 27) 17–19.

409

  ibid.

410

  N Schrijver, ‘Pros and Cons of establishing a UN World Environment Organisation’, in Ralph Wilde (ed), United Nations Reform Through Practice—Report of the ILA Study Group on United Nations Reform (2011) accessed 7 June 2012, 19–20; L Swart and E Perry (eds), Global Environmental Governance: Perspectives on the Current Debate (Center for UN Reform Education 2007). 411

  High-level Panel (n 393) paras 30–39.

412

  High-level Panel on Global Sustainability, ‘Resilient People, Resilient Planet: A Future worth Choosing’ UN Doc A/66/700 (1 March 2012) para 233. 413

  ibid, paras 261–262.

414

  World Summit Outcome (n 314) paras 161–167.

415

  For further details see I Martinetti, ‘Secretariat and Management Reform’ in Center for UN Reform Education Managing Change at the United Nations (Center for UN Reform Education 2008); Müller (n 243) 37–40. 416

  World Summit Outcome (n 314) para 163 (b).

417

  See Müller (n 243) 36–37.

418

  Secretary-General Kofi Annan, Speech delivered at the General Assembly, 58th Sess, 7th plen mtg (23 September 2003) UN Doc A/58/PV.7 (2003)4.

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Interpretation of the Charter Stefan Kadelbach From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — Treaties, interpretation — Vienna Convention on the Law of Treaties — Customary international law

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(p. 71) Interpretation of the Charter Prof. Dr. Stefan Kadelbach A.  Introduction 1–6 B.  Rules of Interpretation 7–45 I.  The Vienna Convention and Customary International Law 7–15 II.  The Interpretation of Founding Instruments of International Organizations 16– 18 III.  Constitutional Interpretation of the Charter 19–22 IV.  Rules of Interpretation as Applied to the Charter 23–45 1.  Constitutional and Contractual Elements 23 2.  Wording 24–27 3.  Context 28–29 4.  Object and Purpose 30–35 5.  Subsequent Practice 36–40 6.  Other Relevant Rules of International Law 41–42 7.  Travaux Préparatoires 43–45 C.  The Charter in the Practice of Its Interpreters 46–69 I.  General Remarks 46–49 II.  UN Institutions 50–68 1.  The International Court of Justice 50–51 2.  The General Assembly 52–55 3.  The Security Council 56–66 (a)  Charter Interpretation 56–65 (b)  Interpretation of Security Council Resolutions 66 4.  The Secretary-General 67–68 III.  Member States 69 D.  Interpretation and Revision 70–72 E.  Concluding Remarks 73–74

Select Bibliography Alvarez JE, ‘Constitutional Interpretation in International Organizations’ in JM Coicaud and V Heiskanen (eds), The Legitimacy of International Organizations (UN UP 2001) 104. Amerasinghe CF, Principles of the Institutional Law of International Organizations (2nd edn, CUP 2005). Aust A, Modern Treaty Law and Practice (2nd edn, CUP 2007). Claude I, Swords into Plowshares (4th edn, Random House 1971).

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Corten O and Klein P (eds), Les Conventions de Vienne sur le Droit des Traités. Commentaire Article par Article, vol 2 (Bruylant 2006). Dörr O and Schmalenbach K (eds), Vienna Convention on the Law of Treaties. A Commentary (Springer 2012). Engel S, ‘“Living” International Constitutions and the World Court (The Subsequent Practice of their Constituent Instruments)’ (1967) 16 ICLQ 865. Fassbender B, The United Nations Charter as the Constitution of the International Community (Nijhoff 2009). Gardiner RK, Treaty Interpretation (OUP 2008). (p. 72) Hexner E, ‘Teleological Interpretation of Basic Instruments of Public International Organizations’ in S Engel and R Métall (eds), Law, State, and International Legal Order—Essays in Honor of Hans Kelsen (U Tenn P 1964) 119. Johnstone I, ‘Treaty Interpretation: The Authority of Interpretive Communities’ (1991) 12 Mich J Intl L 371. Kolb R, Interprétation et création du droit international (Bruylant 2006). Kunig P, ‘United Nations Charter, Interpretation of’ MPEPIL (online edn). Macdonald RSJ, ‘A Short Note on the Interpretation of the Charter of the United Nations by the International Court of Justice’ in N Ando (ed), Liber Amicorum Judge Shigeru Oda, vol 1 (Kluwer 2002) 177. Malone DM, ‘The Security Council in the Post-Cold War Era: A Study in the Creative Interpretation of the UN Charter’ (2003) 35 NYU J Intl L & Pol 487. McNair AD, The Law of Treaties (OUP 1961). Orakhelashvili A, The Interpretation of Acts and Rules in Public International Law (OUP 2008). Pollux, ‘Interpretation of the Charter’ (1946) 23 BYIL 54. Rama-Montaldo M, ‘Contribution of the General Assembly to the Constitutional Development and Interpretation of the United Nations Charter’ in RSJ Macdonald and DM Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Nijhoff 2005) 493. Ress G, ‘The Interpretation of the Charter’ in B Simma (ed), The Charter of the United Nations (2nd edn, OUP 2002) (cited as Ress on Interpretation (2nd edn)). Schachter O, ‘Interpretation of the Charter in the Political Organs of the United Nations’ in S Engel and R Métall (eds), Law, State, and International Legal Order— Essays in Honor of Hans Kelsen (U Tenn P 1964) 269. Schermers HG and Blokker NM, International Institutional Law (4th edn, Kluwer 2003). Sevastik P, ‘Reflections on the Interpretation of the UN Charter and its Binding Force’ in D Amnéus and K Svanberg-Torpman (eds), Peace and Security—Current Challenges in International Law (Studentlitteratur 2004) 23. Simon D, L’interprétation judiciaire des traités d’organisations internationales (Pedone 1981). Sinclair I, The Vienna Convention on the Law of Treaties (2nd edn, Manchester UP 1984). Skubiszewski K, ‘Remarks on the Interpretation of the United Nations Charter’ in R Bernhardt and others (eds), Völkerrecht als Rechtsordnung. Internationale Gerichtsbarkeit. Menschenrechte, Festschrift für Hermann Mosler (Springer 1983) 891. Sohn LB, ‘The UN System as Authoritative Interpreter of its Law’ in O Schachter and C Joyner (eds), United Nations Legal Order, vol 1 (CUP 1995) 169. Torres Bernárdez S, ‘Interpretation of Treaties by the International Court of Justice Following the Adoption of the 1969 Vienna Convention on the Law of Treaties’ in G

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Hafner and others (eds), Liber Amicorum Ignaz Seidl-Hohenveldern (Kluwer 1998) 721. Villiger ME, Commentary on the 1969 Vienna Convention on the Law of Treaties (Nijhoff 2009). Watson GR, ‘Constitutionalism, Judicial Review, and the World Court’ (1993) 34 Harv Intl LJ 1.

Main Text A.  Introduction 1  The interpretation of the Charter is a cognitive process which precedes any act of application and thus any attempt to fill its institutional design with life. The line is difficult to draw, the more so since practice is often intuitive and does not necessarily result from an intentional act of interpretation. In general treaty law, however, interpretation and application are distinct concepts. Interpretation is an intellectual exercise whereas application transforms a rule into social facts. Both are supposed not to modify the obligations agreed upon in a way which amounts to an amendment. Practice, interpretation, and modification are interdependent. Application implies interpretation, but consulting (p. 73) practice is also a means to enquire into the intentions of the parties.1 Practice often takes a direction which was not envisaged at the time the treaty was negotiated, thus raising the question when the border to revision is transgressed (Arts 108 and 109 UNC), but it also influences the interpretation of what undue modification may be. Rules on Charter interpretation are thus supposed to answer the questions as to how to indicate in which directions the practice of the UN may develop, to identify the line between concordant practice and ultra vires acts, and in whose power it is to resolve doubt and conflict. 2  In order to address these questions, four different approaches are taken. The first of them corresponds with classical positivism and is found in the early Charter commentaries. Accordingly, there is a spectrum of possible results of interpretation, and to leave this spectrum is only permitted if the formal revision procedure is followed. The tools for interpretation are provided by general international law, and it does not make a fundamental difference whether they are applied to a bilateral agreement or to the constituent instrument of the UN.2 3  By contrast, the second tradition of thought propounds more or less strong versions of international constitutionalism.3 Such notions start from the assumption of unity in international law and suppose that some of its norms are placed on a higher rank. International law would have to be interpreted against the background of norms of such a constitutional character. Along these lines, the Charter may be seen as the most important, if not the only, source of international constitutional law.4 Here, two variants can be discerned, one taking the whole of international law as a constitutional system, whereas the other would concentrate on the Charter alone as the ‘higher law’,5 as expressed in its primacy clause in Art. 103 UNC.6 One of the consequences of such a constitutionalist approach on interpretation might be that practice of the UN institutions could be checked against their ‘constitution’.7 Another possible outcome, even though rarely expressly stated, would be that interpretation itself is informed by constitutional law principles,8 whatever this means in specific cases. In all variants of constitutionalism, (p. 74) interpretation is rather guided by an idea of an ‘objective’ existence of the constitutional instrument than by the motive to identify the original intentions of the parties.9

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4  Both positions encounter canonized objections. Whereas the positive law approach appears to overstate the self-contained character of law and to neglect the political implications of Charter practice, emphatic constitutionalism risks presupposing what can only be the result of interpretation, namely that the Charter fulfils a constitutional function. Both approaches, therefore, have evoked critique voiced by proponents of legal or political realism and by critical legal studies.10 This third group of theories contests the positivist dogma that law provides the methods to define its own borders. Constitutionalism, on the other hand, encounters objections from this angle because of methodically questionable naturalist presuppositions, at least in some of its variants. Likewise, the underlying notion of unity of ‘the’ international legal system as a telos of interpretation is challenged.11 Such critique would stress that rules of interpretation are inherently illusionary since they are at risk either of being abused to camouflage individual State interests or of supporting wishful thinking in that they aid in finding results already presumed before. True as this may be, the task of interpretation is inescapable, and methods of interpretation at least provide criteria as to which arguments are tenable and which are not and, as such, force the parties to a dispute to justify their contentions along agreed lines. 5  The fourth and prevailing approach is rarely formulated as an elaborate theory, but is to be understood as a pragmatic way to deal with questions of interpretation. It integrates aspects of the other three, thus taking into account possible tensions between them. As would most theories of interpretation, it recognizes the treaty character of the Charter so that the rules on treaty interpretation apply, but modifies them for that purpose. It takes up the legal formalism found in positivist theory, but accepts the dynamic character of international organizations, thus putting emphasis on the objects and purposes of the Charter rather than on the original intent of its framers, and includes practice as an expression of the institutional life of the UN.12 As is the case with the other perspectives (p. 75) on interpretation, it is an open question whether this pragmatic approach offers a veritable solution to the problem of addressing the political practice of the UN with legal means. 6  Taking this wide range of possible perspectives into account, it seems appropriate, for the purposes of the present Commentary, to embrace a pragmatic method and to start by trying to identify and assess how interpretation is done in practice. Thus, in a first step, we will attempt to establish which rules of interpretation apply to the Charter (see MN 7–45). Since subsequent practice has proven to be crucial, the question must be dealt with as to what impact it has and whose practice is to what extent decisive (see MN 46–69). Thirdly and finally, the problem of circumventing the revision procedure will be taken up (see MN 70–72).

B.  Rules of Interpretation I.  The Vienna Convention and Customary International Law 7  The general rules on the interpretation of treaties have long been part of the problem of how to identify a valid concept of Charter interpretation. Depending on the approach taken, narrow or wide readings of the Charter provisions are possible. At the time the Charter was drafted, there were basically three theories, the first of which emphasized the original intent of the parties, whereas the second put weight on the autonomous meaning of the text, and the third gave room for the evolution of a treaty’s life over time.13 The Vienna Convention on the Law of Treaties (VCLT)14 has adopted yet another stand. Since the preparatory work on the VCLT was influenced by the International Court of Justice (ICJ), which, until the opening for signature of the Convention in 1969, had decided eighteen cases on Charter interpretation, its jurisprudence has had a bearing on the VCLT itself.15

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Thus, it may be concluded that the developing of the rules of interpretation and the changing reading of the Charter have influenced each other mutually. 8  It is common ground now that the rules on the interpretation of treaties as reflected in the VCLT apply to the UN Charter. These rules do not make a fundamental distinction as to whether an institutional treaty establishing an international organization or a bilateral instrument is at issue. Article 5 VCLT confirms that the Convention applies to founding treaties of international organizations.16 Due to its non-retroactive character, the provisions of the VCLT do not apply to the Charter as treaty law (Art. 4 VCLT). However, notwithstanding the different approaches to interpretation at the time the (p. 76) Convention was conceived,17 its rules today constitute a ‘general expression of the principles of customary law’.18 The general character of the terms of its Articles indicates that these rules are the result of a compromise.19 Common intention doctrine, textual method, and teleological approach are reflected in them to a varying extent. 9  According to Art. 31 (1) VCLT, a treaty ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. As a subsidiary means, the drafting history can be consulted if this standard rule does not yield sensible results (Art. 32 VCLT). The principle of good faith is understood to imply the principle of effectiveness; thus it indicates that treaty rules have a meaning that goes beyond the individual will and interests of state parties voiced on the occasion of a legal dispute and live a life of their own guided by general consent.20 At the same time, it introduces a dynamic element by obliging the parties to a dispute to direct interpretive arguments towards their legitimate expectations at the time of interpretation.21 10  Whereas older judgments may be understood to prefer the grammatical method over others,22 the VCLT does not encourage such a view any more.23 In its methodical instruction, Art. 31 (1) integrates semantic analysis, context, as well as object and purpose in one rule.24 Interpretation, in the words of the ILC, is a ‘single combined operation’.25 The order in which the different canons are mentioned in Art. 31 does not represent a hierarchy, but the internal logic of the process of interpretation.26 It thus departs from the notion that interpretation begins only if no clear sense can be attributed to the terms of a provision. Analysing the wording is considered only as the ‘starting point’ of interpretation.27 The emphasis on ‘ordinary meaning’, understood as the common use of the term, is probably the reason for the use of dictionaries of all sorts in order to determine (p. 77) an everyday understanding.28 It can be left open here whether this approach is appropriate if an instrument refers to extra-legal concepts, be they of a geographical, economic, or other nature.29 Suffice it to say that this method is not recognized as mandatory.30 11  Article 31 (2) VCLT stresses the importance of the textual environment in which a treaty provision is placed by suggesting a wide meaning of ‘context’. It enumerates the whole treaty text, including Preamble and Annexes, as well as further agreements and any other instrument agreed upon by the parties relating to the treaty. The Preamble and the other components of what constitutes ‘context’, in turn, inform the interpreter about the treaty’s object and purpose.31 Hence, Art. 31 VCLT does not simply set out a plurality of methods, but describes a set of different elements which, in their interdependence, constitute a principle of autonomous treaty interpretation.32 This perspective is also reflected in the jurisprudence of the ICJ. The Court has adopted a rule of interpretation which refers to the text as a whole, including context and objectives, and thus, along the lines drawn by the VCLT, has moved towards preference of the textual over the original intent approach.33 12  Article 31 (3) VCLT, which requires that subsequent practice between the parties regarding the interpretation of the treaty is taken into account ‘together with the context’,

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introduces an evolutive element.34 While some judgments of the ICJ seem to take a reserved stand in that respect,35 others clearly consult evolving agreement and practice.36 (p. 78) 13  Finally, external elements may be taken into account. According to Art. 31 (3) (c) VCLT further obligations of the parties can be consulted. An important restriction of that rule of interpretation is that the other obligations must be ‘relevant’ (‘toute règle pertinente’), ie they must relate to the subject-matter of the treaty at issue.37 As far as the UN is concerned, such obligations seem hard to conceive since the Charter prevails over other treaty obligations as between the parties (Art. 103 UNC). But the priority of the Charter in case of conflict between different treaty obligations does not exclude the possibility that other treaties may be a tool to explore the meaning of a term of the Charter. On the other hand, the Charter already influences the answer to the question whether or not a conflict between treaties exists at all, since candidates for treaty collision have to be read in light of the Charter. Comparable considerations hold true for customary law, the more so since large portions of the Charter both form and reflect international custom.38 Thus, the ICJ held in its Namibia opinion that a treaty is to be interpreted and applied ‘within the framework of the entire legal system prevailing at the time of its interpretation’.39 14  Since the meaning of words can change, the question was discussed in court opinions and legal writings whether the time at which the treaty was concluded or the time at which it is interpreted should be given more weight. Dispute settlement bodies of specialized regimes such as the European Union or regional human rights systems have developed a tradition of treating their respective treaties of reference as living instruments, thus putting weight on the changing of circumstances not only with respect to the meaning of the terms used in a treaty, but also with regard to the changing character of the regime itself.40 The jurisprudence of the ICJ on the matter is characterized by some observers as eclectic.41 However, it seems to have shifted slowly from the notion of original intent towards a more evolutive approach.42 This trend in favour of current meaning is in line with the weight (p. 79) subsequent practice has gained.43 It also corresponds with the Vienna Convention in that it mentions travaux préparatoires only as a supplementary means of interpretation.44 15  In sum, the VCLT as well as judiciary practice have developed an approach which aims at finding an autonomous meaning of the treaty text as a whole, takes a systemic perspective with reference to the relationship with other obligations of the parties, consults subsequent practice, and applies an inter-temporal method from the perspective of the time the treaty is interpreted.

II.  The Interpretation of Founding Instruments of International Organizations 16  Seen against the developments in the law on treaty interpretation, the dichotomy of traditionalism and constitutionalism in the interpretation of founding treaties of international organizations observed some decades ago appears remote.45 It possibly was overstated even at the time. Long before, it had been noticed that treaties constituting an international organization follow a different logic from contractual treaties, due to their law-making character and their potential of developing into an independent entity.46 It is not a new insight that an organization, as ‘something organic and permanent’,47 rests on a ‘living constitution’,48 develops an ‘organic growth’,49 lives ‘a life of its own’,50 and emancipates itself from its origins over time. 17  In order to live up to the demands of changing circumstances, an organization inevitably modifies the legal conditions under which it operates. The difficult amendment procedures make other ways of modification appear even more desirable. Although the VCLT has already spelled out rules which are able to comply with such needs, court practice has adapted the canons of interpretation further to constituent treaties. Other than in earlier decisions,51 the ICJ recognized in its Nuclear Weapons Advisory Opinion that the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

‘constitution’ of an international organization, understood as its constituent instrument, ‘can raise specific problems of interpretation’ with the consequence that ‘the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve special attention’.52 18  The VCLT leaves room for different modes of balancing out the methods mentioned, depending on the specific characteristics of a treaty and thus allows for a ‘constitutional interpretation’ of founding treaties.53 With respect to the institutional elements of such (p. 80) instruments, still less emphasis is to be placed on the original will of the parties and on wording alone than with respect to other treaties.54 In the same vein, the systemic and teleological approaches gain weight,55 particularly the principle of effectiveness (effet utile). Effet utile has two aspects, a rule of interpretation according to which a treaty provision is supposed to have a useful significance, and a principle which requires the assumption that the treaty as a whole is intended to achieve an object and purpose and that its provisions have to be seen in the light of that assumption.56 The concept thus requires granting, rather than denying, useful effect to a treaty.57 Even though its limits must not be overseen58 and Art. 31 VCLT does not expressly refer to effet utile, it has always been a recognized principle of interpretation in World Court jurisprudence,59 and it is implicit in the bona fides principle and in the object and purpose approach.60 As to subsequent practice, not only the conduct of the member States but also that of the organs set up by the treaty has to be considered.61 This conclusion is reinforced by Art. 5 VCLT which refers to the ‘rules of the organization’. According to Art. 2 (1) (j) VCLTIO this term not only encompasses the founding treaties and secondary law, but also ‘established practice’.62 Thus, it is safe to conclude that an evolutive approach is even more appropriate with regard to institutional agreements than it is for other treaties.

III.  Constitutional Interpretation of the Charter 19  Within institutional interpretation, it is suggested that particular principles govern the Charter. As noted above, it is held that the Charter, as the constitution of the world (p. 81) community, calls for ‘constitutional interpretation’.63 The question as to whether and to what extent the Charter represents a constitutional document has not only come up in the course of the recent debate on constitutionalization of international law.64 The debate is as old as the Charter itself.65 Today, there seems to be almost a common understanding that the founding treaty of the UN contains elements of a constitutional nature. The views differ, however, as to the reach of the constitutional analogy.66 20  For an older functionalist view, the term ‘constitution’ has a meaning internal to the founding treaty; it refers to the tasks of the organization and the means to fulfil them and tends to favour methods which contribute to the dynamics of institutional development. Accordingly, the Charter and the practice of the UN institutions would form the ‘constitution’ of the UN, but not more.67 The consequences for interpretation would be limited to the internal hierarchy of the UN system and, for example, demand an orientation towards the Charter as the superior instrument or towards effet utile and the concept of implied powers. For a more comprehensive approach, all international law as accepted and modified under the auspices of the UN makes up the constitution of world community,68 being a ‘Law of the United Nations’; interpretation, then, would require stronger emphasis of a systematic method with a wide notion of ‘system’ and follow a logic of a supposed unity of the international legal order. Finally, a strong version of international constitutionalism would advocate an infusion of international law by substantive constitutional norms like the rule of law, checks and balances, human rights, and democracy.69

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21  Thus, it is to be asked what connotations the use of the term ‘constitutional’ can sensibly have for the Charter. Its constitutional interpretation, tritely, cannot be the same as interpretation of State constitutions.70 Not only can the UN not be compared with a State, the rules of interpreting a constitution also depend on the specific instrument and constitutional history behind it. To hold otherwise would run the risk of presupposing what only analysis can yield, if at all, namely that the law and institutional life of the UN is organized along constitutional principles. On the other hand, it cannot be ruled out that an international organization like the UN develops into a constitutional system of its own character, ie an organization in which the exercise of public power is the result of consensual legitimacy, subject to judicial review, and balanced out in a system of (p. 82) horizontal and vertical distribution of powers. The abstract notion of such an organization alone, however, does not justify special methods of interpreting the Charter. 22  Therefore, it is suggested here to use the term ‘constitutional interpretation’ with a view to the functions of the Charter and the legal system established under its umbrella. A consequence of this view is that interpretation is based not on individual interests of the original negotiating parties, but in objective terms as they are ‘expressed in the Charter or through other consensual procedures’.71 That the UN has a ‘position in certain respects in detachment from its Members’72 entails a particular focus on subsequent practice, adapted to the powers of the UN organs. In that understanding, nothing precludes a reading of normative UN law which is informed by public law principles such as the implied powers doctrine, but also by a more functional approach with respect to the object and purpose of the treaty expressed by the notion of effet utile. A further constitutional feature of the Charter is that UN law is relevant for the law of other institutions. As held by the ICJ in the Nuclear Weapons opinion, ‘the logic of the overall system contemplated by the Charter has to be taken into account when interpreting another international organizations’ Constitution’.73

IV.  Rules of Interpretation as Applied to the Charter 1.  Constitutional and Contractual Elements 23  Resuming the distinction between contractual and constituent treaties, it is conceivable that elements of both kinds are found in one instrument. Building on such observations, some writers hold that the Charter contains elements of both types and that consequently, to some parts of it, the rules on treaty interpretation apply in a different manner than they do with respect to others.74 UN institutional law would be ‘normative’75 or ‘constitutional’:76 rules defining the functions and powers of the organs, on voting and other procedural matters, on the admission of members as well as provisions which create obligations as between member States or between the members and the UN.77 Contractual parts, on the other hand, would be rules of a more general treaty law character such as those on conclusion and termination, amendment, revision, and modification. Under the VCLT rules of interpretation, however, it is not necessary to draw such a line. They are flexible enough to address the specifics of a treaty provision. More importantly, the process of interpretation has to take the whole treaty system into account, so that the function of contractual Articles may be influenced by constitutional objectives of other portions. The limits of permissible revision (Arts 108, 109 UNC), for instance, cannot be sufficiently ascertained without considering the UN’s practice on its object and purpose as it has evolved over previous years. Finally, the distinction as to (p. 83) whether a provision is normative or contractual is in itself the result of interpretation. Therefore, the following sections will not distinguish between different categories of Charter provisions.

2.  Wording

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24  As stated above, linguistic analysis is the starting point of interpretation. The ordinary meaning of a term is to be sought in the light of its context, the objectives of the UN, and the ‘overall system contemplated by the Charter’.78 Even though, under these conditions, the question of ‘ordinary language’ as a concept appears to be of second order, the question in which language interpretation has to be undertaken must be addressed. 25  Article 111 UNC declares the Chinese, French, Russian, English, and Spanish versions to be ‘equally authentic’. Article 33 (1) VCLT states that the text of plurilingual treaties ‘is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail’.79 The idea behind this rule is to preserve the unity and integrity of the instrument, to secure reliance on its terms and to make treaty interpretation an affordable exercise by avoiding the need to deploy the means and personnel which would be necessary if comparative language analysis were mandatory.80 This means that each interpreter may rely on any one of these languages unless the result of an interpretation based on the chosen language is not clear. 26  The question then is what happens if comparison of the different versions still does not provide clarity. Different proposals have been made in order to establish a hierarchy of languages. Since the working languages during the San Francisco Conference in 1945 were English and French only, it is at times suggested that greater weight should be given to these two languages than to the others.81 The same result is inferred from the provision on the working languages of the ICJ found in Art. 39 of its Statute. The ICJ itself can be cited as an authority for that position since the Court, in an early case, restricted interpretation of the Charter to English and French.82 Consequently, dissenting opinions and scholarly writings can be found which take the Chinese, Russian, and Spanish versions as mere translations of the ‘original’ texts.83 Some find that the English text was even more authoritative because the Charter document finally approved at the founding conference by the Co-ordination Committee was in English.84 This suggestion corresponds with the notion of an urtext found in PCIJ case-law.85 27  There are good reasons to make a case against that concept: the decreasing importance of the preparatory work, the interpretive ideal of unity and integrity of the Charter,86 the plurality and inclusiveness of the UN as an organization, the consensual character (p. 84) of its practice, the need for more transparency and equal participation within the UN, the sheer numbers of people who prefer other languages to English and French, and the fact that Charter interpretation is not only a domain of specialized lawyers, but also a matter of politics. In cases of divergence, therefore, Art. 33 (4) VCLT applies according to which ‘the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted’.87

3.  Context 28  The context in which the terms have to be read is the same treaty provision, the Article in which the term is used, the chapter in which the Article is placed, and the whole of the Charter, including its Preamble, being the context of all of these elements. 29  If ‘the logic of the overall system contemplated by the Charter’ is to be followed in reading institutional treaties of other organizations,88 the question arises if this system as a whole is to be seen as an organic entity. Then, arguably, the entire UN System might serve as context of the Charter, including specialized organizations and treaty systems established under the auspices of the UN. The link to these specialized entities established by Arts 62–64 UNC might be taken as an argument in that direction. On the other hand, Art. 31 (2) restricts context in terms of Art. 31 (1) VCLT to instruments which were added to the treaty at the time of its conclusion, in order to illuminate the intentions of the parties. Taking this rule strictly, other instruments promoted by the UN would only count as subsequent practice or other relevant obligations according to Art. 31 (3) VCLT. The question is not necessarily of an academic nature since some authors regard the criteria From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

mentioned in Art. 31 (3) as hierarchically subordinate to the rule of Art. 31 (1) VCLT.89 However, since this is not the case,90 the question may be left open here. Suffice it to say that the constitutional character of the Charter and the supportive function the other parts of the UN System have in order to achieve its object and purpose are reasons which rather militate in favour of a more comprehensive approach to the concept of context.

4.  Object and Purpose 30  In the VCLT, the term ‘object and purpose’ is usually found in the singular, thus suggesting that any treaty has one single object and purpose; a rationale behind this might be that there should be no conflicts between different treaty objectives which could endanger its implementation.91 Still, treaties often explicitly spell out more than one if not a set of goals, and there is no compelling reason to force all purposes of the treaty into one formula and thus to define away the possibility of colliding treaty objectives beforehand. International courts and tribunals rightly take a different view.92 Generally speaking, the ICJ resorts to ‘the very scheme’ of the convention at issue.93 (p. 85) 31  In order to specify object and purpose further, the Preamble and the general clauses at the beginning of the treaty are usually consulted, and the Charter makes no exception in that respect. In the Certain Expenses opinion the Court reiterates the UN’s goals as spelled out in Art. 1 UNC to assess what legitimate expenses of the UN are.94 The pursuit of these goals justifies three consequences. 32  Firstly, the emphasis on object and purpose fosters an effectiveness (effet utile) argument95 which has expansive effects on the UN’s powers. In applying this argument to the Charter, the Court found that Art. 25 UNC has binding force not only within, but also outside the scope of Chapter VII. ‘To hold otherwise would be to deprive this principal organ of its essential functions and powers under the Charter.’96 33  Secondly, the Charter is to be interpreted, in case of doubt, to enable the UN to reach its objects and purposes. The doctrine of implied powers, applied to international organizations, was a conscious analogy by which the World Court borrowed from domestic constitutional law principles.97 Accordingly, ‘[u]nder international law, the Organization must be deemed to have those powers which, though not expressly provided for in the UN Charter, are conferred upon it by necessary implication as being essential to the performance of its duties’.98 In this function implied powers was used not only, as in the Reparations Case, as an argument for the legal personality of the UN as a whole, but also for a reading which allows its organs to establish an Administrative Tribunal as a subsidiary institution.99 As long as powers used by one of the organs are within the general powers of the Organization as a whole, the presumption is that their measures are not ultra vires the UN. Thus, if expenditures by the General Assembly constitute expenses of the UN within the meaning of Art. 17 (2) UNC, they are, according to the Court’s Certain Expenses Advisory Opinion, incurred lawfully. The consequence is, since object and purpose of the UN are very broad in scope, that it is very unlikely that measures taken by one of the organs will be deemed to transgress its powers.100 34  The third consequence is that practice can be used in order to define powers. In an early case, the PCIJ stated: ‘It is not an unusual thing, in countries in which legislative power is limited by a fundamental charter, for the Courts, in deciding whether certain legislation is constitutional, or intra vires, to resort to practice, national or international, for the determination of the extent of a particular governmental power.’101 In this vein, the ICTY took note of the implied powers of the Security Council to set up a criminal court.102 (p. 86) 35  The teleological approach thus, in different ways, imports a dynamic element into the interpretive process and, in its favourable stand towards practice, corresponds with the notion of a constituent treaty as a ‘living instrument’. Considering the direction the political organs of the UN have taken with a view to stressing respect for human rights, self-rule, democracy, and the rule of law, it would not be beyond established rules of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

interpretation if these objects and purposes as developed by practice increasingly influenced the interpretation of the terms of the Charter.

5.  Subsequent Practice 36  Under the terms of the VCLT, only conduct by States counts as subsequent practice. Organs of an organization are not mentioned. A plausible reason is that the organization cannot be considered as completely detached from the consent of its members. At any rate, ICJ judgments have from the beginning referred to organs as well.103 The Court stated as early as in its Reparation for Injuries Advisory Opinion: ‘… the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice’.104 In the Nuclear Weapons Advisory Opinion the Court stresses the ‘own practice’ of the organization.105 Accordingly, the practice of the Organization has a value in itself for interpretation in that it reflects the reality of the order established by the treaty.106 Pertinent material is abundantly documented in the Repertory of Practice of United Nations Organs and the Repertory of Practice of the Security Council.107 37  If the internal practice of an organization alone would suffice to develop its legal order, a gap in legitimacy can easily emerge which in turn would run the risk of decreasing the prospects for compliance by the member States. The question is particularly pressing if practice modifies Charter law substantially. To avoid these effects, practice has to be tied back to member States, which means that some sort of adoption is necessary.108 This is, in principle, almost undisputed. The question is how a sufficient basis of consensual legitimacy can be secured. One approach would be to follow the procedural methods an organization assumes for making decisions. If a general consent can be established, one argument runs, a presumption works in favour of the authority of practice; and since decisions and resolutions are often carried by consensus in the sense that there is no registered disagreement, practice as such can be considered as decisive.109 (p. 87) 38  To avoid a ‘tyranny of the majority’,110 such practice must be established to be consistent and accepted by the member States.111 This means that decisions are to be analysed on a case-by-case basis. Depending on the rules of procedure and the degree of formality of the acts in question, different criteria may apply. As to General Assembly resolutions, voting behaviour has to be taken into account, as it is when it comes to the question of whether or not the measures taken are evidence for customary law. Considering the Security Council, votes against a resolution cast by non-permanent members will not prevent its binding effect, but may indicate that their suitability as interpretive practice is compromised, the more so if such voting is persistent in comparable cases. 39  Conceptually, UN practice is not to be equated with customary law. It relates to the Charter and reflects the parties’ common understanding of it, but does not have to reach beyond.112 Internal practice of an international organization does not even necessarily have to represent a shared understanding of the parties.113 In the framework of a treaty regime and particularly of an international organization it is therefore suggested to speak of coutume constitutionnelle.114 For that purpose, legal acts taken under the proper bases of competence establish prima facie evidence. Express consent may not always be required. Acquiescence, informal approval, and the will to comply, often implicit in acceptance of decisions taken, can suffice. Since the member States accepted the rules including the possibility of being overruled, decisions also bind States which abstained or voted against them. Abstentions or negative votes do not necessarily in themselves prevent practice from developing. Consistency is decisive since it is the role of practice as to interpretation to establish order by coherence. The more consistent practice is, the more hesitant the parties are to deviate from it.115 If, by contrast, such conduct extends beyond mere Charter practice, and assumes the character of general customary law, it acquires a legitimacy of its

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own so that the question of whether treaty practice violates the limits of permissible modification does not arise. 40  Since analysis of subsequent practice is only one out of a set of interpretive methods, the ICJ is not bound by it. Even though the Court is not free to ignore it,116 there are cases where it considered institutional practice of organizations not to be in accordance with the terms of the pertinent treaty.117 It has the same power when applying the UN Charter.118

6.  Other Relevant Rules of International Law 41  The UN Charter serves as a means of interpretation for other treaties, not only by virtue of its character as a universal organization to which all States are parties, so that it may (p. 88) become a relevant obligation for any treaty,119 but also because of its priority in case of collision (Art. 103 UNC). Therefore, it did not come as a surprise that the Court used the Charter, in the Oil Platforms Case, to inform the interpretation of a bilateral treaty of amity and commerce.120 Does this mechanism also work vice versa? 42  It has been said that treaties establishing other organizations of the UN family can become pertinent if it comes to the task of specifying terms and subject-matters referred to in the Charter.121 The same may hold true for other instruments concluded under the auspices of the UN. From the conclusion that to ensure respect for human rights is one of the UN’s purposes,122 it is only one step further to assume that human rights law is ‘applicable law’ which serves as a means of specifying Charter provisions such as Art. 1 para 3, Arts 13, 55, and 62 UNC.123 Similarly, conventions and customary law in armed conflict are universally binding so that the Charter may not be read as permitting peacekeeping, peace-enforcement, and peace-building measures to be at variance with international humanitarian law. Therefore, treaties concluded by the UN with host States of forces authorized by the UN providing otherwise would violate the Charter.124

7.  Travaux Préparatoires 43  Preparatory work is widely used in practice. Even though the ICJ does not often take recourse to the drafting history,125 it does so deliberately and does not feel hindered by the supplementary nature ascribed to the preparatory work by Art. 32 VCLT. Consulting history does not have to be seen as being in contrast to a constitutional approach to interpretation.126 The travaux préparatoires may illuminate the compromise character of a solution or shed light on object and purpose, if only to find that it has become obsolete over time. 44  However, the problem about the travaux is that they can refer only to the contributions of those States which participated in the Founding Conference. Since the number of UN member States has increased and its composition has changed over time, it is often claimed that the drafting papers should no longer be consulted. The problem is old, and early rulings addressed it by pointing at the freedom of contract: any State was free to consult the preparatory work before acceding to a treaty.127 The ICJ did so even in a case in which none of the parties had participated in the drafting of the treaty to be applied.128 45  On the other hand, it is legitimate to object that States do not accede to, as in the case of the UN, twenty-two volumes of preparatory work, but to an organization,129 (p. 89) and that the intentions of those who live under a treaty today are more important than those of its authors.130 Many problems were not foreseen in 1945, whereas for others no consensus was found and shared meanings in many instances have been worked out over time.131 In sum, there are good reasons to handle the drafting materials with reluctance. If consulted, however, it is obvious that official records such as those on the 1945 San Francisco

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Conference carry more weight than protocols made by the representatives of individual States,132 let alone individual reminiscences and and memoirs.133

C.  The Charter in the Practice of Its Interpreters I.  General Remarks 46  The task of interpreting the Charter, as the constituent instrument of world society, appeals to a ‘global interpretive community’,134 the more so since the Charter forms part of the internal law, according to their respective constitutions, of any State in the world. Beyond that, it is the question of whether there are authoritative interpreters of the Charter, similar to the role constitutional courts and constitutional practice play in domestic legal orders. 47  A distinction is to be made between authentic and authoritative interpretation. Whereas authentic interpretation may only come from the parties themselves, authoritative interpretation flows from delegated power. Proposals made in the course of the San Francisco Conference to reserve the authority to interpret the Charter to the ICJ were not adopted.135 Likewise, the plan to vest the General Assembly with that power proved unsuccessful.136 Rather, the members of the Conference agreed, each organ should establish its own jurisdiction. Thus, there is neither authentic interpretation, since the member States do not make any collective statements in that respect, nor is there an authoritative one. Consequently, the results of the organs’ interpretation are not formally binding on the other organs.137 Binding force is created foremost for the acting organ itself.138 As a result, a notion of autonomous interpretation of a plurality of interpreters emerged which entailed a concept of inherent jurisdiction of political and judicial organs,139 as it is used by international courts and tribunals, ie the ICJ and subsidiary bodies of the UN.140 (p. 90) 48  It was therefore inevitable from the beginning that each organ would itself exercise interpretive power,141 so that practice became its own source.142 Since there is, in all types of organization, the tendency to expand activities, the question arises as to whether there is any concept of judicial review over the political organs’ auto-authorization. Even though the Charter does not provide such a review mechanism, and the travaux indicate that there should be no superior umpire, this does not preclude any judicial supervision. The ICJ, in some cases, appears to follow a notion of separate but complementary functions, those of the General Assembly and the Security Council being political, while its own were legal in nature.143 In other instances, however, the Court has repeatedly taken the opportunity to discuss the lawfulness of secondary UN law.144 Thus, a model of limited, albeit not exclusive power of judicial review has emerged without, however, restricting the other organs’ powers to interpret the Charter for their own purposes. This weak concept of concurrent review entails legally binding effect on a caseby-case basis, but not in general and for the future.145 However, if it brings about consistent positions, it adds to UN practice and thus creates non-binding precedent for further Charter interpretation. 49  In short, the practice of organs is indicative of the understanding of the Charter, and the closer statements of their representatives are to the core of their powers, the more important they are. Looking at member States’ conduct secures that the organization’s ‘own practice’ is legitimate in that it rests on the consent of the parties, abstract as it may be.

II.  UN Institutions 1.  The International Court of Justice

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50  The ICJ, as the principal judicial organ of the UN (Art. 92 UNC), can be asked for its interpretation of the Charter under the advisory opinion procedure (Art. 96 UNC). Opinions may be requested by the Security Council or General Assembly. Other organs of the UN and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities (Art. 96 (2) UNC). This right was conferred upon ECOSOC, the Trusteeship Council and almost all of the specialized organizations of the UN group.146 Out of the twenty-seven advisory opinions the ICJ had rendered as (p. 91) of June 2012, eighteen directly addressed or implicitly involved the interpretation of Charter provisions.147 As all interpretations, advisory opinions do not have any formally binding effect, even though the intention to make a request implies the will to accept the answer.148 Mostly, the organs adopt the opinions and act accordingly.149 However, strictly speaking, States which do not agree can only be considered to be bound if the essence of an opinion has been consolidated into accepted practice.150 51  Contentious proceedings may also give rise to the application of the Charter. Some twenty judgments of the Court dealt with issues of Charter interpretation.151 This has happened with respect to the use of force and the right to self-defence (Art. 51 UNC),152 the rights and duties of States,153 and the right of peoples to self-determination.154 In such cases, findings of the judgments are obligatory only between the parties to the dispute; in a factual way, the effect goes beyond this.

2.  The General Assembly 52  Given its character as the Plenary organ of all member States, the interpretive practice of the General Assembly is crucial. For historical reasons, but also because of the limited effect of its resolutions, it is clear that its resolutions cannot serve as an authoritative interpretation.155 In order to generate legal effects, it is suggested that the same preconditions as for treaty revision (Arts 108 and 109 UNC) ought to be met,156 and one might also point to the conditions under which custom emerges from soft law. On the other hand, the character of soft law alone does not exclude any interpretive function.157 That resolutions of the General Assembly may even modify the Charter has been recognized by the ICJ in its Advisory Opinion on the status of Namibia, and it was confirmed in principle in (p. 92) the Nicaragua judgment.158 Following a case-by-case approach, the interpretive effect of the General Assembly’s practice depends on subject-matter, wording, connection to the terms of the Charter, and voting results of a resolution. 53  The General Assembly has influenced the application of the Charter in a number of areas. In institutional law, it developed practice departing from the wording of the Charter with respect to the number of representatives of each member in the General Assembly (Art. 9 (2) UNC), the participation of observers (not mentioned in the Charter), the replacement of formal vote by consensus (Art. 18 UNC), and in setting up subsidiary bodies not only by virtue of its own right (Art. 22 UNC), but also together with other organs.159 It creatively construed its budgetary powers160 and it understood membership and continuity as a matter of substantial discretion.161 54  As to the scope of its powers, which largely coincide with those of the Organization, the General Assembly contributed to the specification of crucial notions of the Charter. General principles as embodied in the Friendly Relations Declaration are considered as part of customary law.162 The same holds true for the definition of aggression.163 The Assembly took the power to deal with matters of peace and security if the Security Council was not seised of the matter by adopting the Uniting for Peace Resolution.164 Later, together with the Security Council, it assumed the practice of parallel deliberation, which was accepted by the ICJ as being consistent with the Charter.165 In the field of collective rights, the General Assembly defined the anti-colonial orientation of the principle of self-determination (Art. 1 (2) UNC).166 It condemned apartheid which it equated with colonial domination and

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recommended sanctions.167 The Universal Declaration of Human Rights vested the human rights concept of the Charter with a specific content168 out of which a whole set of Charterand treaty-based human rights mechanisms has developed. Over time, the political practice of the General Assembly contributed to a shift of emphasis with regard to the place of human rights in the context of the purposes of the United Nations. Human rights advanced from an initial understanding as a precondition to peace to an end in itself.169 (p. 93) 55  On the operational plane, control mechanisms emerged which provide reports and reviews or set up fact-finding missions, special committees, and other bodies in order to implement resolutions and to ensure compliance. Thus, the Assembly has expanded the scope of its activities from normative to operative measures.170

3.  The Security Council (a)  Charter Interpretation 56  As opposed to the General Assembly and the ICJ, the mandate of the Security Council is neither comprehensive nor of a legal nature. Its interpretive powers are restricted to the maintenance of peace and security. In that area, however, the Security Council has provided some of the most famous examples of interpretation with a view to modifying the Charter.171 57  In its institutional law, the Security Council defined membership in assuming that ‘Republic of China’, since 1971, means People’s Republic of China and that ‘Union of Soviet Socialist Republics’ since 1991 is to be understood as meaning Russia (Art. 23 (1) UNC).172 It re-interpreted the concept of ‘procedural matters’ under Art. 27 (2) UNC and developed the well-known habit of taking the term ‘concurring votes of the permanent members’ necessary for a decision of the Council to mean ‘no objecting vote’ (Art. 27 (3) UNC).173 58  As did the General Assembly in the field of human rights, the Security Council has slowly modified its perspective on its powers. Thus, a new notion of ‘threat to the peace’ (Art. 39 UNC) has evolved.174 During the Cold War, human rights abuses and violations of the right to self-rule were only occasionally dealt with if the Council deliberated on measures against apartheid and colonialism.175 Starting from the early 1990s, the Council, in order to determine the existence of a threat to the peace, referred to grave violations of human rights and pointed to the potential of destabilizing effects on neighbouring countries as those resulting from the plight of refugees.176 Depending on the situation, this rationale was left aside at times,177 allowing for the conclusion that (p. 94) humanitarian reasons as such may suffice today for determining a threat to international peace and security.178 59  Similarly, insurrection or the unwillingness to pass power to a lawfully elected government have been regarded as threats to the peace under certain circumstances,179 be it that they resulted in civil war or major movements of refugees or that they violated agreements between parties to an internal conflict.180 Even though the promotion of democracy and regime change are not tasks of the Council, its powers are at issue if it comes to contributing to de-escalation by supervision of military or police forces, protection or sponsoring of elections, and post-conflict restructuring.181 60  The Security Council’s practice on terrorism represents a further move away from the concept of international conflict as the paradigm of a threat to the peace. It repeatedly ordered sanctions, as in the cases of Libya after the assault on a civil aircraft over Lockerbie in 1992,182 of Sudan after an attempted assassination of Egypt’s president Mubarak in 1996,183 against the Taliban regime after bomb attacks against US embassies in

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Kenya and Tanzania,184 and after the terrorist raids of 11 September 2001, aiming at financial networks of support.185 61  Apart from the reasons triggering action by the Security Council, the nature of these measures has produced variants on the paths expressly envisaged in Arts 41 to 47 UNC. Articles 42, 43, and 47 UNC provide for operations under UN command, specific agreements, and assistance by a Military Staff Committee. As has often been observed, military measures taken under Chapter VII follow a different pattern. In the cases dealt with so far in reaction to unlawful use of force, the Security Council has empowered coalitions of States to take the necessary means. Such decisions, as they were taken in the Kuwait crisis,186 are usually interpreted as recognitions of member States’ rights to collective self-defence.187 In a similar vein, the scale and the gravity of the terrorist acts in New York in 2001 were determined to amount to an ‘armed attack’ which entailed the right to self-defence in the sense of Art. 51 UNC.188 In these cases, the Security Council not only broadly interpreted its own competencies by assuming the power to specify the conditions under which self-defence may be invoked, it also (p. 95) expanded on the concept of Art. 51 UNC and thus declined to take the initiative under Chapter VII. 62  Below the threshold of armed force, the Security Council developed different means not mentioned in Art. 42 UNC. Not all of them follow the logic of sanctions of an economic or diplomatic nature as they are exemplarily enumerated in that Article. Thus, the Council used means of criminal law in demanding the extradition of suspected terrorists189 and in establishing special tribunals as a means to contain threats to the peace.190 In the course of the Kuwait crisis, it determined a case of State responsibility, defined the requirements to be met in order to raise a claim, and set up a compensation commission, the UNCC.191 In the same conflict, it defined boundaries in a binding way.192 63  From the early years onwards, the Security Council has widened its range of action beyond ordering sanctions. A substantial part of the forces mandated by the Council is deployed for the purposes of peacekeeping, peace-making, and peace-building.193 Such missions are not formally based on Art. 39 UNC or any other explicit powers but on the consent of the parties, since they fill a gap in the Charter (‘Chapter VI and a half’). Since the Namibia opinion of the ICJ, it is accepted that resolutions beyond the scope of Chapter VII are binding in the sense of Arts 24 and 25 UNC.194 The initial reach of these activities has been expanded. Classic peacekeeping by armed forces, like observation, supervision of ceasefires, establishing of buffer zones and police functions, has been extended to measures of a civilian nature: it extends from humanitarian assistance to the supervision of elections, the training of police forces, the promotion of human rights, post-conflict nation building, administrative and judicial reforms and the like. It has been rightly observed that territorial administration as in Kosovo and East Timor is close to the trusteeship concept envisaged in Arts 82 and 83 of the Charter,195 with the consequence that the trusteeship system has been modified substantially by practice. 64  The Security Council has repeatedly defined its policies in general terms, most prominently in its UNSC Res 1674 (2006) in which it takes up the notion of Responsibility to Protect.196 Here the Council emphasizes the ‘need for a comprehensive approach through promoting growth, poverty eradication, sustainable development, national reconciliation, good governance, democracy, the rule of law, and respect for, and protection of, human rights’ and underlines ‘the importance of a coherent, comprehensive and coordinated approach by the principal organs of the UN’.197 65  The substantial modifications of the original Charter design for coping with threats to international peace and security have encountered the critique that they undermine the (p. 96) constitutional integrity of the UN.198 Clearly, this development is due to the model of auto-interpretation of powers and the lack of a binding review mechanism. What some declare as autonomous interpretation can also be described as political discretion without

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effective legal constraint.199 However, this consequence is an inbuilt feature of the Charter, and whether or not it is regarded as legitimate is a question which goes beyond mere interpretation.

(b)  Interpretation of Security Council Resolutions 66  As legally binding texts (cf Art. 25 UNC), measures by the Security Council are in themselves subject to interpretation.200 It goes without saying that the Council has the means to do so.201 If legal techniques are sought, it is suggested that the VCLT applies.202 The ICJ in its Kosovo Advisory Opinion acknowledged that the VCLT rules ‘may provide guidance’, but also pointed at differences between treaties and Security Council resolutions such as the different drafting processes, voting procedures, and binding effect on third parties. It concluded that resolutions ‘may require the Court to analyze statements by representatives of members of the Security Council made at the time of their adoption, other resolutions of the Security Council on the same issue, as well as subsequent practice of relevant UN organs and of States affected by those given resolutions’.203 As to the object of interpretation, it does not necessarily have to remain restricted to the substantive meaning of a resolution, but may also refer to the question as to whether a resolution is intended to generate binding effect.204

4.  The Secretary-General 67  The Secretariat, and in particular its Legal Counsel, are interpreters of the Charter by virtue of their role as the UN’s administrative substructure. Beyond statements for internal use, the Legal Counsel provides interpretations if they are expressly requested by one of the UN institutions. In most cases, those expert opinions concern either institutional law of the UN or secondary law such as, above all, General Assembly and Security Council resolutions.205 68  Acting under their responsibilities for the maintenance of international peace and security, most of the Secretaries-General assumed an active role in interpreting the powers of the political organs. Trygve Lie advised the Security Council that it had implied powers to exert territorial administration in the Free Territory of Trieste and to implement the Palestine partition plan.206 His successor, Dag Hammarskjöld, induced the (p. 97) Security Council to calm conflict areas by means of buffer zones (‘Chapter VI and a half’).207 Xavier Perez de Cuellar encouraged the Council to interpret its functions more actively after the end of the Cold War. Boutros Boutros-Ghali is given credit for having elaborated on the concept of peace-making, in particular in the cooperation between the UN and regional organizations, as well as on democracy as a UN policy,208 and both Kofi Annan and Ban Kimoon have been influential in involving the General Assembly and the Security Council in human rights protection.209

III.  Member States 69  Member States have a two-fold function in their interpretive practice. On the UN level, as stated above, at least tacit consent by member States is necessary in order to make the organs’ practice a legitimate source of interpretation. On the domestic plane, national executives and courts implement secondary law of the UN and have to relate it to the requirements of their municipal legal order.210 There have been cases in which resolutions by the Security Council were subject to judicial control by domestic courts.211 The review of targeted sanctions issued against persons suspected of being supporters of terrorism by the European Court of Justice, at first glance, resulted from a different constellation.212 Strictly speaking, the European judiciary may not be equated with municipal courts. However, the question to be decided might as well have occurred in a domestic context, and the EU member States cannot be seen to have disposed of their obligations under the Charter by acceding to the EU. The approaches taken move in varying distance to the rules of Charter interpretation. The European General Court (then Court of First Instance) conceived the matter as a question of limits to the binding force of Security Council resolutions and found From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

that they were binding, but subject to review by the standards of ius cogens. At first sight, the priority of the Charter (Art. 103), including the greater part of the rules of interpretation, was respected, but the Court reserved to itself the power of judicial review. The ECJ which reversed this decision, by contrast, held that UN law was binding on the European Union unless it encroached upon fundamental values of EU law. It thus conceived the problem as a conflict of two legal regimes and attributed priority to constitutional principles of EU law to which basic human rights belong. The methodological shortfall of that decision is that it sets aside Charter law and projects an EU-internal attitude at the UN level. Since, however, it is not difficult to agree that human rights ought to be binding on the UN, this point ought to have been made more explicitly. In that respect, the decision by the ECHR, which took the Charter itself as a starting point, appears more convincing; the Court established a presumption that Security Council resolutions may not be (p. 98) interpreted so as to violate human rights, but had to be measured against them if there was no margin of interpretation.213

D.  Interpretation and Revision 70  To date, there have been only three formal Charter amendments.214 Adaptation by practice has proved more significant, and in some instances the General Assembly did so consciously.215 Efforts and debates with a view to reforming the UN notwithstanding, this will continue to be the case in the foreseeable future. Suggestions to organize the reform of the Security Council below the threshold of formal revision fit into that picture.216 71  The wide margin of appreciation claimed by the political organs has encountered criticism from the beginning.217 The World Court repeatedly stated that its role is to interpret, not to revise the treaty and insisted that a teleological interpretation that amounts to treaty revision is not permissible.218 This is considered to be the case if practice accords a meaning to a rule which is outside the range of possible meanings and leads to a result which interpretation made by the rules would not have yielded.219 As has been stated above, such practice acquires its own legitimacy if it can be established that it has emerged as customary law. 72  Intuitively plausible as such statements may be, the question is where to draw the line and who should be in a position to do so. Since there is no systematic jurisdiction of the ICJ over General Assembly and Security Council resolutions, practice also below the level of formally binding customary law will remain decisive. Obviously, acts of practice are not the product of conscious and scrupulous application of interpretive canons. To take them as statements of interpretation would be a misconception of the political practice of the Organization. Article 31 (3) VCLT puts them in order. From a juridical point of view, they are no more and no less than part of the material to be ‘taken into account’, and it has proved to be wise that the ICJ was not ordered to be bound by them.220 In the end, however, only the member States can guard the limits of permissible treaty modification.

E.  Concluding Remarks 73  The evolution of Charter law shows that the rules of interpretation found in Art. 31 VCLT alone do not provide the full picture. Life under the Charter has moved away from the original understanding of its terms in some respects. Since each organ, to a (p. 99) substantial degree, is in a position to define its own powers, the Organization’s own practice plays an important role in the process of interpretation. The ICJ has repeatedly consulted modifying practice and accepted it as a decisive factor for the interpretation of the organs’ powers. It is thus unlikely that an act by the UN is found to be ultra vires. Since there is no hierarchy of interpreting authorities, even divergent interpretations are possible; the ICJ may function as an umpire, but is rarely requested to do so.221 Against this weight of practical application of the Charter by the political branches of the UN, debates as to whether the plain wording argument or the object and purpose canon deserves more

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weight under the VCLT may appear almost academic. Still, the rules of interpretation provide criteria to assess the legitimacy of change from an external perspective. 74  Whether or not the outcome of the political practice of the UN is evaluated as legitimate is a matter of perspective. The development in the practice of the General Assembly, the Security Council, and the Secretary-General sketched out above regarding the safeguarding of peace can be described as a history of the interpretation of the term ‘domestic jurisdiction’ in Art. 2 (7) UNC, albeit in an indirect way.222 After it had been for a long time feasible for States to defend themselves against interventions into the internal realm on that basis, the provision today has the potential for diminishing sovereignty under the influence of the UN. It is now understood to mean that once a subject-matter has made its way into a treaty obligation of a universal nature sponsored by the UN, it is no longer a purely domestic affair.223 This was repeatedly the case with grave violations of human rights;224 by a similar token, self-determination in the sense of self-rule is protected by restoring order after coups, promoting referenda, organizing state-building, and monitoring elections. The rule of law plays a more modest role, as for instance in processes of transitional justice in countries reorganizing themselves after dictatorship and internal conflict.225 As for the UN itself, it is only slowly improving on review mechanisms against decisions by the political organs, such as those taken on initiative by the Sanctions Committee.226 These developments notwithstanding, the UN Charter and the practice of the Organization established by it do not yet justify forceful assertions of constitutionalization. However, the discretion accorded to its interpreters leaves room for modifications to that end which, as subsequent practice, influence the interpretation of the Charter which, again, guides further practice.(p. 100)

Footnotes: 1

  ‘L’exécution des engagements est, entre Etats comme entre particuliers, le plus sûr commentaire du sens de ces engagements’, Russian Claim for Interest in Indemnities (Russia v Turkey) (1912) 11 RIAA 433. 2

  LM Goodrich and E Hambro, Charter of the United Nations (World Peace Foundation 1949) 20; Kelsen, xv–xvi. 3

  For attempts at structuring the debate see A Peters, ‘Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures’ (2006) 19 Leiden J Intl L 579; S Kadelbach and T Kleinlein, ‘International Law—A Constitution of Mankind?’ (2007) 50 GYIL 303, 304–08; I Ley, ‘Kant versus Locke: Europarechtlicher und völkerrechtlicher Konstitutionalismus im Vergleich’ (2009) 69 ZaöRV 317, 326–31. 4

  On such views B Sloane, ‘The United Nations Charter as a Constitution’ (1989) 1 Pace YB Intl L 61; PM Dupuy, ‘The Constitutional Dimension of the United Nations Revisited’ (1997) 1 Max Planck YB UN L 1; RSJ Macdonald, ‘The Charter of the United Nations in Constitutional Perspective’ (1999) 20 Austrl YB Intl L 205–31; J Crawford, International Law as an Open System (Cameron May 2002) 125–27. 5

  Expression borrowed from H Lauterpacht, ‘The Covenant as the “Higher Law”’ (1936) 17 BYIL 54. 6

  E Suy, ‘The Constitutional Character of Constituent Treaties of International Organizations and the Hierarchy of Norms’ in U Beyerlin and others (eds), Recht zwischen Umbruch und Bewahrung—Festschrift für Rudolf Bernhardt (Springer 1995) 267, 267–68; as to the function of Art. 103 UNC see ILC, ‘Fragmentation of International Law: Difficulties

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Arising from the Diversification and Expansion of International Law’ (2006) UN Doc A/CN.4/ L.682 (ILC Fragmentation Report) paras 328–332. 7

  cf Case T-315/01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649, para 231, reversed by Joined Cases C-402/05 P and 415/05 P Yassin Abdullah Kadi and Al Barakaat Intl Foundation v Council [2008] ECR I-6351, para 287; see also ECHR Case 27021/08, Al-Jedda v United Kingdom, judgment of 7 July 2011, para 102. 8

  K Skubiszewski, ‘Remarks on the Interpretation of the United Nations Charter’ in R Bernhardt and others (eds), Völkerrecht als Rechtsordnung. Internationale Gerichtsbarkeit. Menschenrechte, Festschrift für Hermann Mosler (Springer 1983) 893; Ress on Interpretation (2nd edn) MN 2; L Condorelli, ‘La Charte, source des principes fondamentaux du droit international’ in R Chemain and A Pellet (eds), La Charte des Nations Unies, une constitution mondiale? (Pedone 2006) 161; P Kunig, ‘United Charter, Interpretation of’ MPEPIL (online edn) MN 5. 9

  R Wahl, ‘In Defence of “Constitution”’ in P Dobner and M Loughlin (eds), The Twilight of Constitutionalism? (OUP 2010) 220, 232. 10

  G Schwarzenberger, ‘Myths and Realities of Treaty Interpretation’ (1968) 9 Virginia J Intl L 1; M Koskenniemi, From Apology to Utopia (Lakimiesliiton Kustannus 1989) 291–302; JE Alvarez, ‘Constitutional Interpretation in International Organizations’ in JM Coicaud and V Heiskanen (eds), The Legitimacy of International Organizations (UN UP 2001) 104; I Ventzke, ‘Legal Contestation about “Enemy Combatants”: On the Exercise of Power in Legal Interpretation’ (2009) 5 J Intl L & Intl Rel 155. 11

  J Klabbers, ‘Virtuous Interpretation’ in M Fitzmaurice and others (eds), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years on (Nijhoff 2010) 17, 31–34. 12

  E Hexner, Teleological Interpretation of Basic Instruments of Public International Organizations’ in S Engel and R Métall (eds), Law, State, and International Legal Order— Essays in Honor of Hans Kelsen (U Tenn P 1964) 119–38; LB Sohn, ‘The UN System as Authoritative Interpreter of its Law’ in O Schachter and C Joyner (eds), United Nations Legal Order, vol 1 (CUP 1995) 169–229; HG Schermers and NM Blokker, International Institutional Law (4th edn, Kluwer 2003) paras 1346–1350; cf Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, CUP 2005) 25–65; Ress on Interpretation (2nd edn) MN 1–7; B Fassbender, The United Nations Charter as the Constitution of the International Community (Nijhoff 2009) 130; P Sevastik, ‘Reflections on the Interpretation of the UN Charter and its Binding Force’ in D Amnéus and K SvanbergTorpman (eds), Peace and Security—Current Challenges in International Law (Studentlitteratur 2004) 25; Kunig, MN 3–6. 13

  G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points’ (1951) 28 BYIL 1; see also McNair 364–82; R Bernhardt, Die Auslegung völkerrechtlicher Verträge (Heymann 1963) 5–23; C de Visscher, Problèmes d’interprétation judiciaire en droit international public (Pedone 1963) 50–69. 14

  Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT). 15

  ILC, ‘Report of the International Law Commission on the Work of its 18th Session’ (4 May–19 July 1966) UN Doc A/6309/Rev. 1, (1966) II YILC 172, 217 (ILC Commentary); RSJ Macdonald, ‘A Short Note on the Interpretation of the Charter of the United Nations by the

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International Court of Justice’ in N Ando, E McWhinney, and R Wolfrum (eds), Liber Amicorum Judge Shigeru Oda, vol 1 (Kluwer Law International 2002) 177. 16

  The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (adopted 21 March 1986, not yet entered into force) UN Doc A/Conf.129/15, (1986) 25 ILM 543 (VCLTIO), would not be pertinent since no international organization is a party to the UN Charter. 17

  See n 13.

18

  I Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester UP 1984) 153; see ECtHR in Golder v UK (1975) Ser A No 18, paras 29–30; Case Concerning the Territorial Dispute (Libya v Chad) [1994] ICJ Rep 3, para 41; Case Concerning Maritime Delimitation and Territorial Questions (Qatar v Bahrain) (Jurisdiction and Admissibility) [1995] ICJ Rep 6, para 33; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, para 19; LaGrand Case (Germany v US) [2001] ICJ Rep 466, para 99; Case Concerning Legality of Use of Force (Serbia and Montenegro v Belgium) (Preliminary Objections) [2004] ICJ Rep 279, para 100. 19

  cf Aust, 234; JM Sorel, in Corten and Klein, ‘Article 31’, paras 16–27.

20

  As to the normative quality of bona fides as a legal principle cf Case Concerning Border and Transborder Armed Actions (Nicaragua v Honduras) [1988] ICJ Rep 69, para 94. 21

  W Karl, Vertrag und spätere Praxis im Völkerrecht (Springer 1983) 185.

22

  Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) [1950] ICJ Rep 4, 8 (Second Admission Case): ‘If the relevant words in their natural and ordinary meaning make sense in their context that is an end of the matter.’ 23

  Amerasinghe, 41; Koskenniemi (n 10) 333–45.

24

  cf also WTO, US: Sections 301–310 of the Trade Act 1974—Panel Report (22 December 1999), W/DS152/R, paras 7.64–7.95. This reading is reinforced by the singular in which the title of Art. 31 VCLT is formulated (‘general rule of interpretation’), see ILC Commentary (n 14) para 8; Torres Bernárdez, 747; Rama-Montaldo, 510; Sorel (n 19) para 27; RK Gardiner, The Vienna Convention on the Law of Treaties (2nd edn, Manchester UP 1984) 33–36; but see A Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (OUP 2008). 25

  ILC Commentary (n 14) para 8.

26

  ILC Fragmentation Report (n 6) para 428; Aust, 234; contra Orakhelashvili, 318–22.

27

  S Torres Bernárdez, ‘Interpretation of Treaties by the International Court of Justice Following the Adoption of the 1969 Vienna Convention on the Law of Treaties’ in G Hafner and others (eds), Liber Amicorum Ignaz Seidl-Hohenveldern (Kluwer 1998) 732; ME Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Nijhoff 2009) 423, 426. 28

  Interpretation of the Agreement of 25 March, 1951, between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73, para 40 (‘law dictionaries’); Application for Review of Judgment No 333 of the United Nations Administrative Tribunal (Advisory Opinion) (Dissenting Opinion by J Schwebel) [1987] ICJ Rep 18, 114 (‘Oxford Dictionary’ and ‘Webster’s Third New International Dictionary of the English Language’); but see Case Concerning Avena and Other Mexican Nationals (Mexico v US) [2004] ICJ Rep 12, para 84.

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On sixteen different meanings of ‘meaning’ see Schwarzenberger (n 10) 13; on the ordinary meaning of ‘ordinary meaning’ Gardiner 163–64. 29

  Territorial Dispute (n 18) para 41 (‘frontiers’); Case Concerning Oil Platforms (Iran v US) (Preliminary Objection) [1996] ICJ Rep 803, para 45 (‘commerce’); Case Concerning Kasikili/Sedudu Island (Botswana v Namibia) [1999] ICJ Rep 1045, paras 27–30 (‘main channel’). 30

  Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Rep 150, 158 (‘The meaning of the word “elected” in the Article cannot be determined in isolation by recourse to its usual common meaning…The word obtains meaning in the context in which it is used’); context is also emphasized in earlier instances such as in the Second Admission Case (n 22) 8; South West Africa Cases (Ethiopia v South Africa, Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319, 336; both quoted with approval in Case Concerning the Arbitral Award of 31 July 1989 (Guinea Bissau v Senegal) [1991] ICJ Rep 53, para 48. 31

  cf Oil Platforms (n 29) paras 27–28, 31.

32

  Gardiner, 29–30.

33

  Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) [1993] ICJ Rep 38, para 26; for further reference (n 18). 34

  For such approaches Fitzmaurice (n 13) 3–6, 14–17; domestic court rulings at times appear to adhere to such theories, see Chan v Korean Airlines Ltd, 490 US 122, 135 (1989) and critique by M Van Alstine, ‘Dynamic Treaty Interpretation’ (1998) 146 U Penn L Rev 687. 35

  See, inter alia, Territorial Dispute (n 18) para 41 (‘Interpretation must be based above all upon the text of the treaty’). 36

  Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa (Advisory Opinion) [1955] ICJ Rep 67, 73–74; Second Admission Case (n 22) 9; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 160; Legal Consequences for States of the Continued Presence of South Africa in Namibia (Advisory Opinion) [1971] ICJ Rep 16, para 53; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, paras 26–28; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) (2010) 49 ILM 1404, paras 40–41; as to the WHO Nuclear Weapons (n 18) para 19; see also G Nolte, ‘Second Report for the ILC Study Group on Treaties over Time—Jurisprudence under special regimes relating to subsequent agreements and subsequent practice’ (2011), 18–19, 75–79, 134. 37

  Case Concerning Oil Platforms (US v Iran) (Merits) [2003] ICJ Rep 161, paras 41–45 (UN law on the use of force as a means to specify the phrase ‘measures…necessary to protect [the] essential security interests’ used in a bilateral FCN treaty); less closely connected were the two treaties at issue in Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] ICJ Rep 177, para 113 (FCN Treaty ‘formulated in a very broad and general manner’ as rules relevant for the interpretation of a convention on mutual assistance in criminal matters). 38

  Case Concerning Military and Paramilitary Activities in and Against Nicaragua [1986] ICJ Rep 14, paras 172–213. 39

  Namibia (n 36) para 53.

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40

  For EU law see Opinion 1/91 European Economic Area [1991] ECR I-6079, paras 14–22; as to the ECHR, R Bernhardt, ‘Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights’ (2000) 42 GYIL 11; comparative overview on different types of regimes found in M Fitzmaurice, ‘Dynamic (Evolutive) Interpretation of Treaties, Part I’ (2008) 21 Hague YB Intl L 101, 121–53; ‘Part II’ ibid (2009) 22 Hague YB Intl L 1. 41

  Simon, 456; Schermers and Blokker, para 1350; JE Alvarez, International Organizations as Law-Makers (OUP 2005) 85–86, with examples. 42

  Case-law does not indicate that the decision in one or the other direction was in itself the result of interpretation, as recommended, eg, by the Institut de Droit International, ‘Resolution on the Intertemporal Problems in Public International Law’ (1975) 54-II Annu de l’Inst de Droit Intl 339; compare Case Concerning Rights of Nationals of the United States of America in Morocco (France v US) [1952] ICJ Rep 173, 189 and South West Africa Cases (Ethiopia v South Africa, Liberia v South Africa) (Second Phase) [1966] ICJ Rep 5, para 16 with Namibia (n 36) para 53; Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, para 56; Aegean Continental Shelf Case (Greece v Turkey) [1978] ICJ Rep 3, para 77; see also the different approaches with respect to the term ‘commerce’ in bilateral treaties as, on the one hand, in Oil Platforms (n 29) para 45 (‘nothing indicates that the parties… intended to use the word “commerce” …’) and, on the other hand, in Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (2009) 48 ILM 1183, para 66 (‘likely to evolve over time’); Kasikili and Sedudu (n 29) para 23; cf also WTO, US: Import Prohibition of Certain Shrimp and Shrimp Products—Report of the Appellate Body (12 October 1998) WT/DS58/AB/R, para 130 (term ‘natural resources’ as ‘by definition evolutionary’). 43

  See MN 36–40.

44

  To be sure, this rule has developed independently, see The Case of the S.S. “Lotus” (France v Turkey) PCIJ, Ser A No 10, 16; Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1948] ICJ Rep 57, 63 (First Admission Case). 45

  S Rosenne, Developments in the Law of Treaties 1945–1986 (CUP 1989) 190–200.

46

  cf A McNair, ‘The Functions and Differing Legal Character of Treaties’ (1930) 11 BYIL 100, reprinted in McNair, 739–54; De Visscher (n 13) 141. 47

  ibid, 753.

48

  Engel, 865; Schermers and Blokker, para 1156.

49

  T Franck, ‘Book Review: The Law of International Institutions by DW Bowett’ (1965) 78 Harv L Rev 1565. 50

  Fassbender, 130.

51

  IMCO Advisory Opinion (n 30).

52

  Nuclear Weapons (n 18) para 19.

53

  Schermers and Blokker, para 1347; W Lang, ‘Les règles d’interprétation codifiées par la Convention de Vienne sur le Droit des Traités et des divers types de traités’ (1973) 24 Österr ZöR 113; Amerasinghe, 25; Orakhelashvili, 435; critically Alvarez, 104. 54

  Namibia (n 36) para 45 (‘This view, which the Government of South Africa appears to have adopted…puts too much emphasis on the intentions of some of the parties and too little on the instrument which emerged from those negotiations’).

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55

  Judgment of the Administrative Tribunal of the International Labour Organisation upon Complaints made against the United Nations Educational, Scientific and Cultural Organization (Advisory Opinion) [1956] ICJ Rep 77, 98 (reference to ‘the wording of the texts in question as well as…their spirit, namely, the purpose for which they were adopted’); Nuclear Weapons (n 18) para 18. 56

  G Berlia, ‘Contribution à l’interprétation des traités’ (1965) 114 Rec des Cours 283, 306– 11; Amerasinghe, 45–46; Fitzmaurice, pt I (n 40) 116. 57

  H Lauterpacht, ‘Restrictive Interpretation and Effectiveness in the Interpretation of Treaties’ (1946) 26 BYIL 47; for an account of the development of the rule in doctrine and court rulings A von Oettingen, Effet Utile und Individuelle Rechte im Recht der Europäischen Union (Nomos 2009) 27–44. 58

  Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) [1950] ICJ Rep 221, 229 (‘[t]he principle of interpretation expressed in the maxim: Ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions for the settlement of disputes in the Peace Treaties a meaning which…would be contrary to their letter and spirit’); see also South West Africa (n 42) 48. 59

  Acquisition of Polish Nationality (Advisory Opinion) PCIJ, Ser B, No 7, 16–17; Exchange of Greek and Turkish Populations (Advisory Opinion) PCIJ, Ser B, No 10, 25; Case of the Free Zones of Upper Savoy and the District of Gex (Switzerland v France) PCIJ, Ser A, No 22, 13; see also Corfu Channel Case (UK v Albania) [1949] ICJ Rep 4, 24; Peace Treaties (n 58) 229; Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russia) (Preliminary Objections) (2011) para 133 accessed 6 June 2012. 60

  cf Amerasinghe, 46; Sorel (n 19) paras 19, 28–29, 51.

61

  Namibia (n 36) para 22; M Virally, ‘L’O.N.U. devant le droit’ (1972) 99 JDI 501, 525; Amerasinghe, 51; Gardiner, 246. 62

  Art. 1 (1) of the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character (adopted 14 March 1975, not yet in force) UN Doc A/CONF.67/16; Art. 4 of the ILC Draft Articles on Responsibility of International Organizations, UN Doc A/CN.4/L.648 (27 May 2004); Institut de Droit International, Resolution ‘The legal consequences for member States of the non-fulfilment by international organizations of their obligations toward third parties’ (Art. 2 (c)), (1995) 66-II Annu de l’Inst de Droit Intl 447. 63

  MN 3–4.

64

  For references see nn 3 and 4.

65

  CW Jenks, ‘Some Constitutional Problems of International Organizations’ (1945) 22 BYIL 11; E Jiménez de Aréchaga, Derecho constitucional de las Naciones Unidas (Escuela de Funcionarios Internacionales 1959) 621; S Rosenne, ‘Is the Constitution of an International Organization an International Treaty?’ (1966) 12 Comunicazioni e Studi 21; H Mosler, ‘The International Society as a Legal Community’ (1974) 140 Rec des Cours 1, 32; RSJ Macdonald, ‘The United Nations Charter: Constitution or Contract?’ in RSJ Macdonald and DM Johnston (eds), The Structure and Process of International Law (Nijhoff 1983) 889; for a contractual view see Goodrich and Hambro (n 2). 66

  R Wolfrum, ‘Ursprüngliche Aufgabenzuweisung und jetzige Aktivitäten der Vereinten Nationen: Faktischer Wandel und normative Bewertung’ in R Wolfrum (ed), Die Reform der Vereinten Nationen (Duncker & Humblot 1989) 129, 130; for a more reserved stand see J Crawford, ‘The Charter of the United Nations as a Constitution’ in H Fox (ed), The

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Changing Constitution of the United Nations (1997) 3 B Inst Intl & Comp L 9–16 (constitutional development only at the beginning). 67

  n 6.

68

  n 4.

69

  n 3; see also A Peters ‘Membership in the Global Community’ in J Klabbers and others (eds), The Constitutionalization of International Law (OUP 2009) 153, 204. 70

  G Arangio Ruiz: ‘The “Federal Analogy” and UN Charter Interpretation: A Crucial Issue’ (1997) 8 EJIL 1; Alvarez, 105–08; B Conforti, The Law and Practice of the United Nations (3rd edn, Nijhoff 2005) 13. 71

  Schachter, 280; Johnstone, 413; Fassbender, 131–36.

72

  Reparation for Injuries Suffered in the Services of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 179; Nuclear Weapons (n 18) para 25. Thus, also from a legal realist’s standpoint, Arangio Ruiz (n 70) 14 is carrying his point too far in stating that the UN is simply a ‘private law pact among sovereigns’. 73

  Nuclear Weapons (n 18) para 26.

74

  R Jennings and A Watts, Oppenheim’s International Law, vol 1 (9th edn, Longman 1992) para 629; C Brölmann, The Institutional Veil in Public International Law: International Organisations and the Law of Treaties (Hart Publishing 2007) 113–23; P Sands and P Klein, Bowett’s Law of International Institutions (6th edn, Sweet & Maxwell 2009) para 14–021; Villiger, 428; Sevastik, 41–42; Kunig, MN 3. 75

  Ress on Interpretation (2nd edn) MN 1; Kunig, MN 4.

76

  McNair, 216–17.

77

  McNair, 216.

78

  n 73.

79

  As to the customary character of the rule see LaGrand (n 18) para 101.

80

  CB Kuner, ‘The Interpretation of Multilateral Treaties: Comparison of Texts versus the Presumption of Similar Meaning’ (1991) 40 ICLQ 953. 81

  J Hardy, ‘The Interpretation of Plurilingual Treaties by International Courts and Tribunals’ (1961) 37 BYIL 72, 143. 82

  First Admission Case (n 44) 62–63.

83

  Joint Dissenting Opinion by Judges Lauterpacht, Wellington Koo, and Spender in the Aerial Incident of July 27 1955 Case (Israel v Bulgaria) [1959] ICJ Rep 1959 127, 161–63. 84

  Sinclair, 148; but see LaGrand (n 18) para 101 (English and French versions to the Statute as being equally authentic). 85

  As to the role of famous ‘Miss Smith’, the English author of a report underlying an ILO Convention, see Interpretation of the Convention of 1919 Concerning Employment of Women During the Night (Advisory Opinion) PCIJ, Ser A/B, No 50, 379; M Hilf, Die Auslegung mehrsprachiger Verträge (Springer 1973) 89–91. 86

  Hilf, ibid, 71.

87

  LaGrand (n 18) para 101.

88

  n 73.

89

  Orakhelashvili, 312.

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90

  n 26.

91

  Arts 18 (obligations of the parties before entry into force), 19 (reservations), 31 (interpretation), 41 (modifications inter se) VCLT; J Arato, ‘Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation over Time and Their Diverse Consequences’ (2010) 9 L&P 443, 474–75; as to the same concept with respect to reservations see J Klabbers, ‘Some Problems Regarding the Object and Purpose of Treaties’ (1997) 8 Finn YB Intl L 138, 151–53. 92

  Certain Expenses (n 36) 167–68; US—Shrimp (n 42) para 114.

93

  Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia) [2002] ICJ Rep 625, para 51. 94

  Certain Expenses (n 36) 167–68; Gardiner, 192.

95

  MN 18.

96

  Namibia (n 36) para 116.

97

  Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer (Advisory Opinion) PCIJ, Ser B, No 13, 20; Jurisdiction of the European Commission on the Danube between Galatz and Braila (Advisory Opinion) PCIJ, Ser B, No 14, 80; Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder (UK, Czechoslovakia, Denmark, France, Germany and Sweden v Poland) PCIJ, Ser A, No 23, 23; Case of the Free Zones of Upper Savoy and the District of Gex (Switzerland v France) PCIJ, Ser A/B, No 46, 138. 98

  Reparation for Injuries (n 72) 182.

99

  Effects of Awards of Compensation Made by the UN Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 9, 57. 100

  This conclusion is directed as a critique against the preceding edition of this commentary, see A Orford, ‘The Gift of Formalism’ (2004) 15 EJIL 179, 181; rather, it appears, this source of concern is an inbuilt feature in the construction of the UN, see MN 46–49. 101

  Competence of the ILO (n 97) 20.

102

  Prosecutor v Tadić (Jurisdiction) ICTY-94-1 (10 August 1995) paras 28–39.

103

  Second Admission Case (n 22) 9; Voting Procedures (n 36) 73; Certain Expenses (n 36) 160; Namibia (n 36) para 22; Wall on Palestinian Territory (n 36) paras 26–28; Kosovo (n 36) paras 40–41. 104

  Reparation for Injuries (n 72) 179; see also Judge Lauterpacht’s Separate Opinion in Voting Procedure (n 36) 106: ‘A proper interpretation of a constitutional instrument must take into account not only the formal letter of the original instrument, but also its operation in actual practice and in the light of the revealed tendencies in the life of the Organization’; Namibia (n 36) para 53. 105

  Nuclear Weapons (n 18) para 19.

106

  Karl (n 21) 165.

107

  To be found in and accessed 6 June 2012. 108

  Engel, 910; JP Müller, Vertrauensschutz im Völkerrecht (Heymann 1971) 254; B Simma, ‘Methodik und Bedeutung der Arbeit der Vereinten Nationen für die Fortentwicklung des

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Völkerrechts’ in WA Kewenig (ed), Die Vereinten Nationen im Wandel (Duncker & Humblot 1975) 79, 90–91. 109

  R Higgins, ‘The United Nations and Political Law-Making: The Political Organs’ (1970) 64 ASIL Proc 37, 38–41. 110

  Alvarez (n 41) 91.

111

  Sinclair, 137; cf Wall on Palestinian Territory (n 36) para 27.

112

  Hexner, 131; Amerasinghe, 51.

113

  For a comprehensive examination of the problem see J Klabbers, ‘International Organizations in the Formation of Customary International Law’ in E Cannizzaro and P Polchetti (eds), Customary International Law on the Use of Force (Nijhoff 2005) 179. 114

  Müller (n 108) 87; Sevastik, 33.

115

  Karl (n 21) 121.

116

  Engel, 906, referring to passages in Reparations for Injuries (quoted in n 104 and accompanying text) and in Certain Expenses (n 36) 168 (where the Court mentioned judicial review mechanisms in domestic legal systems and stressed that ‘no analogous procedure is to be found in the structure of the United Nations’). 117

  Railway Traffic between Lithuania and Poland (Advisory Opinion) PCIJ, Ser A/B, No 42, 118–19; IMCO Case (n 30) 169–70. 118

  MN 48.

119

  Expanding on the systemic character of all treaties C McLachlan, ‘The Principle of Systemic Integration and Article 31 (3) (c) of the Vienna Convention’ (2005) 54 ICLQ 279, 282. 120

  MN 37.

121

  MN 29.

122

  MN 20 and 35.

123

  As to the binding effect of human rights law on the UN see, among many others, Sands and Klein (n 74) para 14–037. 124

  cf UN Secretary-General, ‘Bulletin on the Observance by UN Forces of International Humanitarian Law’ (6 August 1999) (1999) 38 ILM 1656. 125

  Second Admission Case (n 22) 8.

126

  Macdonald, 183.

127

  ILC Commentary (n 14) para 20; Sinclair 144; for consequences of a party not having access to the travaux see Young Loan Arbitration (UK, US, Belgium, France and Switzerland v Germany) (1980) 59 ILR 494, 545. 128

  Aerial Incident (n 83) 140–41.

129

  Skubiszewski, 895.

130

  Karl (n 21) 140.

131

  Jiménez de Aréchaga (n 65) 638; Johnstone, 407.

132

  Aust, 246.

133

  With respect to such sources, see M Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton UP 2009).

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134

  Johnstone, 414.

135

  Pollux, 58; Certain Expenses (n 36) 168.

136

  For the fate of that proposal see Sohn, 171–74.

137

  ‘Report the Subcommittee of Committee IV/2 on the Interpretation of the Charter’, UNCIO, 831–32; see also R Higgins, The Development of International Law Through the Political Organs of the United Nations (OUP 1963) 304, considering that conflicts were unlikely and that the opinion of the General Assembly would not easily be overruled. 138

  A Verdross and B Simma, Universelles Völkerrecht (3rd edn, Duncker & Humblot 1984) 166. 139

  Certain Expenses (n 36) 168; Nuclear Weapons (n 18) para 29.

140

  Nuclear Tests Case (Australia v France), ICJ Rep 1974, 253, para 23; Tadić (n 102) paras 18–20; ICTR, Prosecutor v Rwamakuba (Appropriate Remedy) ICTR-98-44C-T (31 January 2007) paras 45–47; summary and further reference in Special Tribunal for Lebanon, Decision on Appeal of Pre-Trial Judge’s Order regarding Jurisdiction and Standing CH/AC/2010/02 (10 November 2010) paras 44–49. 141

  Claude, 166.

142

  B Martenczuk, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrats (Duncker & Humblot 1996) 55. 143

  cf Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda) [2000] ICJ Rep 111, paras 36–37. 144

  Certain Expenses (n 36) 168; Namibia (n 36) paras 21–22, 89, 101–103; Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v UK) (Provisional Measures) [1992] ICJ Rep 3, paras 39–41; Kosovo (n 36) paras 46–47. 145

  For further discussion see TM Franck, ‘The “Powers of Appreciation”: Who is the Ultimate Guardian of UN Legality?’ (1992) 86 AJIL 519, 521–23; Watson, 39–43; V 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; Martenczuk (n 142) 73–111; J Alvarez, ‘Judging the Security Council’ (1996) 90 AJIL 1, 4–14; G Nolte, ‘The Limits of the Security Council’s Powers and its Functions in the International Legal System: Some Reflections’ in M Byers (ed), The Role of Law in International Politics (OUP 2000) 315; Macdonald, 184–89; E De Wet, The Chapter VII Powers of the United Nations Security Council (Hart Publishing 2004) 69–129. 146

  As of June 2012, the only exception out of the sixteen specialized UN organizations was the Universal Postal Union, see accessed 6 June 2012. 147

  Not counting procedural questions arising from Art. 96 UNC, see First (n 44) and Second (n 22) Admission Cases; Reparation for Injuries (n 72); Interpretation of Peace Treaties (n 58); International Status of South West Africa [1950] ICJ Rep 128; Voting Procedure (n 36); Admissibility of Hearings of Petitioners by the Committee on South West Africa [1956] ICJ Rep 23; Effect of Awards (n 99); Certain Expenses (n 36); Namibia (n 36); Western Sahara (n 42); Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations [1989] ICJ Rep 177; Nuclear Weapons (n 18); Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226; Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights [1999] ICJ Rep 62; Wall on Palestinian Territory (n 36); Kosovo (n 36); Judgment No 2867 of the Administrative Tribunal of the International Labour Organization Upon a Complaint Filed

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Against the International Fund for Agricultural Development (2012) accessed 6 June 2012. 148

  Schermers and Blokker, para 1370.

149

  Amerasinghe, 27.

150

  For examples see Skubiszewski, 901–02.

151

  Not counting the cases in which the Court interpreted provisions on its own jurisdiction. Macdonald, in Liber Amicorum Oda, identified thirty-eight cases until 2000, out of which eighteen were judgments. Since then, three more pertinent cases were decided by judgment, Oil Platforms (n 37), Use of Force (n 18, not counting nine similar claims against other States on the same factual basis) and Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda) [2005] ICJ Rep 168. 152

  Nicaragua (n 38); Oil Platforms (nn 29 and 37).

153

  cf Case Concerning the Aerial Incident of 10 August 1999 (Pakistan v India) (Jurisdiction) [2000] ICJ Rep 12, para 53 (peaceful settlement of disputes). 154

  Case Concerning East Timor (Portugal v Australia) [1995] ICJ Rep 90, para 29.

155

  A Verdross, ‘Kann die Generalversammlung der Vereinten Nationen das Völkerrecht weiterbilden?’ (1966) 26 ZaöRV 690, 695. 156

  Skubiszewski, 900.

157

  H Neuhold, ‘Variations on the Theme of “Soft International Law”’ in I Buffard and others (eds), International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner (Nijhoff 2008) 343, 349. 158

  Namibia (n 36) para 104; Nicaragua (n 38) paras 188, 195.

159

  Rama-Montaldo, 495–99. See also Khan on Art. 22 MN 21.

160

  Certain Expenses (n 36) 151.

161

  As to the case of Serbia and Montenegro see Legality of the Use of Force (n 18) paras 64–78. 162

  Declaration on Principles of International Law concerning Friendly Relations and Cooperation of States in Accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625(XXV) GAOR 25th Session, Supp 28 (A/8028), at 121 (1970); Nicaragua (n 38) para 188. 163

  Definition of Aggression, UNGA Res 3314 (XXIX) (14 December 1974) UN Doc A/RES/ 3314(XXIX); customary law according to Nicaragua (n 38) para 195. 164

  Uniting for Peace, UNGA Res 377 (V) (3 November 1950) UN Doc A/RES/377(V); see Certain Expenses (n 36) 163–65. 165

  Wall on Palestinian Territory (n 36) paras 26–28; Kosovo (n 36) paras 40–41.

166

  Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 December 1960) UN Doc A/RES/1514(XV); Permanent Sovereignty over Natural Resources, UNGA Res 1803 (XVII) (14 December 1962) UN Doc A/RES/1803(XVII); see M Virally, ‘Droit international et décolonisation devant les Nations Unies’ (1963) AFDI 508, 537–41; I Brownlie, Principles of Public International Law (6th edn, OUP 2003) 519. 167

  A detailed account of the resolutions by the General Assembly and the Security Council on the matter is found in Sohn, 208–26.

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168

  Universal Declaration of Human Rights, UNGA Res 217 (III) (10 December 1948) UN Doc A/RES/217(III). 169

  Wolfrum (n 66) 141–54.

170

  Criticized by B Conforti, ‘Prolifération organique, prolifération normative et la crise des Nations Unies’ in D Bardonnet (ed), L’adaptation des structures et méthodes des Nations Unies (Nijhoff 1986) 153, 156–58; contra Wolfrum (n 66) 147. 171

  For overviews see I Österdahl, Threat to the Peace: The Interpretation by the Security Council of Article 39 of the UN Charter (Iustus Förlag 1998); De Wet (n 145) 149–77; for the interpretive reasoning underlying SC measures see I Johnstone, ‘Security Council Deliberations: The Power of the Better Argument’ (2003) 14 EJIL 437, 452–64. 172

  cf Aust, 234.

173

  As to the beginnings in 1946 see Hexner, 128; the practice was confirmed in Namibia (n 36) para 22; SD Bailey and S Daws, The Procedure of the Security Council (3rd edn, OUP 1998) 7 and 379 speak of a de facto amendment. See also Zimmermann on Art. 27 MN 175– 200. 174

  FL Kirgis, ‘The Security Council’s First Fifty Years’ (1995) 89 AJIL 506, 512–18; Malone, 492–503. 175

  On South Africa see, inter alia, UNSC Res 282 (23 July 1970) UN Doc S/RES/282, recognizing ‘the legitimacy of the struggle of the oppressed people of South Africa in pursuance of their human and political rights set forth in the Charter of the United Nations and the Universal Declaration of Human Rights’; UNSC Res 417 (31 October 1977) UN Doc S/RES/417: grave concern over ‘reports of torture of political prisoners and the death of a number of detainees, as well as the mounting wave of repression against individuals, organizations and the media’); on Southern Rhodesia V Gowlland-Debbas, Collective Responses to Illegal Acts in International Law: United Nations Action in the Question of Southern Rhodesia (Nijhoff 1990) ch 6. 176

  Österdahl (n 171) 80–85.

177

  cf, inter alia, Bosnia and Herzegovina: UNSC Res 770 (13 August 1992) UN Doc S/RES/ 770; Somalia: UNSC Res 794 (3 December 1992) UN Doc S/RES/794; Kosovo: UNSC Res 1203 (24 October 1998) UN Doc S/RES/1203; Darfur: UNSC Res 1556 (30 July 2004) UN Doc S/RES/1556; Libya: UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970 and UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973. 178

  See the analysis of UNSC practice in the Tadic Case (Jurisdiction) ICTY-94-1-AR 72 (2 October 1995) para 84. 179

  Malone, 500–01.

180

  UNSC Res 940 (31 July 1994) (Haiti) UN Doc S/RES/940; UNSC Res 1132 (8 October 1997) (Sierra Leone) UN Doc S/RES/1132; for an evaluation see N Petersen, Demokratie als teleologisches Prinzip (Springer 2009) 131–39. 181

  J Morrow and R White, ‘The United Nations in Transitional East Timor: International Standards and the Reality of Governance’ (2002) 22 Austrl YB Intl L 1; J Friedrich, ‘UNMIK in Kosovo, Struggling with Uncertainty’ (2005) 9 Max Planck YB UN L 225; E Afsah and AH Guhr, ‘Building a State to Keep the Peace’ (2005) 9 Max Planck YB UN L 373; L Keller, ‘UNTAC in Cambodia—from Occupation, Civil War and Genocide to Peace’ (2005) 9 Max Planck YB UN L 127; for an overall evaluation see Petersen (n 180) 195–214.

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182

  UNSC Res 748 (31 March 1992) UN Doc S/RES/748; confirmed in Lockerbie (n 144) para 39; for critique see Alvarez, 120. 183

  UNSC Res 1054 (26 April 1996) UN Doc S/RES/1054.

184

  UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267 and UNSC Res 1333 (19 December 2000) UN Doc S/RES/1333. 185

  UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373.

186

  UNSC Res 678 (29 November 1990) (Iraq/Kuwait) UN Doc S/RES/678.

187

  CPF/Cassese, 1350–55; an alternative reading would be to base them on Art. 48 UNC.

188

  UNSC Res 1368 (12 September 2001) UN Doc S/RES/1368 and UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373 (Afghanistan). 189

  UNSC Res 748 (31 March 1992) UN Doc S/RES/748 (Libya).

190

  UNSC Res 827 (25 May 1993) UN Doc S/RES/827 (Yugoslavia); UNSC Res 955 (8 November 1994) UN Doc S/RES/955 (Rwanda). 191

  UNSC Res 692 (20 May 1991) UN Doc S/RES/692.

192

  UNSC Res 678 (29 November 1990) (Iraq/Kuwait) UN Doc S/RES/678.

193

  Kirgis (n 174) 532–37.

194

  Namibia (n 36) paras 110–114.

195

  Frowein and Krisch on Art. 41 (2nd edn) MN 21.

196

  UNSC Res 1674 (28 April 2006) UN Doc S/RES/1674, para 4, referring to The 2005 World Summit Outcome, UNGA Res 60/1 (24 October 2005) UN Doc A/RES/60/1, paras 138– 139; see generally J Brunnée and SJ Toope, ‘Norms, Institutions and UN Reform: The Responsibility to Protect’ (2005) 2 J Intl L & Intl Rel 121. 197

  UNSC Res 1674 (28 April 2006) UN Doc S/RES/1674 para 2.

198

  YZ Blum, Eroding the United Nations Charter (Nijhoff 1993) 193–216, referring to the obligatory abstention requirement in Art. 27 (3) of the Charter. 199

  On such critique M Koskenniemi, ‘The Place of Law in Collective Security’ (1996) 17 Mich J Intl L 455, 460–81. 200

  An example is the debate on ex post authorization by the Security Council of the air raids by NATO forces in the Kosovo crisis; see N Kreipe, Les autorisations données par le Conseil de securité des Nations Unies à des mesures militaires (LGDJ-Lextenso 2009) 195– 201. 201

  UNSC Res 958 (19 November 1994) UN Doc S/RES/958, stating that powers conferred upon member States with respect to Bosnia and Herzegovina also apply to Croatia; see Kirgis (n 174) 528. 202

  MC Wood, ‘The Interpretation of Security Council Resolutions’ (1998) 2 Max Planck YB UN L 73; Gardiner, 113. 203

  Kosovo (n 36) para 94.

204

  ibid, para 117; Namibia (n 36) para 114.

205

  Responses of the Legal Counsel are usually documented in the UNJY; see examples provided by Schermers and Blokker, para 1359 (on the question of what it means if the General Assembly ‘takes note of’ a report provided by the Secretariat) and Amerasinghe, 26 (budget), 61–65 (secondary law).

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206

  Claude, 173.

207

  ibid, 173–74.

208

  ‘An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping’ (17 June 1992) UN Doc A/47/277 – S/24111; B Boutros-Ghali, An Agenda for Democratization (United Nations 1996). 209

  cf Malone, 505. See also Vashakmadze on Responsibility to Protect MN 17–26.

210

  As to the ambiguous role of municipal courts, as being both evidence of practice and subsidiary source of law, see A Roberts, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2010) 60 ICLQ 57. 211

  Hague District Court, Milosevic v The Netherlands (2001) 48 NILR 357; Appeal Court in The Hague, Case 200.022.151/01, Mothers of Srebrenica v The Netherlands and The United Nations, judgment of 30 March 2010. 212

  n 7; for further reference see Krisch on Art. 41 MN 23.

213

  Al-Jedda (n 7).

214

  See for details Witschel on Arts 108 and 109.

215

  Examples found in Rama-Montaldo 502–03.

216

  LB Sohn, ‘Important Improvements in the Functioning of the Principal Organs of the United Nations that Can Be Made Without Charter Revision’ (1997) 91 AJIL 652; Bailey and Daws (n 173) 386–90. 217

  Kelsen, xv (‘by authentic interpretation a legal norm may be replaced by another norm of totally different content’); G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–54: Treaty Interpretation and Other Treaty Points’ (1957) 33 BYIL 203, 207–09; Hexner, 129–34; Blum (n 198) 239–56. 218

  Interpretation of Peace Treaties (n 58) 229; US Nationals in Morocco (n 42) 196.

219

  Hexner, 124.

220

  MN 47–48.

221

  Similarly, J Klabbers, An Introduction to International Institutional Law (2nd edn, CUP 2009) 91; see the sceptical remarks by Schermers and Blokker para 1387. 222

  O Schachter, ‘The Charter’s Origins in Today’s Perspective’ (1995) 89 ASIL Proc 45, 48; Malone, 509–10. 223

  A similar approach was recognized as early as in Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion) PCIJ, Ser B, No 4, 24; see also Claude, 182. 224

  Malone, 499.

225

  n 181.

226

  Critique in AJ Kirschner, ‘Security Council Resolution 1904 (2009): A Significant Step in the Evolution of the Al-Qaida and Taliban Sanctions Regime?’ (2010) 70 ZaöRV 585; as to previous practice DM, United Nations Sanctions and the Rule of Law (CUP 2007) 185–229.

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Preamble Rüdiger Wolfrum From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter

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(p. 101) Preamble Prof. Dr. Rüdiger Wolfrum WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, And For These Ends to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS. Accordingly, our respective Governments, through representatives assembled in the city of San Fransisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations. A.  Introduction 1–3 B.  Legislative History 4–12 C.  Practice 13

Select Bibliography Kelsen H, The Law of the United Nations (Praeger 1951). Mbengue MM, ‘Preamble’ MPEPIL, vol VIII (OUP 2012) 397–400. Salomon A, Le Préambule de la Charte: base idéologique de l’O.N.U. (des Trois Collines 1947). Schermers HG, ‘We the Peoples of the United Nations’ in (1997) 1 Max Planck YB UN L 111.

Main Text A.  Introduction* 1  Unlike the Covenant of the League of Nations, the Dumbarton Oaks Proposals did not envisage a Preamble for the Charter of the United Nations. The first two chapters of the Proposals, dealing with ‘Purposes’ and ‘Principles’, contained provisions regarding motives and principles commonly found in a Preamble. Nevertheless, Field Marshal Smuts insisted on drafting a Preamble.1 The resulting coexistence of this Preamble and (p. 102) provisions

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concerning principles and purposes is somewhat inharmonious, since the former represents an occasionally inaccurate duplication of the purposes and the enumeration of governing principles found in Arts 1 and 2.2 2  The Preamble is preceded by the words ‘Charter of the United Nations’, a wording which incorporates both the name of the legal instrument and that of the Organization. The decision on the name is expressly stated in the last paragraph of the Preamble. The name ‘United Nations’ was adopted in tribute to the memory of President Franklin D Roosevelt, who had suggested it and taken it from the ‘Declaration by United Nations’ signed in Washington on 1 January 1942, although some participants at the San Francisco Conference did not find this name fully adequate.3 The use of the word ‘Charter’ instead of ‘Covenant’ emphasizes the constitutional nature of this instrument.4 3  The Preamble consists of two parts. In the first, it is declared that the Peoples of the United Nations have resolved to combine their efforts to accomplish certain aims by certain means. In this regard, the Preamble refers to some but not all of the purposes of the Organization. In its first part, it contains basically two ideas: maintenance of peace and international security5 and respect for human rights. In the second part, it is declared that the governments of these peoples have agreed to the Charter, which addresses the contractual element of the Charter.

B.  Legislative History 4  The first seven words of the Preamble caused considerable debate at the San Francisco Conference. These words indicate that the Charter is an agreement among the peoples of the United Nations, a formulation analogous to the Preamble of the United States Constitution.6 Committee I/1 held that the first part of the Preamble was to be read together with its second part and modified the originally proposed wording7 accordingly. (p. 103) Nevertheless, the final wording implies the same political fiction.8 The word ‘peoples’ is not used identically throughout the Charter. For example, in the Preamble it lacks the ethnic connotation it has in Art. 1 (2).9 Thus, the term ‘peoples’, as used in the Preamble, refers to the populations of the member States.10 5  The wording ‘to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind’ was accepted by all delegates from the outset. It is meant to stress not only that the creation of the Organization is a response to the two world wars but also that it is the intention of the member States to suppress war.11 The use of the word ‘war’ does not intend to limit Art. 2 (4), which speaks of ‘threat or use of force’, as this part of the Preamble has a historical connotation, as mentioned above. 6  The subsequent paragraph combines human rights issues with the sovereign equality of States in a rather peculiar manner. The four powers which had issued the invitation to the San Francisco Conference had already introduced a demand to provide for respect for human rights.12 Some delegations even advocated the inclusion of a human rights charter in the Preamble; the most far-reaching of these endeavours at the San Francisco Conference was that of Panama.13 A similar concept had been discussed in the US State Department during the preparation of the Dumbarton Oaks Proposals;14 this idea, however, had been abandoned because of the objections raised by the United Kingdom and the USSR. Committee I/1 of the San Francisco Conference decided, without resort to a vote, to leave the elaboration of a human rights charter to the General Assembly.15 Therefore, references in the Preamble to the dignity and worth of the human person as well as the equal rights of men and women are only of a declaratory character.16

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7  As far as the equality of States is concerned, it must be borne in mind that apart from the Preamble, four other provisions of the Charter refer to this principle, although two different terms are used: ‘equal rights of nations or peoples’ (Preamble; Arts 1 (2), 55) and ‘sovereign equality of all its members’ (Arts 2 (1), 78).17 The reference to the principle of the sovereign equality of States has a double meaning; it refers both to the institutional treatment of States as members of the United Nations and to the status of nations in international relations. As far as the former aspect is concerned, the Charter does not provide for equality of rights, as special rights have been vested in the permanent members of the Security Council. The view was expressed at the San Francisco Conference that because of these privileges, it was even more necessary to underscore the general principle of sovereign equality of States insofar as their participation in the (p. 104) United Nations is concerned.18 With respect to the sovereign equality of States in international relations, Arts 1 (2) and 55 do not merely address this principle but make it a responsibility of the United Nations to develop friendly relations among nations upon that basis. Hence, the principle of sovereign equality is not self-executing but rather represents a requirement to be observed in the future work of the Organization.19 8  In introducing the commitment ‘to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’, the Rapporteur of Committee I/1 felt it necessary to make the following statement: The respect for treaty obligations and the pledged word under any form is not only a moral concept of high value but is undoubtedly an important factor in international order and stability. Order, however, should not be conceived as the negation of healthy international evolution, nor should stability imply the crystallization or the freezing of the international status quo. There could be no greater illusion than that of wanting and believing that international life could be pressed into the mold of present conditions as drawn by existing treaty instruments. The respect for treaties should not exclude the possibility of revision duly made.20 9  Insofar as it differs from the Dumbarton Oaks Proposals, the Charter contains several references to justice, such as in Art. 1 (1) and Art. 2 (3), alluded to in the Preamble in the words ‘to establish conditions under which justice…can be maintained’. Furthermore, these words must be read in conjunction with Chapter IV (especially Arts 11, 12, 13, and 14, which define the role of the General Assembly in examining situations and disputes) and in conjunction with Chapters VI, VII, and, above all, Chapter XIV. At the San Francisco Conference, the view was expressed that the United Nations should not function only as a political organization—decisions based upon international law being left to the International Court of Justice as suggested by the Dumbarton Oaks Proposals—but that it should also be committed to international law.21 This led to the respective enrichment of the Preamble as well as Arts 1 and 2.22 This part of the Preamble contains two elements, the ‘recognition of’ obligations arising from treaties and the respect for obligations arising from other sources of international law, a notion which refers to Art. 38 of the Statute of the International Court of Justice. The separate mention of treaties, apart from other sources (customary law and general principles of law), does not indicate a hierarchical order; the reasons lie in the drafting history.23 The Preamble refers to ‘justice’ as distinct from treaties and other sources of international law. The wording indicates that justice means something different from international law, and to that extent the Preamble refers to natural law. The Preamble contains no indication as to a possible revision of international treaties (peaceful change)24 although a motion to that effect was proposed.25

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(p. 105) 10  The Dumbarton Oaks Proposals had already addressed the importance of international cooperation in economic and social spheres. Those provisions were based upon the belief that, apart from the abolition of war, the maintenance of peace and security required economic and social stability among and within the States.26 It was especially the smaller nations represented in San Francisco which advocated broader and strengthened functions of the United Nations in this respect. In its fourth and eighth commitment, the Preamble contains only a very rudimentary reference to the various provisions in the Charter (Arts 1 (3), 13 (b); Chapters IX and X).27 11  The phrase ‘to practice tolerance and live together in peace with one another as good neighbours’ was taken from an address given by President Roosevelt on 4 March 1933. It was inserted into the Preamble without being discussed in substance at the San Francisco Conference. The General Assembly has quite frequently referred to this commitment,28 although the nature of such references reveals its inherent ambiguity. Some references use the term ‘neighbours’ in a narrow geographical sense,29 while others attach a more farreaching meaning.30 The commitment ‘to unite our strength to maintain international peace and security’ was already part of the Atlantic Charter and the Dumbarton Oaks Proposals.31 12  It must be read together with the commitment which follows it, under which member States agree to adopt principles and institute methods to ensure that ‘armed force shall not be used, save in the common interest’. Both obligations refer to the principle of collective security32 and must be interpreted together with Art. 1 (1) and (2), Art. 2 (3), (4), (5), and (6), and Chapters IV, VI, and VII.33

C.  Practice 13  Although the Preamble is an integral part of the Charter, it does not set forth any basic obligations of the member States. It is rather the function of the Preamble, by highlighting some of the motives of the founders of the Organization, to serve as an interpretative guideline for the provisions of the Charter.34 In practice, the impact of the Preamble upon decisions of United Nations organs has been quite minimal. Apart from the cases already mentioned, only in a few instances, such as in the elaboration of the Friendly (p. 106) Relations Declaration,35 and in the discussion on the Uniting for Peace Resolution,36 does one find supporting references to the Preamble or its specific language. Further examples of explicit references to the Preamble can be found eg in the Millennium Report of former Secretary-General Kofi Annan, ‘We the peoples’37 and his UN reform proposal, ‘In larger freedom’.38

Footnotes: *  Ms Mirka Möldner provided valuable information to this entry and contributed helpful advice. 1

  UNCIO III, Doc 2(d)(1), 476.

2

  An attempt was made at the San Francisco Conference to draw a distinction between the Purposes, the Principles, and the Preamble. Accordingly, the Preamble introduces the Charter and sets forth the declared common intentions of the Conference, whereas the purposes constitute the raison d’être of the Organization and the principles set out the methods and regulating norms according to which the Organization and its members are to fulfil their obligations (UNCIO VI, Report of the Rapporteur of Commission I/1, Doc 944, I/ 1/34(1), 446–47).

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3

  Other names were suggested, such as World Community of Nations (Cuba); International Juridical Association or Juridical Community of States (Ecuador); Permanent Union of Nations (Mexico); Associated Nations (Venezuela); Community of Nations or Community of States (Panama); Association of Nations (Uruguay), UNCIO VI, Doc 856, I/1/32, 379. 4

  RSJ Macdonald, ‘The United Nations Charter: Constitution or Contract?’ in RSJ Macdonald and MD Johnston (eds), The Structure and Process of International Law (Nijhoff 1983) 889–912. Compare on this topic B Fassbender, The United Nations Charter as the Constitution of the International Community (Nijhoff 2009). 5

  As to the meaning of these words, see Wolfrum on Art. 1 MN 7ff.

6

  At the first meeting of Commission I, a member of the United States’ delegation declared that the opening words were meant to express the democratic basis of the new Organization for peace and human welfare (UNCIO VI, Doc 1006, I/6, 12). This statement should, however, not be over-emphasized, as the majority rejected a motion by Colombia to proclaim that the principles of democracy and cooperation as enshrined in the Atlantic Charter constituted a minimum standard to be respected by every civilized state (UNCIO VI, Doc 817, I/1/31, 373). 7

  Originally Committee I/1 suggested the following phrasing for the introduction: ‘We the peoples of the United Nations through our representatives assembled at San Francisco agree to this Charter’ (UNCIO VI, Doc 817, I/1/31, 366). 8

  It has been criticized by Kelsen, 7.

9

  See Oeter on Self-Determination MN 24.

10

  A Salomon, Le Préambule de la Charte: base idéologique de l’O.N.U. (des Trois Collines 1947) 72; it is used in the same way in Art. 1 of the Briand–Kellogg Pact of 27 August 1928. 11

  UNCIO VI, Doc 785, I/1/28, 359.

12

  UNCIO III, Doc 2, G/29, 622; see also Uruguay, UNCIO III, Doc 2, G/7(a)(1), 34.

13

  UNCIO III, Doc 2, G/7(g)(2), 365f.

14

  US Department of State, Postwar Foreign Policy Preparation, 1939–1945, Publication 3580, General Foreign Policy Ser 15 (1950) 472. 15

  UNCIO VI, Doc 343, I/1/16, 296.

16

  The Preamble to the Universal Declaration of Human Rights refers to the respective wording of the Preamble to the UN Charter. 17

  The ‘Atlantic Charter’ declared that all States, great or small, should have access, on equal terms, to trade with and to the raw materials of the world which are necessary for economic prosperity (LNTS 204, 384). 18

  UNCIO I, Doc 42, P/10, 359f, Plenary debates, representative of Colombia.

19

  See also commentary on Arts 2 and 55.

20

  UNCIO VI, Doc 785, I/1/28, 359; see, however, the corrigendum to p 364, according to which the last two sentences are to be deleted. 21

  Representative of Panama, UNCIO VI, Doc 1123, I/8, 78f.

22

  See Wolfrum on Art. 1 and the commentaries on Art. 2.

23

  The Preamble, as suggested by Field Marshal Smuts, spoke of obligations arising from international law and treaties, but was met with criticism (UNCIO VI, Doc 817, 365f). On the drafting history see also Khan on History.

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24

  See also Zöckler and Riznik on Art. 14 MN 1.

25

  UNCIO VI, Doc 839 I/1/31(a), 375.

26

  See Wolfrum on Art. 55 (a) and (b).

27

  While Committee I/1 of the San Francisco Conference was discussing the Preamble, a motion was presented by Colombia to add after the phrase ‘in larger freedom’ the following text: ‘To proclaim that the principles of democracy, solidarity and international cooperation contained in the Atlantic Charter constituted the minimal norms of conduct which every civilized State must observe and respect.’ The motion failed, UNCIO VI, Doc 817, I/1/31, 367f. 28

  UNGA Res 1236 (XII) (14 December 1957) UN Doc A/RES/1236(XII); UNGA Res 1301 (XIII) (10 December 1958) UN Doc A/RES/1301(XIII); UNGA Res 34/99 (14 December 1979) UN Doc A/RES/34/99. 29

  UNGA Res 34/99 (14 December 1979) UN Doc A/RES/34/99; UNGA Res 36/101 (9 December 1981) UN Doc A/RES/36/101; UNGA Res 37/117 (16 December 1982) UN Doc A/ RES/37/117. 30

  Friendly Relations Declaration UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/ 2625(XXV). 31

  ch I para 1.

32

  See Wolfrum on Art. 1 MN 15ff.

33

  See respective commentaries.

34

  Report of the Rapporteur of Commission I/1 UNCIO VI, Doc. 944 I/1/34(1), 446–47. As to the legal function of Preambles see Asylum [1950] ICJ Rep 282; Rights of Nationals of the United States of America in Morocco [1952] ICJ Rep 196; Art. 31 (2) Vienna Convention on the Law of Treaties. 35

  See n 30.

36

  Debate in the First Committee, A/C.I/SR, 354–71 of 9–21 October 1950; Report of First Committee, A/1456 of 25 October 1950; Debate in UNGA, A/PV.299–302 of 1–3 November 1950, UNGA Res 377 (V) (4 November 1950) UN Doc A/RES/377(V.) 37

  ‘We the Peoples: the role of the United Nations in the twenty-first century’, Report of the Secretary General, A/54/2000 of 27 March 2000. Compare especially para 10: ‘For even though the United Nations is an organization of states, the Charter is written in the name of “we the peoples”. It reaffirms the dignity and worth of the human person, respect for human rights and the equal rights of men and women, and a commitment to social progress as measured by better standards of life, of freedom from want and fear alike. Ultimately, then, the needs and hopes of people everywhere.’ 38

  ‘In Larger Freedom: Towards development, security and human rights for all’, Report of the Secretary General, A/59/2005 of 21 March 2005. In para 14 of the report, Kofi Annan explains his motive to give this name to his report: ‘I have named the present report “In larger freedom” to stress the enduring relevance of the Chasrter of the United Nations and to emphasize that its purposes must be advanced in the lives of individual men and women. The notion of larger freedom also encapsulates the idea that development, security and human rights go hand in hand.’

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Ch.I Purposes and Principles, Article 1 Rüdiger Wolfrum From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): International peace and security — Civil and political rights — UN Charter

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Article 1 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 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 co-operation 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. A.  Introduction 1–6 B.  Interpretation 7–27 C.  Practice 28–38

Select Bibliography D’Argent P and Susani N, ‘United Nations, Purposes and Principles’ MPEPIL, vol X (OUP 2012) 418–27. Bailey SD, The UN Security Council and Human Rights (Martin’s Press and others 1994). Bennett AL, International Organizations: Principles and Issues (7th edn, Prentice Hall 2002) 59. Delbrück J, ‘Collective Security’ EPIL I (1992) 646. de Wet E and Wood M, ‘Collective Security’ MPEPIL, vol II (OUP 2012) 316–22. Dinstein Y, War, Aggression and Self-Defence (4th edn, CUP 2005). Doehring K, ‘Collective Security’ in R Wolfrum (ed), United Nations: Law, Policies and Practice (CH Beck 1995) 110. Gading H, Der Schutz grundlegender Menschenrechte durch militärische Maßnahmen des Sicherheitsrates—das Ende staatlicher Souveränität? (Duncker & Humblot 1996). Goodrich LM and Simons AP, The United Nations and the Maintenance of International Peace and Security (Brookings Inst 1955). Kerbrat Y, La référence au Chapitre VII de la Charte des Nations Unies dans les résolutions à caractère humanitaire du Conseil de Sécurité (LGDJ 1995). Kimminich O, ‘Was heißt kollektive Sicherheit?’ in D Lutz (ed), Kollektive Sicherheit in und für Europa…Eine Alternative (Nomos 1985) 47.

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Randelzhofer A, ‘Purposes and Principles of the United Nations’ in R Wolfrum (ed), United Nations: Law, Policies and Practice (CH Beck 1995) 994.(p. 108) Schrijver N, ‘The Future of the Charter of the United Nations’ (2006) 10 Max Planck YB UN L 1. Schwarzenberger G, ‘The Purposes of the United Nations: International Judicial Practice’ (1974) 4 IYBHR 11. Styt AM, ‘1986: UN International Year of Peace’ (1986) 33 NILR 412. UNITAR, The United Nations and the Maintenance of International Peace and Security (Nijhoff 1987). Verosta S, ‘Der Begriff “internationale Sicherheit” in der Satzung der Vereinten Nationen’ in R Marcic, H Mosler, E Suy, and K Zemanek (eds), Internationale Festschrift Verdross (Fink 1971) 533.

A.  Introduction* 1  The Dumbarton Oaks Proposals were based upon the premise that the effectiveness of a system for the maintenance of international peace and security could be enhanced by defining purposes and principles guiding the actions of the Organization and of its member States. Although such an approach was generally accepted at the San Francisco Conference, proposals were made to modify the Dumbarton Oaks text by introducing additional and more precise definitions. These proposals were designed to limit the relatively far-reaching discretionary powers of the organs, as envisaged by the Dumbarton Oaks Proposals. Accordingly, some of them met with the objections of the United States, the United Kingdom, and the Soviet Union. The ‘purposes’ as enshrined in the Charter reflect the compromise achieved.1 2  The United Nations’ purposes, spelled out primarily in Art. 1 of the Charter, and the principles as set out in Art. 2 are both supplemented by the Preamble to the Charter which expresses the ideas which guided the States parties when establishing the United Nations.2 3  It is not easy to clearly distinguish between the purposes of Art. 1 and the principles as enshrined in Art. 2, in particular since Art. 2 refers back to Art. 1. 4  The ‘purposes and principles’ are designed to provide a guide for the conduct3 of the UN organs in a fairly flexible manner. It is a matter of controversy whether the purposes of the United Nations as contained in Art. 1 of the Charter are meant to be legally binding. Their place in the Charter, taking into consideration the legislative history of Art. 1, points in the direction of qualifying the purposes as legally binding. However, the wording of Art. 1 is more appropriate for political objectives rather than for legally binding obligations. Account has to be taken of the fact that certain elements of Art. 1 (1) and (2) are considered principles binding under customary international law (such as the prohibition of aggression, the prohibition of other breaches of peace, an obligation (p. 109) to settle disputes by peaceful means, respect for human rights, respect for equal rights, and self-determination of peoples). 5  Article 1 of the Charter does not indicate how a possible conflict between different purposes might be resolved. This can only be achieved by establishing a practical concordance while giving priority to the lasting preservation of peace. The preservation of peace is often described as being the ‘purpose of all purposes’.4 The ICJ stated in the Advisory Opinion on Certain Expenses that ‘[t]he primary place ascribed to international peace and security is natural, since the fulfilment of the other purposes will be dependent upon the attainment of that basic condition’.5

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6  Decisions of the organs taken under other Articles may be regarded—if one takes a constitutional point of view—as bearing upon, or even implementing, such ‘purposes and principles’. The majority of the Articles of the Charter—apart from those few which further specify Arts 1 and 2—are merely of a procedural nature and serve either the purpose of attributing specific functions to the organs or demarcating the functions of the organs. These Articles refer directly (Arts 14, 24 (2), 52, 76, 104, and 105) or indirectly to the purposes and principles by repeating the wording of the latter (Arts 11, 12, 13, 24 (1), 33– 39, 42, 43, 48, 51, 55, 73, 84, and 99). This means that each decision taken by a UN organ is evidence of the application and interpretation in practice of the purposes of the Charter. This relationship is often expressed in the decisions of the organs in the form of reference made to Art. 1 as a whole or in part, together with a citation of the Articles which allocate powers and assign functions and responsibilities to the various organs.

B.  Interpretation 7  Paragraph 1 of Art. 1 is composed of two parts, the first of which describes the essential ‘purpose’ of the Organization, namely to maintain international peace and security, whereas the following paragraphs set out means designed to achieve this ‘purpose’. However, it would be incorrect to say that the second part of para 1 and paras 2 and 3 only describe means to maintain international peace and security, even if this notion is understood broadly. Friendly relations among nations and international cooperation serving the objectives as referred to in para 3 are purposes in their own right, too. 8  The term ‘international peace and security’, which was previously used in the Preamble of the Covenant of the League of Nations, is used quite frequently throughout the Charter.6 Nowhere in the Charter is the term ‘international security’ used alone, whereas the terms ‘peace’ or ‘universal peace’ can be found separately. Both of these latter terms address different, although interrelated or even overlapping, concepts. The degree of overlap, however, depends very much upon whether the term ‘peace’ is narrowly or broadly defined.7 If ‘peace’ is narrowly defined as the mere absence of a threat or use of force against the territorial integrity or political independence of any State (Art. 2 (4))8 (p. 110) (‘negative peace’), the term ‘security’ will contain parts of what is usually referred to as the notion of ‘positive peace’.9 This latter notion is generally understood as encompassing the activity which is necessary for maintaining the conditions of peace. 9  The Preamble and Art. 1 (1), (2), and (3) indicate that peace is more than the absence of war. These provisions refer to an evolutionary development in the state of international relations which is meant to lead to the diminution of those issues likely to cause war. For example, Art. 1 (2) speaks of the strengthening of peace through the development of friendly relations among nations.10 In the same vein, Art. 1 (3) indicates that the United Nations’ function is to bring about a stabilization of international relations in order to curtail the likelihood of war. Consequently, the GA has frequently emphasized the close link between the strengthening of international peace and security on the one hand, and disarmament, decolonization, and development on the other.11 This approach was not, at least not to its fullest extent, reflected in the Declaration on the Right of Peoples to Peace.12 10  However, it served as a basis for the Proclamation of the International Year of Peace.13 This Proclamation stated that the promotion of international peace and security required continuing and positive action by States and peoples with respect to a series of goals, including: the prevention of war; the removal of various threats to peace (including the nuclear threat); respect for the principle of the non-use of force; the resolution of conflicts and the peaceful settlement of disputes; the development of confidence-building measures; agreement on disarmament; the maintenance of outer space for peaceful uses; respect for the economic development of States; the promotion and exercise of human rights and freedoms; decolonization in accordance with the principle of self-determination; the elimination of racial discrimination and apartheid; the enhancement of the quality of life; From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the satisfaction of human needs; and the protection of the environment. The High-level Panel on Threats, Challenges and Change enumerated in its 2004 report ‘A more secure world: Our shared responsibility’ five clusters of threats with which the world must be concerned now and in the decades ahead: economic and social threats, including poverty, infectious disease, and environmental degradation; inter-State conflict; internal conflict, including civil war, genocide, and other large-scale atrocities; nuclear, radiological, chemical, and (p. 111) biological weapons; terrorism; and transnational organized crime.14 Similarly, the former Secretary-General Kofi Annan stated in his report ‘In larger freedom’: The threats to peace and security in the twenty-first century include not just international war and conflict but civil violence, organized crime, terrorism and weapons of mass destruction. They also include poverty, deadly infectious disease and environmental degradation since these can have equally catastrophic consequences. All of these threats can cause death or lessen life chances on a large scale. All of them can undermine States as the basic unit of the international system.15 11  The term ‘international security’, in turn, consists of a subjective and an objective element. The pursuit of this principle implies a transformation of international relations so that every State is assured that peace will not be broken, or at least that any breach of the peace will be limited in its impact.16 International security implies the right of every State to take advantage of any relevant security system, while also implying the legal obligations of every State to support such systems.17 The GA has stated that national and international security has become increasingly interrelated,18 which accordingly makes it necessary for States to approach international security in a comprehensive and cooperative manner. Since the unilateral and unrestrained pursuit of national security interests may disturb the balance of power, thus detrimentally affecting international security, it is crucial that nations reconcile possible contradictions between national security interests and the overall interest of international security. This concept has been seriously challenged by the ‘National Security Strategy of the United States’, which was published in September 2002.19 12  Traditionally, the concept of international security was perceived as primarily a problem of State security. Within recent years, however, an additional concept has emerged—that of human security, acknowledging that threats cannot only come from States and non-State actors, but can also exist to the security of both, States and the people.20 13  The GA has emphasized the role regional arrangements play in respect of the maintenance of international peace and security, underlining, however, the dominant role to be played by the Security Council.21 (p. 112) 14  International security can be promoted and achieved through various policies or measures, two of which are referred to in para 1, namely measures of collective security and adjustment or settlement of international disputes. The former refers to measures taken under Chapter VII, the latter to measures under Chapter VI.22 15  The defining characteristic of the concept of collective security23 is the protection of the members of the system against a possible attack on the part of any other member of the same system. Thus, the concept is primarily directed (unlike a system of collective selfdefence) against the illegal use of force from within the group of States forming the collective security system, rather than against an external threat.24 The main legal prerequisite of collective security is the general prohibition of the use of force, except when authorized by the competent central organ of the respective organization (an idea reflected in Art. 24) or in cases of self-defence.25 The distinction drawn between the concepts of collective security and collective self-defence has been blurred to some extent in practice,26 and it has also lost relevance with respect to the United Nations. This is due to the fact that

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membership of the United Nations has become almost universal, rendering any distinction based upon external or internal acts of aggression rather meaningless. 16  As collective security is a system where States collectively respond to threats to and breaches of the peace, its scope becomes wider when the understanding of threats to the peace expands. Thus, with the development of the concept of peace from a negative to a positive approach, the concept of collective security has expanded.27 17  Article 1 (1) refers to the maintenance of international peace and security as the overarching purpose of the United Nations, whereas the suppression of aggression is only referred to as one objective to be achieved through measures of collective security. This means that international peace and security may be endangered not only by acts of aggression, but also by any other threat to the peace. It further means that suppression of aggression as an objective of the United Nations is subordinate to the maintenance of international peace and security.28 In consequence thereof the Security Council may also direct its measures against the State being a victim of aggression if and to the extent that this measure effectively preserves international peace and security. (p. 113) 18  The system of collective security can be supplemented, for example, by means of disarmament and confidence-building measures.29 With respect to disarmament, the GA30 stated in UNGA Res 34/83 (11 December 1979), that: genuine and lasting peace can be created only through the effective implementation of the security system provided for in the Charter of the United Nations and through the speedy and substantial reduction of arms and armed forces by international agreement…leading ultimately to general and complete disarmament31 under effective international control. 19  Another means through which States may protect international peace and security is to achieve a balance of power.32 In consequence, the GA has stated that hegemonic behaviour represents a serious threat to international peace and security.33 20  Aside from collective measures, Art. 1 (1) identifies another path to maintain international peace and security, namely, the peaceful settlement or adjustment of international disputes or situations which might lead to a breach of the peace. 21  This part of the wording of para 1 differs from the Dumbarton Oaks text in the respect that this adjustment or settlement must be accomplished ‘in conformity with the principles of justice and international law’. With this, the discretionary powers of the organs concerned are narrowed to a considerable extent. This specific insertion, advocated in some form or another by several States,34 was suggested by a four-power proposal (China, United Kingdom, United States, and the Soviet Union), which had, however, favoured a less explicit reference to justice and international law.35 The other participants at the San Francisco Conference then insisted upon shifting the emphasis from a peaceful settlement of disputes on the basis of political considerations to one based instead on considerations of international law and justice. The words ‘justice and international law’ in para 1, as in the Preamble,36 not only refer to treaties, customary (p. 114) law, and general principles of law (Art. 38 of the ICJ Statute) but also establish a connection to natural law. 22  During the deliberations of the San Francisco Conference, it was suggested that the formulations of the purpose enshrined in para 1 be amended so as to read, ‘to maintain international peace and security in conformity with the principles of justice and international law’.37 This motion, however, did not receive the required majority.38 The view was expressed that it was important that the SC should have the power to bring about an end to hostilities without considering whether one side could legally have recourse to armed force.39 The legislative history of Art. 1 (1) makes it doubtful whether the SC may

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take permanent measures, for example, concerning the territorial situation of a State, which are not in conformity with international law. 23  The wording of Art. 1 (1) indicates that three different functions of UN organs may be distinguished as far as the maintenance of peace and security are concerned. These are identified more specifically in the operative part of the Charter, to which Art. 1 (1) refers. First, the Organization should insist upon and take measures so that States do not threaten, or cause, a breach of the peace. This function is vested primarily in the GA, and to that extent Art. 1 (1) refers to Arts 10, 11, and 13. If a State commits an act of aggression or another breach of the peace, or threatens to do so, it is, secondly, up to the SC to take effective collective measures as provided for in Chapter VII. Thirdly, the Organization can proceed to find an adjustment or settlement of the dispute or situation, a function entrusted to the GA under Art. 14 and to the SC and the GA under Chapter VI. 24  The Dumbarton Oaks Proposals did not refer to ‘friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’, although the Atlantic Charter of 14 August 1941 contained some language directed toward the principle of self-determination. The amendment to the Dumbarton Oaks Proposals suggested by the four inviting powers, however, included a wording nearly identical to Art. 1 (2).40 The reaction of Conference participants was not entirely positive. The representative from Belgium, in particular, pointed out that only the notion of equality ‘of States’ and not that of ‘equality of peoples’ was a part of international law. In addition, he argued that it was dangerous to make the right to self-determination the basis of friendly relations among States.41 Doubts were also raised by those States which, although in favour of introducing the right to self-determination into the Charter, wanted to ensure that this inclusion would not embrace a right of secession. (p. 115) The discussion at the Conference and the summary of the Rapporteur42 show the objective pursued by the drafters of Art. 1 (2). The term ‘equality of peoples’ was meant to underline that no hierarchy existed between the various peoples. To this extent, the prohibition of racial discrimination was transferred from the national level to the level of international relations. Apart from that, the principle of equality of peoples and the right to self-determination are united. With this, it is assured that no peoples can be denied the right to self-determination on the basis of any alleged inferiority. The reference to self-determination encompasses the principle of selfgovernment, but does not justify secession.43 Finally, the principle of self-determination was formulated as a basis for friendly relations among nations. Thus, according to the drafters of the Charter, a hierarchy of principles existed in that the right of self-determination should be pursued so long as it does not disturb friendly relations among nations.44 25  The principle of self-determination acquired its final shape through the practice of the UN. This will be analysed by Oeter in a separate chapter which follows the Commentaries on Arts 1 and 2.45 26  Paragraph 3 differs greatly from the corresponding Dumbarton Oaks text. Whereas the latter only provided for the achievement of international cooperation in solving international economic, social, and other humanitarian problems, the present text is much more explicit, although not substantially different. It was already proposed by the four inviting powers,46 and merely underwent drafting changes during the course of the San Francisco Conference. In connection with para 3, a suggestion was made to draft, or to include an already drafted bill of rights of nations and individuals. It was, however, decided that such a task should be left to the Organization. The operative parts of the Charter to which Art. 1 (3) refers are Chapters IX and X.

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27  The text of Art. 1(4) is taken from the Dumbarton Oaks Proposals with only one drafting change. Paragraph 4 emphasizes the necessity of consensus among the member States (and especially among the permanent members of the SC) as a basis for action achieved through the Organization.47 To that extent, para 4 has a double meaning.48 It refers, first, to the decision-making process in the UN organs49 and its underlying philosophy, while at the same time envisaging the transformation of the society of States into a community of States.50 Such a transformation is facilitated by the sharing of common goals, as well as by the means through which these goals are to be achieved (cooperation, development of friendly relations based upon certain principles, settlement of disputes, and adjustment of disputes and situations in conformity with the principles of international law and justice).

(p. 116) C.  Practice 28  As indicated above, references to Art. 1 in decisions by the UN organs, made in a Preamble or in an operative paragraph, are very often combined with a reference to the Articles allocating powers and assigning functions and responsibilities. In order to avoid duplication, the following analysis is limited to an examination of certain general features of the practice of the UN organs in supporting their decisions by references to Art. 1. 29  The practice of the UN organs bearing on Art. 1 falls into two categories. The first consists of decisions of general relevance, such as those concerned with the definition of standards of international conduct, general formulations, and their implementation. The second concerns the decisions of the Organization with respect to disputes and situations affecting the relations of particular States. In this respect, the organs have on some occasions issued recommendations to particular States, namely that they should be guided by the ‘purposes’ of the UN in the conduct of their relations or in negotiations with other States. In this context, the question arose whether, for example, Art. 1(3) contained sufficiently precise standards to be invoked as a basis for specific recommendations.51 30  The content of the decisions referring to Art. 1 is as wide and as varied as the scope of the Charter itself. In applying Art. 1, the organs of the United Nations have addressed each other, the specialized agencies, member States generally, all nations, particular members, and particular non-members. 31  The GA has occasionally referred to the ‘purposes’ as a whole as forming one of the constitutional grounds for its decisions. Reference was usually made simultaneously to Art. 2. One of the major examples is UNGA Res 377 (V) (3 November 1950)52 (Uniting for Peace). Other such references have been of a more general nature. In its UNGA Res 1301 (XIII) (10 December 1958), the GA stressed that the observance of the ‘purposes and principles’ created the best basis for ensuring the conditions essential for the nations and peoples of the world to live, and to assist each other, in mutual tolerance and understanding, for the benefit of all. In UNGA Res 1815 (XVII) (18 December 1962) (Considerations on the Principles of International Law Concerning Friendly Relations and Co-operation Among States), in accordance with the Charter of the United Nations, the GA noted that ‘the great political, economic, social and scientific changes that had (p. 117) occurred in the world since the adoption of the Charter had further emphasized the vital importance of the Purposes and Principles of the United Nations and of their application to present-day conditions’.53 In its Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, the GA stated: that the adoption of the Declaration…would contribute to the strengthening of world peace and constitute a landmark in the development of international law and

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of relations among States, in promoting the rule of law among nations and particularly the universal application of the Principles embodied in the Charter.54 32  In UNGA Res 2734 (XXV) (16 December 1970) (Declaration on the Strengthening of International Security), the GA reaffirmed the ‘universal and unconditional validity of the Purposes and Principles of the Charter of the United Nations as the basis of relations among States irrespective of their size, geographical location, level of development or political, economic and social systems’.55 The commitment to the purposes and principles of the Charter was also strongly reaffirmed in the Millennium Declaration: ‘We reaffirm our commitment to the purposes and principles of the Charter of the United Nations, which have proved timeless and universal. Indeed, their relevance and capacity to inspire have increased, as nations and peoples have become increasingly interconnected and interdependent.’56 At the World Summit 2005 the Heads of State and Government emphasized again their commitment to the purposes and principles of the Charter.57 33  On several occasions, the GA has stated that the codification of the rules of international law and their progressive development would assist in promoting the ‘purposes and principles’ of the Charter of the United Nations.58 Reference to the ‘purposes’ was made when the GA attempted to formulate the interests of the world community as a whole.59 Finally, the GA has frequently requested that new efforts be made to broaden the teaching in schools of the ‘purposes and principles’ of the Charter and of the structure and activities of the United Nations and its specialized agencies, with particular reference to human rights.60 (p. 118) 34  The principles enshrined in Art. 1 (1) have been the subject of occasional discussion and have been specifically referred to in GA resolutions concerning the following matters: calling upon governments to settle their disputes by peaceful means;61 appealing to the permanent members of the SC to contribute more effectively to the promotion of international peace;62 qualifying certain situations;63 appealing for the regulation, limitation, and balanced reduction of all armed forces and all armaments;64 condemning all forms of propaganda designed or likely to provoke or encourage any threat to the peace, breach of the peace, or act of aggression.65 Perhaps the most comprehensive action by the GA in this respect is the Declaration of Societies for Life in Peace.66 It lists eight principles designed to guide States.67 35  In recent years explicit references were made by the GA to Art. 1 (2), inter alia, with regard to the Global Agenda for Dialogue among Civilizations;68 the Human Rights Council;69 the right of the Palestinian people to self-determination;70 respect for the principles of national sovereignty and non-interference in the internal affairs of States in electoral processes as an important element for the promotion and protection of human rights;71 respect for the principles of national sovereignty and diversity of democratic systems in electoral processes as an important element for the promotion and protection of human rights.72 36  The GA, while referring to Art. 1 (3), has on several occasions stressed the need for international cooperation in solving international problems of an economic, social, (p. 119) cultural, or humanitarian character and of promoting and encouraging respect for human rights and fundamental freedoms. The issues touched upon are manifold. The need for international cooperation was particularly emphasized in the first few years, whenever the GA initiated relief actions.73 Later on, the emphasis shifted to promoting the development of developing countries either by creating favourable conditions for them,74 by obliging States75 or UN organs to render help,76 by providing for direct financial or technical assistance,77 or by calling for cooperation among States. In UNGA Res 2625 (XXV) (24 October 1970) the GA proclaimed that ‘States have the duty to cooperate with one another, irrespective of the differences in their political, economic and social systems, in the various spheres of international relations’.78 In connection with the creation of new organs in the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

field of economic development and cooperation, Art. 1 (3), in particular, has frequently been invoked. In Res 2152 (XXI) (17 November 1966), the GA stated that the purpose of UNIDO should be ‘to promote industrial development, in accordance with Article 1 para 3 and Articles 55 and 56 of the Charter’. Equally it is the task of UNIDO to ‘encourage the mobilization of national and international resources to assist in, promote and accelerate the industrialization of the developing countries’. 37  As far as the protection of human rights is concerned, Art. 1 (3) has been invoked with respect to the improvement generally within the UN System of the effective enjoyment of human rights and fundamental freedoms,79 the political rights of women,80 the Draft Convention on Freedom of Information,81 the question of racial conflict in South Africa resulting from the policies of apartheid,82 information from non-self-governing (p. 120) territories,83 the elimination of racial discrimination,84 the elimination of all forms of intolerance and discrimination based on religion and beliefs,85 development of public information activities in the field of human rights,86 enhancement of international cooperation in the field of human rights,87 and the strengthening of the rule of law.88 38  Article 1 (4) was invoked—sometimes together with Art. 1 (3)—when the GA established a new organ, for example the resolution on the establishment of the United Nations Conference on Trade and Development referred to Art. 1 (4).89 Such references, however, are not too frequent. No explicit references to Art. 1 (4) have been made since 1965. In principle Art. 1 (4) has suffered the same fate as Art. 56,90 to which it is related.

Footnotes: *  Mirka Möldner provided valuable information to this entry and contributed very helpful advice. 1

  As to the negotiating history see A Randelzhofer, ‘Purposes and Principles of the United Nations’ in R Wolfrum (ed), United Nations: Law, Policies and Practice (CH Beck 1995) 995. 2

  It has been criticized, inter alia, by Schrijver (N Schrijver, ‘The Future of the Charter of the United Nations’ (2006) 10 Max Planck YB UN L 17 and 32f) that new objectives that have emerged over the years, such as development, combating poverty, post-war peace reconstruction, the conservation of the environment and promoting of the rule of law, are not, or only barely mentioned in the Charter. 3

  The Rapporteur of Committee I/1 referred to the purposes as ‘the raison d’être of the Organization,…the aggregation of the common ends…the cause and object of the Charter to which member states collectively and severally subscribe’; UNCIO VI, 447, Doc 944. 4

  Compare also CPF/Bedjaoui, 314.

5

  Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, 168.

6

  eg in the Preamble; Arts 2 (3) and (6), 11 (1) and (2), 12 (2), 18 (2), 23 (1), 24 (1), 26, 33 (1), 34, 37 (2), 39, 42, 43 (1), 47, 48 (1), 51, 52 (1), 73, 76, 84, 99, 106. 7

  See, especially, JA Randelzhofer, ‘Der normative Gehalt des Friedensbegriffs im Völkerrecht der Gegenwart’ in J Delbrück (ed), Völkerrecht und Kriegsverhütung (Duncker & Humblot 1979) 13–39. 8

  See Randelzhofer and Dörr on Art. 2 (4) MN 14f.

9

  Randelzhofer (n 7) 22f.

10

  The UNGA has listed component elements of peace in several resolutions: UNGA Res 290 (IV) (1 December 1949) UN Doc A/RES/290(IV); UNGA Res 380 (V) (17 November 1950) UN Doc A/RES/380(V); UNGA Res 1236 (XII) (14 December 1957) UN Doc A/RES/

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1236(XII); see UNGA Res 33/73 (15 December 1978) UN Doc A/RES/33/73; in particular for the Balkan UNGA Res 50/80 B (12 December 1995) UN Doc A/RES/50/80B. 11

  UNGA Res 2734 (XXV) (16 December 1970) (Declaration on the Strengthening of International Security) UN Doc A/RES/2734(XXV); UNGA Res 34/100 (14 December 1979) UN Doc A/RES/34/100; UNGA Res 35/158 (12 December 1980) UN Doc A/RES/35/158; UNGA Res 38/71 B (15 December 1983) UN Doc A/RES/38/71B; UNGA Res 39/160 (17 December 1984) UN Doc A/RES/39/160; UNGA Res 40/155 (16 December 1985) UN Doc A/ RES/40/155; UNGA Res 44/114 (15 December 1989) UN Doc A/RES/44/114 concerning the reduction of military budgets; UNGA Res 50/70 (12 December 1995) UN Doc A/RES/50/70 on general and complete disarmament. 12

  UNGA Res 39/11 (12 November 1984) UN Doc A/RES/39/11. Its operative para 3 reads ‘emphasizes that ensuring the exercise of the right of peoples to peace demands that the policies of States be directed towards the elimination of the threat of war, particularly nuclear war, the renunciation of the use of force in international relations and the settlement of international disputes by peaceful means on the basis of the Charter of the United Nations’. This appeal implies more strongly the notion of negative than of positive peace. 13

  UNGA Res 40/3 (24 October 1985) UN Doc A/RES/40/3.

14

  Doc A/59/565 of 2 December 2004 (synopsis, 2).

15

  Doc A/59/2005 of 21 March 2005, para 78; to the expansion of the notion of ‘threat to the peace’ compare also E de Wet and M Woods, ‘Peace, Threat to’ MPEPIL, vol VIII (OUP 2012) 160–64. 16

  S Verosta, ‘Der Begriff “internationale Sicherheit” in der Satzung der Vereinten Nationen’ in R Marcic, H Mosler, E Suy, and K Zemanek (eds), Internationale Festschrift Verdross (Fink 1971) 533f; concepts of international security were dealt with by a group of governmental experts appointed pursuant to UNGA Res 37/99 (13 December 1983) UN Doc A/RES/37/99, which called for ‘a comprehensive study of concepts of security, in particular security policies which emphasize co-operative efforts and mutual understanding between States, with a view to developing proposals for policies aimed at preventing the arms race, building confidence in relations between States, enhancing the possibility of reaching agreements on arms limitation and disarmament and promoting political and economic security’ (UN Doc A/40/533). 17

  CPF/Lachs and Gowlland-Debbas, 329; see also Aust on Art. 2 (5) MN 4f.

18

  UNGA Res 41/90 (4 December 1986) UN Doc A/RES/41/90.

19

  Compare AJK Bailes and A Wetter, ‘Security Strategies’ MPEPIL, vol IX (OUP 2012) 83– 90. 20

  Compare on the concept of human security State Security—Human Security, S Ogata, Friedtjof Nansen Memorial Lecture 2001; report ‘Human Security Now’ of the Commission on Human Security, chaired by S Ogata and A Sen, New York 2003; SN MacFarlane and YF Khong, Human Security and the UN. A Critical History (Indiana UP 2006). 21

  UNGA Res 49/57 (9 December 1994) UN Doc A/RES/49/57; see also the report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (GAOR 45th Session Supp No 33 (A/49/33)); see also C Walter, ‘Regional Arrangements and the United Nations Charter’ MPEPIL, vol VIII (OUP 2012) 746– 58. 22

  Compare also Krisch on Art. 39 and Tomuschat on Art. 33.

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23

  Appeals have been made by the UNGA for the implementation of the collective security provisions of the Charter: UNGA Res 37/119 (16 December 1982) UN Doc A/RES/37/119; UNGA Res 38/191 (20 December 1983) UN Doc A/RES/38/191; UNGA Res 39/158 (17 December 1984) UN Doc A/RES/39/158; UNGA Res 40/159 (16 December 1985) UN Doc A/ RES/40/159. 24

  J Delbrück, ‘Collective Security’ EPIL I (1992) 647.

25

  See Randelzhofer and Nolte on Art. 51 MN 6f.

26

  In the draft report by governmental experts (A/C.l/41/L.31, 4), the notion of collective security is described as the commitment of the international community ‘to move promptly to counter any act of aggression by one nation against another’; similarly, see O Kimminich, ‘Was heißt kollektive Sicherheit?’ in D Lutz (ed), Kollektive Sicherheit in und für Europa… Eine Alternative (Nomos 1985) 51. 27

  Compare on the wider meaning of collective security today E de Wet and M Wood, ‘Collective Security’ MPEPIL, vol II (OUP 2012) 316–22. The former Secretary-General Kofi Annan advocated a broader, more comprehensive concept of collective security, inter alia, in his note of 2 December 2004 which follows up the outcome of the Millennium Summit, UNGA ‘Note by the Secretary-General’ (2004) UN Doc A/59/565. 28

  Regarding the concept of ‘aggression’ compare Y Dinstein, ‘Aggression’ MPEPIL, vol I (OUP 2012) 201–09. 29

  Both are mentioned in UNGA Res 40/3 (24 October 1985) UN Doc A/RES/40/3. As to confidence-building see also UNGA Res 34/87 B (11 December 1979) UN Doc A/RES/ 34/87B; UNGA Res 35/156 B (12 December 1980) UN Doc A/RES/35/156B; UNGA Res 38/68 (15 December 1983) UN Doc A/RES/38/68; UNGA Res 39/57 (12 December 1984) UN Doc A/RES/39/57 strengthening of the security of nuclear weapons States against the use or threatened use of nuclear weapons; UNGA Res 39/58 (12 December 1984) UN Doc A/RES/ 39/58; UNGA Res 40/86 (12 December 1985) UN Doc A/RES/40/86; UNGA Res UNGA Res 44/114 (15 December 1989) UN Doc A/RES/44/114 concerning the reduction of military budgets; UNGA Res 50/70 (12 December 1995) UN Doc A/RES/50/70 on general and complete disarmament. 30

  See also UNGA Res S-10/2 (30 June 1978) UN Doc A/RES/S-10/2; UNGA Res 34/88 (11 December 1979) UN Doc A/RES/34/88 (international cooperation for disarmament); UNGA Res 35/46 (3 December 1980) UN Doc A/RES/35/46; UNGA Res 35/156 J (12 December 1980) UN Doc A/RES/35/156J; UNGA Res 36/92 D (9 December 1981) UN Doc A/RES/ 36/92D; UNGA Res 40/94 A-O (12 December 1985) UN Doc A/RES/40/94A-O; UNGA Res 40/151 A-I (16 December 1985) UN Doc A/RES/40/151A-I; UNGA Res 41/59 A-O (3 December 1986) UN Doc A/RES/41/59A-O; UNGA Res 41/60 A-J (3 December 1986) UN Doc A/RES/41/60A-J; UNGA Res 41/61 (3 December 1986) UN Doc A/RES/41/61; UNGA Res 41/86 A-R (4 December 1986) UN Doc A/RES/41/86A-R. 31

  The UNGA has stated that confidence-building measures cannot serve as a substitute for disarmament (UNGA Res 36/97 F (9 Dec 1981) UN Doc A/RES/36/97F). 32

  Compare on the concept of balance of power D Vagts, ‘Balance of Power’ MPEPIL, vol I (OUP 2012) 786–90. 33

  UNGA Res 34/103 (14 December 1979) UN Doc A/RES/34/103.

34

  Chile (Doc 2; G/7 (i), UNCIO III, 284); Netherlands (Doc 2; G/7 (j), UNCIO III, 311); Ecuador (Doc 2; G/7 (p), UNCIO III, 398, 420); Greece (Doc 2; G/14 (i), UNCIO III, 531); Iran (Doc 2; G/14 (m), UNCIO III, 554).

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35

  UNCIO III, 622 Doc 2, G/29. The suggested amendment read: ‘and with due regard for principles of justice and international law’. 36

  See Wolfrum on Preamble MN 9.

37

  See report of Rapporteur of Subcommittee I/1/A, according to which various delegations favoured the inclusion of justice among the purposes, fearing that its omission might mean that the Organization intended to impose a peace of expedience rather than a peace founded on justice; UNCIO VI, 702, Doc 723, I/l/A/19. 38

  UNCIO VI, 34 and 318.

39

  Representative of the United States, UNCIO VI, 29; of the United Kingdom, UNCIO VI, 25. The provision was interpreted in the report of Committee I/1 as follows: ‘At a first stage, the Organization should insist and take measures that states do not threaten or cause a breach of the peace. If they do, the Organization should, at a second stage, promptly stop any breach of the peace or remove it.…When the Organization has used the power given to it and the force at its disposal to stop war, then it can find the latitude to apply the principles of justice and international law, or can assist the contending parties to find a peaceful solution. The concept of justice and international law can thus find a more appropriate place in context with the paragraph dealing with disputes and situations’ (UNCIO VI, 453); see also Kelsen, 730. 40

  UNCIO III, 622, Doc 2, G/29.

41

  UNCIO VI, 300, Doc 374, I/1/17.

42

  UNCIO VI, 455, Doc 944, I/1/34.

43

  UNCIO VI, 296, Doc 343, I/1/16.

44

  CP (2nd edn)/Cassese, 43; CPF/Dobelle, 339.

45

  Compare also D Thürer and T Burri, ‘Self-Determination’ MPEPIL, vol IX (OUP 2012) 113–18. 46

  UNCIO VI, 448, 455, Doc 944.

47

  GHS, 35.

48

  CP (2nd edn)/Dupuy, 67 speaks of a double Utopia; cf also Bennouna who, without using the term utopia, still alludes to two different meanings, CPF/Bennouna, 379ff. 49

  See Wolfrum on Art. 18 MN 30; Simma, Brunner, and Kaul on Art. 27 (2nd edn) MN 111– 116, cf also Zimmermann on Art. 27 MN 161f. 50

  F Tönnies, Gemeinschaft und Gesellschaft (8th edn, Buske 1935) 180f.

51

  See consideration of the agenda item entitled ‘Treatment of Indians settled in the territory of the Union of South Africa’. See also Nolte on Art. 2 (7) MN 39. UNGA Res 265 (III) (14 May 1949) UN Doc A/RES/265(III), invited the governments concerned to enter into discussion, ‘taking into consideration the purposes and principles of the Charter of the United Nations and the Declaration of Human Rights’. In its UNGA Res ES-6/2 (14 January 1980) UN Doc A/RES/ES-6/2 concerning the situation in Afghanistan and its implications for international peace and security, the UNGA re-emphasized the obligation of all States to refrain in their international relations from the threat or use of force against the sovereignty, territorial integrity, and political independence of any State or any other manner inconsistent with the purposes and principles of the Charter. 52

  Para 14 of UNGA Res 377 (V) UN Doc A/RES/377(V) reads: ‘[The General Assembly is] fully conscious that, in adopting the proposals set forth above, enduring peace will not be secured solely by collective security arrangements against breaches of international peace and acts of aggression, but that a genuine and lasting peace depends also upon the observance of all the ‘principles and purposes’ established in the Charter of the United From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Nations, upon the implementation of the resolutions of the Security Council, the General Assembly and other principal organs of the United Nations intended to achieve the maintenance of international peace and security, and especially upon respect for and observance of human rights and fundamental freedoms for all and on the establishment and maintenance of conditions of economic and social well-being in all countries; and accordingly…’ 53

  See also UNGA Res 1966 (XVIII) (16 December 1963) UN Doc A/RES/1966(XVIII); UNGA Res 2103 A (XX) (20 December 1965) UN Doc A/RES/2103A(XX). 54

  UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625(XXV).

55

  Endorsed by UNGA Res 41/90 (4 December 1986) UN Doc A/RES/41/90.

56

  UN Doc A/55/L.2 (2000) at para 3; compare G Pleuger, ‘United Nations, Millennium Declaration’ MPEPIL (online edn). 57

  UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1, paras 2, 5, and 77.

58

  UNGA Res 1505 (XV) (12 December 1960) UN Doc A/RES/1505(XV); UNGA Res 1686 (XVI) (18 December 1961) UN Doc A/RES/1686(XVI); UNGA Res 2103 A (XX) (20 December 1965) UN Doc A/RES/2103A(XX); UNGA Res 2166 (XXI) (5 December 1966) UN Doc A/RES/ 2166(XXI); UNGA Res 2167 (XXI) (5 December 1966) UN Doc A/RES/2167(XXI); UNGA Res 2181 (XXI) (12 December 1966) UN Doc A/RES/2181(XXI); UNGA Res 34/146 (17 December 1979) (International Convention against the Taking of Hostages) UN Doc A/RES/34/146; UNGA Res 36/106 (10 December 1981) (Draft Code of Offences against Mankind) UN Doc A/RES/36/106. 59

  UNGA Res 2222 (XXI) (19 December 1966) (outer space) UN Doc A/RES/2222(XXI); UNGA Res 2340 (XXII) (18 December 1967) (sea-bed) UN Doc A/RES/2340(XXII); UNGA Res 39/59 (12 December 1984) UN Doc A/RES/39/59; UNGA Res 40/87 (12 December 1985) (outer space) UN Doc A/RES/40/87. This approach is not further pursued in more recent resolutions concerning outer space or the sea. Possible references to the Charter are superseded by references to the respective conventions. 60

  UNGA Res 2445 (XXIII) (19 December 1968) UN Doc A/RES/2445(XXIII).

61

  UNGA Res 109 (II) (21 October 1947) (threats to the political independence and territorial integrity of Greece) UN Doc A/RES/109(II); UNGA Res 707 (VII) (23 April 1953) (complaint of Burma against China) UN Doc A/RES/707(VII); UNGA Res 36/110 (10 December 1981) (on a declaration on the peaceful settlement of disputes) UN Doc A/RES/ 36/110. 62

  UNGA Res 190 (III) (3 November 1948) UN Doc A/RES/190(III); UNGA Res 36/102 (9 December 1981) UN Doc A/RES/36/102; as to the attempts to implement the collective security system, see n 23. 63

  Such as Afghanistan, UNGA Res ES-6/2 (14 January 1980) UN Doc A/RES/ES-6/2; UNGA Res 35/37 (20 November 1980) UN Doc A/RES/35/37; UNGA Res 36/34 (18 November 1981) UN Doc A/RES/36/34; UNGA Res 39/13 (15 November 1984) UN Doc A/RES/39/13; UNGA Res 40/12 (13 November 1985) UN Doc A/RES/40/12; Kampuchea, UNGA Res 39/5 (30 October 1984) UN Doc A/RES/39/5. 64

  See n 29.

65

  UNGA Res 110 (II) (3 November 1947) UN Doc A/RES/110(II); UNGA Res 381 (V) (17 November 1950) UN Doc A/RES/381(V); UNGA Res 819 (IX) (11 December 1954) UN Doc A/RES/819(IX); UNGA Res 33/73 (15 December 1978) UN Doc A/RES/33/73.

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66

  UNGA Res 33/73 (15 December 1978) UN Doc A/RES/33/73; see also UNGA Res 36/104 (9 December 1981) UN Doc A/RES/36/104; UNGA Res 39/157 (17 December 1984) UN Doc A/RES/39/157. 67

  Every State has the right to live in peace; war or aggression is an international crime; duty to refrain from propaganda for wars or aggression; duty to promote cooperation among States; duty to respect the right of peoples to self-determination; promotion of disarmament; discouragement of all manifestations and practices of colonialism and apartheid; discouragement of advocacy of hatred and prejudice against other peoples. 68

  UNGA Res 56/6 (9 November 2001) UN Doc A/RES/56/6.

69

  UNGA Res 60/251 (15 March 2006) UN Doc A/RES/60/251.

70

  UNGA Res 55/87 (4 December 2000) UN Doc A/RES/55/87; UNGA Res 56/142 (19 December 2001) UN Doc A/RES/56/142; UNGA Res 57/198 (18 December 2002) UN Doc A/ RES/57/198; UNGA Res 58/163 (22 December 2003) UN Doc A/RES/58/163; UNGA Res 59/179 (20 December 2004) UN Doc A/RES/59/179; UNGA Res 60/146 (16 December 2005) UN Doc A/RES/60/146;UNGA Res 61/152 (19 December 2006) UN Doc A/RES/61/152; UNGA Res 62/146 (18 December 2007) UN Doc A/RES/62/146; UNGA Res 63/165 (18 December 2008) UN Doc A/RES/63/165; UNGA Res 64/150 (18 December 2009) UN Doc A/ RES/64/150. 71

  UNGA Res 56/154 (December 2001) UN Doc A/RES/56/154.

72

  UNGA Res 58/189 (22 December 2003) UN Doc A/RES/58/189; UNGA Res 60/164 (16 December 2005) UN Doc A/RES/60/164. 73

  UNGA Res 48 (I) (11 December 1946) UN Doc A/RES/48(I); UNGA Res 400 (V) (20 November 1950) (financing of economic development of developing countries) UN Doc A/ RES/400(V); UNGA Res 410 A (V) (1 December 1950) (relief and rehabilitation of Korea) UN Doc A/RES/410A(V). 74

  UNGA Res 626 (VII) (21 December 1952) (right to exploit freely natural wealth and resources) UN Doc A/RES/626(VII); UNGA Res 1803 (XVII) (14 December 1962) UN Doc A/ RES/1803(XVII); UNGA Res 2158 (XXI) (25 November 1966) (permanent sovereignty over natural resources) UN Doc A/RES/2158(XXI). 75

  UNGA Res 1423 (XIV) (5 December 1959) (international measures to assist in offsetting fluctuations in commodity prices) UN Doc A/RES/1423(XIV). 76

  UNGA Res 923 (X) (9 December 1955) (establishment of a special United Nations Fund for Economic Development) UN Doc A/RES/923(X); UNGA Res 1423 (XIV) (5 December 1959) UN Doc A/RES/1423(XIV); UNGA Res 2152 (XXI) (17 November 1966) (purpose of the United Nations Industrial Development Organization) UN Doc A/RES/2152(XXI). 77

  See Wolfrum on Art. 55 (a) and (b) (2nd edn) MN 34f; Stoll on Art. 55 (a) and (b) MN 40f. 78

  More recent resolutions of the UNGA on these subjects tend to refer to previous resolutions rather than to the Charter. 79

  UNGA Res 34/46 (23 November 1979) UN Doc A/RES/34/46; UNGA Res 36/133 (14 December 1981) UN Doc A/RES/36/133; UNGA Res 38/124 (16 December 1983) UN Doc A/ RES/38/124; UNGA Res 339/145 (14 December 1984) UN Doc A/RES/339/145; UNGA Res 40/124 (13 December 1985) UN Doc A/RES/40/124. 80

  UNGA Res 56 (I) (11 December 1946) UN Doc A/RES/56(I); UNGA Res 2263 (XXII) (7 November 1967) UN Doc A/RES2263(XXII); UNGA Res 34/180 (18 December 1979) UN Doc A/RES/34/180 (adoption of the Convention on the Elimination of All Forms of Discrimination against Women); UNGA Res 36/131 (14 December 1981) UN Doc A/RES/36/131; UNGA Res

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51/68 (12 December 1996) UN Doc A/RES/51/68; UNGA Res 53/118 (9 December 1998) UN Doc A/RES/53/118. 81

  UNGA Res 426 (V) (14 December 1950) UN Doc A/RES/426(V).

82

  UNGA Res 616 A (VII) (5 December 1952) UN Doc A/RES/616A(VII); UNGA Res 820 (IX) (14 December 1954) UN Doc A/RES/820(IX); UNGA Res 1016 (XI) (30 January 1957) UN Doc A/RES/1016(XI); UNGA Res 1178 (XII) (26 November 1957) UN Doc A/RES/1178(XII); UNGA Res 1248 (XIII) (30 October 1958) UN Doc A/RES/1248(XIII); UNGA Res 1375 (XIV) (17 November 1959) UN Doc A/RES/1375(XIV). 83

  UNGA Res 1332 (XIII) (12 December 1958) UN Doc A/RES/1332(XIII); UNGA Res 1536 (XV) (15 December 1960) UN Doc A/RES/1536(XV). 84

  UNGA Res 1904 (XVIII) (20 November 1963) (Declaration on the Elimination of All Forms of Racial Discrimination) UN Doc A/RES/1904(XVIII); UNGA Res 2647 (XXV) (17 December 1970) UN Doc A/RES/2647(XXV). 85

  UNGA Res 36/55 (25 November 1981) UN Doc A/RES/36/55.

86

  UNGA Res 40/125 (13 December 1985) UN Doc A/RES/40/125; UNGA Res 42/118 (7 December 1987) UN Doc A/RES/42/118; UNGA Res 44/61 (8 December 1989) UN Doc A/ RES/44/61; UNGA Res 45/99 (14 November 1990) UN Doc A/RES/45/99; UNGA Res 47/128 (18 December 1992) UN Doc A/RES/47/128; UNGA Res 49/187 (23 December 1994) UN Doc A/RES/49/187. 87

  UNGA Res 51/100 (12 December 1996) UN Doc A/RES/51/100; UNGA Res 53/154 (9 December 1998) UN Doc A/RES/53/154; UNGA Res 54/181 (17 December 1999) UN Doc A/ RES/54/181; UNGA Res 55/109 (4 December 2000) UN Doc A/RES/55/109; UNGA Res 56/149 (8 February 2002) UN Doc A/RES/56/149; UNGA Res 57/224 (18 December 2002) UN Doc A/RES/57/224; UNGA Res 58/170 (22 December 2003) UN Doc A/RES/58/170; UNGA Res 59/187 (20 December 2004) UN Doc A/RES/59/187; UNGA Res 60/156 (23 November 2005) UN Doc A/RES/60/156; UNGA Res 61/168 (19 December 2006) UN Doc A/ RES/61/168; UNGA Res 62/160 (18 December 2007) UN Doc A/RES/62/160; UNGA Res 63/180 (18 December 2008) UN Doc A/RES/63/180. 88

  UNGA Res 48/132 (20 December 1993) UN Doc A/RES/48/132.

89

  UNGA Res 1995 (XIX) (30 December 1964) UN Doc A/RES/1995(XIX).

90

  See Wolfrum on Art. 56 (2nd edn) MN 5f; cf on the other hand Stoll on Art. 56 MN 27f.

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Ch.I Purposes and Principles, Article 2 Andreas Paulus From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — International peace and security — Collective rights

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(p. 121) Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following principles: 1. The Organization is based on the principle of the sovereign equality of all its Members. 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 7. 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. A.  Introduction 1–5 B.  Drafting History 6–7 C.  Foundational Principles of International Law 8–11 D.  ‘in pursuit of the Purposes stated in Article 1’ 12–13 E.  The Organization and its Members 14–22 I.  Organization 17–18 II.  Members 19–20 III.  Non-members and the Charter Principles (Article 2 (6)) 21–22 F.  Constitution or Treaty? 23–24

Select Bibliography Abi-Saab G, ‘Cours général de droit international public’ (1987-VII) 207 Rec des Cours 9.

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d’Argent P and Nadine S, ‘United Nations, Purposes and Principles’, in R Wolfrum (ed), MPEPIL (online edition, OUP 2012) accessed 28 February 2012. de Wet E, ‘The International Constitutional Order’ (2006) 55 ICLQ 76. Dunoff J and Trachtman JP (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (CUP 2009). Dupuy P-M, ‘The Constitutional Dimension of the Charter of the United Nations Revisited’ (1997) 1 Max Planck YB UN L 1. Fassbender B, UN Security Council Reform and the Right of Veto. A Constitutional Perspective (Kluwer 1998). (p. 122) ——— The UN Charter as Constitution of the International Community (Nijhoff 2009). Frowein J, ‘Konstitutionalisierung des Völkerrechts’ (2000) 39 Berichte der Deutschen Gesellschaft für Völkerrecht 429. Klabbers J, ‘Constitutionalism Lite’ (2004) 1 Intl OrgL Rev 1. Kleinlein T, Konstitutionalisierung im Völkerrecht (Springer 2012). ——— ‘Between Myths and Norms: Constructivist Constitutionalism and the Potential of Constitutional Principles in International Law’ (2012) 81 NJIL 79. Kolb R, Introduction au droit des Nations Unies (Helbing Lichtenhahn Bruylant 2008) 44–121, trans. An Introduction to the Law of the United Nations (Hart 2010) 34–105. Krisch N, Beyond Constitutionalism: The pluralist structure of postnational law (Oxford 2010). MacDonald R and Johnston D (eds), Towards World Constitutionalism (Leiden 2005). Peters A, Ulfstein G, and Klabbers J, The Constitutionalization of International Law (OUP 2009). Simma B, ‘From Bilateralism to Community Interest in International Law’ (1994-VI) 250 Rec des Cours 221. Tomuschat C, ‘Obligations Arising for States without or against Their Will’ (1993-IV) 241 Rec des Cours 195.

A.  Introduction* 1  While the Preamble and Art. 1 contain the goals, ends, and purposes of the United Nations, Art. 2 regards the principles by which to achieve them. While it is almost impossible to separate ‘purposes’ and ‘principles’ in a clear-cut way, the drafters of the Charter had a concept in mind: whereas Art. 1 contains—at times lofty—aspirations not clearly established in the international law of the time, from universal peace via human rights to the self-determination of peoples, Art. 2 purports to provide legal ‘principles’ that create binding obligations of both the Organization and its members, which, in the area of international peace and security, are also extended to non-members (Art. 2 (6)). These principles also delineate, to a certain extent, the jurisdiction of the Organization from the freedom of action of the ‘sovereign equals’, ie States, who are its members (paras 1 and 7). In other words, the principles provide the means to achieve the purposes.1 2  The list of ‘principles’ contained in Art. 2 raises the question of their relationship to general international law, eg the general rules of international law that are binding on all or most subjects of international law by flowing from one of the sources of international law, as codified in Art. 38 (1) of the Statute of the International Court of Justice,2 that forms, by way of Art. 92, ‘an integral part’ of the Charter. For some, the principles codified in Art. 2 constitute the basic foundational principles of the whole body of international law.3 In this perspective, the Charter itself serves as the constitution of the international community.4 In the last resort, this is a theoretical question that may (p. 123) have important

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consequences, however, for the understanding of the principles and their relationship to ‘ordinary’ international law. 3  The wording of the chapeau in Art. 2 is less sanguine, limiting itself to the observation that both the Organization and its members shall act in accordance with them. In practice, these principles may amount to a substantive foundation of the United Nations, but also of general international law, be it pursuant to the Charter as a treaty binding the UN membership, or by way of custom or as general principles of law for non-members and international legal subjects that are not a State, in particular international organizations. In addition, these principles enjoy a higher status than other obligations under the Charter, by way of their bindingness also for the SC when acting under Chapter VII (Art. 24 (2)), and also by way of Art. 2 (6) that, as far as necessary for the maintenance of international peace and security, purports to bind non-members to them. Article 6 contains, at least in theory, a sanction for the violation of these principles by allowing for the expulsion of members, notwithstanding the Chapter VII regime with regard to the maintenance of international peace and security. While some States have consistently violated these principles, Art. 6 was never used as such.5 4  However, this does not imply that Art. 2 contains a complete list of the foundational principles of international law. Some principles are contained in Art. 1 rather than Art. 2, such as the principle of justice or the principle of self-determination.6 In addition, not all of these principles are those of general international law. Others, in particular Art. 2 (2), (4), and (7), also regulate the relationship between the United Nations as an organization and its members, limiting the competences of the Organization to matters of international concern, on the one hand, and demanding solidarity of its members towards achieving common interests, on the other. 5  In the history of the United Nations, the principles of Art. 2, along with the principles contained in the purposes of Art. 1, have been further developed, in particular in the socalled Friendly-Relations-Declaration of 19707 that further elaborates on these principles, namely that States shall refrain from the threat or use of force, on the peaceful settlement of disputes, the duty of non-intervention in matters within the domestic jurisdiction, on the duty of cooperation, on the principles of equal rights and self-determination of peoples, on the sovereign equality of States, and, finally, on good faith. These and additional principles have been further elaborated in a great many UN documents, from the Universal Declaration of Human Rights8 to the Definition of Aggression,9 and, more controversially, the Charter of Economic Rights and Duties,10 or the 2005 World Summit Outcome regarding the Responsibility to Protect.11 As subsequent codification and development12 of the relevant principles, these (re)statements (p. 124) need to be taken account of in the interpretation of the contemporary meaning of Art. 2 and the other principles of the Charter.13

B.  Drafting History 6  While the Covenant of the League of Nations did not contain a list of basic substantive principles,14 the Dumbarton Oaks Proposals already listed most of them,15 with the exception, however, of para 7 that protects matters essentially within the domestic jurisdiction. The proposal for Art. 2 read: In pursuit of the purposes mentioned in Chapter I the Organization and its members should act in accordance with the following Principles: 1.  The Organization is based on the principle of the sovereign equality of all peace-loving states.

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2.  All members of the Organization undertake, in order to ensure to all of them the rights and benefits resulting from membership in the Organization, to fulfill the obligations assumed by them in accordance with the Charter. 3.  All members of the Organization shall settle their disputes by peaceful means in such a manner that international peace and security are not endangered. 4.  All members of the Organization shall refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the Organization. 5.  All members of the Organization shall give every assistance to the Organization in any action undertaken by it in accordance with the provisions of the Charter. 6.  All members of the Organization shall refrain from giving assistance to any state against which preventive or enforcement action is being undertaken by the Organization. The Organization should ensure that states not members of the Organization act in accordance with these principles so far as may be necessary for the maintenance of international peace and security. 7  At the San Francisco Conference, some Latin American States proposed to amend Draft Art. II in different ways, emphasizing, inter alia, respect for international law, disarmament, and human rights.16 Paragraph 7 was added after respective proposals by the four sponsoring governments (the permanent members of the Security Council excluding France).17 Commission I, at the suggestion of the Drafting Committee, proposed a wording similar to the chapeau as it stands today, but in a different order (‘In pursuit of the purposes mentioned in Chapter I the Organization and its members (p. 125) should act in accordance with the following principles’).18 The current text was introduced by the Secretariat as a mere ‘verbal modification’ jointly with an alternative that implied a complete re-wording.19 The latter was rejected for reasons of time, the former adopted with two rather formal modifications: ‘United Nations’ was switched back into ‘[t]he Organization and its Members’, in order to clarify that the United Nations was encompassing both the organization and its members and that both are obliged by the principles to follow; the headline was shortened to a simple: principles. However, a change of ‘in pursuit of’ into ‘in pursuance of’ was rejected, without much clarity about what the difference was considered to be. In particular, the original—weaker—‘should act’ was replaced, without discussion, by the stronger ‘shall act’.20 At the same time, Art. 2 (5) now combined two previously separate propositions.21

C.  Foundational Principles of International Law 8  The chapeau of Art. 2 refers to the rules contained in it as ‘principles’. The Friendly Relations Declaration, in its last paragraph, emphasizes that ‘the principles of the Charter… constitute basic principles of international law’.22 The binding character of the principles of Art. 2 is generally accepted;23 the term ‘principles’ was not juxtaposed to binding rules, but should indicate the foundational or basic character of their content. Nevertheless, this does not exclude that more precise rules can be derived from them, for instance from the principle of sovereign equality of States the rule of sovereign immunity barring national courts from sitting in judgment over the exercise of sovereign power, or ‘acta jure imperii’, other States.24

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9  The Committee ‘deemed it fit, acceptable, and practical to include in the Charter these principles and purposes which are fundamental, and only these’.25 Article 2 thus purports to include the basic obligations ‘which, by virtue of their being basic, can and shall serve the Organization and its members to draw from them, whenever necessary, their corollaries and implications’.26 Nevertheless, the list was not limited to existing rules of international law, rather, some of the rules constituted foundational innovations, in particular the prohibition on the use of force in Art. 2 (4) of the Charter. Article 2 thus combines existing rules of ‘general international law’, both custom and general principles, and the further development of the ground rules of international law, namely: •  sovereign equality (para 1) •  good faith (para 2) •  the peaceful settlement of disputes (para 3) •  the prohibition on the use of force (para 4) •  cooperation and solidarity between the Organization and its members (para 5) (p. 126) •  its effect on non-members (para 6), and •  the non-intervention of the Organization in matters essentially within domestic jurisdiction (para 7). The catalogue in Art. 2 manifests the new era of international law after World War II. It marks the shift from the classical law of co-existence to the law of cooperation.27 10  Independently of whether one regards the Charter as a constitution in the proper sense of the term,28 there can be little doubt that, in substance, these principles laid the foundations of the new international law after the ‘constitutional moment’ of 1945.29 Nevertheless, the list remains incomplete. Some other, more aspirational, principles from the point of view of the time, were included in the Preamble or in Art. 1, in particular human rights,30 self-determination of peoples, justice, and international law.31 In addition, the list only contains behavioural or ‘primary’ rules on what the Organization and its members should do or abstain from doing. The institutional machinery of international law, or, in a Hartian sense, the ‘secondary rules’32 on rule-making, State responsibility, and enforcement, are either contained in other Charter provisions, the Statute of the International Court of Justice,33 or other treaties or codifications of international law, such as the rules on State responsibility.34 A big part of the Charter is reserved to establishing organs of the United Nations itself to administer the principles of Art. 2 and achieve the purposes of Art. 1 (cf Art. 7). In addition, the principles have been further elaborated and developed in numerous instruments adopted by the organs of the United Nations, in particular the General Assembly (cf Arts 11, 13, see also MN 5). The Outcome Document of the 2005 World Summit35 solemnly reaffirms the commitment of member States to the ‘strict respect’ of them as ‘indispensable foundations of a more peaceful, prosperous and just world’.36 11  Not much weight should be given to the sequence in which the principles appear.37 Article 2 (1)–(6) was taken over from the Dumbarton Oaks Proposals with only smaller changes, among them the merger of what were formerly paras 5 and 6 into one paragraph, and the—important—addition of para 7. This explains why para 7 does not follow paras 1 and 2 where it would belong systematically. There is also a link between the peaceful settlement of disputes and the prohibition on the use of force, the one predicating the (p. 127) other. It appears less important whether the prohibition is acceptable because of the possibility to settle disputes peacefully or the other way around. Paragraph 5 combines two formerly separate, but interdependent obligations to assist the Organization and fail to support those the Organization has taken measures against. The extension of the tasks of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the Organization towards non-members in para 6 oddly precedes the limitations of the Organization vis-à-vis its members in para 7, which is easily explained by the drafting history. Nevertheless the sequence adds some drama to the whole of Art. 2 which starts and ends with a guarantee of member States’ sovereignty, but qualifies this guarantee with regard to international peace and security, ie its most important limitation.

D.  ‘in pursuit of the Purposes stated in Article 1’ 12  It is more difficult to determine the relationship between the purposes of Art. 1 and the principles in Art. 2. As set out above, the principles were considered binding norms of international law—in this regard, there is no distinction in kind between principles and rules with regard to Art. 238—the purposes providing the underlying values (peace, selfdetermination, justice, human rights, development). In the words of the Chairman of the Sub-Committee of the San Francisco Conference, they indicate the raison d’être of the Organization.39 The purposes thus express ends in themselves,40 whereas the Preamble contains ‘the declared common motives and intentions’.41 In this context, the principles express the basic rules to be followed to achieve the purposes of Art. 1 and the intentions of the Preamble, or, in the words of the Chairman of the Sub-Committee, ‘the regulating norms and methods by which the Organization and its members endeavor to achieve the common ends. Their understandings should serve as actual standards of international conduct’.42 Accordingly, the principles serve the purposes; and, in turn, they are limited by them. 13  Thus, the Organization and its members shall act in accordance with the principles, but in pursuit of the purposes. Following the principles in a schematic way alone does not suffice, rather, the principles must be observed in pursuit of or with the goal of achieving the purposes of Art. 1. By the phrase ‘in pursuit of’, the drafters thus intended not to weaken the bindingness of the principles, as the Rapporteur emphasized several times in the deliberations. Rather, pursuit should imply a ‘practical and effective endeavor of the Organization and its members’.43 The proposal of the Secretariat to substitute ‘pursuance’ for ‘pursuit’ failed in Committee.44 It may be conjectured that the Secretariat believed ‘pursuance’ to indicate the more practical realization of a purpose, while the majority— rightly—regarded ‘pursuit’ as indicating that the purposes constituted final goals that (p. 128) could not be simply deduced from the principles. In other words, the principles are binding regardless of whether they implement purposes, but they must be observed with the final goal of achieving the purposes. Nevertheless, the dispute appears rather technical; in the end, both purposes and principles are authoritative. Some of the most important principles in the more aspirational sense of the term are contained in Art. 1 rather than Art. 2 (justice, international law, equal rights and self-determination of peoples, human rights). The equally binding nature of both principles and purposes can also be deduced from Arts 14, 24 (2) sentence 1 and 52 (1), where the ‘purposes and principles’ appear of one cloth, equally binding the other organs of the United Nations.

E.  The Organization and its Members 14  While the Dumbarton Oaks Proposals had already used the formula of ‘the organization and its Members’, these terms were reintroduced after the Secretariat had substituted the United Nations for it.45 The reason for this change was to clarify that the principles should be binding on both the Organization and its members alike; thus, the Organization would not be legibus solutus. Thereby, Art. 2 plays a central role for the United Nations as a lawabiding entity under, not above, the basic principles of international law. 15  Nevertheless, different principles address different subjects. From their wording and purpose, paras 2 to 5 are specifically addressed to the member States, paras 1, 6, and 7 to the Organization.46 However, in a certain tension with this wording, the chapeau indicates that all the principles are binding on both the Organization and its members.47 This apparent contradiction can be solved by pointing to the mutual duty of the Organization and

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its members to ensure that all basic principles of international law are observed by their respective addressees. 16  This mutual responsibility between the organization and its members hints at an erga omnes—or rather erga omnes partes—character of the principles of Art. 2, in other words, all members and the Organization can invoke the principles of Art. 2 without having to point to a specific individual interest or subjective right in the case in question.48 However, the erga omnes (partes) character of the principles of Art. 2 depends on the individual principle in (p. 129) question and should not be determined in abstracto. At the very least, the chapeau indicates a potential for an erga omnes character of obligations derived from the principles in Art. 2.

I.  Organization 17  In view of the central role and the amount of discretion for the Security Council acting under Chapter VII,49 it is not trivial to point out that the chapeau of Art. 2 reinforces the argument that the principles pronounced in Art. 2 also bind the General Assembly (cf Art. 14) and the Security Council (cf Art. 24 (2)), even when the latter is acting under Chapter VII.50 Pursuant to Art. 52 (1), regional organizations under Chapter VIII are also bound by the principles and purposes of the Organization. The International Court of Justice has also invoked the purposes and principles, for instance when advising States in obiter dicta on the way to achieve a just and lasting peace.51 18  However, this does not imply that the Security Council, when it authorizes, in the exercise of its competences under Chapter VII or VIII of the Charter, the use of force by one member State against another, or intervenes in essentially domestic affairs, violates the principles of the Charter as put forward in Art. 2 (1) or (7). The proviso in para 7 clarifies that the Security Council, when acting under Chapter VII, is not bound by it. The sovereign equality guaranteed in Art. 2 (1) is not contradicted by the special rights of the five superpowers reserved to them in Art. 27, because they serve the collective interest of maintaining international peace and security.52 Article 2 (4) only prohibits the use of force of one State against another without authorization from the Security Council or in selfdefence as defined in Art. 51.53 Nevertheless, the Council will be bound to ensure that, as far as possible, the territorial integrity or political independence of a State is, at least in the long run, maintained in spite of their temporary suspension for the maintenance of international peace and security.54 In that sense, the proviso in the last phrase in para 7 applies to all of the principles of Art. 2, as is implicit, to a certain extent, in paras 2, 4, and 5.

II.  Members 19  Article 2 binds all member States to act in accordance with the principles enunciated in it. It contains rules of international law that the member States accepted by becoming members of the United Nations. Thus, States cannot rely on their sovereignty to derogate from these principles. In the words of the Permanent Court of International Justice in its first ever case, ‘the right of entering into international engagements is an attribute of State sovereignty’.55 By becoming members of the United Nations, States are also bound among each other to observe the legal principles contained in Art. 2. (p. 130) 20  However, the principles in Art. 2 also oblige the Organization to respect the rights of its members; in particular, Art. 2 (7) preserves, except for the Security Council acting under Chapter VII, the matters essentially within the domestic jurisdiction of the member States.56 Only by formally entering into an obligation by treaty, or by acquiescing in a developing custom, or by transferring general principles of their domestic legal systems to the international sphere as inherent to the rule of law, in other words, by the sources of international law recognized in Art. 38 (1) of the Statute of the International Court of Justice, do States become bound towards each other and the Organization. While

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the domestic jurisdiction of States thus depends on the extent of their international legal obligations and is thus relative to each State,57 the Charter accepts the sovereignty of States by not binding them to any other principles than those they have accepted before being admitted as a member State. By ratifying the Charter, member States have also accepted the far-reaching functions and powers of the Security Council to intervene in their affairs, without any legal claim or right other than the lawful exercise of its powers under the Charter.

III.  Non-members and the Charter Principles (Article 2 (6)) 21  It is, however, unclear how obligations of non-member States under the Charter can be justified. Article 2 (6) is not primarily addressed to them, however, but to the Organization itself, which ‘shall insure that that states which are not Members… act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security’. This text expresses the ambition of the Charter to be a document not only for its members, but for the whole international community.58 In addition, since the Charter has almost attained universality, much of the principles contained in Art. 2 have developed into customary law reflected in the practice and opinio iuris of non-members and thus binding on them.59 Finally, because of the recognition of the ius cogens status of the Charter principles by the ‘international community [of States] as a whole’,60 no derogation from them would be permitted, either by members or by non-members. 22  While all these mechanisms point to the fact that, in contemporary international law, all States are bound by these principles by many different mechanisms from treaty or custom towards unilateral recognition, it needs to be emphasized that Art. 2 (6) nowhere speaks of a direct bindingness of the Charter principles for non-members—this would violate the principles of the Charter itself—but rather is addressed to the Organization, which shall ensure, for the maintenance of peace and security, its respect by non-members. Viewed from this angle, the Organization has fulfilled this task in a remarkable way—to date, as far as one can see, all States have either become members or aspire to membership.61

(p. 131) F.  Constitution or Treaty? 23  Finally, Art. 2 is considered by some as (further) evidence for the constitutional character of the Charter.62 Others, also in this Commentary, disagree, regarding the Charter as an ordinary treaty.63 The present commentator remains sceptical of both propositions as long they do not clarify what they mean by the term ‘constitution’. Clearly, the Charter is a ‘constitution’ in the same sense as the ‘Constitution of the World Health Organization’ is.64 As clearly, the Charter is not a constitution in the sense of a domestic constitution, in the absence of a complete ordering of the international community to the exclusion of any other.65 The prevalence of the Charter over other international treaties (Art. 103) does not help much because it does not amount to a complete hierarchy of the Charter over all other law, including international ius cogens, neither does it require direct applicability of Charter law in domestic law.66 The juxtaposition of treaty and constitution is also doubtful, because a constitution can perfectly well come in the form of a treaty between sovereigns on the condition of the loss of that very sovereignty. However, since the Charter is based on the principle of consent, and its organs cannot assume additional competences not transferred to it by the member States, it lacks a central feature of a constitution, namely the regulation of the production of new rules and the power to decide itself on enlarging its competences without the consent of its members (cf Art. 109),67 in other words, the Kompetenz-Kompetenz.68 A more complete analysis of the question (p. 132) would need to look both at the institutional structure of the United Nations and at the principles expressed therein, a task which would go far beyond a commentary on Art. 2.69

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24  However, the question will arise only rarely, also due to the broad brush of the principles of Art. 2. They are clearly binding on member States, including the remarkable transfer of power to the Organization with regard to a central feature of the State, namely the maintenance of (international) peace and security, even trumping the domaine réservé in Art. 2 (7). Some, if not most of the principles of Art. 2 may constitute ius cogens, allowing for no derogation from the core of the principles enunciated (but leaving room for concretization).70 Thus, the purposes and principles reflect a core of substantive rules that are binding on every member and even non-member. The central importance of Art. 2 lies in this listing of legal principles uniting the Organization, its members, and partially even nonmembers, as the legal expression of an ‘international community’ that has left the state of nature and aspires to establish the rule of law in international affairs.71 Thus, even if the question of an ‘international constitution’ may remain open—or may even be regarded by some as a contradiction in terms—the principles of Art. 2, together with those contained in Art. 1, serve for all practical purposes as constitutional principles of the international legal community.

Footnotes: *  This commentary exclusively reflects the personal views of the author. I am indebted to Nicolas Klein, Matthäus Fink, and Mindia Vashakmadze for their helpful comments and suggestions. The responsibility for any mistake remains my own. 1

  See MN 12–13; in the same sense P d’Argent and N Susani, ‘United Nations, Purposes and Principles’, MPEPIL (online edition, OUP 2012), accessed 28 February 2012, MN 1. 2

  On the sources of Art. 38 (1), see only A Pellet on Art. 38, in Zimmermann and others (eds), The Statute of the International Court of Justice: A Commentary (OUP 2006). 3

  In this vein, d’Argent and Susani (n 1) MN 1: ‘normative backdrop of the international community’. 4

  In this sense, see B Fassbender, The UN Charter as Constitution of the International Community (Nijhoff 2009) 1; see critically Talmon on Art. 2 (6) MN 72f. According to Franck the UN Charter relates ‘more proximately to a constitution than to an ordinary contractual normative arrangement’, see TM Franck, ‘Is the U.N. Charter a Constitution?’ in J Frowein and others (eds), Verhandeln für den Frieden—Negotiating for Peace—Liber Amicorum Tono Eitel (Springer 2003) 95, 102. 5

  See Tams on Art. 6 MN 22ff.

6

  See d’Argent and Susani (n 1) MN 2; on self-determination, see Oeter on SelfDetermination. 7

  Declaration of Principles of International Law concerning Friendly Relations and Cooperation between States in accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 October 1970) Annex. 8

  Universal Declaration of Human Rights, UNGA Res 217 A (III), UN Doc A/810 (1948) 71.

9

  Definition of Aggression, UNGA Res 3314 (XXIX) (14 December 1974).

10

  UNGA Res 3281 (XXIV) (12 December 1974).

11

  UNGA Res 60/1 (16 September 2005), paras 138–140; see Vashakmadze on Responsibility to Protect. 12

  See Fleischhauer and Simma on Art. 13 MN 12.

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13

  See, as expression of customary law on interpretation, Art. 31 (3) (a), (b) of the Vienna Convention on the Law of Treaties, 115 UNTS 33 and Kadelbach on Interpretation MN 36ff; see also Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, para 19 and Case concerning Kasikili/Sedudu Island (Botswana v Namibia) [1999] ICJ Rep, paras 18 and 50, with further references. 14

  Covenant of the League of Nations, LNOJ, February 1920, 3; but see the brief Preamble that emphasizes obligations not to resort to war and ‘the firm establishment of the understandings of international law as the actual rule of conduct among governments’. 15

  UNCIO III, 3; on these proposals see Khan on History MN 37ff, with further references.

16

  See, in particular, the proposals put forward by Cuba, Ecuador, Mexico, Panama, and Chile, UNCIO III, 166, 179, 269, 284, 292, 398, 421, 495; VI, 560ff. 17

  UNCIO III, 567; VI, 567.

18

  UNCIO VI, 687.

19

  UNCIO XVIII, 115, 145.

20

  UNCIO XVIII, 145f.

21

  UNCIO XVIII, 147.

22

  FRD, op 3.

23

  cf CPF/Salmon, Art. 2 para 16: ‘indiscutable’; d’Argent and Suani (n 1) MN 20, ‘beyond any doubt’. 24

  See Jurisdictional Immunities of the State (Germany v Italy) (2012) ICJ, Judgment of 3 February 2012, paras 57ff, available at accessed 28 February 2012. 25

  UNCIO VI, 448.

26

  UNCIO VI, 449.

27

  See the seminal work by W Friedmann, The Changing Structure of International Law (Stevens 1964) 1f. See also Abi-Saab, ‘Cours général de droit international public’ (1987VII) 207 Rec des Cours 9, 328–31; R Kolb, An Introduction to the Law of the United Nations (Hart 2010) 35f; speaking of an ‘extensive catalogue of modern law’; for the shifts in international law after World War II, see A Verdross and B Simma, Universelles Völkerrecht —Theorie und Praxis (3rd edn, Duncker & Humblot 1984) 273. 28

  See MN 23.

29

  On the understanding of 1945 as ‘constitutional moment’, see B Fassbender, UN Security Council Reform (1998) 98; AM Slaughter and W Burke-White, ‘An International Constitutional Moment’ (2002) 43 Harv Intl LJ 1. 30

  In this vein, see already Panama, UNCIO I, 560; see also the Mexican and Panamese proposals, UNCIO III, 161, 176 and 269, respectively. 31

  cf CPF/Salmon, Art. 2 para 11.

32

  HLA Hart, Concept of Law (Clarendon Press 1994) 79ff and 213ff.

33

  See Art. 38, Statute of the International Court of Justice, 1 UNTS 993 (1945).

34

  See Articles on State Responsibility, UNGA Res 56/83 (12 December 2001), UN Doc A/ RES/56/83, Annex; see also UNGA Res 59/35 (16 December 2004), UN Doc A/Res/59/35. 35

  World Summit Outcome, UNGA Res 60/1; see also Vashakmadze on Responsibility to Protect.

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36

  World Summit Outcome, ibid, para 2.

37

  For a more detailed analysis in this regard, see Randelzhofer on Art. 2 (2nd edn) MN 14f. 38

  On principles and rules in the theory of law, see R Dworkin, A Matter of Principle (Harvard UP 1985) 69f, 72ff; R Dworkin, Taking Rights Seriously (Harvard UP 1979) 22ff; R Alexy, A Theory of Constitutional Rights (OUP 2010) 45ff; for public international law, see T Kleinlein, Konstitutionalisierung im Völkerrecht (Springer 2012) 661ff, 714–15 (in English). 39

  These are the words of the Chairman of the responsible Sub-Comittee of the San Francisco Conference, Farid Zeinedinne, UNCIO VI, 447, 698. 40

  cf CPF/Salmon, Art. 2 paras 6–7.

41

  Zeinedinne, UNCIO VI, 447, 699.

42

  Report of the Chairman of Subcommittee I/1/A, F Zeinedinne, UNCIO VI, 699.

43

  UNCIO III, 397, 456, 717; cf also Zeinedinne, UNCIO VI, 699, 717.

44

  UNCIO XVII, 145.

45

  See MN 7.

46

  cf CPF/Salmon, Art. 2 para 4.

47

  cf Fassbender on Art. 2 (1) MN 48; Kolb on Art. 2 (2) MN 3 (Art. 2 (1) and (2) binding on both the organization and the members); but cf Kelsen, 87: § 1 an obligation partly at odds with the purposes, § 6 competences, not obligations, § 7 rights of members towards the organization. 48

  On erga omnes (and erga omnes partes) in this sense, see, foundationally, Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) [1970] ICJ Rep 3, 32, para 33: ‘In view of the importance of the rights involved, all States have an interest in their protection; they are obligations erga omnes.’ See also id, para 34: ‘Some of the corresponding rights of protection have entered into the body of general international law…; others are conferred by international instruments of a universal or quasi-universal character.’ In this reading, the Art. 2 of the Charter would confer such a right of protection. In the case of a quasi-universal instrument such as the Charter, obligations erga omnes and erga omnes partes amount to the same thing. See also East Timor (Portugal v Australia) [1995] ICJ Rep 90, 102, para 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 199, para 155f, deriving erga omnes character of the right to self-determination from the Charter and erga omnes partes character of Art. 1 of the Geneva Conventions from its text; Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ, Judgement of 20 July 2012, para 68, available at accessed 20 July 2012. On obligations erga omnes in contemporary international law, see also Articles on State Responsibility (n 34), Art. 48 para 1 and the Commentaries thereto, para 6f. For the current state of international law on the matter, see also AL Paulus, ‘Jus Cogens in a Time of Hegemony and Fragmentation: An Attempt at a Reappraisal’ (2005) 74 NJIL 312ff; C Tams, Enforcing Obligations Erga Omnes (CUP 2005), with further references. 49

  cf Krisch on Art. 39 MN 4ff; on the increasing use of Chapter VII powers also see Paulus and Leiss on Art. 103 MN 1, 81. 50

  See d’Argent and Susani (n 1) para 24; cf also Prosecutor v Tadić, Interlocutory Appeal on Jurisdiction, ICTY-94-2 (20 October 1995), para 40, reviewing the lawfulness of the

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establishment of the Tribunal by the Security Council under the Charter; on the ICTY see Paulus on Art. 29 MN 55ff. 51

  Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 200, para 161. 52

  In this sense see Fassbender on Art. 2 (1) MN 62.

53

  See Randelzhofer and Dörr on Art. 2 (4) MN 15.

54

  cf Randelzhofer and Dörr on Art. 2 (4) MN 48ff.

55

  S.S. ‘Wimbledon’, Judgment of 17 August 1923, PCIJ Ser A, No 1, 25.

56

  See Nolte on Art. 2 (7) MN 2ff.

57

  See Fassbender on Art. 2 (1) MN 46ff; Nolte on Art. 2 (7) MN 24ff, 29.

58

  In this sense see already Kelsen, 109; cf Ecuador, UNCIO III, 398: respect for sovereignty so far as compatible ‘with the rights and powers of the International Community, juridically represented by the International Organization established by the present Charter’; for an explanation of Art. 2 (6) in light of a ‘constitutional’ reading of the UN Charter, see Fassbender (n 4) 147f. 59

  cf Oellers-Frahm on Art. 2 (3) MN 19; Randelzhofer and Dörr on Art. 2 (4) MN 29–30, 64; Talmon on Art. 2 (6) MN 6, 74; Randelzhofer on Art. 2 (2nd edn) MN 12. 60

  See Art. 53 VCLT; cf Art. 26 ASR (n 34) (omitting ‘of States’).

61

  For details, see Tomuschat on Art. 2 (3) MN 18ff; Fastenrath on Art. 4 MN 10.

62

  Fassbender on Art. 2 (1) MN 53f; id, UN Charter as Constitution of the International Community (Nijhoff 2009). See also, selected from an increasingly large literature, E de Wet, ‘The International Constitutional Order’ (2006) 55(1) ICLQ 76; P-M Dupuy, ‘The Constitutional Dimension of the Charter of the United Nations Revisited’ (1997) 1 Max Planck YB UN L 1; J Frowein, ‘Konstitutionalisierung des Völkerrechts’ (2000) 39 Berichte der Deutschen Gesellschaft für Völkerrecht 429. For comprehensive treatments, see J Dunoff and P Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (CUP 2009); T Kleinlein ‘Between Myths and Norms: Constructivist Constitutionalism and the Potential of Constitutional Principles in International Law’ (2012) 81 NJIL 79; R MacDonald and D Johnston (eds), Towards World Constitutionalism (Leiden 2005); A Peters, G Ulfstein, and J Klabbers, The Constitutionalization of International Law (OUP 2009). 63

  Talmon on Art. 2 (6), MN 72f. Sceptical also B Conforti, The Law and Practice of the United Nations (3rd edn, Nijhoff 2005) 10. See also Klabbers, ‘Constitutionalism Lite’ (2004) 1 Intl Org L Rev 1; N Krisch, Beyond Constitutionalism (Oxford 2010). 64

  The ‘Constitution of the World Health Organization’, 14 UNTS 185. For the general use of the notion ‘Constitution’ as the constitutive instrument of IOs, see HG Schermers and NM Blokker, International Institutional Law (5th rev edn, Nijhoff 2011) 726f. Fassbender speaks of a ‘dual constitutional function of the UN Charter’: constitution of the UN and of the international community ‘as a whole’, Fassbender (n 4) 116. 65

  For an extensive analysis, see AL Paulus, ‘The International Legal System as Constitution’, in J Dunoff and JP Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (CUP 2009) 72f; Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-IV) 150 Rec des Cours 258f. 66

  See Paulus and Leiss on Art. 103 MN 81.

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67

  The assumption behind Art. 109 was that members could leave the UN if an amendment was adopted against their will, see in more detail Witschel on Art. 109 MN 1ff. 68

  cf Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, 168: in the absence of delegation, States retain freedom of action. From a domestic angle, see the Lisbon Treaty judgment of the German Federal Constitutional Court with regard to the Treaty of Lisbon amending the Treaty on European Union of 13 December 2007, UNTS No 1-47938, judgment of 30 June 2009, 2 BvR 2/08, BVerfGE 123, 267, 349; English translation at accessed 28 February 2012, paras 233, 236, 240. 69

  But see Paulus (n 66).

70

  cf CPF/Salmon, Art. 2 para 17 citing M Virally, L’Organisation mondiale (Armand Colin 1972) 372. 71

  cf CP/RJ Dupuy, 72; A Paulus ‘International Community’, in R Wolfrum (ed), MPEPIL (online edn, CUP 2012) ; and, famously, Immanuel Kant, Die Metaphysik der Sitten [Metaphysics of Morals] (1797) § 61, 6 Werke 350 (Academy ed de Gruyter 1968); see also id, Zum ewigen Frieden [Perpetual Peace] (1798), 8 Werke 383ff (Academy de Gruyter 1968).

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Ch.I Purposes and Principles, Article 2 (1) Bardo Fassbender From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — Sovereignty — States, equality — Universal international organizations

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(p. 133) Article 2 (1) The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. 1. The Organization is based on the principle of the sovereign equality of all its Members … A.  Introduction 1–2 B.  Historical and Philosophical Background 3–21 I.  Sovereignty in the ‘International Law of Co-existence’ 3–14 II.  Equality of States 15–21 C.  Drafting History 22–28 D.  Elaboration of the Principle in the Practice of the United Nations 29–45 I.  Draft Declaration on Rights and Duties of States 29–30 II.  The Friendly Relations Declaration 31–32 III.  Permanent Sovereignty over Natural Resources 33–34 IV.  Decisions of the International Court of Justice 35–45 E.  The Substance of Sovereign Equality in Present International Law 46–73 I.  Sovereign Equality as a New Concept 46–47 II.  The Scope of Application ratione personae 48 III.  Sovereign Equality as Constitutional Autonomy 49–53 IV.  Equal Status under the Constitution of the International Community 54–68 1.  Rights Protecting Constitutional Autonomy 57 2.  Rights of Participation in the International Community 58–61 3.  Sovereign Equality in the United Nations 62–64 4.  Equality of States in their Mutual Relations 65–68 V.  Sovereign Equality in an Age of Globalization 69–73 F.  The Untamed Side of Sovereignty 74–76

Select Bibliography Sovereignty Bourquin M, L’Etat souverain et l’Organisation international: L’organisation internationale et l’enquête de la Dotation Carnegie. Prép. pour la Dotation Carnegie pour la Paix Internationale (Manhattan Publishing Company 1959). Carrillo Salcedo JA, ‘Droit international et souveraineté des Etats’ (1996) 257 Rec des Cours 35.

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Dennert J, Ursprung und Begriff der Souveränität (Fischer 1964). Fowler MR and Bunck JM, Law, Power, and the Sovereign State: The Evolution and Application of the Concept of Sovereignty (Pennsylvania State UP 1995). Friedmann W, The Changing Structure of International Law (Stevens 1964). Heller H, Die Souveränität: Ein Beitrag zur Theorie des Staats- und Völkerrechts (de Gruyter 1927). Hinsley FH, Sovereignty (2nd edn, CUP 1986). Hofmann HH (ed), Die Entstehung des modernen souveränen Staates (Kiepenheuer & Witsch 1967). (p. 134) Jellinek G, Allgemeine Staatslehre (3rd edn, Häring 1914). Kalmo H and Skinner Q (eds), Sovereignty in Fragments: The Past, Present and Future of a Contested Concept (CUP 2010). Kelsen H, Das Problem der Souveränität und die Theorie des Völkerrechts (2nd edn, Mohr 1928). Kleffens EN van, ‘Sovereignty in International Law’ (1953) 82 Rec des Cours 4. Klippel D and Boldt H, ‘Souveränität’ in O Brunner and others (eds), Geschichtliche Grundbegriffe: historisches Lexikon zur politisch-sozialen Sprache in Deutschland, vol 6 (Klett-Cotta 1990) 98. Korowicz MS, ‘Some Present Aspects of Sovereignty in International Law’ (1961) 102 Rec des Cours 1. Krasner SD, Sovereignty: Organized Hypocrisy (Princeton UP 1999). Kurz H (ed), Volkssouveränität und Staatssouveränität (Wissenschaftliche Buchgesellschaft 1970). Martin Martinez MM, National Sovereignty and International Organizations (Kluwer 1996). Peters A, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20 EJIL 513. Quaritsch H, Staat und Souveränität (Athenäum 1970). ——— Souveränität: Entstehung und Entwicklung des Begriffs in Frankreich und Deutschland vom 13. Jahrhundert bis 1806 (Duncker & Humblot 1986). Steiger H, ‘Geht das Zeitalter des souveränen Staates zu Ende?’ (2002) 41 Der Staat 331. Walker N (ed), Sovereignty in Transition (Hart 2003). Wildhaber L, ‘Sovereignty and International Law’, in RSJ Macdonald and DM Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (Nijhoff 1983) 425.

Equality Boutros-Ghali B, ‘Le principe d’égalité des Etats et les organisations internationales’ (1960) 100 Rec des Cours 2. Broms B, The Doctrine of Equality of States as Applied in International Organizations (Vammalan Kirjapaino Oy 1959). Dickinson E, The Equality of States in International Law (Harvard UP 1920). Goebel J, The Equality of States: A Study in the History of Law (Columbia UP 1923). Kooijmans PH, The Doctrine of the Legal Equality of States: An Inquiry into the Foundations of International Law (Sythoff 1964). Mosler H, Die Grossmachtstellung im Völkerrecht (Schneider 1949). Padirac R, L’Égalité des États et l’organisation internationale: Préf. de Paul Reuter (Pichon et Durand-Auzias 1953).

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Riches CA, Majority Rule in International Organization: A Study of the Trend from Unanimity to Majority Decision (Johns Hopkins Press 1940). Schaumann W, Die Gleichheit der Staaten: Ein Beitrag zu den Grundprinzipien des Völkerrechts (Springer 1957). Schwarz-Liebermann von Wahlendorf HA, Mehrheitsentscheid und Stimmenwägung: Eine Studie zur Entwicklung des Völkerverfassungsrechts (Mohr 1953). Wolfke K, Great and Small Powers in International Law from 1814 to 1920: From the pre-history of the United Nations (Wrocław 1961).

Sovereign Equality Anand RP, ‘Sovereign Equality of States in International Law’ (1986) 197 Rec des Cours 9. Fassbender B, The United Nations Charter as the Constitution of the International Community (Nijhoff 2009).(p. 135) Kelsen H, ‘The Principle of Sovereign Equality of States as a Basis for International Organization’ (1944) 53 Yale LJ 207. Klein RA, Sovereign Equality Among States: The History of an Idea (University of Toronto Press 1974). Kohen MG, ‘Article 2 Paragraphe 1’, in JP Cot, A Pellet, and M Forteau (eds), La Charte des Nations Unies: Commentaire article par article, vol 1 (3rd edn, Economica 2005) 399. Ninčić D, The Problem of Sovereignty in the Charter and in the Practice of the United Nations (Nijhoff 1970). Preuß UK, ‘Equality of States—Its Meaning in a Constitutionalized Global Order’ (2008–2009) 9 Chicago J Intl L 17. Tomuschat C, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’ (1999) 281 Rec des Cours 1. Warbrick C, ‘The Principle of Sovereign Equality’ in V Lowe and C Warbrick (eds), The United Nations and the Principles of International Law: Essays in Memory of Michael Akehurst (Routledge 1994) 204.

A.  Introduction 1  The idea of sovereignty belongs to the oldest concepts of modern international law. Through the centuries, it has acquired an almost mythical quality. Sovereignty is usually claimed, or rejected, in times of political crisis, party strife, war, and civil war. Although (or perhaps just because) its contours are so blurred, it played, and continues to play, a prominent role in modern constitutional and international legal theory, as well as in politics. We are here concerned with sovereignty as a legal notion and concept, but as such it integrates a political dimension which paradoxically often defies legal control. In other words, sovereignty as a legal concept is characterized by an uneasy tension between an effort legally to define, and therefore limit, the powers of the person or body who claims to be sovereign, and that sovereign’s (at least occasional) seeking to evade control exerted by legal rules and procedures, or to change the law according to his interests. Not seeing this untamed side of sovereignty means misunderstanding it. 2  So the first principle proclaimed in Art. 2 of the Charter leads us a long way back into the history of the modern State and international law. It seems, indeed, as if those drawing up the Charter, after having proclaimed the—at that time—progressive purposes of the new Organization in the Preamble and Art. 1, and before setting forth equally new and groundbreaking principles in Art. 2 (see, in particular, Art. 2 (4) and (6)), sought to link their project to the earlier periods of the international legal order, and to make it appear less of a break with the past than it actually was. However, the phrase ‘sovereign equality’, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

newly introduced into international law by the Charter, is already a signal indicating profound change. ‘Sovereign equality’ is not simply an addition of ‘equality of States’ and ‘sovereignty of States’ in a traditional sense. It is not an expression which would have copied the old concepts into the Charter. Therefore, it is important to keep in mind the deep dividing line of the year 1945 when dealing with the notion of sovereignty. Pre-Charter explanations and definitions of sovereignty must be carefully approached in order to evaluate their relevance in the age of the United Nations. But without knowing them the change which has occurred cannot be understood.

(p. 136) B.  Historical and Philosophical Background I.  Sovereignty in the ‘International Law of Co-existence’ 3  According to a widely shared view, sovereignty has two complementary and mutually dependent dimensions: within a State, a sovereign power makes law with the assertion that this law is supreme and ultimate, ie that its validity does not depend on the will of any other, or ‘higher’, authority. Externally, a sovereign power obeys no other authority. At the beginning of the modern State, the internal dimension of sovereignty addressed the problem of ‘intermediate powers’ within a certain territory, independent in a legal or actual sense, which an emerging ‘central power’ sought to subjugate. The external claim to sovereignty was directed against powers outside that territory. This latter dimension is also referred to as ‘sovereignty in international law’ or ‘independence’.1 4  It is appropriate to focus initially on the principle of internal sovereignty. Not only does this principle pre-date that of external sovereignty in the history of the philosophy of the State, moreover the two are closely connected. 5  In the works of Bodin2 and Hobbes,3 the principle of sovereignty essentially had the function of overcoming the civil wars which had broken out in France and England in the sixteenth century as a result of religious schisms, by concentrating power in the hands of the monarch. The monarch had to possess greater actual power than all conceivable coalitions of the various groups within society. If he was to be recognized by all groups, and thereby able to play the role of an intermediary, he had to be religiously and ideologically neutral (hence the ‘secularization’ of the State). This led to a State monopoly on the use of force, and a duty of all subjects of the king to keep the peace. The political theorists constructed the whole legal order, including the powers of public entities subordinated to the central authority, as deriving from the will of the sovereign. The medieval concept of personal jurisdiction was augmented by a territorial jurisdiction, consolidating the former fragmented regal rights into a unified sovereign power as a source of comprehensive (p. 137) authority to regulate the legal relations of all subjects directly and unilaterally by means of sovereign acts. The modern centralized territorial State appeared in Europe essentially due to the fact that the principle of internal sovereignty, as propounded by philosophers and legal scholars, had been generally accepted in State practice. 6  It was the idea of external sovereignty which, together with the transformation of medieval feudal structures into the modern State, led to the development of modern international law.4 In the external relations of States, sovereignty was understood as legal independence of a prince or republic from all foreign powers, in particular the Pope and the Emperor of the Holy Roman Empire, and impermeability protecting the respective territory against all outside interference. The universalism of the Empire and the Roman Catholic Church was superseded by the new concept of the ‘international legal community’ proclaimed by Spanish theologians following in the footsteps of the Stoics.5 It was only with

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the emergence of equally sovereign and geographically discrete territorial States that the requisite structures were created for the articulation of the international legal order.6 7  Although the concept of sovereignty decisively contributed to the development of the modern international legal order, this new concept entailed difficulties regarding the logical and legal basis upon which international law could bind its subjects. If there was no higher legal authority than the sovereign State, how could States be considered as bound by law? And could one speak of ‘law’ in the absence of compulsory enforcement put into effect by an authority standing above the subjects of law? Indeed, by some writers, as well as in political arguments, the existence of international law was denied with reference to the principle of sovereignty, or rules of international conduct were seen as only morally binding. To many, a legal order based purely on coordination of its subjects appeared inconceivable. The principle of sovereignty could have completely undermined the binding force of international law, particularly in view of the fact that since the sixteenth century, and especially in the age of absolutism, it had been closely associated with the political principle of the raison d’état (reason of State). According to this doctrine, prominently advocated by Niccolò Machiavelli (1469–1527), the State must determine its actions in a completely goaloriented and rational manner, with the objective of increasing its power or at least fully sustaining it. The principle, which was later followed by the less pronounced idea of Realpolitik, was understood as allowing statesmen to leave aside any religious, moral, or legal considerations, if need be. The writings of Georg Wilhelm Friedrich Hegel (1770– 1831) also invited an interpretation to the effect that his view of the sovereign State was incompatible with the idea of a binding international law, but this seems to be a misperception. Although Hegel dealt with issues of international law under the title of ‘external law of the state’, he did not mean to make the bindingness of international law dependent on the will of each individual State.7 8  According to the doctrine of sovereignty prevailing in the nineteenth and the greater part of the twentieth century, States were only bound by those rules of law to which they had agreed, either by the conclusion of treaties or customarily. There existed a presumption in favour of unfettered sovereignty. In a famous dictum the PCIJ held in the Lotus (p. 138) Case that ‘restrictions upon the independence of States cannot…be presumed’.8 At the same time, any treaty obligation accepted by a State was regarded not as a restriction but as an activation of its sovereignty.9 However, the practice of a relatively small number of States could lead to the development of rules of customary international law which were regarded as binding even upon those States which had not established such practice. 9  The ius ad bellum, or right to go to war, had been claimed by factually independent powers long before the concept of sovereignty was formulated: but just as it was consolidated by the rise of the modern state, so it was freed from external moral and theological sources of restraint and made into the most basic of all the rights of the sovereign state…In the international law of the modern international system it was a legal right…[S]tates clung tenaciously to this right, believing it to be fundamental to their sovereignty.10 10  Wolfgang Friedmann identified the classical system of international law as a ‘law of coexistence’. This law he juxtaposed with a newer ‘international law of co-operation’ the beginnings of which he recognized in the period between the two World Wars: ‘This move of international society, from an essentially negative code of rules of abstention to positive rules of co-operation…is an evolution of immense significance for the principles and structure of international law.’11 The principle of external sovereignty determined the overall structure and virtually the entire substance of the international law of coexistence.12 To Friedmann’s ‘rules of abstention’ belonged the principle of non-intervention in the domestic affairs of other States, the prohibition on exercising sovereign power in the

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territory of a foreign State,13 and the principle of State immunity. An act of a foreign State could only have a legal effect in another State, and be binding on its organs, if it had been recognized by that latter State. Max Huber’s famous definition of sovereignty in the Island of Palmas arbitral award (1928) is a perfect expression of the (p. 139) negative or exclusive quality characteristic of the concept in the ‘law of co-existence’: ‘Sovereignty in the relations between states signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other state, the functions of a state.’14 11  An individual State’s internal order was not only shielded from intervention by other States but also from any ‘intrusion’ by international law. The concept of the ‘impermeability of the State’, ie the integrity of its internal space, protected the domestic legal order like a shield through which international law could not pass.15 It led to Heinrich Triepel’s doctrine of ‘dualism’, a strict separation of international and domestic law,16 and also to the idea that in its external relations a State should only speak with ‘one voice’, namely that of the central government and its minister of foreign affairs. Accordingly, international treatymaking was monopolized at the central State level, with the exception of the federal States established in Europe in the nineteenth century.17 12  International law was considered a body of norms regulating relationships between States, so that only States could be subjects of international law. It was generally denied that the individual could be a subject of international law,18 and only in the age of the League of Nations was the possibility of an international legal personality enjoyed by international organizations composed of States reluctantly accepted.19 13  In the nineteenth century, the ideas of sovereignty, the nation-state, and imperialism joined, reinforcing each other and leading to what was later called the ‘anarchy of sovereignty’ of the nineteenth and twentieth century.20 ‘[T]he concept of sovereignty, being made to serve the state or the nation regarded as an absolute end, was interpreted as justifying the use of absolute power or symbolizing the actual possession of it.’21 Now the emphasis of the notion shifted from building and perfecting an effective State authority to competing with other nations. ‘Sovereign nation-states’, constructed and understood as closed, self-contained entities facing one another, fought over political, economic, and military power. To preserve, strengthen or, if lost or impaired, re-establish ‘national sovereignty’ was the ultimate foreign policy goal, and thus thinking in terms of sovereignty was intimately linked with power politics. In this period, ‘sovereignty in international affairs could never be conceived apart from a confusion of it with arbitrary power’.22 It became a typical aspect of the law of co-existence that a State’s sovereign rights were not conceived of as powers to be used towards the public good but as subjective rights which a State can exercise just as it likes. International law was essentially bilateral, and considered to exhaust itself in correlative rights and obligations of (p. 140) its subjects.23 It was only in a later period that States came to realize, and to acknowledge, the need of cooperation for the promotion of community goals, and the assumption that all members of the international community must take into account the valid interests of the other members in exercising their respective sovereignty.24 14  Understandably, in retrospect the idea of sovereignty was seen as having paved the way for the two World Wars. It entered a state of crisis in the 1920s, and in particular after 1945, when under the auspices of the new UN Charter legal science gradually redefined sovereignty and advanced the notion of solidarity of all member States of the international community. In Western Europe, sovereignty was countered with, and restricted by, the new guiding idea of supranationality which was meant to reconcile autonomy of States with their intensified cooperation. The new outlook on international relations adopted in Europe after

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the enthusiasm for national sovereignty had been shattered found a characteristic expression in the Preamble of the 1951 Treaty of Paris: The Heads of Government and State, …Considering that world peace can be safeguarded only by creative efforts commensurate with the dangers that threaten it, …Resolved to substitute for age-old rivalries the merging of their essential interests; to create, by establishing an economic community, the basis for a broader and deeper community among peoples long divided by bloody conflicts, and to lay the foundations for institutions which will give direction to a destiny henceforward shared, Have decided to create a European Coal and Steel Community…25

II.  Equality of States 15  The legal principle of equality of States is closely connected with the principle of sovereignty, so that the fusion in the UN Charter of the two terms into one phrase suggested itself. But still, the history of the principle of equality in modern international law cannot be told as a similar story of rise and fall. It seems that, compared to sovereignty, equality of States was always more disputed in State practice as well as in legal doctrine. This is understandable because sovereignty was a principle defended by all States, including the powerful, which often played a leading role in this regard, whereas equality was generally invoked by smaller States (and their lawyers) against the actions, aspirations, and presumption of a mighty neighbour State or the ‘Great Powers’ as a collective force. 16  As a principle of modern international law, the equality of (Christian) States was recognized in the Peace of Westphalia of 1648; regardless of their Catholic or Protestant faith, and of their monarchical or republican form of government, their statehood was equally recognized and protected. The treaties formally bade farewell to the medieval conception of a society of States organized hierarchically, ie on the basis of inequality.26(p. 141) At the same time, this recognition of equality resulted from a political compromise in favour of peace—an agreement henceforth to ignore, from a legal point of view, certain actual differences which before had been of legal relevance. 17  The most widely read book on international law in the eighteenth century, written by Emer de Vattel (1714–67), a foremost representative of the ‘naturalist’ school of international law of the period, was based on the idea of a société des nations the members of which enjoy an equal status. In his introduction, Vattel said: ‘A dwarf is as much a man as a giant is; a small Republic is no less a sovereign state than the most powerful kingdom.’27 In the Age of Enlightenment the idea of an equality of States was based on an analogy with the ‘natural’ status of men which, a century earlier, Thomas Hobbes (1588–1679) had described as follows: ‘Nature hath made men so equall, in the faculties of body, and mind.’28 In the same spirit of natural law, the Virginia Bill of Rights of 1776 proclaimed in its very first sentence that ‘[a]ll men are by nature equally free and independent and have certain inherent rights’.29 In accordance with the said analogy, the Articles of Confederation between the thirteen United States of America of 1777 then provided that ‘[i]n determining questions in the United States in Congress assembled, each State shall have one vote’.30 Here, the idea of equality in legal status was translated into equal voting power. 18  Inspired by Vattel and the thinking of the Enlightenment, the theorists of the French Revolution also regarded States as individual persons or bodies having the same rights and

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duties. In a representative statement, the Abbé Grégoire (1750–1831) said in his Draft Declaration of the Rights of Peoples of April 1793: 2. Peoples are independent of each other and sovereign, irrespective of the number of individuals they comprise and the extent of the territory which they occupy. 3. One people has to act in relation to others as it wants others to act in relation to itself; what one man owes another one people owes the other.31 (p. 142) As Wilhelm Grewe concluded, the ideas of the Revolution about the law of nations were a precise reflection of its philosophy of individualism at the level of interstate relations.32 In this context, the principle of equality of States was related to, and partly deduced from, the ideas of democracy, popular sovereignty, and the self-determination of peoples, and in this conceptual field or milieu it is still situated today. 19  In the nineteenth century, the principle of equality of States was upheld as a matter of law, but beginning with the defeat of France by the anti-Napoleonic coalition and the Congress of Vienna (1814–15) the ‘Great Powers’ actually exercised a hegemony over the other European States in that they took the decisions they deemed necessary for maintaining the European order and the balance of power in Europe.33 Those powers were called puissances à intérêts généraux because they were thought to be concerned by all international affairs even if their immediate interests were not affected.34 The sixth edition of Oppenheim’s treatise said with British self-assurance: Arrangements made by the body of the Great Powers tend to gain the consent or the acquiescence of the minor States. The Great Powers are the leaders of the Family of Nations, and every advance of the Law of Nations during the past has been the result of their political hegemony, although the initiative towards progress was frequently taken by a minor Power.35 On the other hand, smaller powers were able to participate on an equal basis in international conferences on technical matters (such as postal services) and the codification of international law, the number of which grew rapidly in the second half of the century.36 20  Dickinson concluded in 1920 that ‘equality of States’ actually was the expression of two legal principles, namely ‘the principle of equal protection of the law or equality before the law, and that of equality of rights and obligations or simply equality of rights’. To him, the first principle was ‘absolutely essential to a stable society of nations’, whereas the second ‘has never been anything more than an ideal’ and was even dangerous when applied to the participation of States in international organizations.37 State (p. 143) practice of the time left it open whether the principle protected anything more than a formal equality of legal status, in particular the same political independence and territorial integrity, and the same freedom to act in a legally relevant way on the international plane.38 21  As far as ‘procedural equality’ was concerned, ie equality in representation, voting, and contribution to the work of international organizations and conferences, the Covenant of the League of Nations (1919) made it clear that it was only guaranteed to a limited extent. On the one hand, the Covenant confirmed the principle of equality of States by opening the League for ‘[a]ny fully self-governing State, Dominion or Colony’,39 and by making the unanimity rule the basis of its voting arrangements.40 As a sub-committee of the League’s Assembly declared, ‘[t]he essential characteristic of the unanimity rule…is that it serves as the safeguard of the sovereignty of states’.41 But at the same time, and more importantly, the existence of leading powers and their special role was given a formal legal expression— the ‘Principal Allied and Associated Powers’ were assigned permanent seats in the League’s Council.42 ‘The Paris Conference of 1919, confirming and consolidating the leading position of the Great Powers, which stretched back to the first years of the previous century, marked From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the close of an important stage in the development of…international law.’43 This did not happen by chance. Unlike a legal system which is without any permanent institutional structure, a constitutional order such as that built by the Covenant cannot ignore actual differences among its constituent members which bear strongly on the political and legal course the community is steering. However, the four or five major powers never constituted a majority of the Council. The number of non-permanent members was raised from originally four to six in 1922, nine in 1926, ten in 1933, and eleven in 1936. An observer critically noted: ‘[I]t was the unworkable nature of the doctrine of equal rights that caused power, like water, to find its level, and the real decisions to be made outside Geneva.’44

(p. 144) C.  Drafting History 22  The notion of ‘sovereign equality’ first appeared in the Moscow Declaration (or ‘Declaration on General Security’) of 30 October 1943, in which the governments of the United States, the United Kingdom, the Soviet Union and China declared: That they recognize the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving states, and open to membership by all such states, large and small, for the maintenance of international peace and security.45 The declaration was based on an American proposal. A first draft made in the Department of State had referred to an organization ‘based upon the principles of equality of nations and of universal membership’. It was later revised to read ‘based on the principle of the sovereign equality of all nations’, with the intention to indicate that the equality referred to was legal rather than factual.46 In Moscow, the word ‘nations’ was replaced by ‘states’. The adjective ‘peace-loving’ was added at British suggestion, to avoid any implication that it was envisaged admitting at some early date former enemy States on a footing of equality.47 In the context of the time, ‘peace-loving states’ were the non-aggressive, anti-Axis States. Thus, a selective basis for membership was accepted by the Four Powers in the autumn of 1943.48 23  Chapter II (‘Principles’) of the Dumbarton Oaks Proposals, made public on 9 October 1944,49 then opened with the words: ‘In pursuit of the purposes mentioned in Chapter I the Organization and its members should act in accordance with the following principles: 1. The Organization is based on the principle of the sovereign equality of all peace-loving states.’50 An amendment offered at the San Francisco Conference by the four sponsoring governments on 5 May 1945 replaced the words ‘all peace-loving states’ with ‘all its members’.51 The provision on sovereign equality was seen as being closely related to that on voting in the General Assembly (‘Each member of the Organization should have one vote in the General Assembly’).52 As R Russell commented, ‘the sovereign equality of members was…recognized by providing for general voting equality’.53 (p. 145) 24  At San Francisco, a number of governments, in particular of Latin American States, submitted alternative formulations. They either emphasized the legal equality of States54 (Belgium, Colombia, Cuba, Ecuador, Honduras) or sought to define ‘sovereign equality’55 (Peru, Uruguay). These definitions, as well as amendments suggested by Egypt, Ethiopia, and Mexico,56 included explicit references to the territorial integrity and political independence of the member States. The Philippines proposed to speak of the sovereign equality ‘of all peace-loving and law-abiding nations’,57 while Haiti suggested the phrase ‘of all states that love peace and exclude from their relations any racial or religious discrimination’.58

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25  In Committee I/1 of the Conference, ‘[s]everal delegates expressed disapproval of the phrase “sovereign equality” and suggested replacing it by “juridical equality” or some similar term’ because other parts of the Charter (ie the provisions concerning the SC) would not be consistent with the concept of equal sovereignty.59 The Rapporteur of the Committee felt that: Article 1 [‘Purposes’] should be re-worded to include the three ideas that (1) members are juridically equal, (2) all enjoy the rights inherent under [sic] sovereignty, and (3) they all should act in accordance with their duties under the Charter; Article 2 [‘Principles’] should be eliminated.60 However, the drafting sub-committee (Committee I/1/A) decided to leave the text of Chapter II (the later Art. 2), para 1 as proposed by the four sponsoring governments.61 In its report of 1 June 1945 it stated: The Subcommittee voted to keep the terminology, ‘sovereign equality’, on the assumption and understanding that it conveys the following: (1)  That states are juridically equal; (2)  That they enjoy the rights inherent in their full sovereignty; (p. 146) (3)  That the personality of the state is respected, as well as its territorial integrity and political independence; (4)  That the state should, under international order, comply faithfully with its international duties and obligations. 62 This interpretive statement was an amalgam of the various suggested amendments to Chapter II, para 1. Only the ideas that the title to equality springs from ‘natural and divine laws’, and that juridical equality was ‘a means for correcting and repairing…practical or political inequality’ of States, as advanced by Cuba and Ecuador, respectively,63 were not adopted by the sub-committee. 26  In its meeting of 4 June 1945, Committee I/1 rejected motions of the delegate of Belgium to delete the word ‘sovereign’ in para 1 (by twelve votes to twenty), and of the delegate of Uruguay to replace ‘sovereign’ with ‘juridical’ (by thirteen votes to twenty). It adopted the original text of the paragraph as proposed by the drafting sub-committee (by twenty-eight votes to ten),64 and included, with insignificant changes, in its report to Commission I the interpretive statement quoted above.65 The Belgian delegate had argued that ‘the smaller states would regard it as somewhat ironical, in view of the striking inequalities evident in the Organization, to find at the head of the statement of principles a bold reference to the “sovereign equality” of all members’. 27  Commission I discussed the provision on 15 June 1945. The Peruvian delegation repeated its proposal for an amendment,66 but was not successful. The Rapporteur of Committee I/1 declared that the right to territorial integrity and political independence, which several proposals had addressed as an attribute of sovereign equality, had been included in the fourth Principle, as proposed by the Australian delegation.67 The commission adopted the text as proposed by Committee I/1.68 Notwithstanding an alternative draft of Art. 2 suggested by the Secretariat, which endeavoured to separate by semicolons the Principles of the UN and the statement of obligations of members,69 the Coordination Committee decided to leave the text of the first Principle unchanged.70

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(p. 147) 28  The idea that all peoples, or nations, enjoy equal rights, which stood at the beginning of the drafting history of Art. 2 (1), found expression in several other provisions of the Charter. The Preamble (para 2) speaks of the ‘equal rights…of nations large and small’, and Art. 1 (2) as well as Art. 55 of the ‘principle of equal rights and selfdetermination of peoples’.

D.  Elaboration of the Principle in the Practice of the United Nations I.  Draft Declaration on Rights and Duties of States 29  By UNGA Res 178 (II) (21 November 1947), the General Assembly instructed the International Law Commission (ILC) ‘to prepare a draft declaration on the rights and duties of States’,71 taking as a basis of discussion a draft declaration presented by Panama72 which was modelled on Pan American principles formulated before and after World War II.73 The ILC quickly performed this task in its first session (1949).74 According to its Preamble (paras 5 and 6), the Declaration, to be adopted by the GA, had the purpose of ‘formulating certain basic rights and duties of States in the light of new developments of international law and in harmony with the Charter of the United Nations’. In fourteen Articles, the Commission stated four rights and ten duties of States. The rights were those of independence, of jurisdiction over State territory in accordance with international law, of equality in law, and of self-defence against armed attack. Among the duties, there were proclaimed those ‘to refrain from intervention in the internal and external affairs of any other State’ (Art. 3) and ‘to refrain from the threat or use of force against the territorial integrity or political independence of another State, or in any other manner inconsistent with international law and order’ (Art. 9). The other pertinent Articles read as follows: Article 1 Every State has the right to independence and hence to exercise freely, without dictation by any other State, all its legal powers, including the choice of its own form of government. Article 5 Every State has the right to equality in law with every other State. Article 14 Every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law. (p. 148) The ILC’s commentary on Art. 5 said: ‘This text was derived from article 6 of the Panamanian draft. It expresses, in the view of the majority of the Commission, the meaning of the phrase “sovereign equality” employed in Article 2(1) of the Charter of the UN as interpreted at the San Francisco Conference, 1945’.75 Article 14 was regarded by the ILC as ‘a global provision which dominates the whole draft and…serves as a key to other provisions of the draft Declaration in proclaiming “the supremacy of international law”’.76 30  In the ILC, the Draft Declaration was adopted by eleven votes to two, but these two, cast by VM Koretsky (Soviet Union) and MO Hudson (United States), sealed its fate. In the opinion of the first member, the declaration, and especially Art. 14 thereof, denied the sovereignty of States and aspired to establish a ‘super-State’; for the second, Art. 6 (which stated ‘the duty [of every State] to treat all persons under its jurisdiction with respect for human rights and fundamental freedoms’) ‘went beyond the Charter of the UN, and beyond international law at its present stage of development’.77 On the recommendation of its Sixth Committee, the Assembly simply ‘note[d]’ the Draft Declaration, transmitted it to the member States ‘for consideration’, and requested them to comment on the question From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

‘[w]hether any further action should be taken by the General Assembly on the draft Declaration’.78 It appears that the rejection of the draft by the Soviet Union and the United States prevented any further progress. But although this peculiar coalition succeeded in halting the project, the first work of the ILC, clearly perceiving the fundamental change in the international legal order brought about by the UN Charter, proved far-sighted.

II.  The Friendly Relations Declaration 31  Because of its careful preparation and adoption by consensus, the Friendly Relations Declaration of 1970 (Annex to UNGA Res 2625 (XXV))79 can be relied upon almost like a text enjoying binding force.80 Among the seven principles thought to constitute the groundwork of international law in the era of the UN, the ‘principle of sovereign equality of States’ is set forth as the penultimate principle. It is significant that the principle is only mentioned after five fundamental duties of States arising from their membership in the international community have been stated (namely the duties to refrain from the threat or use of force, to settle disputes by peaceful means, not to (p. 149) intervene in domestic matters of other States, to cooperate with other States, and to promote the realization of the principle of equal rights and self-determination of peoples), and that it is followed by the statement of yet another duty (to fulfil in good faith international obligations). The principle of sovereign equality is explained as follows: All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature. In particular, sovereign equality includes the following elements: (a)  States are juridically equal; (b)  Each State enjoys the rights inherent in full sovereignty; (c)  Each State has the duty to respect the personality of other States; (d)  The territorial integrity and political independence of the State are inviolable; (e)  Each State has the right freely to choose and develop its political, social, economic and cultural systems; (f)  Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States. In conformity with Art. 5 of the ILC’s Draft Declaration on Rights and Duties of States,81 the principle of sovereign equality is primarily understood as assuring States a right to equality in law. The specification, which opens with the words ‘in particular’ to express its nonexhaustive character, then essentially repeats the interpretive statement of the San Francisco Conference.82 Compared to that statement, only the right defined under (e) was added, and the duty to live in peace with other States under (f). Whereas the latter just reinforces the first two principles of the Friendly Relations Declaration, the first is a consequence of the recognition of the right to self-determination of peoples in the era of decolonization—a right which is not lost once a people has established its own independent State. However, the inclusion of the right stated under (e), a right the existence of which was simply taken for granted in the framework of the international law of co-existence, shows that in the first two-and-a-half decades after 1945 the traditional understanding of

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what constituted the domaine réservé of States not open to an international exertion of influence had considerably changed. 32  Apart from its accenting the legal equality of States, the Declaration’s definition of equal sovereignty is as unspecific as that of 1945. In the context of the Declaration, it is easy to see how much of it repeats other principles of international law in the age of the UN, such as the prohibition of the threat or use of force, and of intervention in matters within the domestic jurisdiction of other States,83 or the right to self-determination. The duty of States to fulfil in good faith their international obligations is equally proclaimed as an own principle in the Declaration. The ‘territorial integrity’ and ‘political independence’ of States to which the Declaration refers to interpret sovereign equality are no less in need of explanation than that concept itself. The difficulty of defining sovereign (p. 150) equality is manifested by the statement, also taken from the San Francisco formula, that this equality amounts to enjoying ‘the rights inherent in full sovereignty’.

III.  Permanent Sovereignty over Natural Resources 33  As a constituent element of the campaign of the developing States of the southern hemisphere for a ‘New International Economic Order’, a right to ‘permanent sovereignty over natural resources’ has played an important role. The proclamation of this right resulted from a longstanding demand put forward by the developing countries against the industrialized, capital-exporting States of the North in an attempt to win control over their resources and economies.84 Article 2 (1) of the Charter of Economic Rights and Duties of States, adopted by the GA in 1974,85 provides: Every State has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities. Paragraph 2 then continues to set forth specific rights derived from that principle, namely rights to regulate foreign investment and the activities of transnational corporations, and, most importantly, a right to ‘nationalize, expropriate or transfer ownership of foreign property’. 34  While authority of a State over its natural resources and economic activities is implied in the principle of territorial sovereignty and the right of each State to choose and develop its own economic system, and is undisputed as such, it is the controversial issue of expropriation and compensation which is at the heart of the proclaimed principle. The attempt of the economically weaker States to use the weight of the notion of sovereignty in their struggle for an improvement of their situation was not successful. Doctrinally, the failure is characteristic of the impossibility of inferring specific substantive legal positions from the concept of sovereignty of States.86

IV.  Decisions of the International Court of Justice 35  Until now, the principle of sovereign equality as such has not played an important role in the jurisprudence of the ICJ. This is understandable in light of the fact that it is a rather unspecific concept the content of which is only determined by a number of more concrete rules of international law binding on States at a given time.87 The principle has, however, not infrequently been invoked by parties before the ICJ, and used as an argument in separate opinions of judges. An overview of such uses can illustrate the understanding of sovereign equality in the contemporary practice of international law. 36  In the Nuclear Weapons Case, Judge Shi criticized the majority’s reference to certain States adhering to the policy of nuclear deterrence, which the ICJ had called an ‘appreciable section of the international community’,88 by saying that ‘the structure of the international community is built on the principle of sovereign equality’, and that any undue emphasis on the practice of this ‘appreciable section’ would be contrary to the principle.89 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

(p. 151) In the same case, Judge Fleischhauer held that the right of individual or collective self-defence is a right ‘which every State possesses as a matter of sovereign equality and which is expressly preserved in Article 51 of the Charter’.90 Under the heading ‘Deterrence and Sovereign Equality’, Judge Weeramantry argued that, if the principle of equality in the right of self-defence is to be recognized, ‘[e]ither all nations have the right to self-defence with any particular weapon or none of them can have it’, and he concluded that the second alternative is the only option available.91 In the Nuclear Tests Case, Judge Ignacio-Pinto had similarly referred to the principle when demanding that ‘France must not be given treatment inferior to that given to all other States possessing nuclear weapons’.92 37  To Judge Koroma, a use of nuclear weapons would always violate the principle of sovereign equality because that principle presupposes respect for the sovereignty and territorial integrity of all States, including the physical integrity of the civilian population.93 38  A close connection between sovereignty (or independence) of States and territorial sovereignty as its corollary was already accepted by the ICJ in its Corfu Channel decision.94 In its Nicaragua judgment, the ICJ recalled this statement and supplemented it in the following way: The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference…As the Court has observed: ‘Between independent States, respect for territorial sovereignty is an essential foundation of international relations’ (ICJ Reports 1949, p 35), and international law requires political integrity also to be respected.95 In the Case Concerning the Arrest Warrant of 11 April 2000, a warrant issued by a Belgian investigating judge against the then Congolese Minister of Foreign Affairs, the Democratic Republic of the Congo instituted proceedings against Belgium for ‘violation of the principle that a State may not exercise its authority on the territory of another State and of the principle of sovereign equality among all Members of the Organization of the United Nations’.96 In his Separate Opinion of 2002, Judge Guillaume held that ‘[t]he adoption of the United Nations Charter proclaiming the sovereign equality of States, and the appearance on the international scene of new States, born of decolonization, have strengthened the territorial principle’.97 In the Case Concerning Certain Criminal Proceedings in France, the Republic of the Congo contended that the measures of investigation and prosecution taken by the French judicial authorities involved a ‘violation of the principle that a State may not, in breach of the principle of sovereign equality among all Members of the United Nations, as laid down in Article 2, paragraph 1, of the Charter of the United Nations, exercise its authority on the territory of another State’.98 (p. 152) In the Case Concerning Pulp Mills on the River Uruguay, the Government of Uruguay expressed the view that any watercourse State is entitled to make use of the waters of an international watercourse within its territory: This right is an attribute of sovereignty and is enjoyed by every State whose territory is traversed or bordered by an international watercourse. Indeed, the principle of the sovereign equality of States results in every watercourse State having rights to the use of the watercourse that are qualitatively equal to, and correlative with, those of other watercourse States.99 39  Referring to the Friendly Relations Declaration of the UN General Assembly,100 the Republic of Serbia held that ‘the foundational norm of respect for the territorial integrity of States’ and the doctrine of State sovereignty are ‘inextricably linked concepts in international law’.101

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40  The principle of sovereign equality was also referred to as ‘the corollary of independence’,102 or as confirming the principle of independence (‘The principle of the independence of States is one of the fundamental principles in international relations. It is confirmed in Article 2, paragraph 1, of the UN Charter’).103 41  In the Lockerbie Case, Judge El-Kosheri held that it followed from the principle of sovereign equality that an exercise of domestic jurisdiction by a State must be respected by other States and the organs of the UN, ‘unless the Court decides that such exercise is contrary to international law’.104 42  In the Case Concerning the Continental Shelf Malta invoked the principle as an argument against Libya in favour of the equidistance method pure and simple, and as an objection to any adjustment based on length of coasts or proportionality considerations, but it failed to convince the ICJ. The ICJ held that consent of States to certain rules of apportionment of shelf would be no breach of the principle of sovereign equality between them. ‘Secondly, it is evident that the existence of equal entitlement, ipso jure and ab initio, of coastal States, does not imply an equality of extent of shelf, whatever the circumstances of the area.’105 43  Applied to the question of jurisdiction of the ICJ, the principle was said to require ‘genuine consent of the parties’ as a prerequisite of such jurisdiction.106 ‘[T]his well-known conception [of sovereign equality] underlies the requirement of inter volentes, as a condition for any international activities in the arbitral or judicial spheres’, including, it was contended, the rendering of advisory opinions by the ICJ.107 (p. 153) 44  In the Nicaragua Case, Judge Schwebel argued that ‘[s]ince reciprocity is so closely tied to considerations of mutuality and of the sovereign equality of States before the law and before the Court’, temporal conditions should not be excluded from the scope of application of reciprocity.108 He also held that considerations of the sovereign equality of States before the law required a hearing of El Salvador which had sought to intervene in the jurisdictional phase of the case.109 45  As regards the UN, Judge Moreno Quintana referred in the Certain Expenses Case to the ICJ’s dictum that the UN is not a ‘super-State’,110 adding that ‘[t]he Organization is an association of States with a view to the achievement of certain common purposes, and of which the constitutive instrument recognizes the sovereign equality [of all its Members]’.111 An interesting conclusion with respect to the internal distribution of powers in the UN was drawn by Judge Levi Carneiro when he argued that because the Organization is based on the principle of sovereign equality, and because the General Assembly is the only organ established by the Charter which is made up of representatives of all member States, ‘[t]he Assembly cannot surrender its prerogatives, nor can it irrevocably delegate them’.112

E.  The Substance of Sovereign Equality in Present International Law I.  Sovereign Equality as a New Concept 46  Seen just by itself, the term ‘sovereign equality of States’ makes little sense. As an adjective, ‘sovereign’ means ‘supreme, paramount, principal, greatest, most notable’ or ‘having superior or supreme rank or power’.113 Accordingly, ‘sovereign’ cannot be meaningfully applied to equality as a State’s quality of being equal with every other State. As explained above, ‘sovereign equality’ was first used with regard to nations, not States, and the first formulation simply spoke of the ‘principle of equality of nations’.114 When the term was applied to States, the established holders of external sovereignty, the emphasis on equality in law was not changed, but supplemented with an adjective reminiscent of the traditional status of States in international law. The word ‘sovereign’ appeared, but phrases

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like ‘principle(s) of equality and sovereignty of States’ or ‘principle of equal sovereignty’ were avoided. 47  At the San Francisco Conference, ‘sovereign equality’ was deliberately adopted as a ‘new term’.115 Its purpose was clear: the idea of equality of States in law was given (p. 154) precedence over that of sovereignty by relegating the latter to the position of an attributive adjective merely modifying the noun ‘equality’. In this combination, sovereignty meant to exclude legal superiority of any one State over another, but not to exclude a greater role of the international community played vis-à-vis all its members.116 The new term proved to be an accurate description of a development characterizing the international legal order in the age of the League of Nations and, in particular, the UN: from the two elements, ‘sovereignty is in a process of progressive erosion, inasmuch as the international community places ever more constraints on the freedom of action of States’. We witness a ‘development towards greater community discipline…driven by a global change in the perception of how the right balance between individual State interests and interests of mankind as a whole should be established’.117

II.  The Scope of Application ratione personae 48  Ratione personae, the principle of sovereign equality binds the UN as an organization and its member States. The principle has an internal dimension, addressing the status of members in the Organization to be respected by its organs and the other member States. At the same time, the principle applies to the relations of member States with each other. This is expressly laid down in Art. 78 of the Charter (‘… Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality’),118 but follows also from the introductory sentence of Art. 2. Moreover, the principle applies to non-member States, either on the traditional doctrinal basis that it is a rule of general international law, or on the assumption—supported, among others, by this author—that the UN Charter is the constitution of the entire international community and therefore binding on all its members, whether or not they have chosen to acquire formal UN membership.119

III.  Sovereign Equality as Constitutional Autonomy 49  In an article about ‘The Principle of Sovereign Equality of States as a Basis for International Organization’ of 1944, Kelsen defined sovereignty as follows: sovereignty of the States, as subjects of international law, is the legal authority of the States under the authority of international law…[T]he State is then sovereign when it is subjected only to international law, not to the national law of any other State. Consequently, the State’s sovereignty under international law is its legal independence from other States.120 (p. 155) In other words, sovereignty is a collective or umbrella term denoting the rights which, at a given time, a State is accorded by international law, and the duties imposed upon it by the same law. These (‘sovereign’) rights and duties constitute ‘sovereignty’; they do not ‘flow from’ it.121 Sovereignty is the legal status of a State as defined (and not only ‘protected’)122 by international law.123 Accordingly, sovereignty is neither ‘natural’ nor static. In a process that has placed ever more constraints on the freedom of action of States, its substance has changed, and will further change in the future. For that reason, the unspecific and open-ended definition of the San Francisco statement124 and the Friendly Relations Declaration,125 which at first glance seemed rather unsatisfactory, is fully accurate.

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50  Under the rule of the UN Charter, the most prominent limitation of the rights formerly collectively addressed as sovereignty is the abolition of the ius ad bellum, or the right to wage war against another State. The Charter has put the international use of force under the exclusive control of the SC, the only exception being a State’s temporary right to selfdefence according to Art. 51 of the Charter.126 In the words of Hinsley, this acceptance by States that war has ceased to be a legalized form of force constitutes ‘a greater displacement of assumptions about relations between states than any that has ever taken place’ since the rise of the State in human history.127 Today, the Charter’s ban on the use of force is understood not so much as a limitation of sovereignty but as a necessary prerequisite for a de facto enjoyment of sovereign equality by States. A State’s sovereign equality depends on a comprehensive prohibition of the use of force and a working mechanism to implement and enforce this prohibition.128 51  An equally important limitation of traditional State sovereignty advanced by the UN Charter is the obligation of any State not to interfere with, and to protect, the fundamental human rights and freedoms of all persons under its jurisdiction. By establishing that obligation, international law departed from the traditional view, still prevalent in the era between the two World Wars, that ‘the relationship between a state and its citizens was a matter of domestic law, not to be interfered with from outside, neither by third states nor by institutions of the international community’.129 52  On the basis of the human rights obligations of States resulting from the UN Charter, the Universal Declaration of Human Rights, the two International Covenants on Human Rights and other treaties, and international customary law, the doctrine of the ‘responsibility to protect’ was developed to remind States of their basic obligations vis-à-vis (p. 156) the men, women and children under their jurisdiction, and to strengthen the capacity of the international community to respond to grave violations of those obligations. In the 2005 World Summit Outcome, the member States of the UN declared, inter alia: 138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means…The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.130 In 2011, the Security Council for the first time invoked the doctrine in resolutions adopted under Chapter VII of the UN Charter when it recalled ‘the Libyan authorities’ responsibility to protect its population’ against violence and use of force against civilians, and gross and systematic violations of human rights and international humanitarian law.131 Accordingly, sovereignty can no longer be referred to by governments as ‘a shield behind which mass violence could be inflicted on populations with impunity’.132 Today, sovereignty of a State entails its obligation to protect human rights and, especially, to meet its core protection responsibilities. In that sense, we have witnessed the ‘humanization of sovereignty’.133 However, against the background of the long-established understanding of State From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

sovereignty it seems misleading to speak of ‘sovereignty as responsibility’.134 The notion of sovereignty still accentuates freedom of action rather than restrictions of such freedom. 53  A more recent school of thought in international law understands the development of the law of nations since the foundation of the League of Nations as a process of constitutionalization.135 The adoption of the Covenant in 1919 and, later, the UN Charter is seen as a gradual effort to give the international community a constitution expressing systematically and in writing its fundamental values and the rules and procedures which shall protect them, so that a peaceful co-existence and cooperation of all nations of the (p. 157) world is ensured. The international community is not just perceived as a sum, or addition, of the interests of the individual States but as an entity committed to humankind as a whole, having its own legal personality and purposes which it can set against the opinion and action of a recalcitrant State.136 This constitutional approach to international law seeks to re-establish a category of priority norms existing independently of the will of the individual States, in this formal quality similar to those which were accepted as norms of natural law until the early nineteenth century. The approach recognizes a hierarchy of rules of international law in which those belonging to the constitutional law of the international community are in comparison of the highest rank and greatest firmness. At the same time, the notion of constitution takes up elements of organization and institutionalization characteristic of modern State constitutions. It is this constitutional view of the present international legal order which, following Kelsen’s definition, leads to an understanding of sovereign equality that is in accordance with an orientation, so strongly increased in the past sixty years, of the individual State towards community values and goals: sovereign equality is the legal authority and autonomy of a State as defined and guaranteed by the constitution of the international community. It denotes the entitlement of a State and the people constituting it to autonomous development and self-responsibility within the limits set by international law.

IV.  Equal Status under the Constitution of the International Community 54  That legal equality of States is the gist of the principle of sovereign equality was already emphasized in the proceedings of the San Francisco Conference137 as well as in the Friendly Relations Declaration of 1970,138 which opens its explanation of the principle with the words: ‘All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature.’ One may add: notwithstanding, in particular, differences in the size of territory and population, and in political, economic, and military power. As Judge Weeramantry put it: There are some structural inequalities built into the current international legal system, but the substance of international law—its corpus of norms and principles— applies equally to all. Such equality of all those who are subject to a legal system is central to its integrity and legitimacy. So it is with the body of principles constituting the corpus of international law.139 55  But what exactly are those equal rights and duties of States? ‘Every State, large or small, enjoys the rights which international law grants to States as subjects of international law.’140 As equality as such does not, and cannot, define what these rights are, we are referred back to the above definition of the sovereign equality of States under the authority of international law. Accordingly, equal rights are the ‘sovereign’ rights equally enjoyed by States, as defined by international law or, more exactly, the constitution of (p. 158) the international community. If at times we speak of sovereignty, and then again of equality, we in fact address the same legally defined status of States. What differs is only the perspective, or the accent which is placed either on the autonomy of a State, understood as

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its legally defined capacity for self-determination, or its status in relation to that of other members of the international community and that community itself. Understood this way, the principle of ‘sovereign equality’ is indeed an apt representation of an identity of ‘sovereignty’ and ‘equality’ of States in the age of the UN. 56  According to these two perspectives, the ‘sovereign rights’ presently accorded to States by international law can be distinguished as legal positions primarily intended to protect a State’s autonomy as a space of self-determination, and as rights ensuring equal membership in the international community. None of these rights ‘flows’ or ‘derives from’ sovereignty, equality, or sovereign equality as legal concepts or super-norms. To the contrary, it is they, as rights defined by norms of positive international law, which make up what can be addressed as ‘sovereignty’, ‘equality’, or ‘sovereign equality’.

1.  Rights Protecting Constitutional Autonomy 57  As regards the rights in the service of autonomy, a State is protected by the prohibition of the threat or use of force (Art. 2 (4) of the UN Charter) and the duty of States and the organized international community not to intervene in matters within the domestic jurisdiction of any (other) State.141 ‘A prohibited intervention must…be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely.’142 In accordance with international law, a State is entitled freely to determine its constitution and its political, social, economic, and cultural order, which the other members of the international community must respect.143 If a State has a democratic constitution, its sovereignty protects a space of democratic self-determination. A sovereign State possesses jurisdiction over its citizens as well as over foreigners present in its territory (albeit limited by the obligation to safeguard their human rights and freedoms as guaranteed by international law), and within its territory an exclusive power to use physical force to enforce its law. Further, a State has the right to determine its future legal status. It can, for instance, decide to form a union with, or to become an integral part of, another State. The details of all these rights and entitlements are dynamic and often controversial, and must be studied with the help of treatises, manuals, and casebooks of international law.

2.  Rights of Participation in the International Community 58  The rights ensuring equal membership in the international community are principally rights of participation in the exercise of the functions of governance of that community, that is to say, in making and applying international law and adjudicating international legal claims.144 Formal rights of participation, which are means of pursuing and (p. 159) enforcing the substantive rights of autonomy, are the rights to conclude international treaties, to send and receive diplomatic envoys (right of legation), and to make diplomatic claims. 59  According to traditional doctrine, equality in legal status does not mean that every State is entitled to join treaties purporting to set up universal regimes, or ‘law-making treaties’ laying down general rules of conduct among a considerable number of States. Even the organized international community is said to be under no obligation to open access to the treaties drawn up under its auspices to all States.145 This view is highly objectionable.146 It means that individual States can be excluded from treaties effectively serving as legislative instruments of the international community. In fact, if a certain subject has been dealt with in a multilateral treaty with general or even quasi-universal participation, an excluded State is effectively barred from regulating this subject by means of bilateral or multilateral treaties. To that extent, that State is actually deprived of its treaty-making capacity. It is submitted that this is incompatible with the idea of equal membership of all States in the international community—an idea suggesting, on the contrary, a right of every State not only to join such general treaties but also to participate in their negotiation.147 In accordance with that view, Art. 10 of the Charter of Economic Rights and Duties of States148 provides that ‘as equal members of the international From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

community, [all States] have the right to participate fully and effectively in the international decision-making process in the solution of world economic, financial and monetary problems’. 60  If it is true that today all States are equally obliged to heed the rules of the UN Charter, then all States are also equally entitled to membership in the permanent organs of the international community. The ‘principle of universality’ of the UN, understood as the legal basis for such an entitlement, follows from the constitutional character of the Charter, which itself is founded on the principle of sovereign equality.149 Article 4 (1) of the Charter must therefore be read as entitling every sovereign and ‘peace-loving’ State to membership in the UN.150 The latter requirement is met if a State credibly accepts the fundamental constitutional principles of the international community as enshrined in the Charter and other instruments. This means that every UN member State is obliged to vote in favour of a particular application for membership if these conditions are met.151 This right to membership is especially momentous if one realizes (p. 160) that today ‘in most instances membership in the United Nations determines the existence of a State, irrespective of any additional unilateral acts of recognition on the part of States’.152 Since the ‘package deal’ of 1955,153 UN practice has generally recognized a constitutional right of States to UN membership. 61  A (temporary) suspension of a State which has seriously violated the rules of the Charter ‘from the exercise of the rights and privileges of [UN] membership’ (Art. 5 of the Charter) is acceptable from a constitutional point of view.154 However, it seems inadmissible permanently to exclude a State from the organic structure of the community as established by the Charter. To prevent a State permanently from participating in the work of the community organs is incompatible with the very idea of an international community living under a constitution. In fact, in the history of the UN not a single member State has been expelled from the Organization.155

3.  Sovereign Equality in the United Nations 62  The records of the San Francisco Conference and the preceding diplomatic negotiations demonstrate that the prerogatives which the leading powers were given in the UN Charter —in particular permanent membership in the Security Council and the right of veto according to Art. 27 (3)—were regarded as a painful, albeit necessary, exception to a true equality of status of all member States in the new Organization. So much was even admitted by the major powers themselves, and this view is understandable if one recalls that ‘classical’ sovereignty of States was the starting point for the development of the principle of equal sovereignty. The first leading commentary on the Charter could do no more than state the contradiction between the promise of Art. 2 (1) and the provisions of Arts 23 (1) and 27 (3) by saying: ‘In the Charter the principle of equal legal rights is recognized…The Charter does, however, recognize the inequality of Members in respect to power and political influence by according the “Great Powers” permanent membership in the Security Council and the so-called “right of veto”.’156 63  As far as a contradiction between the terms of the Charter on the one hand, and sovereign equality as a principle of general international law on the other hand is recognized, a purely contractual view of the Charter has no difficulty in resolving it: it is exactly the sovereignty of States which is said to enable them to enter into international agreements which may provide for different rights and obligations of the parties. 64  This argument is, however, no longer viable if the Charter is seen as the constitution of the international community.157 Since this approach dissolves the dualism of ‘general international law’ and the law of the Charter,158 exceptions to legal equality in the latter can no longer be justified by having recourse to the former category. Instead, we must try to read the Charter in a way that reconciles its seemingly contradictory statements. We approach an answer to the problem by realizing once more that in the Charter the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

traditional concepts (p. 161) of sovereignty and equality of States were replaced with a new principle having a different content—that of ‘sovereign equality’.159 This principle recognizes as necessary a relation between responsibilities (or duties) and rights in an institutional structure established with the principal purpose of maintaining international peace and security (cf Art. 1 (1) of the Charter). At San Francisco, this consideration of responsibility in the understanding of equality found expression in Colombia’s proposal for a Preamble to the Charter: The High Contracting Parties, …, Agree that the following are necessary: … VI. To establish the principle of the equality before Law of all States, whatever their population, their wealth, their strength or their territorial extent, but to admit, at the same time, that the Great Powers, because they have greater international responsibility, must likewise exert a greater functional influence in the organization of the world.160 As Tom Franck remarked, ‘[t]he rule of state equality could be understood as coherently modified by a rational principle of distinction: that states bearing the greatest institutional responsibility should also have the greatest say in critical disputes’.161 In the form of sovereign equality, formal equality has been qualified to the extent necessary for achieving the common interest of the international community. This common interest requires furnishing certain States, whose extraordinary commitment to community goals is indispensable, with special rights if otherwise their support cannot be enlisted.162 It must also be taken into consideration that the prohibition of the use of force in international relations is a prerequisite for an enjoyment of sovereign equality by States,163 and that, in turn, this prohibition depends as a matter of fact on a working institutional arrangement—a necessary part of which is the special position given to major powers in the SC.

4.  Equality of States in their Mutual Relations 65  In their mutual relations, States must treat each other as equals. The practical importance of that principle is, however, a limited one. In spite of the several provisions of the UN Charter about the international cooperation of States (cf Arts 1 (3), 11, 13, 56), and the ‘duty of States to co-operate with one another…in the various spheres of international relations’ proclaimed in the Friendly Relations Declaration,164 States are still free not to maintain relations (of a diplomatic, political, economic, or other character) with another State at all. If such relations are maintained, a State may differentiate between other States in the treatment it accords to them.165 In particular, States can, when entering into (p. 162) international treaties, agree on an unequal treatment of the parties to the treaty. Trade agreements can, for instance, provide for an unequal access to the respective markets. Likewise, there is no general right to most-favoured-nation treatment. When establishing international organizations, States can arrange for differentiated responsibilities and rules of weighted voting which take account of the factual importance of a country in a certain respect (like its economic strength, or its importance as a maritime power). In short, sovereign equality is not a rule of ius cogens,166 notwithstanding its character as a fundamental principle of the international legal order. 66  Therefore, in the relations of States with each other, the principle of sovereign equality remains essentially confined to its formal dimension.167 It means that ‘[e]ach State has the duty to respect the personality of other States’, as the Friendly Relations Declaration puts it.168 A procedural consequence is emphasized by the Manila Declaration on the Peaceful

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Settlement of Disputes of 1982, which formulates the rule that ‘[i]nternational disputes shall be settled on the basis of the sovereign equality of States’.169 67  Apart from that, States are obliged to comply, in their relations with each other, with a number of specific ‘rules of abstention’,170 which—as if in mirror image—arise from the rights protecting the constitutional autonomy of States.171 In fact, this autonomy accorded to States by the constitution of the international community only becomes effective because of corresponding obligations imposed on the same States. The rules prohibiting the threat or use of force, and intervention in matters within the domestic jurisdiction of other States, imply, on the one hand, rights of a State vis-à-vis other States—‘sovereign rights’ intended to protect the respective State’s autonomy under international law. On the other hand, these rules constitute obligations vis-à-vis the other States intended to ensure the sovereign equality of States in their mutual relations. 68  Whether and to what extent these obligations are actually fulfilled is, of course, a different question. It is the answer to that question which decides how wide and deep the gap is between international law and reality, or the legal ownership and the real holding of sovereign equality. It is obvious that the autonomy actually enjoyed by a large majority of States depends on the functioning of an organized international community which patiently strives ‘to replace unlimited and, ultimately, destructive national competition and freedom of action by international co-operation’.172

V.  Sovereign Equality in an Age of Globalization 69  Some authors argue that contemporary international law has surpassed Friedmann’s ‘law of co-operation’. To Christian Tomuschat, for instance, today the international legal order is in the third stage of its development: the law of co-existence and the law of cooperation are followed by a period of ‘international law as a comprehensive blueprint for social life’, (p. 163) the chief characteristic of which is a ‘further intrusion of international law into matters previously thought to be shielded from any outside interference’. In particular, the author emphasizes the obligations imposed on States with regard to human rights, democracy as a form of government, and ‘good governance’.173 He concludes that international law, ‘[i]nstead of being a set of rules limiting and guiding States in their foreign policies,…has become a multi-faceted body of law that permeates all fields of life… [W]e are facing today a totally new international law which has lost all of its former inhibitions’.174 Accordingly, it is stated that juridically little remains of the traditional sovereignty of States. 70  As regards the principle of sovereign equality of States, the development described in those terms can be explained as a further reduction of the space of autonomy accorded to States by international law. In other words, the boundary between matters left to the exclusive control of States, and those which are a concern of the international community and can be regulated by international law, was further moved, extending once more the space of international competence. This shift does not, however, simply amount to a greater restriction of sovereign equality of States. Rather, it involves an increase in importance of the ‘second pillar’ of sovereign equality, namely the rights of participation in the international community. A certain loss of autonomy of States—in particular in the legislative field, but also with regard to the executive and the judicial functions—can thus be offset by increased participatory rights on the international level. That process can be compared to the constitutional development in federal States like Germany or Switzerland, or in the European Union, where the individual member States transferred competences to the Federation or Union, respectively, and gained rights of participation on the federal or Union level.

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71  However, contemporary international law is also regarded as challenged in a different way: globalization has rendered the traditional assumption of an inter-statal society problematic…[It] seems to diminish the role of the state and to open up international society for new actors, both economic and altruistic non-governmental organizations…Some observers…see the state squeezed between globalization from above (business) and below (NGOs)…[G]lobalization has also curbed the belief in the benefit of governmental institutions, be they national or global. Liberals and Neoliberals demand a reconstruction of international law on an interindividual basis.175 72  Whether the partially contradictory aspirations and trends addressed with the catchword of globalization, which are mainly discussed in the current international relations literature, will succeed is yet uncertain.176 But we may well be moving in the direction of (p. 164) a more diverse or fragmented international order in which States—and with them international law as a law principally governing intercourse between States—no longer play the leading role.177 Perhaps there is indeed an international system of ‘interlocking communities’178 looming on the horizon, made up of individuals, organizations (economic and others) and States with overlapping memberships and allegiances.179 73  For the principle of sovereign equality, as a cornerstone of present international law, such a development would raise complex problems which can only be indicated here. Sovereign equality is a principle applying to the relations between States and the organized international community, and between States in their mutual relations. If these relations between ‘public’ actors become less important because of privatization, deregulation (on the national or international level), and a rise of other international actors, the scope of application of the principle of sovereign equality diminishes accordingly. In its space of autonomy under international law, each State is free to remove regulatory controls from economic, social, and other activities; and acting jointly, States may also engage in ‘international deregulation’. It is as yet unclear what forms of new structures and decisionmaking processes could emerge under such changed conditions. Perhaps the concept of equal rights of peoples, already known to international law in connection with the right of self-determination, could take over some of the functions until now performed by the principle of sovereign equality of States—especially the function of giving individuals and groups a possibility of ‘mak[ing] a difference in a structured political space’.180

F.  The Untamed Side of Sovereignty 74  In international law, sovereignty is studied and reflected upon as a legal notion. International lawyers engage in an effort to define its contents and borders, and to relate it coherently to other notions, principles, and rules of international law. Why has this, when we look back on the literature of the past, always been so difficult, much more so than in the case of other legal concepts? 75  Since it was invented, sovereignty has had a strong political dimension—it has, in fact, been more about making claims for a change of the status quo, or claims to power, than a careful observation of legal rules. JL Brierly once spoke of ‘the impulse to power that we call sovereignty when we see it manifested in the conduct of states’.181 The international law of co-existence of the past182 was a rather loosely woven fabric, offering States many opportunities for action not, or not strictly, based on the authority of law. (p. 165) In contrast, the present international legal order aspires comprehensively to regulate social life on all levels of governance.183 In this transformed environment, sovereignty of States stands out as a legal concept which exposes one of its flanks to politics and power. ‘It has frequently had to serve as a juridical cover to mere power politics.’184 In other cases, it

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provided, or rather channelled, legal arguments which, having found acceptance by other States, eventually led to a change in the law. What has made the concept especially convenient (or vulnerable) in that respect is a certain blurredness resulting from its long history and the many different uses made of it in the past. In particular, sovereignty’s original meaning as ‘supreme authority’ has asserted an indistinct presence, notwithstanding the efforts—attempts as well as achievements—of legal science to domesticate the notion and define it as the legal autonomy of a State under international law. There is an untamed side of sovereignty—characteristic, one could say, of the international system as a political system sui generis185—which it would be a mistake to ignore in legal analysis. 76  In the late 1920s, Kelsen referred to his time as a transitional period in the history of international law, and saw this character reflected in the ‘contradictions of an international legal theory which in an almost tragic conflict aspires to the height of a universal legal community erected above the individual States but, at the same time, remains a captive of the sphere of power of the sovereign state’.186 The UN Charter was a bold effort to end this transitional stage in favour of a lasting international constitutional order no longer dependent on the capriciousness of sometimes well-meaning, sometimes egoistic States. But more than sixty years after the ‘constitutional moment’187 which gave rise to the Charter, the contradictions Kelsen spoke of have not completely disappeared. As long as there is an international State system as we know it (and this author does not envisage it vanishing any time soon), not only governments but also legal scholars will continue to construct their images of sovereignty as they see fit in changing conditions of international life.

Footnotes: 1

  For the history of the idea of sovereignty, see, generally H Quaritsch, Staat und Souveränität (Athenäum 1970), FH Hinsley, Sovereignty (2nd edn, CUP 1986) and HH Hofmann (ed), Die Entstehung des modernen souveränen Staates (Kiepenheuer & Witsch 1967); for the etymology of the word see D Klippel and H Boldt, ‘Souveränität’ in O Brunner and others (eds), Geschichtliche Grundbegriffe: historisches Lexikon zur politisch-sozialen Sprache in Deutschland, vol 6 (Klett-Cotta 1990). For a fresh look by a political scientist at the history of sovereignty in political practice, offering an analysis of a whole spectrum of mechanisms of intervention made use of by the major powers since the nineteenth century, see SD Krasner, Sovereignty: Organized Hypocrisy (Princeton UP 1999). 2

  See U Bermbach, ‘Widerstandsrecht, Souveränität, Kirche und Staat: Frankreich und Spanien im 16. Jahrhundert’ in I Fletscher and H Münkler (eds), Pipers Handbuch der politischen Ideen, vol 3 (Piper 1985) 101ff, 134; M Stolleis, Geschichte des öffentlichen Rechts in Deutschland, vol 1 (Beck 1988) 170–86; JH Franklin, ‘Sovereignty and the Mixed Constitution: Bodin and his Critics’ in JH Burns and M Goldie (eds), The Cambridge History of Political Thought: 1450–1700 (CUP 1991) 298–328; D Baranger, ‘The Apparition of Sovereignty’ in H Kalmo and Q Skinner (eds), Sovereignty in Fragments: The Past, Present and Future of a Contested Concept (CUP 2010) 47–63. For a new translation of Bodin’s famous work, see J Bodin, On Sovereignty: Four Chapters from ‘The Six Books of the Commonwealth’ (JH Franklin ed and tr, CUP 1992). 3

  See W Euchner, ‘Thomas Hobbes’ in I Fletscher and H Münkler (eds), Pipers Handbuch der politischen Ideen, vol 3 (Piper 1985) 353ff; N Malcolm, ‘Hobbes’ in JH Burns and M Goldie (eds), The Cambridge History of Political Thought: 1450–1700 (CUP 1991) 530–45; M Goldie, ‘The Reception of Hobbes’ ibid, 589–615; H Münkler, Thomas Hobbes (CampusVerlag 1993) 138–56; P Schröder, ‘Völkerrecht und Souveränität bei Thomas Hobbes’ in M Peters and P Schröder (eds), Souveränitätskonzeptionen: Beiträge zur Analyse politischer Ordnungsvorstellungen im 17. bis zum 20. Jahrhundert (Duncker & Humblot 2000) 41–57;

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Q Skinner, ‘The Sovereign State: A Genealogy’ in H Kalmo and Q Skinner (eds), Sovereignty in Fragments: The Past, Present and Future of a Contested Concept (CUP 2010) 26–46. 4

  See eg WG Grewe, The Epochs of International Law (de Gruyter 2000) 163–81.

5

  See eg A Verdross and B Simma, Universelles Völkerrecht (3rd edn, Duncker & Humblot 1984) para 24. 6

  See A Bleckmann, ‘Das Souveränitätsprinzip im Völkerrecht’ (1985) 23 AVR 450–77, 456– 57. 7

  See C Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’ (1999) 281 Rec des Cours 1, 167–68. 8

  See Case of the S.S. ‘Lotus’ (France v Turkey) (Merits) [1927] PCIJ Rep Ser A, No 10, 18: ‘International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.’ See also Case of the S.S. ‘Wimbledon’ (United Kingdom, France, Italy, Japan v Germany) (Merits) [1923] PCIJ Rep Ser A, No 1, 24: ‘[L]ike all restrictions or limitations upon the exercise of sovereignty, this servitude must be construed as restrictively as possible and confined within its narrowest limits.’ 9

  See Case of the S.S. ‘Wimbledon’ (United Kingdom, France, Italy, Japan v Germany) (Merits) [1923] PCIJ Rep Ser A, No 1, 25: ‘The Court declines to see in the conclusion of any Treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty. No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. But the right of entering into international engagements is an attribute of State sovereignty.’ 10

  See Hinsley (n 1) 230.

11

  See W Friedmann, The Changing Structure of International Law (Stevens 1964) 62. Six years after the publication of Friedmann’s book, the GA proclaimed, in its Friendly Relations Declaration of 1970, the duty of States ‘to co-operate with one another, irrespective of the differences in their political, economic and social systems,…in order to maintain international peace and security and to promote international economic stability and progress, the general welfare of nations and international co-operation free from discrimination based on such differences’. 12

  See also A Bleckmann, Völkerrecht (Nomos 2001) 60–71.

13

  See ‘Lotus’ Case (n 8), at 18ff: ‘[A State] may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.’ 14

  For text of the award, see (1928) 22 AJIL 867–912, quotation at 875; 2 United Nations Report of International Arbitral Awards (UNRIAA) 829ff, quotation at 838 (emphasis added). 15

  See A Bleckmann, Grundgesetz und Völkerrecht (Duncker & Humblot 1975) 264–73.

16

  See H Triepel, Völkerrecht und Landesrecht (Hirschfeld 1899), and id, ‘Les rapports entre le droit interne et le droit international’ (1923-I) 1 Rec des Cours 77–121. For the

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present importance of Triepel’s theory, see B Fassbender, ‘Triepel in Luxemburg’ (2010) 63 DÖV 333–41. 17

  For the treaty-making power of the member states of the Swiss and the German federal State, see B Fassbender, Der offene Bundesstaat: Studien zur auswärtigen Gewalt und zur Völkerrechtssubjektivität bundesstaatlicher Teilstaaten in Europa (Mohr Siebeck 2007) 44ff, 201ff. 18

  See Verdross and Simma (n 5) paras 423ff, 439; Friedmann (n 11) 232–42, 245–49.

19

  See B Fassbender, ‘Die Völkerrechtssubjektivität internationaler Organisationen’ (1986) 37 Österr ZöRVR 17–49, 18–25. 20

  See O Kimminich, Einführung in das Völkerrecht (6th edn, Francke 1997) 66.

21

  See Hinsley (n 1) 217.

22

  See G Butler, ‘Sovereignty and the League of Nations’ (1920–21) 1 BYIL 35–44, 42.

23

  See B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Rec des Cours 217, 230–33. 24

  For an exposition of shifts in the understanding of external sovereignty ‘in the age of cooperative international law’, see Bleckmann on Art. 2 (1) (1st edn) MN 29–42. 25

  Treaty of Paris Establishing the European Coal and Steel Community (signed 18 April 1951, entered into force 24 July 1952) 261 UNTS 140, Preamble. For the historical context, see eg B Fassbender, ‘Zur staatlichen Ordnung Europas nach der deutschen Einigung’ (1991) 46 EA 395–404, 397. 26

  See L Gross, ‘The Peace of Westphalia, 1648–1948’ (1948) 42 AJIL 20–41, 33. See also B Fassbender, ‘Die verfassungs- und völkerrechtsgeschichtliche Bedeutung des Westfälischen Friedens von 1648’ in I Erberich and others (eds), Frieden und Recht: 38. Tagung der Wissenschaftlichen Mitarbeiterinnen und Mitarbeiter der Fachrichtung “Öffentliches Recht” (Boorberg 1998) 9–52, 21–33; H Steiger, ‘Der Westfälische Frieden—Grundgesetz für Europa?’ in H Duchhardt (ed), Der Westfälische Friede: Diplomatie, politische Zäsur, kulturelles Umfeld, Rezeptionsgeschichte (Oldenbourg 1998) 33–80, 67–71; B Fassbender, ‘Westphalia, Peace of (1648)’ MPEPIL (online edn). 27

  See E de Vattel, Le droit des gens, ou principes de la loi naturelle, appliqués à la conduite et aux affaires des Nations et Souverains (1758). Translated as The Law of Nations, or the Principles of Natural Law, applied to the Conduct and to the Affairs of Nations and of Sovereigns by CG Fenwick, The Classics of International Law (Carnegie Institution 1916) quotation at 7. For a summary of Vattel’s principal ideas, see A Nussbaum, A Concise History of the Law of Nations (Macmillan 1954) 156–64, and E Reibstein, Völkerrecht: Eine Geschichte seiner Ideen in Lehre und Praxis, vol 1 (Alber 1958) 571–609. See also E Jouannet, Emer de Vattel et l’émergence doctrinale du droit international classique (Pedone 1998), English translation as Vattel and the Emergence of Classic International Law (Hart Publishing 2009). In 1825, Vattel was echoed by the US Supreme Court Chief Justice John Marshall: ‘No principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights.’ See The Antelope, 23 U.S. (10 Wheat.) 66, 122 (1825). 28

  See T Hobbes, Leviathan (1651) (CB Macpherson ed, Penguin Books 1968) 1, ch XIII. For the history of the notion of equality in the modern age, see O Dann, ‘Gleichheit’ in O Brunner and others (eds), Geschichtliche Grundbegriffe: historisches Lexikon zur politischsozialen Sprache in Deutschland, vol 2 (Klett-Cotta 1975) 997–1046.

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29

  For text, see SE Morison (ed), Sources and Documents Illustrating the American Revolution 1764–1788 and the Formation of the Federal Constitution (2nd edn, Clarendon Press 1929) 149–51, 149. For an explanation of the historical and philosophical context, see G Kleinheyer, ‘Grundrechte, Menschen- und Bürgerrechte, Volksrechte’ in O Brunner and others (eds), Geschichtliche Grundbegriffe: historisches Lexikon zur politisch-sozialen Sprache in Deutschland, vol 2 (Klett-Cotta 1975) 1047–82. 30

  See Art. V para 4. For text, see Morison (n 29) 178–86, 179.

31

  ‘2 Les peuples sont respectivement indépendants et souverains, quel que soit le nombre d’individus qui les composent et l’étendue du territoire qu’ils occupent. 3 UN peuple doit agir à l’égard des autres comme il désire qu’on agisse à son égard; ce qu’un homme doit à un homme, un peuple le doit aux autres.’ See WG Grewe (ed), Fontes Historiae Iuris Gentium: Sources Relating to the History of the Law of Nations, vol 2 (de Gruyter 1988) 660. See also the Draft Declaration of the member of the National Assembly, Comte de Volney, of 18 May 1790: ‘L’Assemblée déclare solennellement: 1 Qu’elle regarde l’universalité du genre humain comme ne formant qu’une seule et même société dont l’objet est la paix et le bonheur de tous et de chacun de ses membres, 2 Que dans cette grande société générale les peuples et les États considérés comme individus jouissent des mêmes droits naturels et sont soumis aux mêmes règles de justice que les individus des sociétés partielles et secondaires.’ The full draft is reprinted in B Mirkine-Guetzévitch, ‘L’influence de la révolution française sur le développement du droit international dans l’Europe orientale’ (1928) 22 Rec des Cours 299–457, 309. 32

  See Grewe (n 4) 415.

33

  For the history of the ‘European Concert’, see K Wolfke, Great and Small Powers in International Law from 1814 to 1920: From the pre-history of the United Nations (Wrocław 1961) 9–49, and S Verosta, Kollektivaktionen der Mächte des Europäischen Konzerts: (1886–1914) (Verlag der Österreichischen Akademie der Wissenschaften 1988). For the notion of hegemony as a legal term, see, in particular, H Triepel, Die Hegemonie: Ein Buch von führenden Staaten (Graywolf Press 1938; 2nd edn, Kohlhammer 1943). For a review of Triepel’s work against the background of contemporary international relations, see DF Vagts, ‘Hegemonic International Law’ (2001) 95 AJIL 843–48. See also W Abendroth, ‘Großmächte’ in K Strupp and H-J Schlochauer (eds), Wörterbuch des Völkerrechts, vol 1 (de Gruyter 1960) 713–17, and A Randelzhofer, ‘Great Powers’ EPIL II (1995) 618. 34

  See H Mosler, Die Grossmachtstellung im Völkerrecht (Schneider 1949) 22ff.

35

  See L Oppenheim, International Law: A Treatise, vol 1 (6th edn edited by H Lauterpacht, 1947) 244. The eighth edition (1955) retained only the first sentence of this statement (275). 36

  See Wolfke (n 33) 47–78.

37

  See E Dickinson, The Equality of States in International Law (Harvard UP 1920) 334–36.

38

  See eg the formulation in Art. 4 of the Montevideo Convention on the Rights and Duties of States (adopted 26 December 1933, entered into force 26 December 1934) ((1934) 28 AJIL, Supp, 75–78, 76): ‘States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.’ 39

  See Art. 1 (2) of the League of Nations Covenant (adopted 28 June 1919, entered into force 10 January 1920) (Covenant).

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40

  See Art. 5 of the Covenant: ‘Except where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting.’ 41

  See Records of Second Assembly, Meetings of Committees, I, 177–78, quoted in DP Myers, ‘Representation in League of Nations Council’ (1926) 20 AJIL 689–713, 703. 42

  See Art. 4 (1) of the Covenant.

43

  See Wolfke (n 33) 125.

44

  See HW Briggs, ‘Power Politics and International Organization’ (1945) 39 AJIL 664–79, 670. 45

  See para 4. For the text, see (1946–47) UNYB 3, and RM 977 (emphasis added). This declaration of intent can be traced back to the last of President Woodrow Wilson’s ‘Fourteen Points’: ‘The programme of the world’s peace…is this:…XIV. A general association of nations must be formed under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike.’ Address to the US Congress, 8 January 1918; WG Grewe (ed), Fontes Historiae Iuris Gentium: Sources Relating to the History of the Law of Nations, vol 3/1 (de Gruyter 1992) 670ff. 46

  See RM, 111, 120.

47

  See RM, 134.

48

  See RM, 338.

49

  See B Fassbender, ‘Dumbarton Oaks Conference (1944)’ MPEPIL (online edn) MN 6. For the question of including guiding purposes and principles in the Charter, see RM 455–57. 50

  See US Department of State (ed), The United Nations Conference on International Organization: Selected Documents; San Francisco, California, April 25 to June 26, 1945 (US Government Printing Office 1946) 100; (1946–47) UNYB 4–9, 5; RM 1019. 51

  See US Department of State (n 50) 101, and UNCIO III, 623.

52

  Chapter V s C para 1 of the Dumbarton Oaks Proposals.

53

  See RM, 353.

54

  See Art. III of the ‘Declaration of the Rights and Duties of the Nations’ proposed by Cuba: ‘All states are equal before the law, and each one has the same rights as any other which is a member of the international community. In the same way, all states have the right to claim and to assume, among the powers of the world, the equal and independent position to which they are entitled by natural and divine laws.’ (US Department of State (n 50) 103). See also amendment offered by Ecuador: ‘… should act in accordance with the following principles: 1. The juridical equality of all sovereign states as an expression of their identical significance before the common law which governs their reciprocal relations and as a means for correcting and repairing any practical or political inequality which may be interposed between them’ (US Department of State (n 50) 106; UNCIO VI, 561). For the proposals submitted by Belgium and Honduras, see UNCIO VI, 300 and 541, respectively. 55

  See amendment offered by Peru: ‘The Organization is based on the principle of the sovereign equality of all peace-loving states, under international order, which is constituted essentially by respect for the personality of the states, with its attributes of sovereignty, independence, and territorial integrity, and by the faithful observance of international treaties’ (US Department of State (n 50) 109; UNCIO VI, 566). See also amendment offered by Uruguay: ‘The Organization is based on the essential principles, (a) of the juridical equality of all its members; (b) of the maintenance of their political independence and

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territorial integrity, and of the rights inherent in their full sovereignty’ (US Department of State (n 50) at 110; UNCIO VI, 567). 56

  See US Department of State (n 50) 106ff. These proposals related to Chapter II para 2, of the Dumbarton Oaks Proposals. 57

  See ibid, 110 and UNCIO III, 535, 536.

58

  See US Department of State (n 50) 107.

59

  See Summary Report of Eighth Meeting of Committee I/1, 17 May 1945, UNCIO VI, 310. See also Summary Reports of Seventh Meeting, 16 May 1945, ibid, 303, 304, and of Eleventh Meeting, 4 June 1945, ibid, 331ff. 60

  ibid (Eighth Meeting), 311.

61

  See Text of Chapter II as Agreed upon by the Drafting Committee, 28 May 1945; UNCIO VI, 687. 62

  See Report of Rapporteur of Sub-committee I/1/A to Committee I/1: Chapter II, 1 June 1945; UNCIO VI, 717ff. See also RM, 672. 63

  See n 54.

64

  See Summary Report of Eleventh Meeting of Committee I/1, 4 June 1945; UNCIO VI, 331ff. 65

  See Report of Rapporteur of Committee I to Commission I, 9 June 1945; UNCIO VI, 387ff, 397ff. See also report of the same to Commission I, 13 June 1945; UNCIO VI, 446ff, 457. In this version, the introductory sentence read: ‘The Committee voted to use the terminology “sovereign equality” on the assumption that it includes the following elements.’ Paragraph 2 was phrased: ‘… that each state enjoys the right [sic] inherent in full sovereignty’. 66

  See n 55.

67

  ch II (‘Principles’), para 4 of the Dumbarton Oaks Proposals had only referred to a ‘threat or use of force in any manner inconsistent with the purposes of the Organization’. Australia had proposed the following wording: ‘All members of the United Nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any member or state, or in any other manner inconsistent with the purposes of the United Nations.’ See US Department of State (n 50) 101. 68

  See Verbatim Minutes of Second Meeting of Commission I, 15 June 1945; UNCIO VI, 65ff, 71. 69

  See Revision of Technical Committee Text Suggested by the Secretariat as Submitted to the Coordination Committee, 14 June 1945; UNCIO XVIII, 117ff. In this draft, the Article was entitled ‘Principles and Obligations’, and opened with the following preamble: ‘In pursuit of the high purposes declared above, the members of the United Nations, mutually recognizing their sovereign equality, hereby obligate themselves to act in accordance with the following principles in the conduct of their international affairs’ (emphasis added). The notion of sovereign equality did not appear in the Principles themselves. 70

  See Summary Report of the Twenty-second Meeting of Coordination Committee, 15 June 1945; UNCIO XVII, 141ff, 144ff. 71

  For text of the resolution, see (1947–48) UNYB 216, and (1950) 44 AJIL Supp 13ff.

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72

  UN Doc A/285. See further (1946–47) UNYB 176–77, and Memorandum of the Secretary-General, ‘Preparatory Study concerning a Draft Declaration on the Rights and Duties of States’ (1948) UN Doc A/CN.4/2. 73

  See the ‘Declaration of the Rights and Duties of Nations’ adopted by the American Institute of International Law in 1916, (1916) 10 AJIL 212–13; the projects of conventions about a ‘Declaration of the Rights and Duties of Nations’ and about ‘Fundamental Rights of American Republics’, submitted by the American Institute of International Law to the Governing Board of the Pan American Union, 2 March 1925, (1926) 20 AJIL Supp 311–13; the (Pan American) Convention on Rights and Duties of States (signed at Montevideo, 26 December 1933, entered into force 26 December 1934) (1934) 28 AJIL Supp 75–78; the Agreement on Inter-American Reciprocal Assistance and Solidarity (Act of Chapultepec), signed 8 March 1945, CI Bevans (ed), Treaties and Other International Agreements of the United States of America: 1776–1949, vol 3 (US Government Printing Office 1969) 1024–27; and the Charter of the Organization of American States, signed at Bogotá 30 April 1948; (1952) 46 AJIL Supp 43–65. 74

  See Report of the ILC covering its First Session, 12 April–9 June 1949, GAOR 4th Session Supp No 10 UN Doc A/925; (1950) 44 AJIL Supp 1–21, 13–21 (text of Draft Declaration ibid, 15–18, and in (1948–49) UNYB 948ff). 75

  (1950) 44 AJIL Supp 16ff.

76

  ibid, 20.

77

  ibid, 15 fn 21.

78

  Draft Declaration on Rights and Duties of States, UNGA Res 375 (IV) (6 December 1949) UN Doc A/RES/375(IV); (1948–49) UNYB 948, and (1950) 44 AJIL 259ff. For a summary of discussions in the Sixth Committee and the GA, see (1948–49) UNYB 946–48. 79

  For text, see (1970) UNYB 788ff. For commentaries, see R Rosenstock, ‘The Declaration of Principles of International Law Concerning Friendly Relations: A Survey’ (1971) 65 AJIL 713–35; G Arangio-Ruiz, ‘The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations’ (1972) 137 Rec des Cours 419–742, 528–77; M Sahovic, ‘Codification des principes du droit international des relations amicales et de la coopération entre les Etats’, ibid, 243–310; B Graf zu Dohna, Die Grundprinzipien des Völkerrechts über die freundschaftlichen Beziehungen und die Zusammenarbeit zwischen den Staaten (Duncker & Humblot 1973). 80

  See Tomuschat (n 7) 163ff. See also the Case Concerning Military and Paramilitary Action In and Against Nicaragua (Nicaragua v United States of America) (Judgment) [1986] ICJ Rep 14ff, 107: ‘the Declaration…which set out principles which the General Assembly declared to be “basic principles” of international law’. 81

  See MN 29–30.

82

  See MN 25.

83

  See also, preceding the Friendly Relations Declaration, the Declaration on Inadmissibility of Intervention in Domestic Affairs of States and Protection of their Independence and Sovereignty, UNGA Res 2131 (XX) (21 December 1965) UN Doc A/RES/ 2131(XX), (1965) UNYB 94ff, and, following it, the Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, Annex to UNGA Res 36/103 (9 December 1981) UN Doc A/RES/36/103, (1981) UNYB 147 (adopted against the votes of the Western States).

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84

  See eg Tomuschat (n 7) 184ff, and A Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2005) 211ff. 85

  Charter of Economic Rights and Duties of States, UNGA Res 3281 (XXIX) (12 December 1974) UN Doc A/RES/3281(XXIX); (1974) UNYB 402ff. 86

  See MN 55–56.

87

  See ibid.

88

  Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 224ff, 263. 89

  ibid, 277, 278 (Declaration Judge Shi).

90

  ibid, 305, 306ff (Separate Opinion Judge Fleischhauer).

91

  ibid, 429ff, 541 (Separate Opinion Judge Weeramantry).

92

  Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 249ff, 308, 311 (Separate Opinion Judge Ignacio-Pinto). 93

  Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 556ff, 576 (Separate Opinion Judge Koroma). 94

  Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania) (Judgment) [1949] ICJ Rep 1ff, 35. 95

  Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 14ff, 106.

96

  Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Request for the Indication of Provisional Measures: Order of 8 December 2000) [2000] ICJ Rep, para 1. 97

  Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment) [2002] ICJ Rep 35ff, para 14f (Separate Opinion Judge Guillaume). 98

  Certain Criminal Proceedings in France (Republic of the Congo v France) (Request for the Indication of a Provisional Measure: Order of 17 June 2003) [2003] ICJ Rep 102ff, para 23. 99

  Pulp Mills on the River Uruguay (Argentina v Uruguay) (Counter Memorial Uruguay: 20 July 2007) s I B para 2.25. 100

  See MN 31–32.

101

  Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion) (Written Statement of the Government of the Republic of Serbia: 15 April 2009) accessed 12 June 2012, para 418. 102

  Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) [1950] ICJ Rep 65ff, 98, 99ff (Separate Opinion Judge Zoričič). 103

  ibid, 105ff, 109 (Separate Opinion Judge Krylov).

104

  Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Request for the indication of Provisional Measures: Order of 14 April 1992) [1992] ICJ Rep 1ff, 199, 211 (Separate Opinion Judge El-Kosheri). 105

  Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v Malta) [1985] ICJ Rep 13ff, 42ff.

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106

  Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) [1998] ICJ Rep 275ff (Separate Opinion Judge Ajibola). 107

  Interpretation of Peace Treaties [1950] ICJ Rep 79, 84 (Separate Opinion Judge Azevedo). See also ibid, 98, 99ff (Separate Opinion Zoričič), and 105, 109 (Separate Opinion Judge Krylov). 108

  Nicaragua (Nicaragua v United States of America) (Jurisdiction and Admissibility: Judgment) [1984] ICJ Rep 388ff, 558, 625ff (Separate Opinion Judge Schwebel). 109

  Nicaragua (Nicaragua v United States of America) (1984) (Declaration of Intervention of the Republic of El Salvador: Order of 4 October 1984) [1984] ICJ Rep 215ff, 233ff (Dissenting Opinion Judge Schwebel). 110

  Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 170ff, 179. 111

  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 147ff, 239, 248 (Separate Opinion Judge Moreno Quintana). 112

  Effect of Awards of Compensation Made by the UN Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 43ff, 92 (Separate Opinion Judge Levi Carneiro). 113

  See The Oxford English Dictionary, vol 16 (2nd edn, OUP 1989) 77ff.

114

  See MN 22.

115

  See the statement of the Rapporteur of Committee 1, Mr Zeineddine, discussing ‘amendments to determine the meaning of the new term “sovereign equality”’: ‘When the Committee was considering this subject, it passed the article, the paragraph before you as it stands…The term “sovereign equality” was kept as a new terminology.’ Verbatim Minutes of Second Meeting of Commission I, 15 June 1945; UNCIO VI, 65ff, at 69 (emphasis added). 116

  See B Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective (Kluwer 1998) 109ff. 117

  See C Tomuschat, ‘Obligations Arising for States Without or Against Their Will’ (1993) 241 Rec des Cours 195–374, 292. 118

  See Rauschning on Art. 78 MN 2f.

119

  See B Fassbender, The United Nations Charter as the Constitution of the International Community (Nijhoff 2009) 116, 147f. See also the Friendly Relations Declaration (MN 31): ‘All States enjoy sovereign equality’ (emphasis added). 120

  See H Kelsen, ‘The Principle of Sovereign Equality of States as a Basis for International Organization’ (1944) 53 Yale L J 207, 208. See also id, Principles of International Law (Rinehart and Co. 1952) 155–57, 438–44. For Kelsen’s earlier views in the context of his ‘pure theory of law’, see his book Problem der Souveränität 37–40, 187–90, 206–12, 294– 300. See further H Kelsen, ‘The Draft Declaration on Rights and Duties of States: Critical Remarks’ (1950) 44 AJIL 259–76, 268ff, 276. 121

  See also L Wildhaber, ‘Sovereignty and International Law’, in RSJ Macdonald and DM Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (Nijhoff 1983) 442: ‘to regard it [sovereignty] as the aggregate sum of several powers’. But see eg N Mugerwa, ‘Subjects of International Law’ in M Sørensen (ed), Manual of Public International Law (Martins Press 1968) 247–310, 254.

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122

  But see H Steinberger, ‘Sovereignty’ EPIL IV (2000) 500–21, 518: ‘As a juridical status protected by international law, [sovereignty] is embedded within the normative order of this law.’ 123

  See also Wildhaber (n 121) 441: ‘Authoritative writers agree that sovereignty is a relative notion, variable in the course of times, adaptable to new situations and exigencies, a discretionary freedom within, and not from, international law’ (emphasis added). 124

  See MN 25.

125

  See MN 31.

126

  See B Fassbender, ‘Die Gegenwartskrise des völkerrechtlichen Gewaltverbotes vor dem Hintergrund der geschichtlichen Entwicklung’ (2004) 31 EuGRZ 241–56. 127

  See Hinsley (n 1) 232.

128

  See Fassbender (n 116) 111ff.

129

  See C Tomuschat, Human Rights: Between Idealism and Realism (2nd edn, OUP 2008) 21. 130

  UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1.

131

  UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970 preamb para 9. See also UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973(2011) preamb para 4. 132

  See Report of the Secretary-General, ‘Implementing the responsibility to protect’ (2009) UN Doc A/63/677 para 5. 133

  See A Peters, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20 EJIL 513.

134

  See eg FM Deng and others, Sovereignty as Responsibility: Conflict Management in Africa (Brookings Institution 1996); EC Luck, ‘The Responsible Sovereign and the Responsibility to Protect’ in JW Müller and KP Sauvant (eds), Annual Review of United Nations Affairs 2006/2007 (OUP 2008) xxxiii–xliv. For a critical analysis of the term, see G Nolte, ‘Sovereignty as Responsibility?’ (2005) ASIL Proc 389–92. 135

  For an analysis of the different constitutional concepts, see Fassbender (n 119) 27ff, 159ff; DM Johnston, ‘World Constitutionalism in the Theory of International Law’ in RSJ Macdonald and DM Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Nijhoff 2005) 3–29; O Diggelmann and T Altwicker, ‘Is There Something Like a Constitution of International Law? A Critical Analysis of the Debate on World Constitutionalism’ (2008) 68 ZaöRV 623–50. 136

  See Tomuschat (n 117) 209–40; Simma (n 23) 229–84. For a comprehensive study of the idea and reality of the international community in contemporary international law, see AL Paulus, Die internationale Gemeinschaft im Völkerrecht: Eine Untersuchung zur Entwicklung des Völkerrechts im Zeitalter der Globalisierung (CH Beck 2001). 137

  See MN 24–28.

138

  See MN 31–32.

139

  Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 429ff, 526 (Dissenting Opinion Judge Weeramantry). 140

  See Tomuschat (n 7) 189.

141

  For an overview of the contemporary rules of jurisdiction, in particular extraterritorial jurisdiction, see ibid, 195–202. 142

  See Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 14ff, 108.

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143

  cf UK Preuß, ‘Equality of States—Its Meaning in a Constitutionalized Global Order’ (2008–09) 9 Chicago J Intl L 45: ‘[T]he right to be recognized and treated as an equal is nothing other than every state’s right to the recognition of its identity’ (emphasis added). 144

  For the system of governance established by the UN Charter, see Fassbender (n 119) 94ff. 145

  See Tomuschat (n 7) 189ff, and for the category of ‘law-making treaties’ R Jennings and A Watts (eds), Oppenheim’s International Law, vol 1 (9th edn, OUP 2008) 1203–06. In its 1962 Draft Articles on the Law of Treaties the ILC defined a ‘general multilateral treaty’ as ‘a multilateral treaty which concerns general norms of international law or deals with matters of general interest to States as a whole’. 146

  cf Simma (n 23) 325ff.

147

  See eg V Pechota, ‘Equality: Political Justice in an Unequal World’ in RStJ Macdonald and DM Johnston (eds), The Structure and Process of International Law (Nijhoff 1986) 453– 84, 467. 148

  Charter of Economic Rights and Duties of States (12 December 1974) UNGA Res 3281 (XXIX) (12 December 1974) UN Doc A/RES/3281(XXIX); (1974) UNYB 402. 149

  See Fassbender (n 119) 109ff; id, ‘Universality’ in H Volger (ed), A Concise Encyclopedia of the United Nations (2nd edn, Nijhoff 2010) 745–48. 150

  See Conditions of Admission of a State to Membership in the UN (Article 4 of the Charter) (Advisory Opinion) [1947–48] ICJ Rep 57, 71 (Individual Opinion Judge Alvarez). See also the amendments and comments of States concerning Chapter III para 1 of the Dumbarton Oaks Proposals (Selected Documents (n 50) 111ff), and Preuß (n 143) 46 (‘status of active membership’). 151

  The same view was already held with regard to the League of Nations. See W Schücking and H Wehberg, Die Satzung des Völkerbundes, vol 1 (3rd edn, Vahlen 1931) 283; W Strub, Die Mitgliedschaft im Völkerbund (Theodosius-Buchdruckerei 1927) 87–90. 152

  See J Dugard, Recognition and the United Nations (Grotius Publications 1987) 167.

153

  See Fastenrath on Art. 4 MN 8f.

154

  See Fassbender (n 119) 150ff.

155

  See Tams on Art. 6 MN 22–25.

156

  See LM Goodrich and E Hambro, Charter of the United Nations: Commentary and Documents (2nd edn, World Peace Foundation 1949) 100. Similarly PC Jessup, A Modern Law of Nations: An Introduction (Macmillan 1948) 30. 157

  For a fuller explanation of the following train of thought, see Fassbender (n 116) 287– 95. 158

  See Fassbender (n 119) 118ff.

159

  See MN 46–47.

160

  See proposal of 11 May 1945; UNCIO VI, 528.

161

  See TM Franck, The Power of Legitimacy Among Nations (OUP 1990) 177.

162

  Warbrick speaks of a ‘functional’ reason for providing certain States with a preferential status. See C Warbrick, ‘The Principle of Sovereign Equality’ in V Lowe and C Warbrick (eds), The United Nations and the Principles of International Law: Essays in Memory of Michael Akehurst (Routledge 1994) 211, 215. But see Preuß (n 143) 33, who criticizes that the States which were provided with such status in 1945 ‘remain in the position of

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privilege…regardless of whether they still have the capability and willingness to perform the obligations bestowed upon them’. 163

  See MN 57.

164

  See also many other resolutions of the GA to that effect, for instance the Charter of Economic Rights and Duties of States (n 148). 165

  See Oppenheim’s International Law, vol 1 (n 145) 376–79. However, the authors add that ‘in some particular respects a rule of non-discrimination may exist, within limits which are not clear’. 166

  See Tomuschat (n 7) 193; Wildhaber (n 121) 442, 444; A Cassese, International Law (OUP 2001) 110. cf R Kolb, Théorie du ius cogens international: Essai de relecture du concept (Presses Universitaires de France 2001) 115ff, 172–81 (‘la nécessité de distinguer entre ius cogens et ordre public international’). 167

  See Tomuschat (n 7) 193.

168

  See MN 31.

169

  Annex to UNGA Res 37/10 (15 November 1982) UN Doc A/RES/37/10, para I 3; (1982) UNYB 1372ff. 170

  For this term, coined by Friedmann, see MN 10.

171

  See MN 57.

172

  See W Friedmann, ‘General Course in Public International Law’ (1969) 127 Rec des Cours 239–46, at 243. 173

  See Tomuschat (n 7) 63–70.

174

  ibid, 70ff.

175

  See Paulus (n 136) 439, 441, 443. For studies focusing on the issue of sovereignty which support this analysis, see eg RBJ Walker and SH Mendlovitz (eds), Contending Sovereignties: Redefining Political Community (Rienner 1990); JA Camilleri and J Falk, The End of Sovereignty? The Politics of a Shrinking and Fragmenting World (Edward Elgar Publishing 1992); MSM Mahmoud, ‘Mondialisation et souveraineté de l’État’ (1996) 123 JDI 611–62; S Sassen, Losing Control? Sovereignty in an Age of Globalization (Columbia UP 1996); B Badie, UN monde sans souveraineté: Les États entre ruse et responsabilité (Fayard 1999). See also WH Reinicke, Global Public Policy: Governing without Government? (Brookings Institution Press 1998). 176

  For a cautious prognosis, based on historical analysis, ‘that in many respects the contemporary state system is becoming more firmly entrenched rather than declining’, see H Spruyt, The Sovereign State and Its Competitors: An Analysis of Systems Change (Princeton UP 1994) 192. Similarly, in legal perspective, N Schrijver, ‘The Changing Nature of State Sovereignty’ (1999) 70 BYIL 65–98, 95–98. For a more determined judgement, see Krasner (n 1) 223: ‘There is no evidence that globalization has systematically undermined state control or led to the homogenization of policies and structures. In fact, globalization and state activity have moved in tandem.’ 177

  For a sketch of an international legal framework based on a greater diversity of actors, see C Schreuer, ‘The Waning of the Sovereign State: Towards a New Paradigm for International Law?’ (1993) 4 EJIL 447–71. 178

  For this phrase, see J Thompson, Justice and World Order: A Philosophical Inquiry (Routledge 1992) 171, 180, 183. cf Paulus (n 136) 161ff.

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179

  See Paulus (n 136) 446.

180

  For a well-founded warning that discarding sovereignty in favour of a multifaceted, functional-contractual system of rule-making in a diverse international community could lead to larger inequalities in and between societies, and a legitimization of ‘interventionist or otherwise coercive activities in other countries that reflect struggles and dilemmas in politics in the West’, see B Kingsbury, ‘Sovereignty and Inequality’ (1998) 9 EJIL 599–625. 181

  See JL Brierly, ‘The Sovereign State Today’ (1949) in id, H Lauterpacht and CHM Waldock (eds), The Basis of Obligation in International Law and Other Papers (Clarendon Press 1958) 348–57, 352. See also MN 13. 182

  See MN 10.

183

  See MN 69.

184

  See Steinberger (n 122) 501.

185

  See Hinsley (n 1) 229.

186

  See Kelsen (n 120) 320.

187

  See Fassbender (n 119) 86f.

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Ch.I Purposes and Principles, Article 2 (2) Robert Kolb From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — Good faith

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(p. 166) Article 2 (2) The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. … 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. … A.  On the Genesis of Article 2 (2) 1 B.  The Scope and the Interpretation of the Good Faith Requirement 2–15 I.  The Obligation Covered by the Good Faith Clause 2–3 II.  The Addressees of the Obligation 4 III.  The Systematic Setting of Article 2 (2): Its Relation to Articles 1 and 2 (1) 5– 9 IV.  The Purpose-Oriented Interpretation of Article 2 (2): Commitment to Community Objectives 10–15 C.  The Specific Content of the Obligation of Good Faith in the Framework of the Charter 16–21 I.  Good Faith as a General Legal Principle in International Law 16–17 II.  Good Faith as a Directive for Interpretation 18–20 III.  Good Faith as an Element of Constitutional Decision-Making to Secure Cooperation 21 D.  The Application of Good Faith in the UN Practice 22–37 I.  Case Practice 22–31 1.  Voting Rights and Veto Power 23–25 2.  Effects of Recommendations of UN Organs (especially the General Assembly) 26–29 3.  Prohibition of Abuse of Procedure 30–31 II.  Treaty Practice 32–37 E.  Conclusion 38

Select Bibliography D’Amato A, ‘Good Faith’ EPIL II (1995) 599–601. Cavaré L, ‘La notion de bonne foi et quelques-unes de ses applications en droit international public’ (Cours de l’Institut de Hautes Etudes Internationales 1963/64). Cheng B, General Principles of Law—As Applied by International Courts and Tribunals (Stevens 1953) 105.

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Cot JP, ‘La bonne foi en droit international public’ (Cours de l’Institut de Hautes Etudes Internationales 1968/69). Davidsson E, ‘The UN Security Council’s Obligations of Good Faith’ (2003) 15 Florida J Intl L 541. Jovanovic S, Restriction des compétences discrétionnaires des Etats en droit international (Pédone 1988) 203. (p. 167) Kolb R, ‘La bonne foi en droit international public’ (1998) 43 Revue belge de droit international 661. ——— La bonne foi en droit international public (Presses universitaires de France 2000). ——— ‘Aperçus sur la bonne foi en droit international public’ (2001) 54 Rev Hellen de Droit Int 1 and 383. Lachs M, ‘Some Thoughts on the Role of Good Faith in International Law’ in RJ Akkermann and others (eds), Essays in Honour of Röling (Sijthoff 1977) 47. ——— ‘Pacta sunt servanda’ EPIL III (1997) 847–54. Lukashuk I-I, ‘The Principle pacta sunt servanda and the Nature of Obligation under International Law’ (1989) 83 AJIL 513. Mosler H, ‘General Principles of Law’ EPIL II (1995) 511–527. Mössner JM, ‘Vertrauen als Prinzip der Völkerrechtsordnung’ (1979) 3 Politik und Kultur 56. Müller JP, Vertrauensschutz im Völkerrecht (Carl Heymanns 1971). O’Connor JF, Good Faith in International Law (Dartmouth 1991). Panizzon M, Good Faith in the Jurisprudence of the WTO (Hart 2006). Paul V, ‘The Abuse of Rights and Bona Fides in International Law’ (1977) 28 Österr ZöR 107. Rosenne S, Developments in the Law of Treaties 1945–1986 (CUP 1989) 135. Schwarzenberger G, ‘The Fundamental Principles of International Law’ (1955-I) 87 Rec des Cours 290. Sperduti G, ‘Il principio della buona fede e l’ammissione di nuovi membri nelle Nazioni Unite’ (1952) 7 Comunità Internaz 42. Stuyt AM, ‘Good and bad faith’ (1981) 28 NILR 54. Thirlway H, ‘The Law and Procedure of the International Court of Justice 1960– 1989’ (1989) 60 BYIL 7. Verdross A, ‘La bonne foi comme fondement du droit international public’ (1952) 5 Rev Hellen de Droit Int 17. ——— ‘Die bona fides als Grundlage des Völkerrechts’ in DS Constantopoulos and H Wehberg (eds), Essays in Honour of Laun (Girardet 1953) 29. ——— ‘Bona Fides’ in K Strupp and HJ Schlochauer (eds), Wörterbuch des Völkerrechts, vol 1 (de Gruyter 1960) 223. ——— Die Quellen des universellen Völkerrechts (Rombach 1973). Verdross A and Simma B, Universelles Völkerrecht (3rd edn, Duncker & Humblot 1984). Von der Heydte F, ‘Die bona fides und die einzelne Rechtsnorm’ (1961) 11 Österr ZöR 364. White G, ‘The Principle of Good Faith’ in V Lowe and C Warbrick (eds), The United Nations and the Principles of International Law, Essays in Honour of M. Akehurst (Routledge 1994) 230. Yakemtchouk R, La bonne foi dans la conduite internationale des Etats (Ed Techniques et Economiques 2002). Zoller E, La bonne foi en droit international public (Pedone 1977).

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——— ‘La bonne foi en droit international public’ in Travaux de l’Association H.Capitant, La bonne foi, vol 43 (Pedone 1994) 569.

A.  On the Genesis of Article 2 (2)* 1  The principle of Art. 2 (2), and in particular the clause ‘in good faith’, was proposed as a constitutional principle of the new world Organization by several Latin American States at Dumbarton Oaks and sponsored at the San Francisco Conference by the delegate of Colombia, Prof Yepes. He declared that the principle constituted the leitmotif (p. 168) of the new footing upon which relations between States were to be built. He stated that it was dangerous to be content with a merely formal, legalistic obedience towards the obligations laid down in the Charter. The Colombian delegate emphasized: ‘The United Nations…must proclaim that international life requires a minimum of morality as a normative principle of conduct for peoples. This minimum cannot be anything else than full good faith and respect for the pledged word.’1 Other participants likewise emphasized that the clause meant abandoning legalistic contractual positivism. On the other hand, some delegates failed to understand the specific legal significance of the good faith requirement. Thus, the delegate of the United States thought that the clause was superfluous since it is sufficient that the obligations assumed are fulfilled without regard for the spirit in which performance took place.2 However, when Prof Rolin, representing the Romanist tradition, explained to the delegates the sense of the good faith requirement, ie the necessity to fulfil an obligation according to the spirit of the undertaking and not merely with regard to the letter, the amendment seeking to introduce good faith in the wording of Art. 2 was accepted unanimously and even with strong support by its former opponents.3 Therefore, even if the initial inspiration had a strong moral touch,4 the explanations with respect to the primacy of the spirit over the letter show that the good faith principle of the Charter also received a specifically legal significance.

B.  The Scope and the Interpretation of the Good Faith Requirement I.  The Obligation Covered by the Good Faith Clause 2  First of all, Art. 2 (2) lays down the obligation for all members of the UN to fulfil their obligations ‘in accordance with the present Charter’. 3  The members are called upon to fulfil all the obligations under international law that can be reconciled with the law of the Charter. This interpretation becomes important because of the idea that not only the fulfilment of the Charter obligations, but also the observation of other rules, especially those of general international law, serve the goals (p. 169) of peace and cooperation in accordance with Art. 1 of the Charter. The Charter obligations as well as other obligations of international law in accordance—or at least not incompatible—with the Charter, have to be regarded as duties resulting from membership. They therefore fall within the reach of Art. 2 (2).

II.  The Addressees of the Obligation 4  Good faith is not exclusively an obligation incumbent upon the member States. It is a principle from which duties flow for all the organs of the Organization.5 Thus, the ICJ has held that certain duties of cooperation in good faith applied to Egypt as the host State as 67 well as to the World Health Organization.6,7 Good faith also regulates the relationships between the organs of the Organization. It gives rise to a duty of fairness, respect, and mutual cooperation, and a duty to take account of the juridical acts of the various organs among themselves.8 Good faith finally also applies to the relationships between the Organization and its staff members.9 As has been noted by the Administrative Tribunal of the Organization of American States in the Uehling Case (1974), good faith lies at the root

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of the contractual bonds between the Organization and its employee.10 Several obligations have been derived from that general principle: the prohibition of abuse of power or of procedure (détournement de pouvoir);11 the duty to protect legitimate expectations;12 the duty to respect promises;13 the applicability of estoppel;14 or of the doctrine of qualified silence (acquiescence).15

III.  The Systematic Setting of Article 2 (2): Its Relation to Articles 1 and 2 (1) 5  1. The introductory sentence of Art. 2 establishes a clear connection with the Purposes of the UN according to Art. 1: in order to realize the Purposes of Art. 1, the principle of good faith must be complied with. This link provides a particular aim and a direction for such a broadly stated obligation as acting in good faith. 6  The legal effects of the phrase ‘in order to ensure to all of them the rights and benefits resulting from membership’ is disputed. The clause in question acknowledges that the Purposes of the Charter as laid down in Art. 1 can only be achieved if all members fulfil (p. 170) their obligations under the Charter in good faith. The entire para 2 describes the sole condition under which the Charter can achieve its purpose and work for the benefit of all, ie if all members fulfil their obligations under the Charter in good faith. To put it another way, the legal obligations assumed by the members in the context of the Charter are not an end in themselves, but are oriented towards the purpose of the Charter: to ensure that all of them are able to enjoy the benefits of a community of States living in peace in conformity with the law, and showing solidarity in accordance with the Principles of Art. 1. 7  2. The systematic arrangement and the genesis of Art. 2 indicate that there is an internal connection between the obligation to act in good faith (para 2) and the guarantee of the sovereign equality of all States (para 1). The official report of Committee I at San Francisco states that the expression ‘sovereign equality of all Members’ in Art. 2 (1) was chosen on the understanding and on the condition that while each State enjoyed the rights inherent in full sovereignty, each member was, on the other hand, required to comply faithfully with international duties and obligations.16 8  The good faith clause was therefore intended to blunt the principle of sovereignty, which undermined the foundations on which the existence of the community arrangements was based. In legal terms, this means that no State can invoke its sovereignty in order to evade its international obligations as determined by the duty of good faith and in accordance with the Charter. 9  This link is again confirmed by the Friendly Relations Declaration (UNGA Res 2625 (XXV) (24 October 1970)). Among the elements that constitute the principle of sovereign equality, the Declaration mentions the following principle: (f) Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States. The passage leads on to the Principle of Art. 2 (2) of the Charter; this link once again confirms the connection described.

IV.  The Purpose-Oriented Interpretation of Article 2 (2): Commitment to Community Objectives 10  The decisions of international courts show that good faith develops particular legal effects wherever States have a qualified relationship of confidence with one another, such as, inter alia, in the context of an arbitral or border adjustment procedure, or a protectorate-like relationship.17 These effects consist of increased obligations to show mutual consideration and an increased responsibility for the confidence that has developed

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with regard to achieving the common objective. Thus good faith may develop specific legal meanings according to the subject-matter to which it applies. 11  The relations between the members of an international organization constitute a qualified relationship of confidence as previously mentioned. The more intensive the (p. 171) cooperation, and the more comprehensive the objectives, the more it is necessary that its legal constitution should also include obligations to cooperate in good faith within the context of the aims and procedures agreed upon. Recourse to general principles of cooperation and mutual consideration, beyond what is required in a strictly legalistic sense, becomes necessary. The obligation to act in good faith obliges the members to fulfil the legally relevant expectations that could be placed on their future mutual conduct with regard to community objectives on the occasion of their accession to the organization (or upon its foundation). This especially applies to the members of an organization with such extensive and fundamental objectives as the UN. 12  In the law of the UN, the principle of good faith is thus objective in nature.18 In the awareness of the State organs acting in each case, what matters is less the subjective integrity and more the objective orientation of their conduct towards the meaning and spirit of the community objectives agreed upon.19 As has already been explained, this results, among other things, from the formulation of Art. 2 (2) of the Charter, which draws attention to the community purpose of the obligation of good faith (‘in order to ensure to all of them the rights and benefits resulting from membership’). 13  The function of the good faith clause must also be examined by paying particular attention to the conditions of the legal/institutional design of the UN Organization, which is in some respects precarious. This can be seen, for example, from the fact that no organ is competent to interpret the Charter in a manner that is binding on other organs.20 Conflicts between the individual organs of the Organization or between members and the Organization on the interpretation of the Charter cannot be solved, as in a State with a unitary structure, by the final decision of a supreme organ in the last instance.21 The function of the clause can therefore also be seen in the fact that it calls for (p. 172) a willingness to cooperate as promised wherever it becomes apparent that there are gaps or even simply inadequacies in the institutional structure. Even in quite general terms, such a willingness is of increased—indeed of existential—importance for a legal system that substantially cannot rely on a hierarchically closed structure of decision-making, and which has no power to enforce its instructions by means of a uniform sanction. An organization with such comprehensive aims and yet which is so little secured in institutional terms is particularly dependent on the need to renew continually the consensus among the members to cooperate and to accommodate themselves to one another. 14  In this sense, the good faith clause is a realistic expression of the conditions for the existence of the communal body. The fact that the principle of good faith is emphasized among the fundamental principles of the organizational law of the UN creates an awareness of the limits of technical rules and terminology, and at the same time attempts to mitigate them by appealing to the members’ loyalty towards the community objectives agreed upon. One might say that the legal principle of good faith constitutes the enzyme in the organism of the institution, without which it would not be viable.22 The appeal for action in good faith is intended as a constant reminder that a set of treaties with such comprehensive objectives as those of the UN does not survive merely on the strength of the terms used and on its individual provisions, but only achieves its reality via the communal will of its members, for which there is ultimately no guarantee. Where, in a concrete case, there is no fundamental consensus among the community of nations on what is to be a legal obligation, or where the

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will to cooperate gives way to the overpowering weight of individual national interests, the substantial basis of the organization breaks down, even if the outward legality is preserved. 15  The weakness of the good faith clause, which is emphasized by some authors,23 is not so much a weakness of the legal concept, but rather an expression of the permanent risk to the community spirit to which it refers.

C.  The Specific Content of the Obligation of Good Faith in the Framework of the Charter I.  Good Faith as a General Legal Principle in International Law 16  According to the predominant opinion and practice, the principle of good faith is a general principle in international law.24 Article 2 (2) integrates it into the law of the Charter but gives it a more specific and objective meaning with regard to the community-oriented (p. 173) aims of the Organization. Article 2 (2) combines moral ideas on correct action (honesty, seriousness, loyalty) and strictly legal contents (eg a ban on the abuse of legal rights).25 17  Good faith is not merely a general and abstract principle.26 Practice and legal writings have determined a series of concrete, partial legal contents of the principle, which have developed into operational rules of international law. These partial legal contents are concretizations of the general principle of good faith.27 These include certain rules of the law of treaties (see MN 33) and the concepts of acquiescence, estoppel, or the prohibition of abuse of rights which can today be regarded as generally recognized rules of international law.28

II.  Good Faith as a Directive for Interpretation 18  The emphasis of the rule laid down in para 2 is on the requirement to fulfil the Charter obligations (or other obligations under international law) ‘in good faith’. In other words, it is concerned with a particular method of fulfilling obligations. This excludes a merely formalistic understanding of law in which too much attention is paid to the letter of the law. The duty of one member towards another or towards the Organization under the Charter is not to be determined according to purely formal criteria, based on the letter of the law, but rather according to the principle of good faith, which alone gives the treaties the elasticity that is indispensable for implementation in concrete situations. 19  Paragraph 2 not only lays down how to fulfil legal obligations that can be precisely determined but it also establishes a particular method of determining obligations in a particular case. The clause contains a directive on the way to establish the concrete obligations of membership within the framework of the Charter, and not only the requirement that these be fulfilled in a particular manner, ie in good faith. 20  At the same time, this good faith requirement commits the member States to selfrestraint. This is particularly true for the frequent occurrence of auto-interpretation of the constituent instrument of the Organization and of obligations incurred under it by the member States. Thus, for example, States must act carefully when they claim the ultra vires character of acts of the Organization in order to further their own position.29

III.  Good Faith as an Element of Constitutional Decision-Making to Secure Cooperation 21  As has been said (see MN 12f), the good faith requirement has within international organizations a mainly objective and finalistic character. It offers a legal basis for the duty imposed on the members to seek to cooperate and conciliate themselves with a view to accomplishing common aims. In the light of the requirements of the Organization and the practical problems with which it has to deal, good faith can provide a juridical (p. 174) starting-point from which specific obligations in relation to decision-making by the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Organization can be developed, thus overcoming uncertainties or gaps in its constituent instruments. Good faith has in this context the function of assuring the primacy of common aims over manifestations of excessive individualism by States which are incompatible with them. This duty to act in good faith and without abuse of rights has been stressed in different contexts: the admission of new States to the UN in periods of ideological struggle that placed strains on the admission mechanism of the Charter;30 the right of veto;31 the legal consequences flowing from the denunciation of a headquarters’ agreement when there is uncertainty about the delay after which it will take effect.32 Good faith has also been invoked by certain judges of the ICJ as the basis of a duty of a State holding a mandate by the League of Nations to renegotiate its terms within the UN in order to transform it into a trusteeship.33 Good faith could also be invoked as a principle from which constitutional guarantees within the UN System could be deduced and developed with regard to the organs of the Organization, eg in order to require greater equality of treatment for similar cases, increased transparency, prohibition of arbitrary action, a duty of motivate decisions, etc. In this sense, good faith is not only an eminently flexible principle, able to perform most differing functions; it also has a distinctive ‘constitutional’ touch, which has not given rise to significant developments in UN law up to this date, but which contains such potentialities. They could be explored in the future.

D.  The Application of Good Faith in the UN Practice I.  Case Practice 22  There are three important spheres in which the principle has been applied in the constitutional history of the UN.

1.  Voting Rights and Veto Power 23  Within the UN, attention was first drawn to good faith in the context of the admission of new members during the period 1945–55. The ongoing ideological conflicts provoked a halt to new admissions. Each bloc, especially the Soviet Union, feared a growth of the number of politically hostile States within the Organization. In order to overcome this situation, it was thought useful to link the admission of different States and to proceed by simultaneous admission en bloc. The ideological equilibrium of the Organization could thus better be preserved. Confronted with the question of the lawfulness of this policy, the ICJ held that the conditions for admission enumerated in Art. 4 of the Charter were exhaustive and that no other condition (including the ideological equilibrium) could be added to them; it did, however, point out that within the margin of appreciation left for determining if the stated conditions were met, States (p. 175) could take account of any factor ‘which it is possible reasonably and in good faith to connect with the conditions laid down in that article’.34 Good faith therefore sets a limit to the admissible exercise of discretion.35 The principle forbade a State to make its vote dependent on conditions that were not inherently connected with the sense and purpose of the Charter provision to be applied. The fact that the rules are directed to a specific purpose provides a yardstick for deciding what is required by good faith in the individual case.36 24  The objective of a proper functioning of the Organization has also been claimed as a limit to the use of the right of veto.37 Good faith is in such a case the legal vector through which the abuse of the voting right could be sanctioned as being the expression of a policy alien and irreconcilable with the aims of the Organization.38 For obvious political reasons, a satisfactory legal answer to the abuse of the veto could not be found. As the ICJ has no general competence of constitutional review, the law of the Charter remains in this field more than anywhere else a lex imperfecta.

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25  The doctrine of détournement de pouvoir has been applied in the case of less eminently political voting rights. Thus, in the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organisation (Advisory Opinion, 1960), the vote having constituted the Council of the Organization has been scrutinized under the aspect of abuse of rights (détournement de pouvoir).39

2.  Effects of Recommendations of UN Organs (especially the General Assembly) 26  (a) Some authors40 claim that member States which voted in favour of a recommendation are estopped from challenging its binding character at least with regard to themselves. If we take account of the fact that States are aware that they are not engaging (p. 176) themselves legally, and that they are voting in favour of certain resolutions as an expression of political opinion, the view based on a generally applicable estoppel seems excessive.41 But such a conclusion only means that the affirmative vote itself is insufficient for founding an estoppel. Surrounding facts, added to the vote, such as assurances given, declarations explaining the vote, strong references to the resolution as legally important, subsequent practice, etc may well create a legitimate expectation and thus give rise to a preclusion. Moreover, other effects than the full bindingness of the recommendation may flow from an affirmative vote combined with estoppel. Thus, a favourable vote may in itself preclude a State from challenging the procedural validity of the recommendation42 or its status within the Organization. Similarly, States having voted in favour of the resolution may be estopped from raising the illegality of conduct by other States which act in accordance with the resolution, or from raising the domaine réservé exception. One could also think of applying by analogy the principle enshrined in Art. 18 of the Vienna Convention which rests on good faith.43 This would mean that a State might to some extent be bound by its vote at least until the State concerned had publicly, or at least vis-à-vis those member States especially interested, declared its change of attitude, and, where necessary, had given reasons for that change. 27  (b) Good faith44 also implies that member States, and in particular an addressee directly named in a GA resolution, have a certain legal obligation to examine the resolution carefully, and to give reasons for their decision in the event that they should reject the resolution.45 Hersch Lauterpacht, in a Separate Opinion on the ICJ Advisory Opinion (Voting Procedure [1995] ICJ Rep 118ff) stated those principles which have since found broad support in doctrine and inspired some institutional action. For certain authors there is only an obligation to take into account the recommendation, but no duty to disclose reasons for non-application (subject to the existence of specific duties under the (p. 177) constituent instrument).46 One may add that, according to Sir Hersch Lauterpacht a violation of the principle of good faith is more likely in cases of systematic refusal to pay due regard to the recommendations of the UN.47 28  It is important to stress that the extent of the obligation of examination and/or of giving reasons varies according to the solidarities expressed in a certain matter or institution. Their force depends on the more or less strong normative or institutional internationalization to which a branch of social life has been subjected. Thus, for example, particularly strong international solidarities (strengthening the duties under consideration) can be found in the matters of mandates and trusteeships, of labour (ILO), of peace and security, etc. 29  The various reporting systems of several organizations institutionalize the duties formulated by Lauterpacht; the reports comprise sections devoted by member States to explain the measures taken in execution of decisions and recommendations of the organization. Mention can be made of Art. 64 of the Charter which deals with economic and social recommendations of the UN and provides for a reporting system. It may be recalled that the duties of examination and information have been recognized at least since the

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period of the League of Nations; they were raised in the First Commission of the Assembly in 1923 in the context of Art. 10 of the Covenant.48

3.  Prohibition of Abuse of Procedure49 30  Finally, good faith prohibits any abuse of procedure. It consists of the use of instruments or procedural rights by one or more parties for any purposes alien to those for which the procedural rights were established, especially for a fraudulent, procrastinatory, or frivolous purpose, for the purpose of causing harm or obtaining an illegitimate advantage, for the purpose of reducing or removing the effectiveness of some other available process, or for purposes of pure propaganda. The case-law of the ICJ or of the European Court of Human Rights is rich in applications of the concept. Abuse of procedure can take many forms and relate to various subject-matters. Four illustrations may suffice. First, the notion of abuse of rights has been applied to voting questions (see MN 23ff). Second, the notion of abuse of procedure can be found in the context of the right of petition recognized under the mandate system (League of Nations) or the trusteeship system (United Nations).50 Third, procedural motions may be exploited in order to obstruct a meeting: by tabling a flood of amendments or points of order delegates may try to frustrate any constructive discussion.51 Fourth, a State having submitted to the jurisdiction of the ICJ, but having finally lost its case, may be tempted to move to the political organs of the UN in order to evade or to delay the execution of the judgment. Since the competences of political and judicial organs are different, there is no reason to conclude automatically that there has been an abuse of procedure if a political organ is seised after a judicial procedure. But in (p. 178) the presence of elements accrediting a dilatory intent or an attempt to escape obligations flowing from the judgment, the political organ could find in limine that the abuse of procedure is established and thus that the case cannot be heard.52 31  Moreover, good faith displays its distinctive functions, namely the protection of legitimate expectations, estoppel and acquiescence, the prohibition of abuse of rights, and the like in the growing branch of WTO law.53

II.  Treaty Practice 32  The practice of the UN concerning the principle of good faith has been confirmed and given concrete form in various major documents. 33  (a) The principle of good faith is of central importance in the Vienna Convention on the Law of Treaties of 1969. The draft of the Convention was elaborated in the context of the ILC,54 an organ of the UN. The GA convened the Vienna Conference in 1969, and the GA finally gave the Convention its backing in a further resolution calling upon all States to accede to the Convention.55 34  (b) Article 26 of the Convention emphasizes the principle of acting in good faith as the fundamental principle of the law of treaties, and Art. 31 repeats it in the context of interpretation.56 In the commentary of the ILC, it is stated that conduct is contrary to good faith if it tries to evade the actual content of international obligations by merely obeying the literal wording. Good faith forbids contracting parties to behave in any way that is intended to frustrate the meaning and purpose of a treaty. The ILC refers in this connection expressly to Art. 2 (2) of the UN Charter.57 The demand that good faith be shown is aimed not so much at subjective conscientiousness in the fulfilment of treaties, which is a category of subjective morality, but rather it requires conduct that, according to objective criteria, is oriented towards mutual consideration. It demands fulfilment of the treaty in a way that the other party to the treaty may reasonably expect on the basis of the text agreed upon, or, in other words, in such a way as is required by the sense and purpose of the treaty, as understood by the contracting parties in good faith. This objectivity-creating understanding

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of the requirement of good faith gives it a meaning in the light of which various traditional, technical/formal rules of interpretation are finally given their correct sense.58 (p. 179) 35  (c) The important function of the provision of Art. 2 (2) of the Charter is reaffirmed by the GA’s Friendly Relations Declaration (UNGA Res 2625 (XXV) (24 October 1970)). The principle of Art. 2 (2) of the Charter is divided in the operative part of the Declaration into three paragraphs, which go into concrete detail and which take the requirement of acting in good faith beyond the narrow confines of the Charter obligations and extend it successively to the obligations based on general international law and the law of treaties.59 Where the Declaration gives concrete form to the valid law of the Charter, as in the case in point, the legally binding nature of its content must undoubtedly be affirmed. 36  (d) For the field of the law of the sea, reference should be made to the United Nations Convention on the Law of the Sea of 10 December 1982, which contains the following provision (Art. 300): ‘States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.’60 37  (e) In the context of disarmament, Art. VI of the Treaty on the Non-Proliferation of Nuclear Weapons (1968) contains an important appeal to negotiations in good faith: ‘Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament….61 The ICJ recalled this obligation in its Nuclear Weapons Advisory Opinion (UNGA) of 1996.62 This provision contains a pactum de negotiando which was adopted as a sort of package deal: when adopting the Convention, the non-nuclear powers agreed not to acquire such weapons under the condition that those who already possessed them should not eternally profit from their advantage but negotiate, precisely in good faith, a disarmament which would ultimately reinstate equality among the nuclear and non-nuclear powers. This provision has proved too optimistic, since the nuclear powers have been reluctant to follow such a path in an uncertain world. In order to resume fruitful negotiations, confidence-building measures and international control are necessary.63

(p. 180) E.  Conclusion 38  In conclusion, it may be noticed and stressed that in a legal system which lacks centralized law-making and law enforcement, and particularly in a legal sub-system like UN law which is a lex imperfecta in the sense that the sovereignty of States blunts the capacity of strong collective action and also in the sense that no organ of the Organization can impose its view of the law on another, the requirement of good faith is essential for a proper functioning of the law. Since international law is not based on subordination to a higher superior, but rather on coordination between sovereign entities placed on a basis of equality, the law can be effective to a large extent only if and when States fulfil their legal duties and exercise their legal rights bona fide. In this sense, good faith is a vital requirement with which international law and the UN stand and fall.64 This intimate connection between international law and good faith was perceived as early as 1737 by C Van Bynkershoek, a Dutch lawyer oriented towards international practice, when he wrote that without good faith, international law collapses (‘Pacta privatorum tuetur Jus Civile, pacta Principum bona fides. Hanc si tollas, tollis mutua inter Principes commercia…quin et tollis ipsum Jus Gentium’65). The strengths and weaknesses of good faith in a world all too often dominated by power policies are thus a remarkable touchstone and thermometer of the strengths and weaknesses of international law itself, both concepts being indissoluble and intertwined.

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Footnotes: *  The author acknowledges that the following text contains elements of the respective comments on Art. 2 (2) co-authored by Jörg Müller and himself in the previous edition of this commentary. 1

  UNCIO VI, 72.

2

  UNCIO VII, 331–33. Similarly, cf the opinion of Kelsen, according to whom the whole of Art. 2 (2) of the Charter contains nothing more than a tautological explanation with no legal significance. In particular, Kelsen states: ‘The words “in good faith” in Article 2, para 2, too, are superfluous for it is impossible to fulfil an obligation in bad faith’ (Kelsen, 89). This view presupposes—incorrectly and unrealistically, in the opinion of this author—that legal obligations within the Common System can always be determined unambiguously. It overlooks the fact that in the law of the UN, there are not even any procedural guarantees that there will be an authoritative decision in the final instance on the existence or nonexistence of rights and duties (see MN 6 and 17). 3

  UNCIO VI, 74–80. The amendment was proposed by Yepes, the delegate from Colombia. The president of Committee I stated that good faith was ‘a principle of interpretation of obligations. If two interpretations are possible, but one allows a literal carrying out of the obligation which is not consistent with “good faith”, it must be rejected.’ The American delegate emphasized that the principle had ‘the meaning that we are all to observe these obligations, not merely the letter of them, but the spirit of them’. In his capacity as the delegate from Panama, Alfaro commented that the reference to the principle had a special function precisely in those cases in which a document like the Charter contained general provisions laying down the foundations for cooperation in the future with comprehensive objectives. The provision of Art. 2 (2) was adopted unanimously in Committee I. 4

  cf the developments given to the question by Yepes already during the war: JM Yepes, Philosophie du panaméricanisme et organisation de la paix (Baconnière 1945) 266ff. 5

  cf Verdross and Simma, Universelles Völkerrecht (Duncker & Humblot 1984) 47. G Schwarzenberger, International Law—As Applied by International Courts and Tribunals, vol 3 (Stevens 1976) 215. J Spiropoulos, Effect of Awards of Compensation Made by the UNAT [1954] ICJ Pleadings Ser 351. 6

  Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 93–96, 95. 7

  In the same vein, good faith has a directive function when it comes to the qualification of situations giving rise to recommendatory or coercive action of the Organisation. cf T M Franck, ‘Fairness in the International Legal and Institutional System’ (1993-III) 240 Rec des Cours 191, 218–21. G Dahm, Völkerrecht, vol 2 (Kohlhammer 1961) 290. 8

  cf E Klein, ‘Paralleles Tätigwerden von Sicherheitsrat und IGH bei friedensbedrohenden Streitigkeiten’ in Essays in Honour of H. Mosler (Springer 1983) 481ff. 9

  See generally Kolb, La bonne foi (2000) 531ff.

10

  Judgment No 8, 10.

11

  Richard Case (1993) ILOAT Judgment No 1231, 16.

12

  eg in the context of renewal of a fixed-term contract: Levcik Case [1974] UNAT Judgment No 192, 245ff. 13

  Gieser Case (1986) ILOAT Judgment No 782, 4ff.

14

  Banerjee Case (1985) UNAT Judgment No 344, (1985) 31 AFDI 463.

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15

  Waghorn Case (1957) ILOAT Judgment No 28, 7; (1961) 24 ILR 752.

16

  ‘[T]hat each State enjoys the right inherent in full sovereignty’ and ‘that the state should, under international order, comply faithfully with its international duties and obligations’ (UNCIO VI, 446f). The clause ‘faithful compliance’ used in the report undoubtedly refers to the same standard as the expression ‘in good faith’ in Art. 2 (2) of the Charter; this opinion is shared by R R Baxter, Study of the Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, prepared for the office of the legal adviser (US Department of State 1965) 4–27. 17

  cf the comments in J P Müller, Vertrauensschutz im Völkerrecht (Carl Heymanns 1971) 63ff (arbitral procedures), 22f and 43f (border adjustment procedures), 48f (vassalage relationship). 18

  This becomes especially clear in the Dissenting Opinion of Judge Azevedo (Conditions of Admission [1947–48] ICJ Rep 80), where it is stated with regard to the abuse of legal rights, which is related to the principle of good faith: ‘[It] has now been freed from the classical notions of dolus and culpa; in the last stage of the problem an inquiry into intention may be discarded, and attention may be given solely to the objective aspect; ie it may be presumed that the right in question must be exercised in accordance with standards of what is normal, having in view the social purpose of the law.’ 19

  cf the Dissenting Opinion of Judge Azevedo (Competence for the Admission [1950] ICJ Rep 23): ‘by a unanimous vote, the signatories…stressed that the obligation assumed by the Members must be carried out in good faith. That is why the interpretation of the San Francisco instruments will always have to present a teleological character if they are to meet the requirements of world peace, co-operation between men, individual freedom and social progress. The Charter is a means and not an end. To comply with its aims one must seek the methods of interpretation most likely to serve the natural evolution of the needs of mankind.’ 20

  At the San Francisco Conference, a Belgian proposal that differences of opinion between organs of the UN on the interpretation of the Charter should be referred to the ICJ for a binding decision was expressly rejected. On this point the Preparatory Committee IV/2 of the San Francisco Conference stated in its declaration that in the practice of the UN, it would be inevitable that different organs of the organization would, in the course of their activities, arrive at different interpretations of the Charter (cf the debates of 28 May and 7 June 1945, in Committee IV/2, UNCIO XIII, 633f, 653f). 21

  While the political organs of the organization can, in the framework of Art. 96 of the Charter, request the ICJ to give an advisory opinion on questions concerning the interpretation of the Charter, the legal authority of such an advisory opinion is nevertheless disputed. Even in the founding phase of the UN, the opinion was put forward that such an advisory opinion, like any interpretation of the Charter by an individual organ of the UN, was only binding on the others if its binding nature was generally acceptable, otherwise it had no binding force (UNCIO XIII, 703, 709ff). Since there is no procedure that leads to a decision in the final instance on the normative meaning of a provision of the Charter in an individual case, the possibility of conflict remains open, and in the practice of the UN, this has indeed become manifest in the relationship between the political organs and the Court. (On this point, see Müller 231f with fn 14.) 22

  As is also stated by M Virally, ‘Good Faith in Public International Law’ (1983) 77 AJIL 133.

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23

  Zoller stresses the vagueness of the principle of good faith and denies the juridical usefulness of the concept within the framework of the UN Charter, cf CPF/Zoller, 419. Contra Kolb, La bonne foi (2000) 111ff, 501ff. Müller, 227ff. For a juxtaposition of the approaches chosen by Zoller on the one hand and Müller on the other hand cf A M Stuyt, ‘Good and Bad Faith’ (1981) 28 NILR 55f. See also S Rosenne, Developments in the Law of Treaties 1945–1986 (CUP 1989) 171. He speaks of good faith as a topic which ‘on the one hand is not open to serious question, yet on the other hand is imprecise and even fluid, defying formal definition…and lacking what many would regard as necessary attributes of a rule of law. Yet it is a rule of law, and has been so stated not only by the International Court of Justice itself, but also by major international plenipotentiary conferences and by the International Law Commission, throughout the twentieth century.’ 24

  As representatives of a widely held view, cf Verdross and Simma, paras 60f, 601, 645; Lachs, ‘Pacta’, 368; M Virally, ‘Good Faith in Public International Law’ (1983) 77 AJIL 130, 133; Müller, 3; Mosler, ‘General Principles of Law’ EPIL II (1995) 513, 524–25; Zoller, 12, with references to Anzilotti, Basdevant, and Strupp. 25

  On the relationship between these two categories of rules, cf C Tomuschat, ‘Ethos, Ethics and Morality in International Relations’ EPIL II (1995) 120–27. 26

  As claimed eg by Mosler, 513.

27

  See Kolb, La bonne foi (2000) 112ff and Kolb, ‘La bonne foi’ (1998) 31 RBDI 674, 682– 83. 28

  For a detailed analysis, cf J P Müller and T Cottier, ‘Acquiescence’ and ‘Estoppel’ EPIL I (1992) 14–16, vol II (1995), 116–19, and Kolb, La bonne foi (2000) 339ff, 357ff, 429ff, with further reference. On good faith and equity, cf Kolb, ibid, 99ff. 29

  See Kolb, La bonne foi (2000) 507 and notes 46–47.

30

  Conditions of Admission of a State to Membership in the United Nations (Advisory Opinion) [1947–48] ICJ Rep 63 and 91–92, 103, 115. 31

  cf J Spiropoulos, ‘L’abus de droit de vote par un membre du Conseil de Sécurité’ (1948) 1 Rev Hellen de Droit Int 3ff. 32

  Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 93–96. 33

  International Status of South West Africa (Advisory Opinion) (Dissenting Opinion Judge Alvarez) [1950] ICJ Rep 183ff; ibid (Dissenting Opinion Judge De Visscher) 186ff; ibid (Dissenting Opinion Judge Krylov) 191–92. See already Mr Ingles (Philippines) (1950) ICJ Pleadings Ser 249, 271–72. 34

  Conditions of Admission of a State to Membership in the United Nations (Advisory Opinion) [1947–48] ICJ Rep 63. 35

  Conditions of Admission [1947–48] ICJ Rep 57, 63f. In their joint Dissenting Opinion on the ICJ Advisory Opinion, the four Judges Basdevant, Winiarski, McNair, and Read likewise recognize the principle that there is a legal limit to discretion resulting from the fact that the rules to be applied are directed to a specific purpose, and from the supreme principle of loyalty to the Purposes of the UN. A member of the UN ‘must use this power in good faith, in accordance with the Purposes and Principles of the Organization and in such a manner as not to involve any breach of the Charter’ ([1947–48] ICJ Rep 93). See also, to the same effect, the opinion of the Judges Zoricic (103) and Krylov (115). For details on this point cf Müller, 234f and Kolb, La bonne foi (2000) 511ff.

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36

  See G Sperduti, ‘La buona fede e l’ammissione di nuovi membri nelle Nazioni Unite’ (1952) 7 Communità Internaz 47ff, particularly 50–51. 37

  Or, mutatis mutandis, of any preponderant vote in a weighted voting system.

38

  Conditions of Admission Case, Pleading by G Scelle: ‘Il peut également arriver de déceler le détournement de pouvoir dans une situation plus délicate, c’est-à-dire lorsque le représentant de l’Etat qui en use au Conseil de Sécurité ou à l’Assemblée aboutit, par l’usage de sa compétence, à bloquer la possibilité d’action de l’organisme tout entier. C’est alors faire de sa compétence, de son pouvoir juridique, non pas un instrument d’action de l’Organisation des Nations Unies, mais un instrument de paralysie de cette Organisation’ ([1948] Pleadings Ser 77). See also Spiropoulos (n 31). 39

  [1960] ICJ Pleading Ser 77ff, 193ff, 249, 392, 406–08, 418, 439.

40

  There is a powerful body of opinion (eg Schachter, Thürer, Simma, Bleckmann, inter alia), which holds that a State is debarred from invoking vis-à-vis another State the nonbinding nature of an act of a UN organ that is not actually binding in the strictly legal sense, if the first State has voted in favour of that act. cf D Thürer, ‘“Soft Law”—eine neue Form von Völkerrecht?’ (1985) 104 ZSR 445, with further references; O Schachter, ‘The Twilight Existence of Non-Binding Agreements’ (1977) 71 AJIL 296f. Also on these lines: K Bailey, ‘Making International Law in the United Nations’ [1967] ASIL Proc 237; with regard to the Declaration of Human Rights of 1948, cf also E Schwelb, ‘Neue Etappen der Fortentwicklung des Völkerrechts durch die VN’ (1966) 13 AVR 20f. See also G Schwarzenberger, A Manual of International Law (5th edn, Stevens 1967) 117. G Schwarzenberger, International Law—As Applied by International Courts and Tribunals, vol 1 (Stevens & Sons 1957) 51f; vol 2, 47f. The ICJ’s Advisory Opinion on Certain Expenses ([1962] ICJ Rep 151f) can be quoted in support of the thesis that a State cannot plead that an organ of an international organization has exceeded its competences in accordance with the treaty establishing it, if, by voting accordingly or by some other active participation by its delegates, that State has contributed to establishing the practice at issue. In its Advisory Opinion, the ICJ repeatedly emphasizes that the decisive resolutions of the UNGA were adopted without opposition; since, therefore, no State denied at the decisive moment that the actions were legal, no one could later escape the obligations that were thus created for all members ([1962] ICJ Rep 176f). See also the Separate Opinions of Judges Spender and Fitzmaurice, who emphasize in particular that by voting in favour, a State prejudices its position and cannot later invoke the—strictly speaking—non-binding nature of a recommendation ([1962] ICJ Rep 210). 41

  On the whole question, see FB Sloan, ‘General Assembly Resolutions Revisited (Forty Years Later)’ (1987) 58 BYIL 43, 65, 94, 103–04, 123, 140; Kolb, La bonne foi (2000) 518ff. 42

  Certain Expenses (Advisory Opinion) [1962] ICJ Rep 176ff.

43

  Art. 18(a) obliges a State that has signed a treaty requiring ratification not to act in a manner contrary to the aim and purpose of the treaty ‘until it has announced its intention of not becoming a party to the treaty’. 44

  Occasionally, the requirement of acting in good faith is found in the text of the resolution itself, eg in UNGA Res 1598 (XV) (13 April 1961) UN Doc A/RES/1598(XV) on the problems of apartheid in South Africa: ‘The General Assembly Reminds the Government of the Union of South Africa of the requirement in Article 2, paragraph 2, of the Charter that all Members shall fulfil in good faith the obligations assumed by them under the Charter’ (para 6). 45

  See on the question: Kolb, La bonne foi (2000) 521ff.

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46

  Dahm (n 7) 26f; RL Bindschedler, ‘La délimitation des compétences des Nations Unies’ (1963-I) 108 RCADI 346–48. For such a specific provision, see Art. 19(6) of the Constitution of the ILO. 47

  [1955] ICJ Rep 120.

48

  cf La prassi italiana di diritto internazionale, Terza Serie (1919–1925), vol 1 (Rome 1995) 595. 49

  cf on the whole question, Kolb, La bonne foi (2000) 637ff.

50

  E Schwelb, ‘The Abuse of the Right of Petition’ (1970) 3 Human Rights Journal 313ff, 324–26. 51

  cf H G Schermers and NM Blokker, International Institutional Law (3rd edn, Nijhoff 1999) 250, note 390. As an example the discussion on the proposal for a High Commissioner for Human Rights during the 25th session of the General Assembly is mentioned. See also S D Bailey, The General Assembly of the United Nations—A Study of Procedure and Practice (Praeger 1960) 175f. 52

  cf G Salvioli, ‘Les règles générales de la paix’ (1933-IV) 46 RCADI 138f. See also D Ciobanu, Preliminary Objections Related to the Jurisdiction of the United Nations Political Organs (Nijhoff 1975) 139. 53

  For details see M Panizzon, Good Faith in the Jurisprudence of the WTO (Hart 2006).

54

  For details, cf S Rosenne, ‘Vienna Convention on the Law of Treaties’ EPIL IV (2000) 1308–17. 55

  UNGA Res 3233 (XXIX) (12 November 1974) UN Doc A/RES/3233(XXIX); Rosenne (n 54) 1313, draws attention to the special role of the UN in the genesis of the Convention: ‘The solutions adopted at the Vienna Conference were facilitated by the fact that the work was undertaken with very solid political backing from the General Assembly, in which all the permanent members of the United Nations Security Council were associated.’ 56

  According to Art. 26, ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith’; Art. 31 para 1 states: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ 57

  ILC Commentaries on Draft Articles 1966, paras 1, 2, and 5 on Art. 23 ILC Draft (Art. 26 of the Convention) (1966-II) ILC Yearbook 210f. 58

  cf Müller, 128, and on the importance of the principle of good faith in the preliminary stages of concluding treaties, on the handling of the treaty, and on the question of the competence to conclude international treaties, 154f, 17f, 191f; cf also Kolb, La bonne foi (2000) 181ff. R Bernhardt, Die Auslegung völkerrechtlicher Verträge insbesondere in der neueren Rechtsprechung internationaler Gerichte (Heymann 1963) 175f. 59

  The three paragraphs each begin with the words ‘Every State has the duty to fulfil in good faith …’, followed by: (a) a repetition of the wording of the Charter; ‘the obligations assumed by it in accordance with the Charter’; (b) the words: ‘its obligations under the generally recognized principles and rules of international law’; (c) the words: ‘its obligations under international agreements’. 60

  Article 300 emanates from the merger of the Mexican and American proposals at the Conference (cf M H Nordquist (ed), United Nations Convention on the Law of the Sea 1982, A Commentary, vol 5 (Nijhoff 1989) 150–52). It was initially inserted in the part on peaceful

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settlement of disputes and aimed at reaching a compromise regarding the various interests of the several categories of States according to an obligation of mutual due regard. 61

  UNTS 480, 43ff. On the meaning of the term negotiations in good faith, see R Kolb, La bonne foi (2000) 580ff. 62

  [1996-I] ICJ Rep 263–65, paras 98ff.

63

  On the whole question, see eg M Bedjaoui, ‘L’humanité en quête de paix et de développement’ (2006) 324 RCADI 388ff and M Bedjaoui, ‘Keynote Address’, Conference on Good Faith, International Law and Elimination of Nuclear Weapons: The Once and Future Contributions of the ICJ’, 2008 accessed 20 June 2012, 18. 64

  See Verdross and Simma, 46–47.

65

  Quaestionum juris publici, libri duo (1737), lib. II, cap. X.

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Ch.I Purposes and Principles, Article 2 (3) Christian Tomuschat From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — Settlement of disputes — Armed forces — Countermeasures

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(p. 181) Article 2 (3) The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. … 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. … A.  Historical Background 1 B.  Systematic Context 2–7 C.  Elaboration of the Principle of the Peaceful Settlement of Disputes in the Practice of the United Nations 8–17 I.  The Friendly Relations Declaration 8 II.  The Manila Declaration 9 III.  UNGA Resolution 40/9 10 IV.  Declaration on the Prevention and Removal of Disputes and Situations which May Threaten International Peace and Security, and on the Role of the United Nations in this Field 11 V.  United Nations Decade of International Law 12–14 VI.  Millennium Declaration 15 VII.  World Summit Outcome 16 VIII.  The Rule of Law 17 D.  The Scope of Application ratione personae 18–22 I.  Member States of the United Nations 18 II.  Third States 19 III.  United Nations 20–21 IV.  Other International Organizations 22 E.  The Substance of Obligation 23–26 I.  Legally Binding Effect 23 II.  Content 24 III.  Obligation of Conduct 25 IV.  Ius Cogens? 26 F.  International Disputes 27–35 I.  Disputes and Situations 27–28 II.  The International Character of Disputes 29–34

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III.  Other Characteristics 35 G.  Peaceful Means 36–42 I.  Exclusiveness 36 II.  Prohibition of Recourse to Armed Force 37 III.  Other Measures that Violate Rights 38 IV.  Countermeasures 39–42 H.  Settlement 43–44 (p. 182) I.  Justice 45–48 I.  Drafting History 46 II.  Meaning 47 III.  The Manila Declaration 48

UN Materials Handbook on the Peaceful Settlement of Disputes between States (1992).

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——— ‘L’obligation de règlement pacifique des différends internationaux: une norme fondamentale tenue à l’écart’ in Boutros Boutros-Ghali Amicorum Discipulorumque Liber, vol 1 (Bruylant 1998) 405 (cited as Economidès II). Escher R, Friedliche Erledigung von Streitigkeiten nach dem System der Vereinten Nationen (Schulthess 1985). Ferrari Bravo L, ‘Peaceful Settlement of Disputes in Europe in the Year 2000 and Beyond’ (1990) 45 Communità Internaz 522. French D, Saul M, and White ND (eds), International Law and Dispute Settlement: New Problems and Techniques (Hart Publishing 2010). Kahng TJ, Law, Politics, and the Security Council: An Inquiry into the Handling of Legal Questions Involved in International Disputes and Situations (2nd edn, Nijhoff 1969). Lee RS, ‘Towards a More Proactive System of Dispute Settlement’ in N Ando and others (eds), Liber Amicorum Judge Shigeru Oda (Brill 2002). Mackenzie R, Romano CPR, Shany Y, and Sands P, Manual on International Courts and Tribunals (OUP 2010). Mani R, ‘Peaceful Settlement of Disputes and Conflict Prevention’ in TG Weiss and S Daws (eds), The Oxford Handbook on the United Nations (OUP 2007) 300.(p. 183) Merrills JG, ‘The Meaning of Dispute Settlement’ in MD Evans (ed), International Law (OUP 2003) 529. Merrills JG, International Dispute Settlement (4th edn, CUP 2005). Murty BS, ‘Settlement of Disputes’ in M Sørensen (ed), Manual of Public International Law (St Martin’s Press 1968). Neuhold H, Internationale Konflikte—verbotene und erlaubte Mittel ihrer Austragung (Springer 1977). O’Connell ME, International Dispute Resolution (Ashgate 2006). Oellers-Frahm K, ‘Nowhere to Go? The Obligation to Settle Disputes Peacefully in the Absence of Compulsory Jurisdiction’ in F Orrego Vicuña (ed), A Wiser Century? Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second International Dispute Settlement in an Evolving Global Society. Constitutionalization, Accessibility, Privatization (Duncker & Humblot 2004). Pellet A, ‘Peaceful Settlement of International Disputes’ MPEPIL (online edn). Peters A, ‘International Dispute Settlement: A Network of Cooperational Duties’ (2003) 14 EJIL 1. Racčič O, ‘The Principle that States Shall Settle their International Disputes by Peaceful Means’ in M Šahović (ed), Principles of International Law Concerning Friendly Relations and Cooperation (Oceana Publications 1972). Raman KV, Dispute Settlement Through the United Nations (Oceana Publications 1977). Rosas A, ‘International Dispute Settlement: EU Practices and Procedures’ (2003) 46 GYIL 284. Rubin BD and Jones BD, ‘Prevention of Violent Conflict. Tasks and Challenges for the United Nations’ (2007) 13 Global Governance 391. Tomuschat C, ‘Neuformulierung der Grundregeln des Völkerrechts durch die Vereinten Nationen: Bewegung, Stillstand oder Rückschritt? Zur InterventionsDeklaration von 1981 und zur Manila-Deklaration über Streitbeilegung’ (1983) 38 EA 729. Treves T, ‘La prévention des conflits internationaux dans la Déclaration adoptée en 1988 par l’Assemblée Générale des Nations Unies’ (1988) 24 AFDI 436. ——— ‘Recent Trends in the Settlement of International Disputes’ (1997) Cursos Euromediterráneos Bancaja de Derecho Internacional 395.

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Voigt S, Albert M, and Schmidtchen D (eds), International Conflict Resolution (Mohr Siebeck 2006).

A.  Historical Background 1  At the end of the nineteenth century endeavours were undertaken to restrain excessive claims to sovereignty and to create a world order which was, as far as possible, free of wars as a means of settling international conflicts. Since then, governments have been conscious of the necessity to create, as an alternative, mechanisms for the peaceful settlement of disputes. To this end, the Hague Convention for the Pacific Settlement of International Disputes of 18991 provided (Art. 1): With a view to obviating, as far as possible, recourse to force in the relations between States, the Signatory Powers agree to use their best efforts to insure the pacific settlement of international differences.2 (p. 184) In the Covenant of the League of Nations of 19193 the members of the League pledged (Art. 12 (1)): that if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to inquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision or the report by the Council. However, at that time the dividing-line between peaceful settlement of disputes and other means of conflict resolution was not yet of an absolute nature inasmuch as the Covenant, rather than setting forth a general prohibition of war, confined itself to prescribing a ‘cooling off’ period to be used for appropriate proceedings. It was only the Kellogg-Briand Pact of 27 August 19284 which banned wars of aggression as instruments of national policy. Consequently, the contracting parties agreed in Art. II of that Pact: that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.

B.  Systematic Context 2  Article 2 (3) fits logically into the overall context of Art. 2. Since by virtue of the principle of sovereign equality all States enjoy equal rights, and since the use of coercive means is unlawful under the prohibition of intervention and the principle of non-use of force, a different mechanism of conflict resolution is required. Disputes which are left unsettled can lead to eruptive disturbances. Hence, the principle (p. 185) of peaceful settlement of disputes occupies a pivotal position within a world order whose hallmark is the ban on force and coercion. Similar clauses on the pacific settlement of disputes are to be found in the Charter of the Organization of American States (Art. 2 (c)) and in the Constitutive Act of the African Union (Art. 4 (e)). 3  Moreover, Art. 2 (3) must be seen in connection with the institutional arrangements provided for by the Charter. The GA (Arts 11, 12), the SC (Chapters VI, VII), the ICJ and the SG (Art. 99) are all required, according to their specific functions and capabilities, to contribute to the resolution of international disputes. The substantive obligation to employ peaceful means for the settlement of disputes receives supplementary support by these procedural provisions. States are not left alone. Disputes which threaten their very

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existence, whenever international peace and security are at stake, can be submitted at any time to one of the UN’s political organs. 4  From its origins, Art. 2 (3) pertains to the period of ‘classic’ international law, ie international law understood as interstate law, and may therefore seem unfit in respect of many situations of the modern world. Although it thus fails to satisfy many needs when guidance is sought for disputes outside the ‘classic’ framework, it is not easy to find an appropriate comprehensive formula for the peaceful settlement of disputes. 5  On the one hand, the provision does not take account of the enlargement of the circle of subjects of international law. It focuses essentially on States since it has been conceived of as a complement to the principle of non-use of force whose addressees are indeed States. It requires accordingly some interpretive effort to extend the principle of peaceful settlement of disputes to other subjects of international law to which it can reasonably apply, namely in particular international organizations and entities that have reached a status fairly close to that of States by virtue of a massive conferral of powers like the European Union, in particular. 6  Empirical findings also show that the number of non-State actors that engage in international relations has continually increased over the last decades and is still on the rise. To a growing extent, private parties are admitted in procedures of a transnational character to assert rights particularly against States. The most illustrative case in point is the procedure under the ICSID Convention.5 However, in legal terms private actors do not need to be reminded of their duty to refrain from forcible means, being bound to resort exclusively to peaceful ways and means when attempting to resolve disputes that may emerge in their dealings with other actors in a transnational context. They are all placed under the authority of one or several States. It is a basic premise of any human community (‘polity’) that its members are not allowed unilaterally to enforce their claims against other persons. In a modern State, self-help is generally banned. Hence, for that reason, individuals must necessarily seek the assistance of public authorites for the enforcement of any entitlements they may have or believe they have against other persons. To that end, the relevant human rights treaties have endowed them, to a variable degree, with rights to a remedy. On the other hand, the contention that Art. 2 (3) also applies to private actors6 cannot be translated into actual legal consequences.7 7  Another weakness of Art. 2 (3) is its narrow focus on existing disputes, ie disputes that have actually emerged. Rightly, the international community emphasizes increasingly the importance of prevention. In an early report of UN Secretary-General Kofi Annan the shorthand formula was coined that the UN should move ‘from a culture of reaction to a culture of prevention’.8 This directive has been reiterated time and again in the recent practice of the Organization. It has also been applauded in the legal literature.9 To translate it into practice, the entire machinery of the UN makes itself available to litigant parties. However, it would be difficult to derive from the insistence on prevention any binding legal obligations. The factual situations where prevention should be sought are too disparate to permit laying down specific rules of conduct. In the field of human rights protection and environmental protection specific mechanisms have been established to avert the emergence of disputes through monitoring procedures that provide for the submission of performance reports at regular intervals (‘compliance control’). In their entirety, international relations are rife with tensions and dangers.10 Essentially, wise statesmanship is required to prevent those tensions and dangers, taking care that they do not develop into actual disputes.

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(p. 186) C.  Elaboration of the Principle of the Peaceful Settlement of Disputes in the Practice of the United Nations I.  The Friendly Relations Declaration 8  The principle of the peaceful settlement of disputes is a cornerstone of the contemporary world order, which has been profoundly marked by the UN Charter. Accordingly, as in the case of the other fundamental principles, an attempt was made to specify its scope and content in the Friendly Relations Declaration of 1970 (Annex to UNGA Res 2625 (XXV) (24 October 1970) Principle 2). The relatively short commentary follows an elaboration on the principle of the non-use of force.

II.  The Manila Declaration 9  The Manila Declaration on the Peaceful Settlement of International Disputes of 1982 (Annex to UNGA Res 37/10 (15 November 1982)) is much more detailed. In Part. I, the substantive duties of States are defined, while Part. II deals with the competences of the relevant UN organs. In spite of all the drafting efforts, these comments barely go beyond the text of the Charter.11

III.  UNGA Resolution 40/9 10  The ‘solemn appeal’ which the GA addressed to all States in 1985, calling upon them to resolve conflicts and disputes by peaceful means, must be viewed essentially as a political act reminding States of their obligations under the Charter.

IV.  Declaration on the Prevention and Removal of Disputes and Situations which May Threaten International Peace and Security, and on the Role of the United Nations in this Field 11  On 5 December 1988, the GA adopted the aforementioned Declaration,12 which emphasizes the importance of preventive measures.13 With this, the Declaration clearly goes beyond the scope of Art. 2 (3) as traditionally understood. The principle set forth by the Charter only requires the peaceful settlement of already existing disputes. This is indicated by the use of the word ‘should’ throughout the Declaration. As already pointed out, this restriction to disputes that have already made their appearance may be considered to be one of the weaknesses of the Grundnorm of peaceful settlement.

V.  United Nations Decade of International Law 12  By UNGA Res 44/23 (17 November 1989), the GA declared the period 1990–99 to be the United Nations Decade of International Law. One of the goals of the Decade (p. 187) was ‘to promote means and methods for the peaceful settlement of disputes between States, including resort to and full respect for the ICJ’. In this connection, a number of relevant instruments of a non-binding character were adopted: Declaration on Fact-finding by the UN in the Field of the Maintenance of International Peace and Security,14 UN Model Rules for the Conciliation of Disputes between States,15 and Principles and guidelines for international negotiations.16 13  UNGA Res 47/120 (18 December 1992) takes up and formalizes the proposals made by the SG in his report ‘An Agenda for Peace’17 by insisting on the usefulness of the available mechanisms of preventive diplomacy. Member States of the Organization are invited to seek solutions to their disputes at an early stage through the peaceful means provided for in the Charter. In this connection, the important function of fact-finding as well as the role of the GA are particularly emphasized.

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14  At the end of the decade, the GA underlined once again the importance of means and methods of peaceful settlement of disputes (UNGA Res 54/28 (17 November 1999)). Among the many methods, it mentioned primarily resort to the International Court of Justice for adjudication.

VI.  Millennium Declaration 15  In the UN Millennium Declaration (UNGA Res 55/2 (8 September 2000)) only scant consideration was given to issues related to peaceful settlement of international disputes in the traditional sense. The Declaration focuses mainly on improving the living conditions of individual human beings, in particular by declaring poverty eradication one of the primary goals of the international community. It confines itself to mentioning the traditional proposition that disputes should be resolved ‘by peaceful means and in conformity with the principles of justice and international law’, adding for that purpose the pledge to ‘strengthen the International Court of Justice, in order to ensure justice and the rule of law in international affairs’ (paras 4, 30).

VII.  World Summit Outcome 16  The World Summit Outcome (UNGA Res 60/1 (16 September 2005)) also fails to break new ground. Among the means of pacific settlement of disputes, it mentions in particular the use of the International Court of Justice ‘when appropriate’ (para 73). Again, it places strong emphasis on prevention of armed conflict (paras 73–75).

VIII.  The Rule of Law 17  For a number of years, the GA has reiterated its conviction that the peaceful settlement of disputes constitutes one of the foundation stones of the rule of law in internationational relations.18

(p. 188) D.  The Scope of Application ratione personae I.  Member States of the United Nations 18  The obligation arising from Art. 2 (3) is primarily incumbent upon members of the UN and applies to all disputes, irrespective of whether they are connected with the UN Charter or rooted in other subject-matters. In a similar way, corresponding benefits are also bestowed on all members. The UN Charter has not established a two-tiered system of law. Since the admission to the United Nations of the former enemies of the four Allied Powers, who were victorious at the end of World War II in 1945, the enemy State clauses of Arts 53 and 107 have become obsolete.19 Hence, those Powers are also bound by the principle of the peaceful settlement of disputes in their relationships with their former enemy States.20

II.  Third States 19  Moreover, the principle of the peaceful settlement of disputes must today be considered a legal proposition which, independently of its being entrenched in the Charter, is binding on every State as a customary rule.21 In its Nicaragua judgment of 27 June 1986, the ICJ explicitly stated that the principle of the peaceful settlement of disputes ‘has also the status of customary law’.22 As has already been pointed out, the peaceful settlement of disputes is a cornerstone of the edifice whose main pillar is constituted by the prohibition of the use of force. In fact, in accordance with Art. 35 (2), third States have the right to bring any dispute in which they are involved to the attention of the SC or the GA. Hence, the institutional extension of the substantive rule also applies in their favour.23 However, since the UN has reached quasi-universality, the double foundation of the rule on both the Charter and customary law plays no great role any longer.

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III.  United Nations 20  The principle of peaceful settlement of disputes must apply to the UN as well. The introductory words of Art. 2 make clear that the mandate of Art. 2 is also directed towards the World Organization itself; on the other hand, Art. 2 (3) itself only refers to ‘all Members’. However, no reason may be discerned which would justify according any privileges to the UN in this respect. This statement needs to be qualified somewhat, however. The relevant procedural rules applying to the SC and the GA are generally framed in such a way as to prevent rash decisions which, instead of reducing tensions, might contribute to their exacerbation. In some instances, however, a majority of countries acting through the GA might have to face the objection that the means advocated by them are not conducive to (p. 189) a peaceful solution. A particularly delicate issue in this context was the support of armed struggle for liberation,24 a last resort legitimate only if all other means have definitively proved abortive. In as much as all former colonial countries had gained independence by the end of the twentieth century, all the former calls of the GA to encourage and support such forms of resistance have become obsolete. With specific regard to the only territory still placed under foreign rule, namely Palestine, the GA expressed its approval for resort to ‘all means’ for the last time in 1974.25 However, in general terms it endorsed the struggle of colonial peoples and peoples under foreign domination for selfdetermination and independence ‘by all available means’ until 1993.26 By contrast, for many years now, it has exhorted both sides, the Israeli government and the Palestine Authorities, to settle the divergences existing between them by peaceful means.27 21  It should not go unnoticed that between the UN and member States the paramount mode of settlement of disputes, namely recourse to the ICJ, is not available. The UN has no standing before the ICJ (Statute, Art. 34 (1)). On the other hand, States have not been granted any judicial remedies to challenge decisions or acts by the SC or the GA which they consider to be inconsistent with the Charter or general international law. Almost as an inevitable consequence, the Court of Justice of the European Union has seen fit, in the Kadi Case, to disregard a resolution of the SC providing for the freezing of assets of a person suspected of aiding terrorist activities, arguing that within the European legal space all the fundamental rights accruing to an individual must be uncompromisingly respected.28

IV.  Other International Organizations 22  Since international organizations cannot have a more privileged status than States, they must also be bound by the customary rule.29 This applies also to the European Union, no matter how its legal status may be classified.

E.  The Substance of Obligation I.  Legally Binding Effect 23  The principle of the peaceful settlement of disputes gives rise to a legal obligation. The English version expresses this meaning in the most unmistakable form by using the (p. 190) word ‘shall’, while in the French version the imperative present tense appears (‘règlent’), and in the Spanish version the imperative future tense (‘arreglarán’). Thus, as confirmed by the ICJ,30 Art. 2 (3) can by no means be considered a mere recommendatory provision, compliance with which would be within the discretion of States.

II.  Content 24  According to a view propagated by many authors, Art. 2 (3) is confined to setting forth the rule that only peaceful means may be employed for settling disputes.31 Consequently, no actual efforts for the resolution of existing conflicts would be called for. According to this interpretation, Art. 2 (3) would have no proper meaning but would essentially double the prohibitions of intervention and the use of force. By contrast, a majority of writers suggest that States are under an obligation to deploy active efforts for the settlement of their From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

international disputes.32 Accordingly, the Friendly Relations Declaration provides in para 2 that ‘States shall…seek early and just settlement of their international disputes’, a formula which in the Manila Declaration (Chapter I, para 5) has been supplemented by the phrase ‘in good faith and in a spirit of co-operation’. Good faith is indeed the key element for the successful completion of negotiations. It must be acknowledged, however, that compliance with that obligation can hardly be enforced if the States concerned do not on their own come to the conclusion that peaceful methods of conflict resolution promote their own best interests.33 No compulsory system of international adjudication exists. Thus, States enjoy a high degree of discretion as to the evaluation of the ways and means for compliance with the obligation to resolve their disputes in a peaceful manner.

III.  Obligation of Conduct 25  It should be noted that Art. 2 (3) obligates States to strive for the resolution of a dispute existing between themselves only to the best of their abilities. There is no obligation to reach a specific result. According to the terminology of the Draft Articles on State Responsibility (ASR) adopted by the ILC on first reading,34 the rule in point contains an obligation of conduct (Art. 20), not an obligation requiring the achievement of a specific result (Art. 21).35 This conclusion derives from the simple fact that each international (p. 191) conflict has at least two parties, neither of which, because of the principle of sovereign equality, can impose its will upon the other. The parties are therefore bound to seek a common denominator on both counts, regarding both the procedural situation and the actual substance of the conflict. Even with good will on both sides, such efforts do not produce automatic success if the respective viewpoints are too far removed from one another. According to the ICJ, negotiations presuppose ‘a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute’.36 Consequently, a violation of the duty of the peaceful settlement of disputes can be affirmed only if one side persistently refuses even to attempt to reach a settlement.37 Similarly, the obligation enshrined in Art. 2 (3) must not be mistaken for an obligation to reach a specific substantive result.38 The United Kingdom, for instance, in the dispute with Argentina concerning the Falkland Islands/Malvinas,39 was not barred from asserting its view that the Islands are legitimately placed under British sovereignty and should continue to enjoy this legal status.

IV.  Ius Cogens? 26  Whether Art. 2 (3) has the character of ius cogens40 is rather an academic question.41 As far as UN member States are concerned, according to Art. 103 their Charter obligations prevail in any event. On the other hand, it is hard to imagine treaties containing rules that conflict with the principle of peaceful settlement. If States should revolt against the foundations of the present legal world order, agreeing to engage in conduct which is not peaceful, the focal point of such conduct would be the prohibition of the use of force, which for its part undoubtedly has the character of ius cogens.

(p. 192) F.  International Disputes The obligation of peaceful settlement applies to ‘international disputes’.

I.  Disputes and Situations 27  The Charter distinguishes in many places between ‘disputes’ and ‘situations’, for instance in Arts 1 (1), 24, 35 (1), and 36 (1). A dispute arises when a State addresses specific claims to another State, which the latter State rejects.42 A specific objection must therefore have been raised while a general state of tension between States, from which further negative consequences may flow, does not meet the criteria of a dispute.43 Such a state of tension may acquire legal significance under the consideration laid down in the Preamble that the ‘peoples of the United Nations’ are determined to ‘live together in peace

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with one another as good neighbours’. The SC must also have the right to take preventive action if it is to be feared that a general state of tension may become the source of threats to international peace and security. But it would be demanding too much of States to submit them to a legal obligation to live together ‘as good neighbours’, ie in full harmony and without any political antagonism.44 It is for this reason that Art. 2 (3) has deliberately confined itself—and rightly so—to mentioning disputes. 28  In the practice of the Organization, the restriction of Art. 2 (3) to disputes, excluding mere situations, has not led to any difficulties. It is obvious that a situation characterized by political tension immediately turns into a dispute when one of the parties presents a specific claim.

(p. 193) II.  The International Character of Disputes 29  By way of argumentum e contrario, the characterization of relevant disputes as ‘international’ entails the consequence that purely internal disputes are not addressed by Art. 2 (3). The Dumbarton Oaks Proposals did not contain such a specification.45 The word ‘international’ was inserted at the San Francisco Conference at the request of the Four Powers46 for the specific purpose of underlining the necessity of a transborder dimension. This solution reflects the principle of sovereignty as laid down in Art. 2 (1), which guarantees to every State unimpeded political discretion with regard to the choice and development of its political, social, economic, and cultural systems. 30  International disputes are primarily disputes with other States. Originally, the drafters may have borne in mind solely this core group of disputes.47 The Friendly Relations Declaration, in fact, narrows the scope of Art. 2 (3) to ‘disputes with other States’ (para 1). The Manila Declaration, however, by referring to peoples enjoying the right of selfdetermination (Chapter I, para 12), has abandoned this restrictive tendency. 31  The literal meaning of Art. 2 (3) also covers disputes with subjects of international law other than States. It is thus potentially relevant not only for international organizations,48 but also for such entities as de facto regimes, ethnic communities enjoying a status under international law, or national liberation movements.49 Standard practice has been for the SC and the GA to call upon the States concerned to seek a peaceful solution in negotiations with their non-State opponents. Early in the history of the Organization, the Netherlands was called upon by the SC through UNSC Res 27 (1 August 1947) to settle ‘by arbitration or by other peaceful means’ its conflict with the Republic of Indonesia, which at that time was recognized neither by the Netherlands nor by the majority of States. Some decades later Portugal, with regard to its African colonies, was requested by UNSC Res 322 (22 November 1972) ‘to enter into negotiations with the parties concerned’, ie the liberation movements,50 with a view to bringing to an end the then rampant armed conflict. In UNSC Res 389 (22 April 1976), which dealt with the situation in East Timor, all States ‘and other parties concerned’ were called upon ‘to cooperate fully with the United Nations to achieve a peaceful solution to the existing situation’. Similar appeals to all parties concerned were made in recent years with regard, eg to (p. 194) the situation in Afghanistan,51 the Congo,52 Georgia,53 and Sierra Leone.54 Within a European context, great efforts were made by the SC to stabilize the situation between the government of the Federal Republic of Yugoslavia and the leadership of the Kosovo Albanians by stressing the need for a meaningful dialogue without preconditions leading to an end of the crisis and to a negotiated political solution to the issue of Kosovo.55 In the eyes of the SC, what matters is the factual position of an actor party to an internal conflict.56 It addresses its appeals to parties who are not subject to the actual power of the lawful government, challenging its legitimacy through acts of resistance.

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32  This practice corresponds to the proposition in the Manila Declaration (Chapter I, para 12) that the principle of peaceful settlement applies also to peoples who are holders of the right of self-determination. Similarly, with regard to the situation in Cyprus, the SC proceeded from the assumption that the relations between the governments concerned and the two ethnic communities were of an international nature, and that therefore the obligation of the peaceful settlement of disputes was applicable.57 By para 7 of UNSC Res 1250 (29 June 1999), the leaders of the two communities were requested to commit themselves ‘in good faith to continue to negotiate until a settlement is reached’.58 33  Of course, the obligation to seek peaceful solutions beyond the field of interstate disputes has some obvious inherent limits. In principle, it presupposes a right to existence for the party concerned and thus a right to respect for its integrity vis-à-vis the State (p. 195) concerned. In this respect it must be taken into consideration first of all that the principle of the peaceful settlement of disputes constitutes the corollary to the ban on the use of force. To the extent that the use of force is permissible, an obligation to settle a dispute peacefully cannot exist. No government is bound to stand idly by while an insurgent movement gathers strength, or obliged to attempt to bring about a peaceful solution first.59 Nonetheless, in the interest of the populations concerned, the Security Council can at any time recommend a peaceful solution by the most appropriate method (Art. 36). It is an entirely different situation when such a movement can invoke the right of selfdetermination. In this connection, reciprocity is the paramount consideration. If and to the extent that States are subject to the duty of peaceful settlement, the same duty must also apply to the non-State actor on the other side.60 34  Disputes regarding compliance with human rights obligations do not qualify as ‘international disputes’ within the meaning of Art. 2 (3) to the extent that the parties are, on the one hand, a State and, on the other, an individual who vindicates his/her rights.61 Essentially, it is still true that the individual becomes the holder of the rights enshrined in the relevant international treaties by virtue of an act of his or her domestic law. But even where an individual must be deemed to be the holder of individual entitlements directly under international law, which is the case in respect of the most fundamental rights which have the character of ius cogens, the situation of reciprocity as presupposed by Art. 2 (3) is not present. In respect of individuals, States must abide by the obligations they have undertaken. The individual human being remains structurally the weaker part. There is no need for him/her to be reminded of remaining within the confines of peaceful conduct. An international dispute is present, however, when a party to a multilateral human rights treaty requires another party to comply with its obligations, either in the exercise of diplomatic protection for its citizens or as guardian of the public interest of the international community.62

III.  Other Characteristics 35  No further requirements are enunciated in the text of Art. 2 (3). In particular, contrary to Art. 33 (1), it is not specified that a dispute must endanger international peace and security.63 Nonetheless, a certain degree of gravity may certainly constitute the raison (p. 196) d’être of Art. 2 (3). Trivial differences are without importance for the quality of international relations. Perhaps here one may rely on the pragmatic argument that the obligation comes into being as soon as a dispute has become such a serious problem for one of the parties involved that it has formally addressed its opponent.

G.  Peaceful Means I.  Exclusiveness

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36  For purposes of clarification, the word ‘exclusively’ has been inserted into the Manila Declaration (Chapter I, para 2). Accordingly, States are obliged to settle their disputes exclusively by peaceful means. This amendment serves no greater purpose than to highlight what has always been considered to be the meaning of Art. 2 (3).

II.  Prohibition of Recourse to Armed Force 37  It stands to reason that measures inconsistent with the ban on the use of force under Art. 2 (4) cannot be characterized as peaceful.64

III.  Other Measures that Violate Rights 38  Measures which encroach upon the prohibition of intervention also lack the characteristic of peacefulness. Art. 2 (3) requires that disputes be settled with full respect for the principle of sovereign equality. In particular, the prohibitions on the use of force and intervention are designed to uphold and protect Art. 2 (1). However, care must be taken not to construe unlawful intervention in too broad a sense. Only truly coercive measures may be taken to amount to an infringement while criticism of any kind must be deemed unobjectionable. In the contemporary world, no State constitutes a holy empire whose legally protected realm and dignity might be adversely affected through ordinary means of communication.

IV.  Countermeasures 39  If an international dispute has been triggered by an unlawful act of one of the parties involved, the question arises whether the aggrieved party may react by taking countermeasures, or whether such countermeasures are excluded under the obligation to resolve the dispute by peaceful means. Traditionally, a distinction is drawn in this connection between retortion and reprisals (in modern terminology: countermeasures). 40  The term ‘retortion’ connotes measures which do not infringe upon any rights of the affected State, thus constituting simple unfriendly acts. If a State commits such an act vis-àvis another State, it thereby casts a political shadow over the relationship between the two States. As already pointed out, however (MN 27), States are under no legal obligation to establish a good political atmosphere in their mutual relations. 41  A reprisal or countermeasure is an act which is unlawful per se, unless it can be justified as a countermeasure triggered by an unlawful act and is designed to induce the offending State to return to full compliance with the law. The rights accruing to a contracting party in the case of a grave violation of a treaty by another State party, namely (p. 197) to suspend or terminate the treaty (Art. 60 of the Vienna Convention on the Law of Treaties), must also be taken into account in this respect. Obviously, any taking of countermeasures may lead to an unfortunate spiral of further countermeasures. But except for the prohibition of countermeasures involving the use of force (UNGA Res 2625 (XXV), Principle 1: non-use of force, para 6), a general prohibition of such measures, which would constitute a formidable restriction on the margin of political discretion open to States, cannot be derived from Art. 2(3). International practice is based on the assumption that such a general ban does not in fact exist.65 42  Any other view is open to serious doubt, for it would be tantamount to conferring privileges on a wrong-doer. Willem Riphagen, a former Special Rapporteur for the ILC on State responsibility, suggested making the right to take reprisals dependent on prior exhaustion of all available methods of peaceful settlement.66 A similar position was advocated by Special Rapporteur G Arangio-Ruiz.67 These proposals were particularly controversial within the ILC.68 Article 48 of the ILC Draft Articles on State Responsibility, as adopted on first reading in 1996, set forth two procedural guarantees which a State taking countermeasures should fulfil. First, it would be required to negotiate with the potential target State. Secondly, it would have to comply with all obligations regarding dispute

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settlement, it being left open at what precise point in time recourse to the available mechanisms must be had. However, it would seem that nobody has taken the view that such a far-reaching limitation on the right to self-help is already part and parcel of international law as in force today. Discussions centred on the question of whether such an innovation would be sensible. In fact, the final version of the ILC Articles on State Responsibility (ARS)69 has distanced itself from the earlier proposals. According to Art. 52 (1) ARS, a State considering taking countermeasures must first call on the responsible State to discharge its obligations and must then ‘notify the responsible State of any decision to take countermeasures and offer to negotiate with that State’. Indeed, the explicit mandate of Art. 2 (3), that disputes shall be settled in a manner that does not endanger international peace and security, argues against a general prohibition of countermeasures. Countermeasures not involving force are hardly conducive to such dangers. For similar reasons, a prohibition of countermeasures cannot be inferred from the provisions of the Friendly Relations Declaration (para 4) or the Manila Declaration (Chapter I, para 8), which declare that States shall refrain from any action which may aggravate the situation so as to endanger the maintenance of international peace and security—the Manila Declaration adding: and make more difficult or impede the peaceful settlement of the dispute.70

(p. 198) H.  Settlement 43  Settlement means the actual end of a dispute, either by virtue of an agreement between the parties concerned or by virtue of an authoritative decision of a third party.71 It would go too far to require that the root causes must have been addressed and overcome. Mostly, concessions on the part of both sides are necessary to reach a resolution. Feelings of bitterness and resentment can easily remain after a compromise has been brought about at the diplomatic level. The essence is, however, that both sides decide to co-exist peacefully without challenging one another with mutual claims. 44  For a more detailed description of the various procedures for the peaceful settlement of disputes the reader is referred to Tomuschat on Art. 33.

I.  Justice 45  Considerable difficulties of interpretation arise from the phrase which specifies that justice may not be endangered in the settling of disputes.

I.  Drafting History 46  The drafting history is clear. The relevant phrase was inserted into the Dumbarton Oaks Proposals at the initiative of a number of smaller countries.72 These States feared that the Great Powers could conduct a policy of appeasement to their detriment, a danger which was illustrated by the conclusion of the Munich Agreement of 1938.73

II.  Meaning 47  The criterion of ‘justice’ applies to the result of a proceeding for the peaceful settlement of disputes, and underlines the sovereign right of decision of the State parties involved. If a State has not pledged ex ante to accept the pronouncement of a third party, it is not bound by the result of a dispute-settlement proceeding. Every government determines whether it considers a suggested solution to be balanced and therefore a satisfactory compromise between the antagonistic positions. However, the criterion of justice can never warrant the rejection of a judgment of the ICJ or an arbitral tribunal.74

III.  The Manila Declaration

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48  In the Manila Declaration, the strength of justice as a yardstick for the resolution of international disputes has been further increased in comparison with its position according to the Charter. After an almost exact textual repetition of Art. 2 (3) with its reference to justice (Chapter I, para 2), it adds (Chapter I, para 3) that the settlement shall be in accordance ‘with the principles of justice and international law’. It is remarkable that here, as in Art. 1 (1) of the Charter, where the Purposes of the Organization are set forth, the principle of justice has been placed in the first position, preceding the yardstick of international law, while normally justice is assigned a certain corrective, or secondary (p. 199) function with regard to the application of strict law. In particular, the ICJ is enjoined by Art. 38 (1) of its Statute to decide the cases brought before it ‘in accordance with international law’. The insistence on justice in the Manila Declaration also makes clear that a tension may exist between the exigencies of law and those of justice. On the whole, this shift of emphasis, which has received the support of all member States of the UN, confirms that there is some degree of arbitrariness in the substantive criteria for a balanced solution to an international dispute.75 The specific importance of Art. 2 (3) resides much more in its procedural dimension in requiring litigating parties only to make use of peaceful means for the settlement of disputes.

Footnotes: 1

  Reprinted in JB Scott (ed), The Hague Conventions and Declarations of 1899 and 1907 (1915) 41 accessed 12 June 2012. 2

  With only slight editorial amendments, the same words were reiterated in Art. 1 of the 1907 version of the Convention. 3

  (1919) RGBl 716.

4

  94 LNTS 57.

5

  Convention on the Settlement of Investment Disputes between States and Nationals of Other States (18 March 1965) 575 UNTS 159. For an extensive elaboration on the entanglement between public and private litigation see Crawford, passim. 6

  Pellet, MN 26.

7

  For a sceptical assessment of such proposals see L Caflisch, ‘Cent ans de règlement pacifique des différends interétatiques’ (2001) 288 Rec des Cours 450. 8

  (7 June 2001) UN Doc A/55/985-S/2001/574.

9

  Caflisch (n 7) 447; CPF/Charpentier and Sierpinski, 427, 431; R Mani, 302; F Orrego Vicuña and Pinto, 319, para 97, 410, para 263; F Orrego Vicuña, 101; for a more sociological approach see D Shapiro and A Kinon, ‘The Prevention Principle: A Pragmatic Framework to Prevent Destructive Conflict’ (2010) 1 Journal of International Dispute Settlement 301f. 10

  Rightly, BD Rubin and BD Jones, 401, point out that once one defines prevention as addressing root causes of conflict, virtually anything the UN does can be rehatted as conflict prevention. 11

  Appeals to observe the Manila Declaration were made by the following UNGA Res: UNGA Res 38/131 (19 December 1983) UN Doc A/RES/38/131; UNGA Res 39/79 (13 December 1984) UN Doc A/RES/39/79; UNGA Res 40/68 (11 December 1985) UN Doc A/ RES/40/68; UNGA Res 41/74 (3 December 1986) UN Doc A/RES/41/74; UNGA Res 42/150 (7 December 1987) UN Doc A/RES/42/150; UNGA Res 43/163 (9 December 1988) UN Doc

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A/RES/43/163; UNGA Res 44/31 (4 December 1989) UN Doc A/RES/44/31; see also UNGA Res 61/37 (4 December 2006) UN Doc A/RES/61/37. 12

  UNGA Res 43/51 (5 December 1988) UN Doc A/RES/43/51.

13

  See also UNGA Res 41/92 (4 December 1986) UN Doc A/RES/41/92 and UNGA Res 42/93 (7 December 1987) UN Doc A/RES/42/93 under the title ‘Comprehensive system of international peace and security’. 14

  UNGA Res 46/59 (9 December 1991) UN Doc A/RES/46/59, Annex.

15

  UNGA Res 50/50 (11 December 1995) UN Doc A/RES/50/50.

16

  UNGA Res 53/101 (8 December 1998) UN Doc A/RES/53/101.

17

  (17 December 1992) UN Doc A/47/277–S/24111.

18

  UNGA Res 61/39 (4 December 2006) UN Doc A/RES/61/39 preamb para 5; UNGA Res 62/70 (6 December 2007) UN Doc A/RES/62/70 preamb para 6; UNGA Res 63/128 (11 December 2008) UN Doc A/RES/63/128 preamb para 6; UNGA Res 64/116 (16 December2009) UN Doc A/RES/64/116 preamb para 6; UNGA Res 65/32 (6 December 2010) UN Doc A/RES/65/32 preamb para 6. For an extensive debate in the UNGA Sixth Committee see (14 October 2009) UN Doc A/C.6/64/SR.9. 19

  World Summit Outcome, UNGA Res 60/1 (16 December 2005) UN Doc A/RES/60/1 para 177. 20

  A different view was expressed in 1951 by Kelsen, 364.

21

  See, for instance, Blix, 74; M Bauer-Oeser and others (eds), Völkerrecht (Staatsverlag der Deutschen Demokratischen Republik 1981) 103; Diaconu, 1099; Economidès (II), 406; AG Koroma, ‘The Peaceful Settlement of International Disputes’ (1966) 43 NILR 227ff, 232; H Mosler, The International Society as a Legal Community (Sijthoff & Noordhoff 1980) 227; Oellers-Frahm, 436; H Fischer ‘Friedenssicherung und friedliche Sreitbeilegung’ in K Ipsen, Völkerrecht (5th edn, Beck 2004) 1166, § 62, MN 2. 22

  Military and Paramilitary Activities in and against Nicaragua (Judgment, Merits) [1986] ICJ Rep 14ff, 145: ‘the principle that the parties to any dispute…should seek a solution by peaceful means…has also the status of customary law’. 23

  At the current time, the distinction between obligations based on the Charter and obligations derived from customary has lost almost any relevance as the UN has reached quasi-universality. 24

  After years of affirming the legitimacy of the armed struggle of the people of South Africa, the GA introduced an important nuance in UNGA Res 44/27 A (22 November 1989) UN Doc A/RES/44/27, by stressing that the liberation movements had ‘reiterated their preference for reaching their legitimate objectives through peaceful means’. Pursuing this new orientation, it expressed in UNGA Res 45/176 (19 December 1990) UN Doc A/RES/ 45/176, its full support for ‘the efforts of the South African people to arrive at a peaceful settlement of the problems in their country through genuine negotiations’. 25

  UNGA Res 3236 (XXIX) (22 November 1974) UN Doc A/RES/3236(XXIX) para 5. However, this Resolution was reaffirmed one year later by UNGA Res 3376 (XXX) (10 November 1975) UN Doc A/RES/3376(XXX). 26

  UNGA Res 48/94 (20 December 1993) UN Doc A/RES/48/94.

27

  UNGA Res 61/25 (1 December2006) UN Doc A/RES/61/25 para 4; UNGA Res 62/83 (10 December 2007) UN Doc A/RES/62/83 para 6; UNGA Res 63/29 (26 November 2008) UN

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Doc A/RES/63/29 paras 4–7; UNGA Res 64/19 (2 December 2009) UN Doc A/RES/64/19 paras 4–8; UNGA Res 65/16 (30 November 2010) UN Doc A/RES/65/16 paras 4–9. 28

  Case C-402/05 P (3 September 2008).

29

  Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73ff, 89. 30

  Fisheries Jurisdiction (Spain v Canada) (Judgment) [1998] ICJ Rep 432f, 456; Aerial Incident of 10 August 1999 (Pakistan v India) (Judgment) [2000] ICJ Rep 12 ff, 33, para 53. 31

  See Blix, 45, 50; E Jiménez de Aréchaga, Derecho Constitucional de las Naciones Unidas (Escuela de Funcionarios Internacionales 1958) 51; Neuhold, 399; N Vajic, ‘Diplomatic Settlement or Adjudication? Advantages and Drawbacks’ in L Caflisch (ed), Peaceful Settlement (Brill 1998) 17–23, 17. 32

  CPF/Charpentier and Sierpinski, 429; B Graf zu Dohna, Die Grundprinzipien des Völkerrechts über die freundschaftlichen Beziehungen und die Zusammenarbeit zwischen den Staaten (Duncker & Humblot 1973) 156–57; Economidès (II), 413; Escher, 10–11; Fischer (n 21) 1166, § 62, MN 2; Peters, 9–16. 33

  Scepticism has been expressed by RL Bindschedler, ‘Verfahren zur friedlichen Streiterledigung’ in A Riklin and others (ed), Handbuch der schweizerischen Außenpolitik (Haupt 1975) 875–79, 877; Pellet, MN 10: ‘a binding duty devoid of any sanction’; W Vitzthum und M Schröder, Völkerrecht (5th edn, De Gruyter 2010) 614, MN 59. 34

  (1996-II) ILC Yearbook pt 2, 58. The differentiation between these two modalities of obligations was dropped from the final version of the Articles on State Responsibility (ARS), taken note of by UNGA Res 56/83 (12 December 2001) UN Doc A/RES/56/83. However, this change does not affect its usefulness for intellectual clarity. 35

  See also CPF/Charpentier and Sierpinski, 428; Escher, 11–12; Oellers-Frahm, 437; Pellet, MN 16. Criticism of the legal position from the viewpoint of legal policy by Economidès (II), 417. 36

  Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Preliminary Objections, Judgment) 1 April 2011 accessed 12 June 2012, para 157. 37

  With regard to negotiations, the ICJ has emphasized that they must be ‘meaningful’, see North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark and Netherlands) (Judgment) [1969] ICJ Rep 3f, 47, para 85; Gabčikovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7f, 78, para 141; Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) (20 April 2010) accessed 12 June 2012, para 146; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (n 36) paras 157–159. 38

  Pulp Mills on the River Uruguay, ibid, para 150; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (n 36) para 158. 39

  Recommendations to initiate negotiations were addressed to the Governments of Argentina and the United Kingdom by the following: UNGA Res 37/9 (4 November 1982) UN Doc A/RES/37/9 para 1; UNGA Res 38/12 (16 November 1983) UN Doc A/RES/38/12 para 1; UNGA Res 39/6 (1 November 1984) UN Doc A/RES/39/6 para 1; UNGA Res 40/21 (27 November 1985) UN Doc A/RES/40/21 para 1; UNGA Res 41/40 (25 November 1986) UN Doc A/RES/41/40 para 1; UNGA Res 42/19 (17 November 1987) UN Doc A/RES/42/19 para 1; UNGA Res 43/25 (17 November 1988) UN Doc A/RES/43/25 para 1. The SC has only once invited the litigant parties to ‘seek a diplomatic solution to their differences’: UNSC Res 502 (3 April 1982) UN Doc S/RES/502 para 3. In 2010, the Special Committee on Decolonization recommended that the GA reiterate its call for the resumption of

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negotiations over the Falkland Islands/Malvinas, Press Release GA/COL/3212 (24 June 2010). However, the competent Fourth Committee of the GA did not heed that call. 40

  View defended by A Cassese, International Law in a Divided World (Clarendon Press 1986) 143; P Daillier and A Pellet, Droit international public (8th edn, LGDJ 2009) 918, §500; Economidès (II), 411; Koroma (n 21) 234; Pellet, MN 5; for a view to the contrary see CPF/Charpentier and Sierpinski, 428. Concerning the relevant debate in the Special Committee of the GA, see M Šahović, ‘Codification des principes du droit international des relations amicales et de la coopération entre les Etats’ (1972–73) 137 Rec des Cours 243– 310, 302–03. A Orakhelashvili, Peremptory Norms in International Law (OUP 2006), does not list the peaceful settlement of disputes as a rule of ius cogens. 41

  View shared by Vitzthum and Schröder (n 33) 614, MN 59.

42

  The definition given by the PCIJ in its judgment Mavrommatis Palestine Concessions (1924, PCIJ Ser A, No 2, 11), that ‘a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between two persons’, is generally regarded as being too broad. cf the jurisprudence of the ICJ, in particular the pronouncements in the following cases: Right of Passage over Indian Territory (Preliminary Objections) [1957] ICJ Rep 125f, 148–9; South-West Africa Cases (Judgment) [1962] ICJ Rep 319f, 328; Northern Cameroons (Preliminary Objections) [1963] ICJ Rep 15f, 27; Nuclear Tests (Judgment) [1974] ICJ Rep 253f, 270–1, 457f, 476; Aegean Sea Continental Shelf (Jurisdiction) [1978] ICJ Rep 3f, 12– 13; Applicability of the Obligation to Arbitrate under Section 21 of the UN Headquarters Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 12f, 27; East Timor (Portugal v Australia) (Jurisdiction and Admissibility) [1995] ICJ Rep 90f, 99; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections) [1996] ICJ Rep 595f, 614; Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) [1998] ICJ Rep 275f, 314; Certain Property (Liechtenstein v. Germany) (Preliminary Objections, Judgment) [2005] ICJ Rep 6f, 18, para 24; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) [2006] ICJ Rep 6f, 40, para 90; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (n 36) para 30; for a doctrinal discussion, Caflisch (n 7) 261–68; Diaconu, 1100; Escher, 49–50; Kelsen, 360; Murty, 719; M Virally, L’Organisation mondiale (Colin 1972) 429. 43

  CPF/Charpentier and Sierpinski, 430–31; Zimmermann on Art. 27 MN 224–230.

44

  The Manila Declaration, however, translates this consideration of the Preamble into the proposition (Chapter I, para 1) that States ‘shall live together in peace with one another as good neighbours’, which is framed as a binding rule. A sub-committee of the GA mandated to elaborate detailed rules on relations of good neighbourliness did not reach a positive conclusion of its work, see UNGA Res 43/171 (9 December 1988) UN Doc A/RES/43/171, and UNGA Decision 45/402 (21 September 1990) UN Doc A/45/402. In 1991, the GA closed its debate on the issue by expressing its conviction that good neighbourliness is best fostered by ‘each state respecting the rule of law in its international relations’, UNGA Res 46/62 (9 December 1991) UN Doc A/RES/46/62. 45

  s II 3: ‘All members of the Organization shall settle their disputes by peaceful means in such a manner that international peace and security are not endangered’, UNCIO III, 3. 46

  ibid, 623.

47

  Many authors only mention in passing, without giving any reasons, that the Principle of peaceful settlement of disputes refers to interstate disputes; see Diaconu, 1100; Dohna (n 32) 158. The same view was expressed by South Africa, SCOR 15th Year (1 April 1960) 855th mtg, para 19; Portugal, SCOR 16th Year (10 March 1961) 944th mtg, para 39;

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Democratic Republic of Congo, SCOR 19th Year (23 December 1964) 1184th mtg, paras 39, 40. 48

  G Dahm, Völkerrecht, vol 1 (Kohlhammer 1958) 365; Kelsen, 365.

49

  CPF/Charpentier and Sierpinski contradict themselves when they write on the one hand (p 431) that ‘un différend international suppose que les parties se reconnaissent mutuellement la qualité d’Etat’, but on the other hand postulate a duty of peaceful settlement with regard to national liberation movements (p 432). 50

  Beforehand, the same request had been made by UNSC Res 180 (31 July 1963) UN Doc S/RES/180 para 5(d); and UNSC Res 218 (23 November 1965) UN Doc S/RES/218 para 5(d). 51

  UNSC Res 1333 (19 December 2000) UN Doc S/RES/1333 preamb para 4; UNSC Res 1833 (22 September 2008) UN Doc S/RES/1833 preamb para 17; UNSC Res 1890 (8 October 2009) UN Doc S/RES/1890 preamb para 19; UNSC Res 1943 (13 October 2010) UN Doc S/RES/1943 preamb para 23; UNGA Res 52/211 B (19 December 1997) UN Doc A/RES/ 52/211, para 2; UNGA Res 53/203 A (18 December 1998) UN Doc A/RES/53/203, para 2; UNGA Res 54/189 A (17 December 1999) UN Doc A/RES/54/189, para 2; UNGA Res 55/174 A (19 December 2000) UN Doc A/RES/55/174, para 2; UNGA Res 56/220 A (21 December 2001) UN Doc A/RES/56/220, para 3. In the recent past, hope was lost that useful negotiations with criminal groups could be conducted. The GA stigmatized the violent and terrorist activities of the Taliban and Al-Qaida as from 2006 by UNGA Res 61/18 (28 November 2006) UN Doc A/RES/61/18 para 2; for the SC see UNSC Res 1974 (22 March 2011) UN Doc S/RES/1974 preamb para 20, where reference is made to ‘the ongoing violent and terrorist activities by the Taliban, Al-Qaida, other violent extremist groups, illegal armed groups’. With such groups, no meaningful dialogue can be conducted. 52

  UNSC Res 1304 (16 June 2000) UN Doc S/RES/1304 para 9; UNSC Res 1332 (14 December 2000) UN Doc S/RES/1332 para 12; UNSC Res 1341 (22 February 2001) UN Doc S/RES/1341 para 15; UNSC Res 1417 (14 June 2002) UN Doc S/RES/1417 paras 13, 14. 53

  UNSC Res 1287 (31 January 2000) UN Doc S/RES/1287 paras 4, 6; UNSC Res 1311 (28 July 2000) UN Doc S/RES/1311 para 4; UNSC Res 1339 (31 January 2001) UN Doc S/RES/ 1339 para 5; UNSC Res 1364 (31 July 2001) UN Doc S/RES/1364 para 7; UNSC Res 1393 (31 January 2002) UN Doc S/RES/1393 para 5; UNSC Res 1427 (29 July 2002) UN Doc S/ RES/1427 paras 5–7; UNSC Res 1494 (30 July 2003) UN Doc S/RES/1494 paras 5–7; UNSC Res 1554 (29 July 2004) UN Doc S/RES/1554 paras 4–7; UNSC Res 1615 (29 July 2005) UN Doc S/RES/1615 paras 4–7; UNSC Res 1716 (13 October 2006) UN Doc S/RES/1716; UNSC Res 1781 (15 October 2007) UN Doc S/RES/1781; UNSC Res 1808 (15 April 2008) UN Doc S/RES/1808. 54

  UNSC Res 1334 (22 December 2000) UN Doc S/RES/1334 para 2; UNSC Res 1346 (30 March 2001) UN Doc S/RES/1346 para 10; UNSC Res 1400 (28 March 2002) UN Doc S/ RES/1400 para 5. 55

  UNSC Res 1203 (24 October 1998) UN Doc S/RES/1203 para 5; UNSC Res 1199 (23 September 1998) UN Doc S/RES/1199 para 3; UNSC Res 1160 (31 March 1998) UN Doc S/ RES/1160 para 4. 56

  See also UNSC Res 1935 (30 July 2010) UN Doc S/RES/1935 para 12: Darfur; UNSC Res 1939 (15 September 2010) UN Doc S/RES/1939 preamb para 8: Nepal. 57

  UNSC Res 186 (4 March 1964) UN Doc S/RES/186 para 7; UNSC Res 254 (18 June 1968) UN Doc S/RES/254 paras 3–5; SC Decision of 9 June 1989, following the adoption of UNSC Res 634 (9 June 1989) UN Doc S/RES/634: ‘both parties’.

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58

  For more recommendations to that effect see UNSC Res 1930 (15 June 2010) UN Doc S/ RES/1930 para 5; UNSC Res 1953 (14 December 2010) UN Doc S/RES/1953 preamb para 5. 59

  Blix, 48; CP (2nd edn)/Charpentier, 109, not maintained in CPF/Charpentier and Sierpinski, 428; Kelsen, 365. 60

  See, in this connection, the award rendered on 22 July 2009 by the Permanent Court of Arbitration in the dispute between the Government of Sudan and the Sudan People’s Liberation Movement Army, accessed 12 June 2012, commented upon by M Böckenförde, ‘The Abyei Award: Fitting a Diplomatic Square Peg into a Legal Round Hole’ (2010) 23 Leiden J Intl L 555–69; WJ Miles and D Mallett, ‘The Abyei Arbitration and the Use of Arbitration to Resolve Inter-state and Intra-state Conflicts’ (2010) 1 Journal of International Dispute Settlement 313, 323–27, 333–39. 61

  A note of doubt is sounded by Kelsen, 364–65; unclear Pellet, MN 26.

62

  cf Art. 48 of the ILC Articles on Responsibility of States for internationally wrongful acts (ARS), taken note of by UNGA Res 56/83 (12 December 2001) UN Doc A/RES/56/83. 63

  Neither the Friendly Relations Declaration nor the Manila Declaration contains such a restriction. However, this question gave rise to a controversy when the Declaration of 1970 was elaborated, see PH Houben, ‘Principles of International Law Concerning Friendly Relations and Co-operation among States’ (1967) 61 AJIL 703–36, 711. See also Diaconu, 1100; Dohna, Graf zu (n 32) 157–58; and Escher, 10–11. 64

  Blix, 50, mentions only such means.

65

  Confirmed by the arbitral award of 9 December 1978 in the case concerning the USFrench Air Service Agreement, RIAA XVIII, 415f, 445, and the ICJ, Gabčikovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7f, 55, 83; see also E Zoller, Peacetime Unilateral Remedies: An Analysis of Counter-measures (Transnational Publishers 1984) 71, 120–21. 66

  Art. 10 of his Draft Articles on State Responsibility (1985-II) ILC Yearbook pt 1, 11; Arts 1–4 of his Draft Articles on State Responsibility, pt 3 (1986-II) ILC Yearbook pt 1, 2. 67

  (14 June 1994) UN Doc A/CN.4/461/Add.2, Art. 12 (final version). For supporting arguments see his fourth report, (12 May 1992) UN Doc A/CN.4/444, paras 24–51. 68

  See the Symposium ‘Counter-measures and Dispute Settlement: The Current Debate within the ILC’ (1994) 5 EJIL 20. 69

  cf n 62.

70

  This formulation is derived from Art. 33 (3) of the Geneva General Act on Peaceful Settlement of International Disputes (26 September 1928) 93 LNTS 343. 71

  L Caflisch (n 7) 268.

72

  Draft amendment by Bolivia, UNCIO III, 580, 582.

73

  UNCIO VI, 446, 458 (Rapporteur), 333 (acceptance).

74

  Kelsen, 365–66.

75

  See R Higgins, ‘The Place of International Law in the Settlement of Disputes by the Security Council’ (1970) 64 AJIL 1–18, 8–9; Pellet, MN 18: ‘blurry and subjective nature’ of that characterization’; T Treves, ‘Règlement des conflits interétatiques: possibilités et limites à l’aube du système de Stockholm’ in Caflisch (ed), Peaceful Settlement (Brill 1998) 3–15, 4–5.

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Ch.I Purposes and Principles, Article 2 (4) Oliver Dörr, Albrecht Randelzhofer From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): Self-defence — Humanitarian intervention — Customary international law

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(p. 200) Article 2 (4) The Organization and its Members, in pursuit of the purposes stated in Article 1, shall act in accordance with the following principles: … 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. … A.  Fundamental Significance 1–3 B.  History of the Prohibition of the Use of Force 4–13 I.  Pre-Twentieth Century 4 II.  The Hague Conventions 5–6 III.  The League of Nations Covenant 7–8 IV.  The Geneva Protocol of 1924 9 V.  The Briand-Kellogg Pact 10–11 VI.  Article 2 (4) of the Charter 12–13 C.  Scope and Content of the Prohibition 14–43 I.  The Notion of ‘Force’ 16–28 1.  The Problem of Political and Economic Force 17–20 2.  The Problem of Physical Non-Armed Force 21–22 3.  The Problem of Indirect Force 23–28 II.  Addressees of the Prohibition 29–31 III.  The Prohibition and ‘International Relations’ 32–36 IV.  Territorial Integrity and Political Independence 37–41 V.  Threat of Force 42–43 D.  Exceptions to the Prohibition 44–63 I.  Measures Against Former Enemy States 45 II.  SC Enforcement Actions 46–50 III.  Self-Defence 51 IV.  Humanitarian Intervention 52–57 V.  Protection of Nationals Abroad 58–61 VI.  Wars of National Liberation 62–63

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E.  Special Problems 64–70 I.  Article 2 (4) as Customary International Law 64–66 II.  Article 2 (4) as Part of International Ius Cogens 67–68 III.  Article 2 (4) and Individual Responsibility 69–70 F.  Concluding Remarks 71–74

Select Bibliography Abiew FK, The Evolution of the Doctrine and Practice of Humanitarian Intervention (Kluwer 1999). Amerasinghe CF, ‘The Conundrum of Recourse to Force—to Protect Persons’ (2006) 3 Intl Org L Rev 7. d’Angelo JR, ‘Resort to Force by States to Protect Nationals, The US Rescue Mission to Iran and its Legality under International Law’ (1981) 21 Virginia J Intl L 485. (p. 201) Antonopoulos C, The Unilateral Use of Force by States in International Law (Ant N Sakkoulas 1997). Arangio-Ruiz G, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law (Sijthoff & Noordhoff 1979). Asrat B, Prohibition of Force under the UN Charter: A Study of Art. 2(4) (Iustus Förl 1991). Beyerlin U, Die humanitäre Aktion zur Gewährleistung des Mindeststandards in nichtinternationalen Konflikten (Duncker & Humblot 1975). ——— ‘Die israelische Befreiungsaktion von Entebbe in völkerrechtlicher Sicht’ (1977) 37 ZaöRV 213. Bowett DW, Self-Defence in International Law (Praeger 1958). Brownlie I, International Law and the Use of Force by States (Clarendon Press 1963). Bruha T, Die Definition der Aggression (Duncker & Humblot 1980). ——— ‘Gewaltverbot und humanitäres Völkerrecht nach dem 11. September 2001’ (2002) 40 AVR 383. Brunnée J and Toope SJ, ‘Slouching Towards New “Just” Wars: International Law and the Use of Force after September 11th’ (2004) 51 NILR 363. Butler WE (ed), The Non-Use of Force in International Law (Nijhoff 1989). Cassese A (ed), Current Problems of International Law (Giuffrè 1975). ——— (ed), The Current Legal Regulation of the Use of Force (Nijhoff 1986). Corten O, ‘The Controversies Over the Customary Prohibition on the Use of Force: a Methodological Debate’ (2005) 16 EJIL 803. Derpa RM, Das Gewaltverbot der Satzung der Vereinten Nationen und die Anwendung nichtmilitärischer Gewalt (Athenäum 1970). Dinstein Y, War, Aggression and Self-Defence (5th edn, CUP 2012). Dohna B Graf zu, Die Grundprinzipien des Völkerrechts über die freundschaftlichen Beziehungen und die Zusammenarbeit zwischen den Staaten (Duncker & Humblot 1973). Dörr O, ‘Use of Force, Prohibition of’ MPEPIL (online edn). ——— ‘Das völkerrechtliche Gewaltverbot in der Weltordnung des 21. Jahrhunderts’ (2009) 42 Politische Bildung 92. Eichensehr KE, ‘Defending Nationals Abroad: Assessing the Lawfulness of Forcible Hostage Rescues’ (2007/08) 48 Virginia J Intl L 451. Epping V, ‘Das (absolute) Gewaltverbot—Ein Anachronismus?’ in F Zehetner (ed), Festschrift für Hans-Ernst Folz (Neuer Wiss Verlag 2003) 31.

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Fassbender B, ‘Die Gegenwartskrise des völkerrechtlichen Gewaltverbotes vor dem Hintergrund der geschichtlichen Entwicklung’ (2004) 31 EuGRZ 241. Ferencz BB, Defining International Aggression, vol 2 (Oceana 1975). Franck TM, ‘Who killed Art. 2(4)? or: The Changing Norms Governing the Use of Force by States’ (1970) 64 AJIL 809. ——— ‘The Use of Force in International Law’ Tulane J Intl & Comp L 11 (2003) 7. Gazzini T, The Changing Rules on the Use of Force in International Law (Juris 2005). Gray C, International Law and the Use of Force (3rd edn, OUP 2008). Greenwood C, ‘Gibt es ein Recht auf humanitäre Intervention?’ (1993) 48 EA 93. Hailbronner K, ‘Die Grenzen des völkerrechtlichen Gewaltverbots’ (1986) 26 DGVR Berichte 49. Henkin L, ‘The Reports of the Death of Article 2(4) are Greatly Exaggerated’ (1971) 65 AJIL 544. Khare S, Use of Force under the UN Charter (Metropolitan Book 1985). Kreß C, Gewaltverbot und Selbstverteidigungsrecht nach der Satzung der Vereinten Nationen bei staatlicher Verwicklung in Gewaltakte Privater (Duncker & Humblot 1995). Kunz J, ‘Bellum justum et bellum legale’ (1951) 45 AJIL 528. Liebach I, Die unilaterale humanitäre Intervention im “zerfallenen Staat”(“failed State”) (Heymanns 2004). Lillich RB, ‘Forcible Self-Help by States to Protect Human Rights’ (1967) 53 Iowa L Rev 325. (p. 202) ——— (ed), Humanitarian Intervention and the United Nations (UP of Virginia 1973). Lombardi AV, Bürgerkrieg und Völkerrecht (Duncker & Humblot 1976). Malanczuk P, ‘Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness in the International Law Commission’s Draft Articles on State Responsibility’ in M Spinedi and B Simma (eds), United Nations Codification of State Responsibility (Oceana 1987) 197. ——— Humanitarian Intervention and the Legitimacy of the Use of Force (Het Spinhuis 1993). Moore JN (ed), Law and Civil War in the Modern World (Johns Hopkins UP 1974). Mrazek J, ‘Prohibition of the Threat and Use of Force: Self-Defence and Self-Help in International Law’ (1989) 27 Can YB Intl L 81. Neuhold H, Internationale Konflikte—Verbotene und erlaubte Mittel ihrer Austragung (Springer 1977). Nolte G, Eingreifen auf Einladung (Springer 1999). O’Connell ME, ‘Regulating the Use of Force in the 21 Century: the Continuing Importance of State Autonomy’ (1997) 36 Colum J of Transnatl L 473. Panzera AF, ‘“Raids” e protezione dei cittadini all’estero’ (1978) 61 Riv Dir Internaz 759. Pape M, Humanitäre Intervention: Zur Bedeutung der Menschenrechte in den Vereinten Nationen (Nomos 1997). Pauer A, Die humanitäre Intervention (Helbing & Lichtenhahn 1985). Pease KK and DP Forsythe, ‘Humanitarian Intervention and International Law’ (1993) 45 Österr ZöRVR 1. Pellet A, ‘Le recours à la force, le droit et la légitimité’ in A Fischer-Lescano and others (eds), Frieden in Freiheit—Peace in liberty. Festschrift für Michael Bothe (Nomos 2008) 249. Przetacznik F, ‘The Unlawfulness of War under Contemporary International Law’ (1989) 67 RDI 183.

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Rajower F, Das Recht des bewaffneten nicht-internationalen Konflikts seit 1949 (Schulthess 1990). Randelzhofer A, ‘Die Aggressionsdefinition der Vereinten Nationen’ (1975) 30 EA 621. ——— ‘Use of Force’ EPIL IV (2000) 1246. Reimann HB, ‘Das völkerrechtliche Gewaltverbot im Wandel’ in E Diez, J Monnier, and others (eds), Festschrift Bindschedler (Stämpfli 1980) 549. Reisman M, ‘Criteria for the Lawful Use of Force in International Law’ (1985) 10 YJIL 279. Röling B, ‘Hat das Kriegsverbot noch einen Sinn?’ (1969) 14 JIR 174. Ronzitti N, Rescuing Nationals abroad through Military Coercion and Intervention on Grounds of Humanity (Nijhoff 1985). Roscini M, ‘Threats of Armed Force and Contemporary International Law’ (2007) 54 NILR 229. Sadurska R, ‘Threats of Force’ (1988) 83 AJIL 239. Schachter O, ‘The Right of States to Use Armed Force’ (1984) 82 Mich L Rev 1620. Schadtle K, ‘Das völkerrechtliche Gewaltverbot und seine Ausnahmen’(2009) 31 Jura 686. Schaumann W (ed), Völkerrechtliches Gewaltverbot und Friedenssicherung (Nomos 1971). Schindler D, ‘Die Grenzen des völkerrechtlichen Gewaltverbots’ (1986) 26 DGVR Berichte 11. Schmitt MN, ‘Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework’ (1999) 37 Colum J of Transnatl L 885. Schweisfurth T, ‘Operations to Rescue Nationals in Third States Involving the Use of Force in Relation to the Protection of Human Rights’ (1980) 23 GYIL 159. Seeger C, Die unilateral humanitäre Intervention im System des Völkerrechts (Nomos 2009). Singh JN, Use of Force under International Law (Harnam Publications 1984). Skubiszewski K, ‘Use of Force by States, Collective Security, Law of War and Neutrality’ in M Sorensen (ed), Manual of Public International Law (1968) 739. Stahn C, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ (2007) 101 AJIL 99. Stelter C, Gewaltanwendung unter und neben der UN-Charta (Duncker & Humblot 2007). Stürchler N, The Threat of Force in International Law (CUP 2007). Tams C, ‘The Use of Force Against Terrorists’ (2009) 20 EJIL 359. (p. 203) Tesón FR, Humanitarian Intervention: An Inquiry into Law and Morality (3rd edn, Hotei 2005). Waldock CHM, ‘The Regulation of the Use of Force by Individual States in International Law’ (1952-II) 81 Rec des Cours 451. Watts A, ‘Threats of Force, Prohibition of’ MPEPIL (online edn). Wehberg H, Krieg und Eroberung im Wandel des Völkerrechts (Metzner 1953). Wellhausen M, Humanitäre Intervention: Probleme der Anerkennung des Rechtsinstituts unter besonderer Berücksichtigung des Kosovo-Konflikts (Nomos 2002). Wengler W, Das völkerrechtliche Gewaltverbot—Probleme und Tendenzen (de Gruyter 1967). Westra JH, International Law and the Use of Armed Force: the UN Charter and the Major Powers (Routledge 2007). Wippmann D, ‘The Nine Lives of Article 2 (4)’ (2007) 16 Minnesota Journal of International Law 387.

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Wood M, ‘Use of Force, Prohibition of Threat’ MPEPIL (online edn). Wright Q, The Role of International Law in the Elimination of War (Manchester UP 1961). Zedalis RJ, ‘Protection of Nationals Abroad: Is Consent the Basis of Legal Obligation?’ (1990) 25 Tex Intl LJ 209. Ziegler CE, Kosovo-Krieg der Nato 1999 und Irak-Krieg 2003: Völkerrechtliche Untersuchung zum universellen Gewaltverbot und seinen Ausnahmen (Lang 2009). Zourek J, L’Interdiction de l’emploi de la force en droit international (Sijthoff 1974).

A.  Fundamental Significance 1  The prohibition of the threat or use of force constitutes one of the cornerstones of the modern international legal order. Besides being laid down in Art. 2 (4) of the UN Charter and referred to in many other treaties, it is today universally accepted as a norm of customary international law. Moreover, it is agreed by many to belong to the special category of international ius cogens, which gives expression to the fundamental importance of the prohibition, as well as to its general acceptance by the international community. In the terms of modern politics, the non-use of force between States represents one of the core values of the international community. 2  Moreover, the prohibition of the use of force is a major element in the efforts of the international community to prevent war. Due to current levels of armament, prevailing strategic concepts, and the development of modern weaponry, war today endangers the survival of mankind. Thus, the prevention of war must be among the most prominent aspirations of international politics and, and since war is a feature of human behaviour and law is an important instrument for regulating human behaviour, also of international law. Because little success can be expected from the establishment of a rule of law prohibiting war without paying due regard to the causes of war (as they have been examined in other disciplines such as anthropology, biology, sociology, history, and economics), law has to summarize the relevant results of those disciplines and mould them into clear rules for the prevention of war. Peace and war constitute relations between States, and since public international law is the means through which those relations are governed, juridical efforts to prevent war must concentrate in particular, though not exclusively, on public international law. In fact, since the beginning of the twentieth century, international law has increasingly been dedicated to the task of war prevention, which is why today it is possible to refer to a system of war prevention in international law comprising: (1) the prohibition of the use of force, (2) collective measures to secure that prohibition, (3) the obligation to resort to peaceful means for the settlement of (p. 204) disputes, (4) regulations on arms limitation and reduction, and (5) rules, though so far barely developed, concerning ‘peaceful change’. As a more recent development, the criminal responsibility under international law of individuals for acts of international force may be added. 3  Although the use of force is still very much a fact in international practice, in recent years concentrating on the fight against terrorism, on policing the sea, on restoring order in failed States, and human rights vis-à-vis dictatorial regimes, the debate on each of those incidents hardly ever questioned the general norm on the prohibition of force. Instead, what is discussed and repeatedly the subject of controversy, are the scope and content of certain exceptions to the prohibition. Also States justifying their unilateral use of military force regularly do so by claiming that one of those exceptions applies, rather than by denying that there is a rule of international law that gives rise to the necessity of them justifying every single act of military force. As the ICJ aptly pointed out in the Nicaragua case:

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If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.1 Therefore, it appears that international practice and legal doctrine, by relying on and discussing the scope of various exceptions to the rule, in principle strengthens the rule that the use of military force between States is generally prohibited and, thus, the legal force and fundamental significance of Art. 2(4).

B.  History of the Prohibition of the Use of Force I.  Pre-Twentieth Century 4  Prior to the twentieth century, no prohibition of the use of force existed, so that States were free to resort to war.2 The medieval theory of bellum iustum had been developed by theologians and was never a valid rule of public international law.3 Besides, that theory lost its (virtual) war-preventing effects when it was recognized that recourse to war could be just for either side. ‘Contemporary public international law does not know of any rules about when it is permissible to wage war. If a State so decides, it may resort to war at any time. Force is thus permitted in the relations between States without any conditions.’4 This quotation correctly describes the legal situation almost up to 1919.

II.  The Hague Conventions 5  The Hague Peace Conferences of 1899 and 19075 marked the beginning of attempts to restrict the freedom to resort to war. In Art. 1 of the Hague Convention III of 1907 relating to the Opening of Hostilities, the contracting powers recognized that hostilities (p. 205) between them must not commence without a prior and unambiguous warning in the form of either a reasoned declaration of war or an ultimatum containing a conditional declaration of war. Whereas Convention III was, more than anything else, a formalization of the freedom to resort to war, Art. 1 of the Hague Convention II of 1907 respecting the Limitation of the Employment of Force for the Recovery of Contract Debts (Drago-Porter Convention)6 contained a substantive, if modest, restriction upon that freedom. The provision prohibited the recourse to armed force for the recovery of contractual debts. This prohibition, however, was subject to the debtor State’s obligation not to reject or evade an offer of arbitral settlement. Having accepted that offer, the State must not prevent the compromise from being concluded and was bound to comply with the subsequent award. 6  A similarly modest restriction on the freedom to resort to war was introduced through the so-called Bryan Treaties, concluded from 1913 onwards by the United States with a number of other States.7 In 1916, nineteen such treaties existed. The contracting parties undertook the obligation to submit all their disputes to a conciliation commission and not to begin hostilities prior to the commission’s report, which had to be delivered within one year.

III.  The League of Nations Covenant 7  The experience of World War I gave rise to a more comprehensive effort to restrict war within the framework of the League of Nations. But that attempt still fell far short of establishing a general prohibition of war, even though Art. 10 may, at first glance, suggest such an interpretation.8 But if Art. 10 is read together with Arts 12, 13, and 15, it becomes evident that the League Covenant, similar in this respect to the Bryan Treaties, merely provided for a moratorium (‘cooling-off period’) for all cases of armed conflict, while it was only in very special cases that League members were actually deprived of their freedom to go to war. The members were bound not to resort to war before the dispute had been submitted to judicial settlement, arbitration, or to the Council of the League. It was further

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prohibited to begin war within a period of three months from the arbitral award or the Council’s report. 8  Recourse to war was definitely forbidden only against a State complying with the award or a report that had been unanimously adopted by the Council (Arts 13 (4) and 15 (6) Covenant). Since, in practice, most of the disputes submitted to the Council were not dealt with unanimously, this mechanism of the Covenant did not prove to be an effective prohibition of war. In case the Council failed to adopt a report by unanimous vote, the League members reserved to themselves ‘the right to take such action as they shall consider necessary for the maintenance of right and justice’ (Art. 15 (7) Covenant), thus in essence underlining their right to use military force. Besides, it has to be remembered that the United States never belonged to the League, and that the Soviet Union, Germany, Japan, and Italy were members for only a short period of time.

(p. 206) IV.  The Geneva Protocol of 1924 9  The Geneva Protocol for the Pacific Settlement of International Disputes (1924) was an attempt to overcome the shortcomings of the League Covenant by stipulating, in Art. 2, the obligation of States ‘in no case to resort to war’, except in self-defence or in the case of collective enforcement measures.9 The Protocol, however, never became binding law. A general prohibition of war was only achieved on a regional basis: Art. 2 of the multilateral Locarno Treaty of 1925 proscribed any attack, invasion, or war, subject to some narrow exceptions, as between Germany and Belgium and France, respectively.10 But that treaty lost its binding force in 1935.

V.  The Briand-Kellogg Pact 10  The decisive turning-point in the development from the freedom to wage war towards a universal and general prohibition of war proved to be the Briand-Kellogg Pact, signed in Paris on 27 August 1928.11 Article I of the Pact read as follows: The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations with one another. Here, for the first time, a general prohibition of war was formulated, subject only to the right of self-defence. This latter exception is not expressly mentioned in the text of the treaty, but undoubtedly represented a tacit agreement between all parties.12 During the years following 1928, nearly all States existing at the time became parties to the Pact. Only a number of Latin American States remained outside the Pact, but they became bound by the Saavedra-Lamas Treaty,13 signed in Rio de Janeiro on 10 October 1933, Art. 1 of which is worded almost identically to Art. I of the Briand-Kellogg Pact. However, the denunciation of war was not confined to relations among the parties to the Saavedra-Lamas Treaty, but also covered their relations with third States. The provisions of the Briand-Kellogg Pact soon became part of general customary international law and as such are still valid today.14 11  Although of outstanding importance, the Briand-Kellogg Pact had its shortcomings. The prohibition of war, for instance, failed to be linked to a system of sanctions.15 Its Preamble simply declared that a State violating the Pact ‘should be denied the benefits furnished by the Treaty’. An even more serious deficiency proved to be the fact that the (p. 207) prohibition, at least according to its wording, merely referred to war, and not to the use of force in general.16 Consequently, several States disguised their military actions by not declaring them as war, and claimed that no violations of the Pact were being committed. The most discouraging example in this respect was the behaviour of China and Japan in 1931 and 1937, when they engaged in extensive military operations against each other, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

inflicting heavy casualties and destruction of property.17 Both governments, however, insisted that no state of war existed between them, as was illustrated by their continuing diplomatic relations, and that accordingly the situation did not fall under the Briand-Kellogg Pact.

VI.  Article 2 (4) of the Charter 12  That particular defect of the Pact was to be remedied by Art. 2 (4) of the UN Charter which not only extends the scope of the prohibition to the threat or use of all kinds of military force, but is also characterized by a contextual relationship with the multilateral system of enforcement provided for in Chapter VII UN Charter. Today Art. 2 (4) constitutes by necessity the basis of any discussion of the problem of the use of force. Its predominant significance is recognized in practice and legal doctrine and has been particularly emphasized by authors who labelled it ‘the cornerstone of peace in the Charter’,18 ‘the heart of the United Nations Charter’,19 or the ‘basic rule of contemporary public international law’.20 13  The eminent importance of Art. 2 (4) is also recognized in the jurisprudence of the ICJ which in the Congo-Uganda Case referred to the provision as ‘a cornerstone of the United Nations Charter’.21 This assessment is not affected by considerations of the Court on the customary character of the prohibition in its Nicaragua judgment of 1986.22 In that case, the Court interpreted certain customary rules on the prevention of war in a rather extensive manner, which might suggest a tendency to diminish the significance of Art. 2 (4) of the UN Charter. But clearly the Court’s approach of basing its findings on a far-reaching coincidence of the Charter provisions (Arts 2 and 51) and corresponding rules of customary international law, which was confirmed in its subsequent jurisprudence,23 is open to considerable doubt and, moreover, simply underlines the universal recognition of the prohibition as representing a common value of the modern international community.24

(p. 208) C.  Scope and Content of the Prohibition 14  Undoubtedly, the wording of Art. 2 (4) constitutes a considerable improvement in comparison with Art. I of the Briand-Kellogg Pact. The use of force in general is prohibited, rather than only war. Furthermore, the prohibition is not confined to the actual use of force, but extends to the mere threat of force. Finally, the prohibition is, at least in theory, safeguarded by a system of collective sanctions against any offender (Arts 39–51). 15  The scope and content of the prohibition of the use of force in contemporary international law cannot be determined by an isolated interpretation of Art. 2 (4) alone. Rather, the provision must be read in its context with Arts 39, 51, and 53. Here the problem arises that those Articles contain a number of terms which, though related to one another, differ considerably in their meaning. Thus, notions such as ‘use or threat of force’, ‘threat to the peace’, ‘breach of the peace’, ‘act of aggression’, ‘armed attack’, and ‘aggressive policy’ are used, but do not receive any further explanation in the Charter. Neither legal writings25 nor State practice26 have so far clarified these terms beyond doubt, nor have the attempts within the UN system as yet led to a satisfactory result.27 Therefore, even the fundamental terms used in the provision and concepts enshrined therein are still the subject of some controversy in legal doctrine and international practice.

I.  The Notion of ‘Force’ 16  Already the scope of the fundamental notion of ‘force’ is not undisputed. The term does not cover any possible kind of force, but is, according to the correct and prevailing view, limited to armed force.28

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1.  The Problem of Political and Economic Force 17  The developing countries and formerly the Eastern bloc countries had repeatedly claimed that the prohibition of the use of force also comprises other forms of force, for instance, (p. 209) political and, in particular, economic coercion.29 While the political debate on this point has lost most of its steam by now, it must be admitted that the actual wording of Art. 2 (4) does not provide a clear solution to it. 18  However, para 7 of the Preamble to the Charter states as one of the goals of the United Nations ‘that armed force shall not be used, save in the common interest’. And Art. 44 supports the view that the Charter uses the term ‘force’ where it clearly means ‘armed force’.30 The prevailing view is further corroborated by a teleological interpretation of Art. 2 (4): were this provision to extend to other forms of force, States would be left with no means of exerting pressure on other States which act in violation of international law.31 That consequence would be unacceptable considering the present state of international law, where compliance with the law is not effectively ensured through international organs. Finally, the travaux préparatoires of the UN Charter illustrate the fact that only military force is the concern of the prohibition of the use of force. At the San Francisco Conference, a proposal by Brazil to extend the prohibition of force to economic coercion, was explicitly rejected.32 19  This conclusion is confirmed by the Friendly Relations Declaration, adopted by the GA on 24 October 1970 (UNGA Res 2625 (XXV)),33 which contains an interpretation of the fundamental Charter principles. When interpreting the principle that States shall refrain in their international relations from the threat or use of force, the Declaration deals solely with military force. Apart from that, the Declaration stipulates as a further principle the obligation not to intervene in matters within the domestic jurisdiction of another State. It is in this context that the Declaration reads: ‘No State may use or encourage the use of economic, political or any other type of measures to coerce another State’. By doing so, the Declaration underlines the fact that the scope of Art. 2 (4) is restricted to armed force.34 Also, the prevailing international practice of States and international organizations treats only incidents involving military force as falling under the prohibition of the use of force and thereby confirms its narrow reading. Economic and other types of coercion are not covered by Art. 2 (4), but may fall under the general principle of non-intervention.35 20  No support for the prevailing view as to the scope of Art. 2 (4) can be derived, however, from the Definition of Aggression adopted by the GA on 14 December 1974, in Res 3314 (XXIX), Art. 1 of which states that ‘[a]ggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’. Although this (p. 210) definition apparently resembles the wording of Art. 2 (4), it must be emphasized that it does merely contain an interpretation of the notion of an ‘act of aggression’ as used in Art. 39, a fact that is illustrated by the Preamble and Art. 6 of the Resolution.36

2.  The Problem of Physical Non-Armed Force 21  Some authors argue that Art. 2 (4) also covers physical force of a non-military nature.37 Reference is made to examples such as the cross-frontier expulsion of populations, the diversion of a river by an up-stream State, the release of large quantities of water down a valley, and the spreading of fire across a frontier.38 That view can be accepted only within narrow limits. Admittedly, physical force can affect a State just as severely as the use of military force. But, as has been pointed out with regard to measures of political and economic coercion, the purpose of Art. 2 (4) is to ban only one means of coercion, namely military force. Besides, under normal circumstances there is no need to extend the prohibition to physical non-military force, since the unlawfulness of such actions under international law mostly follows from other rules, such as the principles of non-intervention

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or of territorial integrity.39 This is probably why in practice acts of non-military coercion have not so far been treated under the principle of the non-use of force. 22  Exceptions to this might arise where, in extreme situations, the use of physical nonmilitary force may produce the effects of an armed attack prompting the right of selfdefence laid down in Art. 51. Only in that particular case could an affected State respond by using armed force, without itself being in violation of Art. 2 (4).40 This extensive interpretation of ‘armed attack’, however, is acceptable only within the narrowest possible limits.41 The same may apply with regard to computer network attacks against the information systems of another State, given the weapon-like destructive potential which some attacks by means of information technology may develop and which in modern State practice are increasingly treated as an instrument of warfare.42

(p. 211) 3.  The Problem of Indirect Force 23  Article 2 (4) may be restricted to the prohibition of armed force, but this prohibition in turn has to be interpreted broadly.43 Not only is the direct use of force proscribed, ie the open incursion of regular military forces into the territory of another State or cross-border shooting into that territory, but also the use of indirect armed force.44 The notion of ‘indirect force’, sometimes imprecisely replaced by ‘indirect aggression’,45 refers to the participation of one State in the use of force by another State (eg by allowing parts of its own territory to be used for violent acts against a third State), as well as to a State’s participation in the use of force by unofficial bands organized in a military manner, such as irregulars, mercenaries, or rebels, against another State.46 24  Whereas States are ever less inclined to use direct armed force in their international relations, in an increasing number of cases they tend to prefer different kinds of participation in or assistance to acts of violence in another State’s territory. The reasons that preference is given to the indirect use of force are manifold, among them the risk of an escalation of the conflict, the consideration for public opinion against war, insufficient military strength for a traditional war, or the obviousness of a breach of the prohibition of the use of force. The willingness to use indirect force is enhanced by a change of political goals.47 States, in particular the powerful ones, have ceased to try to acquire territory from other States, instead, they are now focused on the governments of other States.48 Consequently, States endeavour to overthrow disliked governments or at least to destabilize them, regularly striving to install friendly forces in the other State. In order to achieve these goals, the use of indirect force by giving assistance to anti-government forces is more appropriate in most cases than recourse to a State’s own troops. The restriction to supporting foreign units at the same time limits the military and political risk the intervening State has to take.49 It can, if appropriate, deny any participation in the rebel activities or at least disguise the true scale of participation.50 25  In particular the Western States, which were affected by that form of the use of force in the first place, had tried to restrain the use of indirect force at the level of international law through a broad interpretation of Art. 2 (4).51 As a result of their efforts it is virtually undisputed today, both in international legal writings52 and in UN practice,53 that the scope of Art. 2 (4) extends to the use of indirect force. The significance of this consensus, however, must not be overestimated, as it is still unclear which forms of participation (p. 212) in acts of violence committed by militarily organized groups can be said to constitute ‘force’ within the meaning of Art. 2 (4). A clear-cut statement on the activities to be regarded as ‘force’ in this context is possible only to a limited extent, owing to the great variety of forms of such participation.

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26  A certain specification can be drawn, however, from the Friendly Relations Declaration of the GA which describes the prohibition of the use of indirect force in the eighth and ninth paragraphs of its section dealing with the prohibition of force as follows: Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State. Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.54 The ICJ refers in its case-law to these formulations in the Declaration as being declaratory of customary international law on the non-use of force.55 27  Both the organization of irregular forces or armed bands and the prohibition of participation in acts of civil strife or terrorist acts are characterized by the broadest possible wording.56 In the final analysis, every possible act of support can be included under terms such as ‘encouraging’, ‘assisting’, or ‘participating’.57 This kind of interpretation, however, blurs the limits of the notion of armed force and can hardly be reconciled with the object and purpose of Art. 2 (4).58 That is why in the Nicaragua Case the ICJ correctly found that not every act of assistance is to be qualified as a use of force.59 Thus it characterized the arming and training of the ‘Contras’ by the United States as use of force, but not the mere supplying of funds to them. The ICJ did not, however, indicate any criteria according to which it could be decided what acts of assistance, under what circumstances, are to be considered a threat or use of force. The only hint given, namely that the act of assistance has to involve a threat or use of force, does not lead any further, for it simply repeats the question to be answered.60 (p. 213) 28  In sum, it must be said therefore that the scope of the prohibition of the use of force is still not sufficiently clear with regard to the problem of assistance to subversive activities.61 Whether Art. 2 (4) has been violated in a given case can only be established by taking into account and evaluating all the relevant circumstances. Two things are certain, though: first, a breach by the assisting State of the prohibition of the use of force laid down in Art. 2 (4) can only be established if the units receiving the support commit the use or threat of force in another State.62 Second, not every form of assistance results in an infringement of the prohibition of the use of force.63

II.  Addressees of the Prohibition 29  Article 2 (4) stipulates that it is the members of the UN who shall refrain from the threat or use of force. According to Art. 4 of the Charter, only States are eligible to become members of the UN. Thus the prohibition of the use of force indisputably only protects and is only addressed to States. It does not matter in this respect whether the States recognize each other.64 Even States that are not members of the UN are protected, though not bound, by Art. 2 (4), owing to the provision’s broad wording (‘any State’).65 It is almost generally accepted that de facto regimes exercising their authority in a stabilized manner are also bound and protected by Art. 2 (4).66 30  Since they cannot become parties of the UN Charter, international organizations are not bound by Art. 2 (4) as a norm of treaty law. However, those international organizations that are in a position to conduct military operations may be considered to be bound under customary international law.67 This applies to regional security arrangements, such as NATO, the European Union, ECOWAS, and the African Union, but also to the United Nations itself. Most of the organizations concerned acknowledge the binding character of the

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prohibition already in their constituent documents, and moreover in cases of military operations usually declare themselves bound by the customary rules on the use of force. 31  Private individuals or groups do not fall under Art. 2 (4), nor under the customary prohibition of the use of force, even if they may dispose of the financial, military, and organizational capacities allowing them to commit acts of armed force against States which have the scale and effects of interstate operations. In its recent jurisprudence the ICJ made it clear that acts of violence by non-State actors can only become relevant as amounting to an armed attack, if they are attributable to a State which then would (p. 214) be the legitimate target of self-defence.68 The same must apply to the prohibition of the use of force, as both rules systematically correspond to each other. This is why the ICJ in Armed Activities on the Territory of the Congo took great pains in attributing private violent conduct to the government of Uganda, having recourse to Arts 4–8 of the 2001 ILC Draft Articles on the Responsibility of States and to the Friendly Relations Declaration.69 Another way of attributing private actions to a State, making the latter responsible under the prohibition of the use of force, is the concept of indirect force applied by the Court in the Nicaragua Case (MN 23–28). Also recent State practice (eg with regard to the conflicts in Lebanon 2006 and Georgia 2008) confirms that armed force used by non-State actors only becomes relevant with regard to the prohibition of the use of force, if it can be attributed to a State other than the one affected by it.70

III.  The Prohibition and ‘International Relations’ 32  Article 2 (4) proscribes the threat or use of force in the international relations between States. The use of force solely within a State is not covered. That means that the provision does not prevent insurgents from starting a civil war, nor the government concerned from using armed force against them.71 The legal situation changes, however, when the rebels have succeeded in establishing a stabilized de facto regime (MN 29). 33  The international relations of a State are not affected if it consents to the use of armed force by another State in its own territory, including its territorial waters. Because sovereign States are in principle free to dispose of their territory, they also have the right to dispose of their exclusive right to use that territory, and thus to allow military operations of other States on their State territory. As long as that consent is genuine, the prohibition of the use of force does not apply, therefore, to military actions of other States’ forces on the territory of a State whose government has consented to those operations.72 In principle, this includes the intervention of other States’ armed forces in a civil war or in the fight against terrorists by invitation or with the consent of the competent government. The recent practice of collective operations against private terrorist groups (eg in Afghanistan) or pirates (eg in the territorial waters of Somalia) seems to confirm this conclusion, and in the recent Congo Case the ICJ clearly proceeded on the assumption that the valid consent by the Democratic Republic of the Congo could have justified the military operations of Ugandan troops on its territory.73 The legalizing effect of State (p. 215) consent may, however, be questioned in situations when the consenting government is not legitimate, no longer effective, or when the intervention consented to would violate the right of peoples to self-determination.74 Since a valid consent by the State whose territory is affected excludes the application of the prohibition of force altogether, the peremptory character of the prohibition (see MN 67) cannot affect the validity of the consent. 34  As the prohibition of the threat or use of force is limited to the international relations between States, it does not apply to military acts of protection by a State within its own territory against intruding persons, ships, or aircraft.75 Thus, the enforcement of a State’s own territorial jurisdiction by means of armed force does not fall under Art. 2 (4).

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35  It is a different story, however, when a foreign ship or aircraft is attacked on or over the high seas. In State practice forcible attacks against ships and aircraft of another State, either of a commercial or military character, are also regarded as acts of force against that State and as falling under the prohibition of the use of force. Those attacks may be considered to fall under Art. 2 (4) because they are also ‘inconsistent with the purposes of the UN’.76 Authority for this might already be derived from the famous Lotus Case of the PCIJ, which held that as a corollary of the principle of the freedom of the seas ‘a ship on the high seas is assimilated to the territory of the State the flag of which it flies’ and that ‘a ship is placed in the same position as national territory’.77 Along the same lines, Art. 3 (d) of the Definition of Aggression qualified the attack ‘on the land, sea or air forces, or marine or air fleets of another State’ as an act of aggression. And in the Oil Platforms Case the ICJ clearly proceeded on the assumption that the attack on a military vessel of another State, either through missiles or sea mines, may in case of the required severity amount to an armed attack, provided the vessel is flying the flag of that State.78 When a foreign ship or aircraft is attacked in the territory of a third State, the use of force is not only directed against the flag State, but also against the State whose territory is affected. 36  Violent attacks against diplomatic premises do not amount to acts of force against the sending State, since the premises are not part of its territory. If committed from outside the territory of the receiving State, such acts may amount to a use of force against the latter. Should the receiving State itself be responsible for the incident, the latter must be dealt with under the leges speciales of the law on diplomatic relations.

IV.  Territorial Integrity and Political Independence 37  Article 2 (4) stipulates that members shall refrain from the threat or use of force ‘against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations’. The terms ‘territorial integrity’ and ‘political independence’ are not intended to restrict the scope of the prohibition of the use of force.79 Thus, an illegal use of force within the meaning of these two phrases (p. 216) not only occurs when a State’s territorial existence or the status of its political independence is altered or abolished. Rather, the two modes of the use of force cover any possible kind of trans-frontier use of armed force.80 Thus an incursion into the territory of another State constitutes an infringement of Art. 2 (4), even if it is not intended to deprive that State of part of its territory and if the invading troops are meant to withdraw immediately after completing a temporary and limited operation (‘in-and-out operations’). In other words, ‘integrity’ has to be read as ‘inviolability’,81 proscribing any kind of forcible trespassing. Therefore, most forms of the exercise of armed force, especially the graver ones, already fall under the first two modes of the prohibition of force. 38  Gaps that may possibly be left are filled by the remaining form, which outlaws the threat or use of force ‘in any other manner inconsistent with the purposes of the United Nations’. The paramount purpose of the UN is, according to Art. 1 (1) of the Charter, to maintain international peace and security, and to that end to prevent and remove threats to the peace, as well as to suppress acts of aggression or other breaches of the peace. Furthermore, para 7 of the Charter’s Preamble, as was mentioned earlier, lays down the goal of ensuring that armed force shall not be used, save in the common interest. It follows from these provisions that the use of armed force is lawful only in those cases that are explicitly specified in the Charter as exceptions to Art. 2 (4)82 or that are universally recognized under customary international law. 39  This conclusion is confirmed by the travaux préparatoires to Art. 2 (4).83 The first two modes of the prohibition had not been part of the Dumbarton Oaks Proposals, but at the San Francisco Conference, several smaller States succeeded in introducing these variants into the wording of Art. 2 (4).84 They wanted particular emphasis to be placed on the protection of territorial integrity and political independence by means of the prohibition of

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the use of force.85 But there was no intention whatsoever to restrict the general and comprehensive prohibition of force put forward in the Dumbarton Oaks Proposals. The travaux préparatoires, as well as the broad formulation used in the third strand of the prohibition, are being disregarded by those authors who, contrary to the predominant view, consider the forms referring to territorial integrity and political independence to limit the prohibition of the use of force.86 (p. 217) 40  The intended wide scope of the prohibition of the use of force laid down in Art. 2 (4) is also neglected by those authors who argue in favour of a teleological reduction of the prohibition when it comes to ‘failed States’: The argument points out that, when effective government has vanished due to civil war or violent unrest, the protective effect of the prohibition to use force would merely benefit the warring parties within the State concerned and add to the suffering of the population, which is why in those cases a forcible intervention by the international community, but also by neighbouring States must be admissible.87 Such a reduction of the prohibition, however, is not generally recognized in State practice which, for example, seems to continue to apply Art. 2 (4) to Somalia and which seems to prefer to have interventions in ‘failed States’ authorized by means of Chapter VII UN Charter, rather than left to the sovereign will of individual States.88 41  Although the terms ‘territorial integrity’ and ‘political independence’ are generally not intended to restrict the scope of the prohibition of the use of force, they lend an argument in favour of the widely accepted view that certain cases of the threat or the use of force within the law of the sea are not covered by Art. 2 (4).89 According to Arts 105–110 of the UN Convention of the Law of the Sea, warships of a State are entitled to stop and seize a pirate ship or a ship engaged in slave trade. To do so successfully will eventually require the threat or use of military force. The same applies to the use of the right of hot pursuit according to Art. 111 of the UN Convention of the Law of the Sea.90 It may be argued that these types of force are not directed against the territorial integrity or political independence of any State, nor are they in any other manner inconsistent with the purposes of the United Nations, since it cannot be assumed that the UN Charter is directed against well-established rules of the law of the sea. Alternatively, in order to keep the protective scope of Art. 2 (4) intact, those rules may be considered legitimate exceptions to the prohibitions of the use of force.91 Their use has been demonstrated in the recent State practice of armed actions against pirates off the coast of Somalia.92

V.  Threat of Force 42  The definition of a ‘threat of force’ has received far less consideration in legal writings than that of the ‘use of force’.93 This results from the fact that so far the mere threat of (p. 218) force has rarely led in State practice to a case that has been argued under Art. 2 (4). That is not to say that threats of force have never occurred. But in most cases those threats preceded an actual use of force, so that the resulting dispute focused on the latter aspect. On the other hand, State practice reveals a relatively high degree of tolerance towards mere threats of force, one decisive reason for which seems to be that some of the most obvious threats of force are legitimized by the right of self-defence embodied in Art. 51 UN Charter. The piling-up of armaments, as well as the shaping of alliances, both imply the threat of force against any possible aggressor, yet this happens in conformity with the requirements of lawful self-defence. Moreover, one has to admit that distinguishing in a clear-cut manner between offensive and defensive preparations is far from easy, and is often virtually impossible. There are, for instance, hardly any weapons that can be used only for defensive purposes.

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43  Another reason why it is difficult to qualify certain acts of a State as a prohibited threat of force is that the causal link between a threat and the behaviour of the target State is often indeterminable. It is not sufficient that another State reacts or believes it is reacting to a presumed threat of force. Only a threat directed towards a specific reaction on the part of the target State is unlawful under the terms of Art. 2 (4). Thus it is correct, though of only limited value, to state that ‘a blatant and direct threat of force, used to compel another State to yield territory or to make substantial political concessions, would have to be seen as illegal under article 2(4)’.94 After all, it has to be pointed out that the threat of force forbidden by Art. 2 (4) requires a coercive intent directed towards specific behaviour on the part of another State. A third reason why threats of force are often tolerated in State practice may be that they play the role of a ritualized substitute for the use of force and, as such, may help to speed up the peaceful settlement of disputes.95 In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ held96 that the possession of nuclear weapons could amount to a threat of force contrary to Art. 2 (4), if the envisaged use of such weapons, even if anticipated as an act of defence, would necessarily violate the requirements of necessity and proportionality.97

D.  Exceptions to the Prohibition 44  The legal and practical relevance of Art. 2 (4) cannot be assessed without looking at the recognized exceptions to the prohibition, ie at the grounds on which the use of armed force by a State can be justified today on the basis of a norm of international law. Since the proscriptive norm, outlawing any kind of armed force between States, is the basic rule, a State which wishes to invoke an exception to that rule in order to justify forcible actions in its international relations, will carry the burden to show that the invoked justification exists as a legal norm in abstracto and that its preconditions were fulfilled in a given case of armed force. Probably, the protective and stabilizing function of the prohibition of the use of force rests to a considerable extent on that shift of the burden of argument, which is demonstrated by the fact that current international practice and legal argument with regard to the use of (p. 219) force mainly focus on exceptions to the basic rule and on their prerequisites. Three exceptions to the prohibitions of the use of force can be found in the UN Charter itself, while two (controversial) others are discussed as norms of customary international law.

I.  Measures Against Former Enemy States 45  It is commonly held that Art. 107 of the UN Charter, which reads: Nothing in the present Charter shall invalidate or preclude action in relation to any State which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorised as a result of that war by the Governments having responsibility for such actions, prevents Art. 2 (4) from taking effect as between a signatory and a former enemy State.98 Article 53 (1) allows enforcement actions under regional security arrangements to be taken against such enemy States without authorization by the SC. Both Articles illustrate that the creation of the UN not only marked the beginning of a new era, but also the continuation of the victorious alliance of World War II.99 Today these provisions have become obsolete, since all former enemy States are now UN member States.100 Although possibly not shared by the former Soviet Union,101 the general view has been for a long time that Arts 53 (1) and 107 could not be invoked against member States, since the latter, upon admission to the UN, are formally characterized as peace-loving pursuant to Art. 4 UN Charter.102 Besides, it would be incompatible with the fundamental principle of the sovereign equality of all members (Art. 2 (1)).103 It is worth mentioning that the ICJ in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, dealing with the exceptions to the prohibition of the use of force does, not mention Arts 53 (1) and 107.104 This is certainly not From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

an omission, but must be seen as a corroboration of the view that these Articles are obsolete today. Alternatively to basing their obsoleteness on the system of the UN Charter itself, it may be argued that Arts 53 (1) and 107 have become void through desuetude extrinsic to the Charter.105

(p. 220) II.  SC Enforcement Actions 46  According to Arts 24 and 12 of the Charter, the SC has the primary responsibility for the maintenance of international peace and security. If pursuant to Art. 39 it determines the existence of a threat to the peace, a breach of the peace, or an act of aggression, it can decide to take measures involving the use of armed force. Since every threat or use of force entails, eo ipso, at least a threat to the peace, the SC could respond to any infringement of Art. 2 (4) by taking such measures.106 UN members are bound to carry out the decision taken by the Council,107 thus a member State is entitled to use armed force against another if it is acting under the terms of a resolution of the UN Security Council, adopted under Chapter VII UN Charter. 47  In UN practice, beginning in 1990 with UNSC Res 665 and 678, adopted in reaction to the Iraqi invasion of Kuwait,108 the SC is not actually ‘taking’ the actions envisaged in Art. 42 UN Charter itself, but usually authorizes member States to take the measures assigned. Thus, UN enforcement actions under Chapter VII function in practice as often ill-defined authorizations of States to use armed force against or in the territory of another State.109 This may not have been the way in which the concept of the UN Charter had envisaged enforcement actions under Chapter VII, but it represents a legitimate evolution of that concept by undisputed practice of UN organs and member States. And there is some basis for that development in the text of the Charter itself: The second sentence of Art. 42 expressly states that sanctions may include military operations of members of the UN, and Art. 48 (1) clearly shows that actions required to carry out the decisions of the SC may also be taken either by all the member States or by some of them. Finally it can be derived from Art. 106 of the UN Charter that military sanctions under Chapter VII are possible even in the absence of special agreements provided for in Art. 43, that is to say even if the SC does not have troops at its disposal and under its direct command. As a result, the practice of enforcement actions under Chapter VII usually conveys the image of interstate conflicts in which one side is, by virtue of an authorization on behalf of the international community, allowed to use armed force and the other is not. 48  From the fundamental importance of the prohibition of the use of force and its peremptory character it follows, however, that only those SC resolutions can be taken to (p. 221) grant the required authorization, which contain an explicit and sufficiently clear mandate to that effect. It is not sufficient that the Council merely characterizes a situation or a State’s conduct as a threat to the peace, or even condemns a particular State for its illegal actions. ‘Taking action’ under Art. 42 UN Charter—interpreted in the light of the prohibition of the use of force—requires the Security Council to explicitly grant an authorization and to envisage a forcible course of events in a sufficiently concrete manner.110 49  It was not on the basis of Arts 39 and 42 of the Charter that armed force was used under the UN flag against an aggressor State in the Korean War.111 In this case on 25 June 1950, the SC, in the absence of the Soviet representative, characterized North Korea’s invasion of South Korea as a breach of the peace.112 On 27 June and 7 July, the Council recommended that the members assist South Korea.113 But further decisions pursuant to Art. 42 were vetoed by the Soviet Union, which, as of 1 August 1950, had returned to its seat in the SC.114 As a consequence, the GA adopted the ‘Uniting for Peace’ Resolution on 3 November 1950, para 1 of which reads:

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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…the use of armed force.115 The ICJ seems to consider that resolution and the prerequisites set up in it as still binding on the GA, since in its recent Wall opinion it examined the conduct of the Assembly by those standards.116 50  Nor are the so-called peacekeeping operations of the UN based on Arts 39 and 42.117 In those cases the use of force is not directed against an aggressor State. In the name of the UN and with the consent of the States concerned, troops are sent in for various purposes, such as supervising a ceasefire or a demarcation line, exercising police functions, or forming a ‘cordon sanitaire’ between hostile parties. The legal bases for these operations, though by no means beyond doubt, are to be found in Arts 29 and 34 of the Charter.118

(p. 222) III.  Self-Defence 51  The most important exception to the prohibition of the use of force laid down in Art. 2 (4), and at the same time the most controversial norm in this area, is the right of individual and collective self-defence in case of an armed attack pursuant to Art. 51.119

IV.  Humanitarian Intervention 52  It is highly controversial in international legal doctrine whether the use of armed force for the prevention or discontinuation of massive violations of human rights in a foreign State can be lawful.120 In contrast to actions for the purpose of protecting a State’s own nationals abroad (MN 58–61), which also usually occur on humanitarian grounds, the objective of humanitarian intervention is the protection of foreign nationals.121 Quite a number of writers on international law regard forcible humanitarian intervention under certain pre-conditions as lawful.122 Authors taking this view often argue that the use of force on strictly humanitarian grounds is directed neither against the ‘territorial integrity’ nor the ‘political independence’ of the target State, and, moreover, is in conformity with the ‘most fundamental peremptory norms’ of the Charter.123 As has been shown above (at MN 37–39), such an interpretation of Art. 2 (4) disregards the travaux préparatoires and the purpose of the provision and is, therefore, not tenable. 53  Nor is it any more convincing to argue that Art. 2 (4) prohibits humanitarian intervention only to the extent that the UN does in fact fulfil its task of safeguarding human rights.124 The UN Charter does not contain the slightest hint to the effect that the (p. 223) validity of Art. 2 (4) might be in any way conditioned by the effectiveness of collective mechanisms for the protection of human rights.125 54  Some try to justify humanitarian interventions by referring ‘to the need for balancing the sometimes opposite goals of conflict-minimalization and protection of human rights’, which is why in ‘certain extreme situations’, it is said, forcible humanitarian intervention should be recognized as lawful.126 Such a balancing of interests, however, would be contrary to the systematic interpretation of the Charter, which clearly shows that the individual States are to be divested of the use of armed force as an instrument of their international policy.127 Thus, there is no room for the concept of humanitarian intervention being deduced from the UN Charter, nor could the judgment of the ICJ in the Nicaragua Case possibly be read as endorsing such an exception.128 Under the UN Charter, forcible humanitarian intervention cannot, therefore, be considered lawful129(p. 224) and also the

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right of self-defence pursuant to Art. 51 of the Charter cannot be interpreted as encompassing that kind of intervention.130 55  Finally, there is no evidence of sufficient State practice or opinio iuris that could have led to the creation of a new rule of customary international law, establishing humanitarian intervention as a legitimate exception to the prohibition laid down in Art. 2 (4).131 Although there have been several incidences which, at first sight, might develop precedential value for such a customary rule (interventions by India in East Pakistan (1971), by Viet-Nam in Cambodia (1979), by Tanzania in Uganda (1979), the no-fly zones in Northern Iraq (1991)), in all those cases the States involved advanced various justifications for their forcible actions,132 so that a uniform opinio iuris referring to the humanitarian purpose of the use of force could not develop. Moreover, the abusive character of a humanitarian pretext, and thus the danger involved in accepting humanitarian intervention as a legal justification for armed force, became clear through the Indonesian intervention in East Timor in late 1975, justified on humanitarian grounds, which was followed several months later by a full-scale annexation of the invaded territory.133 The armed intervention of NATO forces in March 1999 against Yugoslavia, in order to end atrocities against the Albanian population in Kosovo, might have set an apt precedent in favour of humanitarian intervention as a permissive norm of international law, but as such it was not able to change the law, not the least because important States, such as Russia, China, and India, challenged the operation as being unlawful. The NATO operation itself was not compatible with international law, as it stood at the time.134 (p. 225) 56  Nor is the newly developed concept of a responsibility to protect135 suited to establish humanitarian intervention as a new rule of international law, since, insofar as it is supposed to be more than just a political concept, it appears to be based on the competence of the Security Council to adopt measures against the State concerned, thus referring for the authority to use armed force to Chapter VII of the UN Charter.136 The concept, as it has been incorporated in UN documents,137 stops short of including the autonomous right of individual States to use armed force against another State and does not therefore, from the viewpoint of international law, add anything new to the debate on humanitarian intervention.138 57  As long as international law does not contain a recognized exception on humanitarian intervention, the international community may continue to face situations in which there is a divergence of law and morality. For some States it becomes increasingly unacceptable to see grave violations of human rights occurring within another State and still be banned by international law from intervening. If the SC does not act in those cases on the basis of Arts 39 and 42 of the Charter to stop the violations of human rights, as occurred in the Kosovo Case, States will time and again be tempted to intervene (p. 226) on their own.139 Thus, eventually a rule of customary international law making humanitarian intervention lawful might develop,140 which, above all, the SC could prevent by extending its practice under Chapter VII to grave human rights violations, thereby making the development of such a rule unnecessary.

V.  Protection of Nationals Abroad 58  It is also very controversial among authors on international law, whether there is, as part of the lex lata, an unwritten exception to the prohibition of the use of force, which would allow States to protect or rescue their nationals by means of armed force in the territory of another State. Quite a number of legal writers used to argue against such a rule, because it would be open to abuse and is not firmly established in State practice.141 And surely armed action to rescue nationals abroad cannot be justified on the basis of the right to self-defence,142 as is often done in State practice, because the territorial element required for a legitimate case of an armed attack is absent in the relevant situations, and without an armed attack there can be no lawful self-defence.143 Also the repeated

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argument, that rescue operations would not be contrary to Art. 2 (4), because the territorial integrity and political independence of the States concerned were not affected,144 is not convincing, since it disregards the context and ratio of the prohibition, as well as its travaux préparatoires (MN 37–39, 52).145 Nor does the concept of a state of necessity provide a valid basis for protective measures involving the use of force.146 59  However, forcible operations by States to rescue their own nationals and nationals of other States who have asked for the intervening State’s assistance, have been a consistent element of State practice at least since 1960.147 Well-known examples are operations by UK (p. 227) forces in Suez in 1956,148 the 1960 protective measures taken by Belgium in the Congo, the Belgian-United States rescue operation, also concerning the Congo, of Stanleyville and Paulis (1964), the freeing of hostages by Israel at Entebbe (1976), and the failed American attempt to free its diplomatic staff held hostage in Iran (1980).149 The landing of American troops on Grenada in October 1983 and the American intervention in Panama in December 1989 were also justified by the US government, inter alia, by invoking the necessity of protecting its own nationals.150 More recent operations were carried out, for instance, by the US in Liberia (1990),151 by France and the United States in the Central African Republic (1996 and 2003), by Belgium and France in Rwanda (1990, 1993, and 1997), by France in Chad (1992 and 2006), by Germany in Albania (1997),152 by France in the Ivory Coast (2002/2003). The governments of the intervening States have on those occasions expressed the view that Art. 2 (4) does not prohibit the use of armed force in order to rescue a State’s own nationals whose lives or health are endangered in a foreign State, provided that the latter is not able or not willing to provide the required protection.153 Besides, those rescue operations have regularly received explicit approval by other States or met with inaction on the part of the international community.154 In its judgment of 24 May 1980, in the US Diplomatic Staff in Teheran Case,155 the ICJ declined to pronounce upon the legality of the abortive American rescue operation. 60  Given the regular State practice for more than fifty years now, the positive opinio iuris of the intervening and many third States, and a considerable reluctance on the part of other States to qualify forcible rescue operations as unlawful, the argument can be made that a rule of customary international law is by now established allowing limited forcible action with the legitimate aim to rescue a State’s own nationals (and (p. 228) nationals of other States upon their request) in another State’s territory without that State’s consent and entailing, therewith, an unwritten justification to use armed force.156 Rescue operations conducted with the consent of the territorial State are generally seen as permissible,157 which conforms to the overall legalizing effect of genuine consent with regard to the prohibition of the use of force (MN 33). 61  To ensure that the fundamental rule of the prohibition of force is not undermined, the use of armed force for the purpose of rescuing nationals abroad is only admissible in limited cases and under well-defined preconditions. Legitimate use of the rescue exception presupposes that the life of nationals is genuinely in danger in the territory of another State, that that State itself is either unwilling or unable to ensure the safety of the persons concerned (ultima ratio), that the intervening State does not pursue any other purpose on the occasion of the operation, and that the scale and effects of the military force used are adequately measured to the purpose and conditions of the operation, thus the impact on the other State’s territory is kept to the absolutely necessary minimum.158

VI.  Wars of National Liberation 62  The former Soviet doctrine of public international law,159 supported in this respect by the majority of developing countries,160 had maintained that there is a further exception to the prohibition of the use of force. Wars of national liberation by peoples under colonial or racist regimes or other forms of alien domination were claimed to be as lawful as the support, including the use of force, given to those peoples by third States.161 (p. 229) The

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arguments in favour of this view varied, depending on the state of the doctrine’s development.162 The main argument seemed to be that colonialism may be considered a permanent armed attack, against which individual and collective self-defence is allowed.163 Such a view, seeking to revive the idea of bellum iustum as an element of modern international law,164 is incompatible with the relevant interpretation of Arts 2 (4) and 51 of the Charter.165 63  This is notwithstanding the fact that Art. 7 of the Definition of Aggression adopted by the GA seems to endorse the doctrine just described. As pointed out earlier (MN 20), that Definition relates neither to Art. 2 (4) nor to Art. 51. Moreover, being a UNGA resolution, it is merely a recommendation and not binding law. Finally, the interpretation of that Art. 7 is highly disputed.166 Its wording proclaims a right of peoples ‘to struggle’ for their liberation, while the draft of that Article had still referred to a right ‘to use force’. That formulation, however, was successfully objected to by the Western States, and consequently they interpreted the term ‘struggle’ in the final text as meaning ‘to fight peacefully’. Despite the resolution’s preparatory work, the Third World and socialist countries upheld their interpretation of the notion of ‘struggle’, which does include the use of force.

E.  Special Problems I.  Article 2 (4) as Customary International Law 64  The overwhelming majority of writers on international law consider Art. 2 (4) to be part of customary international law.167 In its decisions in the Nicaragua Case, the ICJ adopted this point of view and, presupposing the existence of a customary prohibition of the use of force, held the United States to be in breach of its ‘obligation under customary international law not to use force against another State’.168 In its Wall opinion (p. 230) of 2004 the Court confirmed the customary character of the ‘principles as to the use of force incorporated in the Charter’ and extended that holding to the corollary of the prohibition, entailing the illegality of territorial acquisition resulting from the threat or use of force.169 65  The Court deduces the opinio iuris required for the assumption of a customary rule from the consent given to certain GA resolutions, in particular to the Friendly Relations Declaration (UNGA Res 2625 (XXV)).170 With regard to the requirement of uniform practice, the need for State practice that corresponds to that opinio iuris is emphasized.171 But the ICJ refuses to review the relevant State practice with respect to the prohibition of force any more closely; instead it simply assumes it to be sufficient that the conduct of States be ‘in general’ consistent with the rule.172 Very briefly, the Court touches on the lack of coincidence of treaty and customary rules on the use of force,173 but does not indicate in any way that it might determine the scope of the customary prohibition of force and that of Art. 2 (4) differently. Rather, in interpreting the customary rule, the ICJ adheres to the terms used in Art. 2 (4)174 and refers explicitly to its wording.175 Whereas the ICJ does indeed deal, if rather briefly, with the lack of coincidence of treaty and customary law with regard to the right of self-defence,176 this point is not dealt with in respect of the prohibition of the use of force itself, leaving a number of questions unanswered.177 It follows that the ICJ for all practical purposes tends to view the prohibition of force under general international law and the prohibition laid down in Art. 2 (4) as being identical in content.178 Although the Court’s line of argument appears to be highly objectionable, the result is that the existence of a prohibition of the use of force under customary law, though possibly differing in content from that laid down in Art. 2 (4), can in practice hardly be denied.

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(p. 231) 66  The opposite view, referring to the divergent interpretations given to the prohibition by States,179 disregards the fact that, despite all that divergence, a ‘hard core’ of the prohibition of the use of force is recognized today. The differing interpretations by individual States are, however, to be considered in determining the extent to which Art. 2 (4) is paralleled in customary international law.180 Although they cannot alter Art. 2 (4) as part of treaty law, it is submitted that those differences result in the customary prohibition not extending beyond a generally recognized core area. This latter point is overlooked by the prevailing view, which indiscriminately regards Art. 2 (4) as part of general international customary law.181

II.  Article 2 (4) as Part of International Ius Cogens 67  In addition to being a norm of customary international law, the prohibition of the use of force laid down in Art. 2 (4) is usually acknowledged in State practice and legal doctrine to have a peremptory character, and thus to be part of the international ius cogens.182 In terms of the responsibility of States this would in case of gross or systematic violations imply an obligation of all States to cooperate in order to bring the breach to an end and not to recognize as lawful any situation created by the use of force (Art. 40 (1) ILC Draft Articles). This duty of non-recognition was taken up by the ICJ in the Construction of a Wall Advisory Opinion, when it held that as a corollary of the prohibition of the use of force any territorial acquisition resulting from the threat or use of force was illegal and must be treated as such by other States.183 However, the peremptory character of the prohibition of the use of force does not affect the rules of State immunity and, thus, the possibility of a State being accused of having committed illegal acts of force to invoke those rules with respect to proceedings in the courts of another State.184 68  In terms of the law of treaties, the ius cogens character of the prohibition of force leads to the invalidity of treaties whose substance is contrary to Art. 2 (4) (Art. 53 Vienna Convention on the Law of Treaties).185 However, this can only apply to treaties which (p. 232) actually are in contradiction to the prohibition, thus excluding those treaties to which the State concerned has validly consented (see MN 33). Therefore, only treaties concluded between States which relate to the use of force against a third State can be subject to the invalidity provided for in Art. 53 Vienna Convention. Moreover, a treaty is void if its conclusion has been procured by an illegal threat or use of force according to Art. 52 Vienna Convention on the Law of Treaties,186 whereas (peace) treaties forced upon an aggressor State are not eo ipso invalid (Art. 75 Vienna Convention).

III.  Article 2 (4) and Individual Responsibility 69  Neither Art. 2 (4) nor any other Charter provision provides a basis for the criminal prosecution of individuals violating the prohibition of the use of force. For a considerable time, the international community did not succeed in transforming the respective principles emanating from the Nuremberg and Tokyo trials into binding international law.187 The Definition of Aggression adopted by the GA in 1974 (MN 20) stipulated in Art. 5 (2) that ‘a war of aggression is a crime against international peace. Aggression gives rise to international responsibility’. However, being a mere GA resolution, that definition was not binding law. Moreover, Art. 5 (2) spoke somewhat enigmatically of ‘responsibility’, which, coupled with ‘international’, usually refers in the international legal context to State, rather than individual responsibility.188 70  Individual responsibility is, however, introduced into international law through the 1998 Rome Statute of the International Criminal Court, which entered into force on 1 July 2002 and which is binding today upon some 120 State parties.189 Article 5 (1) (d) of the Statute confers upon the ICC subject-matter jurisdiction with respect to the crime of aggression, the definition of which that would ‘activate’ the Court’s jurisdiction had been postponed to later agreement (Art. 5 (2) Rome Statute). In June 2010 the Assembly of State parties to the Rome Statute adopted, in Kampala, the required amendments to the Statute on the crime of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

aggression.190 The newly inserted Art. 8 bis of the Statute defines as such crime the ‘planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a state, of an act of aggression’. As ‘acts of aggression’ the new provision simply incorporates the wording of Art. 3 of the Definition of Aggression adopted by the GA in 1974 (MN 20). The amendment needs to be ratified by at least thirty State parties, and the ICC shall exercise jurisdiction over the crime of aggression only one year after that ratification process has been concluded, but not before another two-thirds vote has (p. 233) been taken by the State parties after 2017.191 Thus, it will still take some time before individual criminal responsibility for grave violations of the prohibition of the use of force will effectively be enforced on the international plane.

F.  Concluding Remarks 71  The prohibition of the use of force laid down in Art. 2 (4) represents, beside the protection of human rights, the major achievement of the international legal order in the twentieth century. Today it features as the cornerstone of that order and an undisputed core principle of the international community. Also as a rule of international law the prohibition is virtually undisputed, as State practice and doctrinal debate clearly demonstrate that it is not the prohibition as such, but the exceptions to it that are the subject of controversy (MN 2). So in reality there is no ‘massive global disagreement’, as some authors suggest,192 which could have led to the abrogation of the prohibition as a legal norm. 72  However, the effectiveness of the prohibition of force, which is vital for its acceptance by States, might be seen to be in danger. This does not so much result from uncertainties which the scope of Art. 2 (4) itself might entail, since the latter appears to be practically settled today: the prohibition is in principle restricted to armed force (MN 16–22), but this restriction is to be interpreted broadly (MN 37–40) to encompass every kind of armed force in the international relations between States. 73  The effectiveness of the prohibition of force could, however, suffer from the fact that the bold prohibition is not sufficiently linked to other international legal means of preventing war. There is no comprehensive obligation to submit disputes to peaceful settlement,193 nor a procedure for ‘peaceful change’ deserving that name,194 nor an obligation of substantial disarmament.195 The system of collective enforcement measures embodied in Chapter VII UN Charter proved abortive for a long time196 and functions today in a way not envisaged by the Charter (MN 47). 74  With this deplored lack of effectiveness in mind, doubts regarding the purpose of the prohibition of force have arisen in legal doctrine.197 Others have ventured to ask: ‘Who killed Art. 2 (4) (of the UN Charter)?’,198 only to answer that the prohibition of the use of force in the Charter depends on the functioning of the system of coercive measures in accordance with Chapter VII. Since the renunciation of force by individual States is acceptable only when it is assured that the SC is in the position to take the steps (p. 234) necessary for the prohibition to succeed, and since that system did not work, it was said, Art. 2 (4) has become void.199 This argument, however, was fundamentally flawed. Undoubtedly the functioning of Chapter VII is of some significance for the willingness of States to comply with Art. 2 (4). But in no way can the relationship between the two be taken to result in the legal validity of the prohibition of force being conditioned, as of law, by the effective functioning of the system of collective enforcement.200 The present authors, therefore, subscribe to the view that ‘the reports of the death of Art. 2 (4) are greatly exaggerated’.201 It must be admitted, however, that whenever the system of collective sanctions provided in the UN Charter does not function properly, States might find it difficult to fully comply with Art. 2 (4). This applies in particular to cases, such as the Israeli

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raid on Entebbe or the Kosovo intervention of NATO, in which the requirements of the prohibition of the use of force appear to be in conflict with moral values.

Footnotes: 1

  Military and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ Rep 14, para 186. 2

  F Berber, Lehrbuch des Völkerrechts, vol 2: Kriegsrecht (2nd edn, CH Beck 1969) 26–27; H Fischer, in K Ipsen, Völkerrecht (5th edn, CH Beck 2004) § 59 para 2; J Kunz, ‘Bellum justum et bellum legale’ (1951) 45 AJIL 529. 3

  H Wehberg, Krieg und Eroberung (Metzner 1953) 21–28.

4

  P Heilborn, Grundbegriffe des Völkerrechts (Kohlhammer 1912) 23 [translation by the author]. 5

  cf B Baker, ‘Hague Peace Conferences of 1899 and 1907’ MPEPIL (online edn).

6

  cf W Benedek, ‘Drago-Porter Convention (1907)’ MPEPIL (online edn).

7

  cf HJ Schlochauer, ‘Bryan Treaties (1913/1914)’ MPEPIL (online edn).

8

  Wehberg (n 3) 32–33, 35–36.

9

  cf FA Freiherr von der Heydte, ‘Geneva Protocol for the Pacific Settlement of International Disputes (1924)’ EPIL II (1995) 529–31; H Wehberg, Das Genfer Protokoll betreffend die friedliche Erledigung internationaler Streitigkeiten (Stilke 1927) 37–38. 10

  cf J Lindley-French, ‘Locarno Treaties (1925)’ MPEPIL (online edn) MN 1, 2, 6–11.

11

  cf Berber (n 2) 35–36; I Brownlie, International Law and the Use of Force by States (1963) 74–75; Wehberg (n 3) 43–44; Fischer (n 2) § 59 para 7; Q Wright, ‘The Meaning of the Pact of Paris’ (1933) 27 AJIL 39–40; R Lesaffer, ‘Kellogg-Briand Pact (1928)’ MPEPIL (online edn) MN 1; M Schmidl, The Changing Nature of Self-Defence in International Law (Nomos 2009) 27. 12

  Concurring Fischer (n 2) § 59 para 7; Schmidl (n 11) 27f; H Thierry, J Combacau, S Sur, and C Vallée, Droit international public (4th edn, Montchrestien 1984) 500; Y Dinstein, War, Aggression and Self-Defence (5th edn, CUP 2012) 86, who even sees an early concept of collective self-defence embodied in the Preamble to the Pact. 13

  cf Brownlie, 95–96; H Caminos, ‘Saavedra-Lamas Treaty (1933)’ MPEPIL (online edn) MN 1–3. 14

  Berber (n 2) 35; Thierry and others (n 12) 501; R Wolfrum, ‘§ 169 Gewaltverbot’ in G Dahm, J Delbrück, and R Wolfrum, Völkerrecht, vol I/3 (2nd edn, de Gruyter 2002) 821. See also Brownlie, 110. For the reactions of States to the conclusion of the Pact, cf F Przetacznik, ‘The Unlawfulness of War under Contemporary International Law’ (1989) 67 RDI 183, at 190–95. 15

  Concurring Wehberg (n 3) 48.

16

  ibid, 49–50.

17

  For the course of the conflict on Manchuria, see the account given by R Langer, Seizure of Territory (Princeton UP 1947) 50–66, 123–31. 18

  CHM Waldock, ‘The Regulation of the Use of Force by Individual States in International Law’ (1952-II) 81 Rec des Cours 492.

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19

  L Henkin L, ‘The Reports of the Death of Article 2(4) are Greatly Exaggerated’ (1971) 65 AJIL 544. 20

  Jiménez de Aréchaga, El derecho internacional contemporaneo (Tecnos 1980) 108.

21

  Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Merits) [2005] ICJ Rep 168, para 148. 22

  [1986] ICJ Rep (n 1) 14f.

23

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136, para 87. 24

  See in more detail MN 65.

25

  cf eg C Stelter, Gewaltanwendung unter und neben der UN-Charta (2007) 145f; B Fassbender, ‘Die Gegenwartskrise des völkerrechtlichen Gewaltverbotes vor dem Hintergrund der geschichtlichen Entwicklung’ (2004) 31 EuGRZ 248; C Gray, International Law and the Use of Force (3rd edn, OUP 2008) 128–48 and 173–83. 26

  cf the following contributions R Higgins, ‘The Attitude of Western States Towards Legal Aspects of the Use of Force’ in A Cassese (ed), The Current Legal Regulation of the Use of Force (Nijhoff 1986) 435–52; H Bokor-Szego, ‘The Attitude of Socialist States Towards the International Regulation of the Use of Force’ 453–77; and M Sahović, ‘Non-Aligned Countries and the Current Regulation of the Use of Force’ 480–88. 27

  Worth mentioning are, above all, the Friendly Relations Declaration (UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625(XXV) reprinted in (1971) 65 AJIL 243), the Definition of Aggression (UNGA Res 3314 (XXIX) (14 December 1974) UN Doc A/RES/ 3314(XXIX) reprinted in (1975) 69 AJIL 480), and the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, adopted by the UNGA on 18 November 1987 (UNGA Res 42/22 (18 November 1987) reprinted in (1988) 27 ILM 1672). Nor could the Nicaragua Judgment of the ICJ of 1986 (n 1), solve the interpretative problems with regard to Art. 2 (4), since the Court was not basing its ruling on the Charter provisions at all, but on customary international law. In the Corfu Channel Case, the ICJ did not see any cause for discussing Art. 2 (4) extensively, either. One thing that judgment made clear, however, is that, except in self-defence pursuant to Art. 51 of the Charter, the prohibition of the use of force forbids military force to be used as a reprisal (cf [1949] ICJ Rep 4f, 35). 28

  Concurring GHS, 49; A Verdross andB Simma, Universelles Völkerrecht (3rd edn, Duncker & Humblot 1984) para 476; H Kelsen and R Tucker, Principles of International Law (2nd edn, Holt 1966) 86; Brownlie, 362; Bowett, 148; Khare, 27–28; Singh, 212; Schindler, 14; Malanczuk, 244; Dinstein, 88; further references given by Derpa 26 fn 17. 29

  eg Zourek, 73–78; cf the reference given by Derpa, 26–28 and Dohna, 54–58. Asrat, 113– 38, also favours a wider notion of ‘force’. 30

  Concurring CP (2nd edn)/Virally 122–23.

31

  Concurring T Stein and C v Buttlar, Völkerrecht (13th edn, Heymanns 2012) MN 775.

32

  See UNCIO VI, 334, 609. A more extensive prohibition of force which also covers economic coercion is contained in the OAS Charter: cf Arts 15, 16 of the 1948 Charter and Arts 18 and 19 of the 1967 Charter. 33

  See n 27.

34

  The ICJ, too, seems to interpret the Friendly Relations Declaration as implying a narrow understanding of ‘force’, since, in order to determine the scope of the prohibition of force

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under customary international law, the Court refers to this resolution without mentioning the paragraph quoted in the text (cf [1986] ICJ Rep (n 1) para 191). 35

  Which does not mean, however, that measures of economic coercion are prohibited without exception. Thus, in its Nicaragua judgment, the ICJ did not consider the economic actions taken by the United States against Nicaragua to be in breach of the principle of non-intervention ([1986] ICJ Rep (n 1) para 245). 36

  See A A Randelzhofer, ‘Die Aggressionsdefinition der Vereinten Nationen’ (1975) 30 EA 621–30. 37

  eg Brownlie, 362–63, 376–77; Wehberg (n 3) 69; Kelsen and Tucker (n 28) 86; Derpa, 25 (with further references). 38

  cf Derpa, 25.

39

  Similarly Singh, 213.

40

  According to the prevailing and correct view, the unilateral use of force in international relations is permissible under the UN Charter exclusively in response to an armed attack (see Randelzhofer and Nolte on Art. 51 MN 10 and 13. 41

  Similarly Hailbronner, 76. In principle against: W Kewenig, ‘Gewaltverbot und noch zulässige Machteinwirkung und Interventionsmittel’ in W Schaumann (ed), Völkerrechtliches Gewaltverbot und Friedenssicherung (Nomos 1971) 211–12, who considered such an interpretation of ‘armed attack’ not to have any basis at all in UN practice. 42

  cf eg MN Schmitt, ‘Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework’ (1999) 37 Colum J of Transntl L 885, 912–15; M Roscini, ‘World Wide Warfare—Jus ad Bellum and the Use of Cyber Force’ (2010) 14 Max Planck YB UN L 85, 102–09; MC Waxman, ‘Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4)’ (2011) 36 YJIL 421; K Ziolkowski, ‘Computer Network Operations and the Law of Armed Conflict’ (2010) 49 Military Law and the Law of War Review 47. To include computer attacks within the scope of Art. 2 (4) is also thought to be possible, eg by Dinstein, 88; M Bothe, in Graf Vitzthum (ed), Völkerrecht (5th edn, de Gruyter 2010) VIII MN 10 with further references; reluctant, however, M Benatar, ‘The Use of Cyber Force: Need for Legal Justification?’ (2009) 1 Go JIL 375–96. 43

  Dörr, ‘Use of Force, Prohibition of’ MPEPIL (online edn) MN 13.

44

  Today virtually undisputed: see GHS, 50; Randelzhofer, ‘Use of Force’ 1250; Verdross and Simma (n 28) para 481; Stein and von Buttlar (n 31) MN 774; Dohna, 60; Derpa, 20 (with further references); Schachter, 1625; Schindler, 33; P Lamberti Zanardi, ‘Indirect Military Aggression’ in A Cassese (ed), The Current Legal Regulation of the Use of Force (Nijhoff 1986) 111–19, 111. 45

  eg Schindler, 32.

46

  cf Randelzhofer, ‘Use of Force’, 1250.

47

  Neuhold, 76–77.

48

  R Falk, Legal Order in a Violent World (Princeton UP 1968) 112, aptly describes this point: ‘If empire once depended primarily upon the extent of colonial occupation, it now increasingly depends upon the capacity to influence the outcome of important internal wars’ J Fawcett, Law and Power in International Relations (Faber and Faber 1982) 46, sees that ‘shift…from wars between States to irregular fighting against particular regimes’ as also being recognized in the 1970 Friendly Relations Declaration.

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49

  Falk (n 48) 110–11.

50

  Neuhold, 77.

51

  For greater detail, see Neuhold, 76–79; Bruha, 169–72.

52

  See the authors referred to in (n 44).

53

  As to which, cf RP 51, 30–48 (esp 31, 39–43).

54

  UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625(XXV).

55

  Military and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ Rep (n 1) para 191; Armed Activities on the Territory of the Congo [2005] ICJ Rep (n 21) paras 162 and 300. 56

  However, the eighth paragraph of the Declaration is more important than the ninth, since the prohibition of organizing irregular forces, unlike the prohibition of participating in acts of civil strife, belongs to the ‘core’ of indirect aggression, the unlawfulness of which is generally accepted: see Neuhold, 228–29. 57

  cf CP (2nd edn)/Virally, 123, who, by invoking the Friendly Relations Declaration, asserts that any form of assistance is illegal. 58

  For this point, cf Kewenig (n 42) 187–88, who, prior to the adoption of the Friendly Relations Declaration, advocated the view that assistance for terrorist acts should be regulated solely through the law of non-intervention. 59

  [1986] ICJ Rep (n 1) para 228.

60

  Apart from that, the Court is not quite correct here in its interpretation of the Friendly Relations Declaration. The phrase ‘involve a threat or use of force’, which is quoted in the Declaration, is merely meant to make clear that the activities assisted must entail an element of force. This seems to be the ICJ’s view, too, when it states that ‘[a]ccording to that resolution, participation of this kind is contrary to the principle of the prohibition of the use of force, when the acts of civil strife referred to involve a threat of use of force’ ([1986] ICJ Rep 14 para 228). But then in the very next sentence the ICJ alters the meaning of that phrase, in that it now refers to the act of assistance itself, ie the arming and training of the ‘Contras’. This change in the point of reference is incompatible with the wording and meaning of the respective paragraph of the Declaration. 61

  Nor did the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations contain anything new. The relevant para 6 reads as follows: ‘States shall fulfil their obligations under international law to refrain from organizing, instigating, assisting or participating in paramilitary, terrorist or subversive acts, including acts of mercenaries, in other States, or acquiescing in organized activities within their territory directed towards the commission of such acts’ (cf UNGA Res 42/22 (8 November 1987) UN Doc A/RES/42/22, reprints in (1988) 27 ILM 1672f, 1676). 62

  That is because the prohibition of the use of indirect force cannot possibly extend further than the prohibition of the use of direct force. 63

  [1986] ICJ Rep (n 1) para 228.

64

  J Frowein, Das de-facto-Regime im Völkerrecht (Heymanns 1968) 35; Schindler, 29–30.

65

  Dinstein, 86. The conditions of Art. 36 (1) of the 1969 VCLT can be taken to be fulfilled in this case.

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66

  See Brownlie, 380; Bowett, 153–54; Verdross and Simma (n 28) para 406; Neuhold, 75– 76; Frowein (n 64) 69; Schindler, 29–30; Lombardi, 50. Naturally, the binding character of the prohibition of force can only be based here on a corresponding rule of general customary international law. 67

  Dörr, ‘Use of Force, Prohibition of’ MPEPIL (online edn) MN 28.

68

  Construction of a Wall (n 23) para 139; Armed Activities on the Territory of the Congo (n 21) paras 146–47. Critical as to this approach, eg Construction of a Wall (n 23) (Separate Opinion Judge Higgins) 215; ibid (Separate Opinion Judge Kooijmans) 229–30; ibid (Declaration Judge Buergenthal) 242; Dinstein, 229–30; SD Murphy, ‘Self-Defense and the Israeli Wall Advisory Opinion: An ipse dixit from the ICJ?’ (2005) 99 AJIL 62–76; R Wedgwood, ‘The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of SelfDefense’ (2005) 99 AJIL 58; CJ Tams, ‘Light Treatment of a Complex Problem: The Law of Self-Defence in the Wall Case’ (2005) 16 EJIL 970–73; C Kreß, ‘Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts’ (2010) 15 J Conflict & Security L 248. 69

  See Armed Activities on the Territory of the Congo (n 21) paras 160–65.

70

  Concurring, eg Wolfrum (n 14) 825.

71

  On this point there is consensus in legal doctrine: see eg Verdross and Simma (n 28) para 468; Berber (n 2) 42; G Dahm, Völkerrecht, vol 2 (Kohlhammer 1961) 358; Wehberg, Krieg und Eroberung, 74; E Castren, Civil War (Suomalaisen Tiedeakatemia 1966) 19; Neuhold, 88; Schindler, 14–15; K Doehring, ‘Intervention im Bürgerkrieg’, in FJ Kroneck and T Oppermann (eds), Festschrift Grewe (Nomos 1981) 454; Lombardi, 49. 72

  Brownlie, 320–21.

73

  cf ICJ Armed Activities on the Territory of the Congo (n 21) paras 92–105.

74

  Nolte, 604.

75

  Concurring, eg Bowett, 38; Hailbronner, 60; Schachter, 1626; Schindler, 15; Skubiszewski, 773; Verdross and Simma (n 28) para 472; Antonopoulos, 339–50; Stein and v Buttlar (n 31) para 778. 76

  Wolfrum (n 14) 824.

77

  The ‘Lotus’ Case (France v Turkey) [1927] PCIJ Ser A, No 10, 25.

78

  Case concerning the Oil Platforms (Islamic Republic of Iran v United States of America) (Merits) [2003] ICJ Rep 161f, paras 64 and 72. 79

  This represents the dominant view: eg L Oppenheim, International Law, vol 2 in H Lauterpacht (ed), Disputes, War and Neutrality (7th edn, Longmans, Green & Co 1952) 154; Verdross and Simma (n 28) para 469; Berber (n 2) 43–44; DW Greig, International Law (2nd edn, Butterworth 1976) 871; Neuhold, 108–10; Brownlie, 267; Schindler, 14; Wehberg (n 3) 70–71; M Akehurst and P Malanczuk, A Modern Introduction to International Law (7th edn, Routledge 1997) 309–10; U Beyerlin, ‘Die israelische Befreiungsaktion von Entebbe in völkerrechtlicher Sicht’ (1977) 37 ZaöRV 217–19; E Jiménez de Aréchaga, ‘International Law in the Past Third of a Century’ (1978-I) 159 Rec des Cours 89–92; Mrazek, 86–87. 80

  Berber (n 2) 43; Wehberg (n 3) 77–78; Verdross and Simma (n 28) para 469; Schindler, 14; Oppenheim and Lauterpacht (n 79) 154; Derpa, 31. 81

  This is the term used by Oppenheim and Lauterpacht (n 79) and Ronzitti, 8 (with further references). cf also Verdross and Simma (n 28) para 469 fn 4.

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82

  Concurring, Verdross and Simma (n 28) para 469; Q Wright, ‘The Outlawry of War and the Law of War’ (1953) 47 AJIL 365–76, 370; Kelsen, 269; D Ott, Public International Law in the Modern World (Pitman 1987) 309; Dinstein, 91. 83

  See Brownlie, 265–67; Fischer (n 2) § 59 para 15.

84

  cf UNCIO VI, 556–58.

85

  UNCIO VI, 304, 334–35. cf moreover the SG’s report on the ‘Question of Defining Aggression’, UN Doc A/2211, GAOR (VII), Annexes. 86

  This minority view is held, eg by Bowett, 152; J Stone, Aggression and World Order (University of California Press 1958) 43; presumably also A D’Amato, International Law: Process and Prospect (New York 1987) 57–73, 79–80. M Reisman, ‘Coercion and SelfDetermination: Construing Charter Article 2(4)’ (1984) 78 AJIL 642–45 goes even further than the authors quoted. He rejects a ‘mechanical interpretation’ of Art. 2 (4) and regards any use of force as permissible for the promotion of the right of every people to determine their own political destiny. cf the reply by O Schachter, ‘The Legality of Pro-Democratic Invasion’ (1984) 78 AJIL 645–49, 649, who rightly points out that this view represents neither the current lex lata nor a desirable lex ferenda. 87

  M Herdegen, ‘Der Wegfall effektiver Staatsgewalt: “The Failed State”’ (1996) 34 DGVR Berichte 49–83, 58–61; following him Stein and v Buttlar (n 31) MN 808. 88

  Against excluding ‘failed States’ from being protected by the prohibition of force also Bothe (n 41) MN 13; Schadtle, 688. 89

  See Bowett, 82f; Skubiszewski, 773, fn 3; Schindler, 15; Hailbronner, 60.

90

  In its judgment of 1 July 1999, The M/V ‘SAIGA’ (No. 2) Case, the International Tribunal for the Law of the Sea dealt with the problem of proportionality of the use of force in case of hot pursuit under paras 153–159. On that judgment see H v Brevern and L v Carlowitz, ‘Die erste Hauptsacheentscheidung des Internationalen Seegerichtshofs’ (1999) 45 RIW 856–66; as to the problem of hot pursuit 862–63. 91

  Dörr, ‘Use of Force, Prohibition of’ MPEPIL (online edn) MN 39.

92

  cf A von Arnauld, ‘Die moderne Piraterie und das Völkerrecht’(2009) 47 AVR 454f.

93

  Remarkable studies have been undertaken, however, by Sadurska, Roscini, and Stürchler. See also Asrat, 138–44; D Kritsiotis, ‘Close Encounters of a Sovereign Kind’ (2009) 20 EJIL 299–330; H Hofmeister, ‘“Ceterum censeo Chartaginem esse delendam”—Eine Analyse des völkerrechtlichen Gewaltandrohungsverbots’ (2010) 48 AVR 248–65. 94

  Schachter, 1625.

95

  See Sadurska, 246–47.

96

  See [1996] ICJ Rep 246f, para 48.

97

  On those principles see Randelzhofer and Nolte on Art. 51 MN 57–62.

98

  See Ress and Bröhmer on Art. 107 MN 7; Berber (n 2) 52–53; D Blumenwitz, Die Feindstaatenklauseln—Die Rechtsordnung der Sieger (1972) 59; Wehberg (n 3) 85. 99

  cf Berber (n 2) 52–53.

100

  Berber (n 2) 97, 125; Stein and v Buttlar (n 31) MN 781; Verdross and Simma (n 28) para 106; S Hobe, Einführung in das Völkerrecht (9th edn, 2008) 130; A Cassese, International Law in a Divided World (Clarendon Press 1986) 137. Contra M Bettati,

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‘L’Admission des deux Allemagnes à l’ONU’ (1973) 19 AFDI 231. See further Ress and Bröhmer on Art. 53 MN 111 and Art. 107 MN 2. 101

  Thus the then Soviet Ambassador-designate to the Federal Republic of Germany, Valentin Falin, declared on 17 March 1971, that Arts 53 and 107 were applicable to all former enemy States, including (the UN members) Hungary and Romania; cf von H Siegler, Dokumentation zur Deutschlandfrage in Verbindung mit der Ostpolitik, vol 7 (Siegler 1972) 100–02, 101. A change of that attitude was later suggested by General-Secretary Mikhail Gorbachev in his speeches before the UNGA on 7 December 1988, and the Assembly of the Council of Europe on 6 July 1989. 102

  See Verdross and Simma (n 28) para 106; Blumenwitz (n 99) 94–95. cf also the concurring statement by the Japanese Foreign Minister on 13 April 1970 (1975) 19 Japan Ann Intl L 162–63. This view was partly shared in Eastern bloc writings, cf the references given by D Frentzke, ‘Einige Aspekte der Art. 53 und 107 VN-Satzung aus östlicher Sicht’ (1969) 13 ROW 165–66. 103

  cf Berber (n 2) 53; Blumenwitz (n 98) 94–95.

104

  See [1996] ICJ Rep 226f, para 38.

105

  For the concept and effects of desuetude, cf Wolfrum (n 14) 722–74; Hobe (n 100) 195; MG Kohen, ‘Desuetude and Obsolescence of Treaties’ in E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (2011) 350–59; R Kolb, ‘La desuetude en droit international public’ 111 (2007) RGDIP 577–607; G Le Floch, ‘La desuetude en droit international public’ (2007) 111 RGDIP 609–42. 106

  The predominant view regards Art. 39 as encompassing acts falling under Art. 2 (4): see eg Bowett, 149; U Fink, Kollektive Friedenssicherung, vol 2 (Lang 1999) 866–71; Wengler 23, fn 31; Wehberg (n 3) 75; Neuhold, 113–14. Mostly it is assumed that the scope of Art. 39 extends even beyond that; see eg Verdross and Simma (n 28) para 234; Frowein (n 64) 47–48; Kewenig (n 42) 190–91 with further references in 42. For the practice of the UN organs which interpret the notion ‘threat of the peace’ very broadly indeed, cf Krisch on Art. 39 MN 12–34. 107

  cf Peters on Art. 25 MN 29–31; Reinisch and Novak on Art. 48 MN 1.

108

  On that incidence as a case of Chapter VII UN Charter, eg TM Franck, and F Patel, ‘UN Police Action in Lieu of War: “The Old Order Changeth”’ (1991) 85 AJIL 63–74, 74; U Heinz, C Philip, and R Wolfrum, ‘Zweiter Golfkrieg: Anwendungsfall von Kapitel VII der UNOCharta’ (1991) 39 VN 125–26; AM Dastis Quevedo, ‘El uso de la fuerza armada en el Golfo: Una justificación jurídica’ (1991) 43 Rev Esp de Derecho Internac 109–16; U Fink, ‘Der Konflikt zwischen dem Irak und Kuwait und die internationale Friedensordnung’ (1991) 29 AVR 474; KH Kaikobad, ‘Self-Defence, Enforcement Action and the Gulf Wars, 1980–88 and 1990–91’ (1993) 63 BYJL 353–63; D Bowett, ‘Collective Security and Collective SelfDefence: The Errors and Risks in Identification’ in M Rama Montaldo (ed), Liber Amicorum in tribute to Professor E. J. de Aréchaga, vol 1 (FCU 1994) 425–40; K Zemanek, ‘PeaceKeeping or Peace Making?’ in N Blokker and S Müller (eds), Towards More Effective Supervision by International Organizations; Essays in Honour of Henry G. Schermers, vol 1 (Nijhoff 1994) 31. 109

  Krisch on Art. 42 MN 10–13.

110

  O Dörr, ‘Use of Force, Prohibition of’ MPEPIL (online edn) MN 42; P Kunig, ‘Das Völkerrecht als Recht der Weltbevölkerung’(2003) 41 AVR 327–35, 329–30; Schadtle, 691; J Lobel and M Ratner, ‘Bypassing the Security Council: Ambiguous Authorizations to Use

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Force, Cease-Fires and the Iraqi Inspection Regime’ (1999) 93 AJIL 124–54, 127–30. See also Krisch on Art. 42 MN 21. 111

  On this, see the accounts given by M Schaefer, Die Funktionsfähigkeit des Sicherheitsmechanismus der Vereinten Nationen (Springer 1981) 118–50, and DW Bowett, United Nations Forces (Stevens 1964) 29–60. 112

  cf RP II, 340, para 20.

113

  UN Docs S/1511 (27 June 1950) and S/1588 (7 July 1950). Texts in (1950) UNYB 222– 24, 230. 114

  See (1950) UNYB 230–44.

115

  UNGA Res 377 (V) (3 November 1950) UN Doc A/RES/377(V); text in (1950) UNYB 193–95; cf also C Binder, ‘Uniting for Peace Resolution’ MPEPIL (online edn) MN 1–6. 116

  cf Construction of a Wall (n 23) paras 29–32.

117

  cf the extensive documentation by R Higgins (ed), United Nations Peacekeeping, vols 1–4 (OUP 1969–81); M Bothe, ‘Peacekeeping Forces’ MPEPIL (online edn) MN 32–36. 118

  See Verdross and Simma (n 28) para 257. This is discussed at length by ND White, The United Nations and the Maintenance of International Peace and Security (Manchester UP 1990) 181–212 119

  For a detailed analysis see Randelzhofer and Nolte on Art. 51.

120

  cf the comprehensive account by Pauer, 123–81.

121

  For the distinction between the two grounds of intervention, see Beyerlin, Humanitäre Aktion, 35–36. 122

  eg FK Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention (Kluwer 1999), especially 277–81; K Doehring, Völkerrecht (2nd edn, Müller 2004) MN 1012–1015; id, ‘Die Humanitäre Intervention—Überlegungen zu ihrer Rechtfertigung’, in Inter-American Institute on Human Rights (ed), The Modern World of Human Rights, Essays in Honor of Thomas Buergenthal (IIDH 1996) 549–64; JP Fonteyne, ‘The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the UN Charter’ (1974) 4 Calif W Intl LJ 258; C Greenwood, 93–106; RB Lillich, ‘Humanitarian Intervention. A Reply to Ian Brownlie and a Plea for Constructive Alternatives’ in JN Moore, Law and Civil War in the Modern World (Johns Hopkins UP 1974) 229–51, 241, 250; id, Iowa L Rev, 344–47; M Reisman and MS McDougal, ‘Humanitarian Intervention to Protect the Ibos’, in RB Lillich (ed), Humanitarian Intervention (1973) 167–221, 178, 192–93; id, ‘Humanitarian Intervention and Fledgling Democracies’ (1995) 18 Fordham Intl LJ 794–805; id, ‘Sovereignty and Human Rights in Contemporary International Law’ (1990) 84 AJIL 866– 76; Seeger, 400–12; Tesón, 313–17; W Verwey, ‘Humanitarian Intervention’ in A Cassese, Current Legal Regulation (1986) 74–75; C Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’ (1999) 281 Rec des Cours 218–26 in favour of the lawfulness of humanitarian intervention as ‘a remedy of last resort’ against genocide; Wellhausen, 247; presumably also Stein and v Buttlar (n 31) MN 817. For further reference for this view see Pauer, 129–30, fn 16, who himself may be considered to hold this point of view (182). 123

  Reisman and McDougal (n 122) in Humanitarian Intervention, 177; K Ipsen, ‘Der Kosovo-Einsatz—Illegal? Gerechtfertigt? Entschuldbar?’(1999) 24 Friedens-Warte 21. Tesón, 149–57, argues that an interpretation of Art. 2 (4) itself yields a non liquet as to the

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lawfulness of humanitarian intervention; similarly Doehring, Völkerrecht (2nd edn, Müller 2004) MN 1013. 124

  In this direction see M Reisman, Nullity and Revision (Yale UP 1971) 850; id, ‘Sanctions and Enforcement’ in C Black and R Falk (eds), The Future of the International Legal Order, vol 3 (Princeton UP 1971) 332–33 and Lillich (n 122) 238–41; Seeger, 406; Wellhausen, 244; U Rünger, Unilaterale humanitäre Intervention (2000) 162. Tesón, 158, explicitly refers to the ‘theory of rebus sic stantibus’. 125

  cf Schindler, 18–19; U Beyerlin, ‘Humanitarian Intervention’ EPIL II (1995) 926–33, 927–28; T Farer, ‘Foreign Intervention in Civil Armed Conflict’ (1974-II) 142 Rec des Cours 391–92; I Brownlie, ‘Thoughts on Kind-Hearted Gunmen’ in RB Lillich (ed), Humanitarian Intervention (1973) 139–48, 145–46; Epping, 40–41; Ziegler, 201–04. 126

  See eg Fonteyne (n 122) 255 and 258; C Tomuschat, ‘Völkerrechtliche Aspekte des Kosovo-Konflikts’ (1999) 24 Friedens-Warte 34–35. 127

  See Pauer, 138; cf also Hailbronner, 98 and M Akehurst, ‘Humanitarian Intervention’ in H Bull (ed), Intervention in World Politics (Clarendon Press 1984) 95–118, 105–6. 128

  See esp para 268 of the Judgment ([1986] ICJ Rep (n 1): ‘the use of force could not be the appropriate method to monitor or ensure…respect [for human rights]’. Tesón’s reading of the decision, namely that it condemned the American actions solely on grounds of disproportionality in that particular case (270, 308–12), is clearly too narrow. Against the background of the whole judgment, the phrase quoted must be read as proscribing the use of force for humanitarian purposes as a matter of principle, rather than as one of scale and effects. 129

  This represents by far the dominant view in international legal doctrine: eg Antonopoulos, 454–66; Beyerlin, Humanitäre Aktion, 66; id, fn 150; HJ Blanke, ‘Menschenrechte als völkerrechtliche Interventionstitel’ 36 (1998) AVR 267; Bothe (n 41) MN 22; Bowett 45, fn 76; I Brownlie, ‘Humanitarian Intervention’ in JN Moore, Law and Civil War in the Modern World (Johns Hopkins UP 1974) 217–28; id, fn 150; M Byers and S Chesterman, ‘Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law’ in JL Holzgrefe and OK Keohane (eds), Humanitarian Intervention: Ethic, Legal and Political Dilemmas (CUP 2003) 177–203; A Cassese, ‘Return to Westphalia? Considerations on the Gradual Erosion of the Charter System’ in Cassese (ed), Current Legal Regulation 505–23, 514; O Corten and Klein, ‘Devoir d’ingérence ou droit de réaction armée collective?’ (1991) 24 RBDI 46f; Dinstein, 73–75; T Franck and N Rodley, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’ (1973) 67 AJIL 302–03; G Hafkin, ‘The Russo-Georgian War of 2008, Developing the Law of Unauthorized Humanitarian Intervention after Kosovo’ (2010) 28 Boston University ILJ 219– 39, 230–32; Hailbronner, 100; P Hilpold, ‘Humanitarian Intervention: Is There a Need for a Legal Reappraisal?’ (2001) 12 EJIL 437–67; Kewenig (n 42) 206–07; O Kimminich, ‘Der Mythos der humanitären Intervention’ 33 (1995) AVR 430–58; P Kunig, ‘Humanitäre Intervention’ (1994) 12 Jahrbuch Dritte Welt 47–54; Liebach, 71–160; P Malanczuk, Humanitarian Intervention and the Legitimacy of the Use of Force (Het Spinhuis 1993); M Pape, Humanitäre Intervention (Nomos 1997) 81–104; KK Pease and DP Forsythe, ‘Humanitarian Intervention and International Law’ 45 (1993) AJPIL 1–20; Ronzitti, 108–10; JE Rytter, ‘Humanitarian Intervention without the Security Council: From San Francisco to Kosovo—and Beyond’ (2001) 70 Nordisk Tidsskrift Intl Ret 121–60; Schadtle, 689–90; T Schilling, ‘Zur Rechtfertigung der einseitigen gewaltsamen humanitären Intervention als Repressalie oder als Nothilfe’ (1997) 35 AVR 430–58, esp 444 and 458; K Schmalenbach, ‘Recht und Gerechtigkeit im Völkerrecht’ [2005] Juristenzeitung 641–42; B Schöbener, ‘Die humanitäre Intervention im Konstitutionalisierungsgefüge der Völkerrechtsordnung’ (2000) 47 ZfP 317; Skubiszewski, 758–59; Verdross and Simma (n 28) para 473; Stelter, 267–68; C Walter, Vereinte Nationen und Regionalorganisationen (Springer 1995) 245–48; Ziegler, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

197–200; further references by Pauer 128–29, fn 15 and Bothe, ibid. Thus, at its 1989 session, the Institut de Droit International adopted a resolution on ‘the protection of human rights and the principle of non-intervention in internal affairs of States’, Art. 2 para 3 of which allows for punitive measures towards any State that has violated its human rights obligations, ‘provided such measures…do not involve the use of armed force in violation of the Charter of the United Nations’. cf 63-II (1990) Annu de l’Inst de Droit Intl 338–45, 343. 130

  Contra Doehring, Völkerrecht (2nd edn, Müller 2004) MN 1013–1015; R Wedgwood, ‘NATO’s Campaign in Yugoslavia’ (1999) 93 AJIL 833; further references by Seeger, 349–61. 131

  Concurring, Akehurst (n 127) 99; Beyerlin (n 125); Epping, 43–45; Hailbronner, 98–100, CPF/Schrijver, 449; V Lowe and A Tzanakopoulos, ‘Humanitarian Intervention’ MPEPIL (online edn) MN 26–35. On this point, see the extensive accounts of State practice given by Pauer, 155–81 and Tesón, 175–223, who both draw the opposite conclusion, though, with Pauer maintaining that proper humanitarian intervention would in practice be regarded as not constituting ‘fault’ or even as lawful (181), while Tesón draws on the ‘moral reality of international politics’ (222). Not convincing Greenwood, 93–106, presuming that allied actions in Iraq, because they were broadly accepted by other States, have brought about a change in public international law, now allowing unilateral humanitarian intervention. 132

  cf the statement of the Indian representative before the SC with regard to the Indian intervention in the Pakistan civil war (RPSC Supp (1969–71) 156–65, 161); the statement of the President of Tanzania on the invasion of Uganda (Keesing’s (1979) 29671, 29673); and that of the Vietnamese Foreign Minister on the intervention in Cambodia (Keesing’s (1979) 29613). 133

  See R Clark, ‘Humanitarian Intervention: Help to your Friends and State Practice’ (1983) 13 Ga J Intl & Comp L 212–13. 134

  Concurring, eg D Blumenwitz, ‘Souveränität—Gewaltverbot—Menschenrechte’ 4 (1999) Politische Studien Sonderheft 19–40; M Bothe and B Martenczuk, ‘Die NATO und die Vereinten Nationen nach dem Kosovo-Konflikt’ (1999) 47 VN 125–32; A Cassese, ‘Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ EJIL 10 (1999) 23–30; JJ Charney, ‘Anticipatory Humanitarian Intervention in Kosovo’ (1999) 93 AJIL 834–41; O Corten and F Dubuisson, ‘L’hypothèse d’une règle émergente fondant une intervention militaire sur une “autorisation implicite” du Conseil de Sécurité’ (2000) 104 RGDIP 873–910; Dinstein, 336–38; F Dubuisson, ‘La problématique de la légalité de l’opération “force alliée” contre la Yougoslavie: enjeux et questionnements’ in O Corten and B Delcourt (eds), Droit, légitimation et politique extérieure: L’Europe et la guerre du Kosovo (Bruylant 2000) 149– 83; Epping, 47; MJ Glennon, Limits of Law, Prerogatives of Power (Palgrave 2001) 19–35; S Hobe, ‘NATO-Intervention im Kosovo: Rückkehr zur Lehre vom gerechten Krieg?’ in D Dörr and others (eds), ‘Die Macht des Geistes’, Festschrift für H. Schiedermair (Müller 2001) 819–39, 831; W Kälin, ‘Humanitäre Intervention: Legitimation durch Verfahren? Zehn Thesen zur Kosovo-Krise’ (2000) 2 SZIER 159–69; N Krisch, ‘Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council’ (1999) 3 Max Planck UN YB L 59– 103; D Momtaz, ‘L’intervention d’humanité de l’OTAN au Kosovo et la règle du non-recours à la force’ (2000) 82 RICR 89–101; G Nolte, ‘Kosovo und Konstitutionalisierung: Zur humanitären Intervention der NATO-Staaten’ (1999) 59 ZaöRV 941–60; Rytter 121–60, fn 157; B Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’ (1999) 10 EJIL 1–22; N Valticos, ‘Où va-t-on? Eclipse de Conseil de Sécurité ou réforme du droit de veto?’ (2000) 104 RGDIP 5–18. Contra, defending NATO’s action as lawful, eg K Ipsen, ‘Der KosovoEinsatz Illegal? Gerechtfertigt? Entschuldbar?’ (1999) 74 Friedens-Warte 19–23; HF Köck, ‘Legalität und Legitimität der Anwendung militärischer Gewalt’ (1999) 54 AJPIL 153; D Kritsiotis, ‘The Kosovo Crisis and NATO’s Application of Armed Force Against the Federal Republic of Yugoslavia’ (2000) 49 ICLQ 330–59; O Luchterhand, ‘Völkermord: Humanitäre

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Intervention—Recht contra Moral?’ [1999] Zeitschrift für Genozidforschung 92–116; M Reisman, ‘Kosovo’s Antinomies’ (1999) 93 AJIL 860–62; D Thürer, ‘Der Kosovo-Konflikt im Lichte des Völkerrechts: Von drei—echten und scheinbaren—Dilemmata’ (2000) 38 AVR 1– 22, 8–9; C Tomuschat, ‘Völkerrechtliche Aspekte des Kosovo-Konflikts’ (1999) 74 FriedensWarte 35; R Wedgwood, ‘NATO’s Campaign in Yugoslavia’ (1999) 93 AJIL 833. See generally on the different views A Paulus, Die internationale Gemeinschaft im Völkerrecht (Beck 2001) 319–28. 135

  On this concept see eg Vashakmadze on Responsibility to Protect; A v Arnauld, ‘Souveränität und Responsibility to Protect’ (2009) 84 Friedenswarte 11–52; J Eaton, ‘An Emerging Norm? Determining the Meaning and Legal Status of the Responsibility to Protect’ (2010–11) 32 Mich J Intl L 765–804; A Kolb, The Responsibility to Protect in International Law: Rights and Obligations to Save Humans from Mass Murder and Ethnic Cleansing in Light of State Practice and Ethical Considerations (Kovač 2011); A Orford, International Authority and the Responsibility to Protect (CUP 2011); A Peters, ‘The Security Council’s Responsibility to Protect’ (2011) 8 Intl Org L Rev 1–40; A Rausch, Responsibility to protect—eine juristische Betrachtung (Lang 2011); C Schaller, ‘Die völkerrechtliche Dimension der “Responsibility to Protect”’ (June 2008) 46 SWP-Aktuell; C Stahn, ‘Responsibility to Protect—Political Rhetoric or Emerging Legal Norm?’ (2007) 101 AJIL 99–120; C Verlage, Responsibility to Protect (Mohr Siebeck 2009); M Wenzel, Schutzverantwortung im Völkerrecht: zu Möglichkeiten und Grenzen der, Responsibility to Protect’-Konzeption (Kovač 2010). 136

  Concurring Peters (n 135) 13–15; Eaton (n 135) 800; Kolb (n 135) 236; V Lowe and A Tzanakopoulos, ‘Humanitarian Intervention’ MPEPIL (online edn) MN 46. 137

  See above all the 2005 World Summit Outcome, contained in UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1, para 139, referring to ‘collective action through the Security Council in accordance with the Charter, including Chapter VII …’. Before that the report of SG Annan entitled ‘In Larger Freedom. Towards Development, Security and Human Rights for All’ (UN Doc A/59/2005 (21 March 2005)) had explicitly stated that threats facing humanity can be solved only through collective action (paras 18–22) and as modes of implementation exclusively referred to enforcement action by the UNSC under the UN Charter (paras 125–126 and 135. It comes as no surprise, therefore, that the resolutions of the UNSC on Libya, where the Council explicitly invoked the responsibility to protect the Libyan population, involved enforcement actions under Chapter VII of the UN Charter, cf UNSC Res 1970 (26 February 2011), in para 9 of the Preamble, and UNSC Res 1973 (17 March 2011) in para 4 of the Preamble. 138

  Concurring Gray, 52–53; Stein and v Buttlar (n 31) MN 823a; Stahn (n 135) 111–15; Vashakmadze on Responsibility to Protect MN 78. Contra Verlage (n 135) 293–331, 374–85. 139

  See A Randelzhofer, ‘Das Kosovo-Dilemma: Gewaltverbot gegen Menschenrechtsschutz’ (2000) 17 Nihon University Comparative Law 13–14; J Delbrück, ‘Effektivität des UN-Gewaltverbots’ (1999) 74 Friedens-Warte 157. 140

  See C Kreß, ‘Staat und Individuum in Krieg und Bürgerkrieg’ (1999) 52 NJW 3077–84. A Cassese, ‘A Follow-Up: Forcible Humanitarian Countermeasures and Opinio Necessitatis’ (1999) 10 EJIL 791–99 and Wolfrum (n 14) 828–30 rightly emphasize that up to now no such rule has emerged. 141

  eg Beyerlin, Humanitäre Aktion, 60; id, ‘Die israelische Befreiungsaktion von Entebbe in völkerrechtlicher Sicht’ (1977) 37 ZaöRV 239; Bothe (n 41) MN 21 with further references; Brownlie, 301; id, ‘The Principle of the Non-Use of Force in Contemporary International Law’ in WE Butler, The Non-Use of Force in International Law (Nijhoff 1989)

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23; BO Bryde, ‘Self-Help’ EPIL IV (2000) 377–80, 379–80; Mrazek, 97; Ronzitti, 65; Verdross and Simma (n 28) para 1338; Wehberg (n 3) 71–72; Wengler, 25–26. 142

  Advocating such a justification, eg Bowett, 91–94, 104; Kewenig (n 42) 206; F Paasche, ‘The Use of Force in Combating Terrorism’ (1987) 25 Colum J of Transnatl L 377–402, 390; M Schröder, ‘Die Geiselbefreiung von Entebbe—ein völkerrechtswidriger Akt Israels?’ (1977) 32 JZ 420–26, 424–25; Dinstein, 256–59, though confined to what he sees as the special circumstances of the Israeli raid on Entebbe; similarly O Schachter, ‘In Defense of International Rules on the Use of Force’ (1986) 53 U Chi L Rev 139. 143

  See Randelzhofer and Nolte on Art. 51 MN 10 and 13.

144

  eg d’Angelo, 494–95, 518; HG Franzke, ‘Die militärische Abwehr von Angriffen auf Staatsangehörige im Ausland—insbesondere ihre Zulässigkeit nach der Satzung der Vereinten Nationen’(1966) 16 Österr ZöR 148–49; L Henkin, How Nations Behave (2nd edn, Columbia UP 1979) 145; very reluctantly also R Higgins, ‘Intervention and International Law’ in H Bull (ed), Intervention in World Politics (Clarendon Press 1984) 39. 145

  Concurring Beyerlin, Humanitäre Aktion, 42–46; Ronzitti, 7–15; Antonopoulos, 420–51.

146

  For that approach, cf J Raby, ‘The State of Necessity and the Use of Force to Protect Nationals’ (1988) 26 Can YB Intl L 253–72 who, as legal basis for his argument, simply refers to Art. 33 of the 1980 ILC Draft on State Responsibility. 147

  See the account given eg by Amerasinghe, 16–19.

148

  cf G Marston, ‘Armed Intervention in the 1956 Suez Canal Crisis: the Legal Advice Tendered to the British Government’ (1988) 37 ICLQ 773–817. 149

  cf the account of the Israeli and the two Congo operations given by U Beyerlin, ‘Die israelische Befreiungsaktion von Entebbe in völkerrechtlicher Sicht’ (1977) 37 ZaöRV 213– 43. For the Tehran hostage crisis see O Schachter, ‘International Law in the Hostage Crisis: Implications for Future Cases’ in PH Kreisberg (ed), American Hostages in Iran, The Conduct of a Crisis (Yale UP 1985) 325–73. 150

  See the statement on ‘Grenada’ by the then US President Ronald Reagan on 25 October 1983, US Dept St Bull 83, No 2081 (December 1983) 67. For the Panama operation, cf the television address made by President George Bush on 20 December 1989 (text in Financial Times, 21 December 1989, 4), as well as the legal justifications given by the US Justice Department (International Herald Tribune, 21 December 1989, 4). 151

  cf RB Lillich, ‘Forcible Protection of Nationals Abroad: the Liberian incident of 1990’ (1992) 35 GYIL 205–23. 152

  cf C Kreß, ‘Die Rettungsoperation der Bundeswehr in Albanien am 14.3.1997 aus völker- und verfassungsrechtlicher Sicht’ (1997) 57 ZaöRV 329–62; V Epping, Die Evakuierung deutscher Staatsbürger im Ausland als neues Kapitel der Bundeswehrgeschichte ohne rechtliche Grundlage?’ (1999) 124 AöR 423–69. 153

  See eg US President Carter addressing Congress on 26 April 1980, about the Tehran hostage crisis, US Dept St Bull 80, No 2039 (June 1980) 42–43, 43 as well as the statements made by the respective US representatives to the UNSC on the Israeli operation at Entebbe, (1976) UNYB 319, and on the landing on Grenada, US Dept St Bull 83, No 2081 (December 1983) 74–76, 75. For the justifications given for the Belgian-US operation at Stanleyville and Paulis, cf RP 3 I, 160. 154

  For instance, several Member States of the European Communities, and the EC Assembly expressed their satisfaction with regard to the Israeli operation at Entebbe. The SC did not determine the raid to constitute an act of aggression, or a breach of or threat to the peace, nor did the Stanleyville operation result in a condemnation of Belgium. However, in UNGA Res 44/240 (29 December 1989) UN Doc A/RES/44/240 the UNGA deplored the

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American intervention in Panama as ‘a flagrant violation of international law’, cf (1990) 24 United Nations Law Reports 34–35. 155

  [1980] ICJ Rep 3f.

156

  Concurring, beside the authors named in nn 142 and 144, eg Bowett, ‘The Interrelation of Theories of Intervention and Self-Defense’ in JN Moore (ed), Law and Civil War in the Modern World (Johns Hopkins UP 1974) 44; CPF/Schrijyer, 448; O Dörr, ‘Use of Force, Prohibition of’ MPEPIL (online edn) MN 44; Hailbronner, 106; P Kunig, Das völkerrechtliche Nichteinmischungsprinzip (Nomos 1979) 350; RB Lillich, ‘Forcible Self-Help by States to Protect Human Rights’ (1967) 53 Iowa L Rev 325–51; Schadtle, 694–95; H Strebel, ‘Nochmals zur Geiselbefreiung in Entebbe’ (1977) 37 ZaöRV 691–710; UO Umozurike, ‘The Israelis in Entebbe—Rescue or Aggression?’ (1979) 12 VRÜ 391; presumably also Stein and Buttlar (n 31) MN 805. Schweisfurth, 179–80, albeit rejecting the existence of a right of military protection, regards forcible rescue operations as justified when they reflect an obligation to protect human rights. 157

  cf the thorough analyses by Ronzitti, 77–88 and by L Doswald-Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’ (1985) 56 BYIL 189–252. 158

  O Dörr, ‘Use of Force, Prohibition of’ MPEPIL (online edn) MN 45.

159

  See GI Tunkin, Recht und Gewalt im internationalen System (Duncker & Humblot 1986) 74–75; IP Blishchenko, ‘Use of Force and Prohibition of Weapons’ in A Cassese, Current Problems of International Law (1975) 172–74; Zourek, 108–11; RA Müllerson, ‘The Principle of Non-Threat or Non-Use of Force in the Modern World’ in WE Butler (ed), The Non-Use of Force in International Law (1989) 30. cf moreover, the accounts by J Toman, ‘Conception soviétique des guerres de libération’ in A Cassese, Current Problems of International Law (Giuffrè 1975) 355–75; FC Schroeder, ‘Die Rechtmässigkeit des Krieges nach westlicher und sowjetischer Völkerrechtsauffassung’ in R Maurach and B Meissner (eds), Völkerrecht in Ost und West (Kohlhammer 1967) 215–18; and Falk, Legal Order, 143– 44. The Soviet conception was also reflected, for instance, in para 6 of the definition proposed by the Soviet Union on 26 February 1969, in the Special Committee on the Question of Defining Aggression; see GAOR 24th Session Supp No 20 (UN Doc A/7620) 4–6, 6. 160

  Efforts made by developing countries led to the adoption by the UNGA of resolutions in which ‘the legitimacy of the peoples’ struggle for liberation from colonial and foreign domination and alien subjugation by all available means, including armed struggle’ is reaffirmed; see eg UNGA Res 3070 (XXVIII) (30 November 1973) UN Doc A/RES/ 3070(XXVIII), GAOR 28th Session Supp No 30 (UN Doc A/9030) 78, and UNGA Res 3246 (XXIX) (29 November 1974) UN Doc A/RES/3246(XXIX), GAOR 29th Session Supp No 31 (UN Doc A/9631) 87. 161

  The latter claim ie the admissibility of support by third States for suppressed peoples, shows the real significance of this alleged exception, see Schindler, 27; Neuhold, 142; Dinstein, 570–71. 162

  cf Schroeder (n 159) 216–17.

163

  eg Zourek, 110; EC Udechuku, Liberation of Dependent Peoples in International Law (2nd edn, 1978) 19–64; further references given by Dohna, 90–92. 164

  E Klein, ‘Nationale Befreiungskämpfe und Dekolonisierungspolitik der Vereinten Nationen: Zu einigen völkerrechtlichen Tendenzen’ (1976) 36 ZaöRV 649, rightly regarded that attempt as a step backwards.

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165

  A right of self-defence against colonial and other forms of suppression is rejected by the Western States (cf the account by Dohna, 92 with references in fn 161, as well as in Western writings: see eg Akehurst and Malanczuk (n 79) 337; Dinstein, 93; Dohna, 94–95; Henkin (n 144) 144; Klein (n 164) 647–48; Neuhold, 142–43; N Ronzitti, ‘Force in Wars of National Liberation’ in A Cassese, Current Problems of International Law (Giuffrè 1975) 351–53; Schindler, 27. The ICJ in Nicaragua, when alluding to a right of intervention in the context of decolonization, was obviously considering the matter only de lege ferenda ([1986] ICJ Rep 14 para 206). 166

  cf A Randelzhofer, ‘Die Aggressionsdefinition der Vereinten Nationen’ (1975) 30 EA 626–27; Bruha, 195–203; Y Dinstein, ‘Aggression’ MPEPIL (online edn) MN 20. 167

  Among many others: Akehurst and Malanczuk (n 79) 309; Brownlie, 113; M Bothe, ‘Das Gewaltverbot im allgemeinen’ in W Schaumann (ed), Völkerrechtliches Gewaltverbot und Friedenssicherung (Nomos 1971) 16; Fischer (n 2) § 59 para 27; Hobe (n 100) 329; Schindler, 14; Wehberg (n 3) 66. 168

  Military and Paramilitary Activities in and against Nicaragua (Jurisdiction and Admissibility) [1984] ICJ Rep 392, para 73; [1986] ICJ Rep (n 1) paras 187–190 and 292 (4), (6). For comments on the Nicaragua Case, cf the contributions by K Highet, ‘Evidence, the Court and the Nicaragua Case’ (1987) 81 AJIL 1–56; GL Scott and CL Carr, ‘The ICJ and Compulsory Jurisdiction: The Case for Closing the Clause’, 57–76, as well as the notes by various authors, edited by HG Maier, ibid 77–183. For further comments, see eg PM Norton, ‘The Nicaragua Case: Political Questions Before the International Court of Justice’ (1987) 27 Virginia J Intl L 459–526; RSJ Macdonald, ‘The Nicaragua Case: New Answers to Old Questions?’ (1986) 24 Can YB Intl L 127–60; M Eisemann, ‘L’Arrêt de la CIJ du 27 juin 1986 (fond) dans l’affaire des activités militaires et paramilitaires au Nicaragua et contre celuici’ (1986) 32 AFDI 153–89; H Hohmann and JIM de Waart, ‘Compulsory Jurisdiction and the Use of Force as a Legal Issue: The Epoch-Making Judgment of the International Court of Justice in Nicaragua v. United States of America’ (1987) 34 NILR 162–91; M Knof and C Kress, ‘Der Nicaragua-Fall des IGH im Spannungsfeld zwischen Gewaltverbot und Interventionslust’ (1990) 41 Österr ZöR 9–55. 169

  ICJ (n 23) para 87.

170

  [1986] ICJ Rep (n 1) para 188; repeated in [2004] ICJ Rep (n 23) para 87. This association of voting attitudes in UN organs with the creation of customary law has been criticized, among others, by A d’Amato, ‘Trashing Customary International Law’ (1987) 81 AJIL 102. The ICJ’s method is defended by Hohmann and de Waart (n 168) 183. 171

  [1986] ICJ Rep (n 1) para 184.

172

  ibid, para 186. That the ICJ ignores State practice is rightly criticized by d’Amato (n 170) and TM Franck, ‘Some Observations on the ICJ’s Procedural and Substantive Innovations’ 81 (1987) AJIL 118–19. For a methodological critique of the judgment, cf also M Mendelson, ‘The Nicaragua Case and Customary International Law’ in WE Butler, The Non-Use of Force in International Law (Nijhoff 1989) 85–99. 173

  [1986] ICJ Rep (n 1) para 175: ‘On a number of points, the areas governed by the two sources of law do not exactly overlap, and the substantive rules in which they are framed are not identical in content.’ 174

  ibid, para 227.

175

  ibid, para 190.

176

  ibid, para 176.

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177

  For instance, it is extremely doubtful whether the prohibition of participating in acts of civil strife, as laid down in para 9 of the section on the non-use of force in the Friendly Relations Declaration, really is, as the ICJ claims (cf [1986] ICJ Rep (n 1) para 191), already part of customary international law. 178

  Concurring, D Simon and LA Sicilianos, ‘La contre-violence unilatérale—Pratiques étatiques et Droit international’ 32 (1986) AFDI 53–78, 70, and FL Kirgis, ‘Custom on a Sliding Scale’ 81 (1987) AJIL 147. 179

  eg Berber (n 2) 40. cf also the Dissenting Opinion by Judge Sir Robert Jennings who denies the existence of a customary prohibition of force on the grounds that there was ‘no room and no need’ for it ([1986] ICJ Rep (n 1) 531). 180

  See A Randelzhofer, ‘Discussion Statement’ 26 (1986) DGVR Berichte 133. Very reluctant in this respect Dinstein, 100, who merely anticipates ‘an eventual dissonance’ between Art. 2 (4) and custom for the future. 181

  See the references in n 167.

182

  cf Military and Paramilitary Activities in and against Nicaragua (Merits) (Separate Opinion Judge Singh) [1986] ICJ Rep 153; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Separate Opinion Judge Elaraby) [2004] ICJ Rep 254; the International Law Commission in its Draft Articles on the Law of Treaties (1966), commentary to Art. 50, para 1 ((1966-II) ILC Yearbook 247). In legal doctrine eg I Brownlie, Principles of Public International Law (6th edn, OUP 2003) 488–89; K Doehring, Völkerrecht (2nd edn, Müller 2004) MN 300; Gray, 30; L Hannikainen, Peremptory Norms (Jus Cogens) in International Law (Lakimiesliiton Kustannus 1988) 323–56; W Heintschel v Heinegg, in K Ipsen (ed), Völkerrecht (5th edn, Beck 2004) § 15 MN 59; Hobe (n 100) 329; S Kadelbach, Zwingendes Völkerrecht (Duncker & Humblot 1992) 234–36; L Hannikainen, Peremptory Norms (Jus Cogens) in International Law (OUP 1988) 323–56; W Heintschel v Heinegg, in K Ipsen (ed), Völkerrecht (5th edn, CH Beck 2004) § 15 MN 59; Graf Vitzhum, ‘Begriff, Geschichte und Rechtsquellen des Völkerrechts’ in Graf Vitzthum (ed), Völkerrecht (5th edn, de Gruyter 2010) 12, I. MN 13 in fn 28. But see also the scepticism of CPF/Schrijver, 461, who points to the contrarian practice of ‘certain great powers in defiance of the general norm’. 183

  ICJ (n 23) para 87.

184

  ICJ Jurisdictional Immunities of the State (Germany v Italy) (Judgment of 3 February 2012) paras 93–97. 185

  For the substance and theoretical background of Art. 53, cf K Schmalenbach, ‘Art. 53’ in O Dörr and K Schmalenbach (eds), Vienna Convention on the Law of Treaties (Springer 2012) MN 18f. 186

  On the difference between Arts 52 and 53 of the Vienna Convention, cf Schmalenbach (n 186) Art. 52 MN 4. 187

  See HH Jescheck, ‘Nuremberg Trials’ EPIL III (1997) 747–54, 752; Verdross and Simma (n 28) para 442; Berber (n 2) 257–63; K Ipsen, in Ipsen (n 2) § 42 paras 26–28; Dohna, 101– 03. Contra Neuhold, 163–64; B Röling, ‘Crimes against Peace’ in A Cassese, The Current Legal Regulation of the Use of Force (1986) 392; Brownlie, 191–94; contra Dinstein, 125– 34, who unconvincingly refers to ‘a string of uncontested UNGA resolutions’ (para 341), the works of the ILC for a Code of Offences against the Peace and Security of Mankind (paras 341–43) and, probably above all, the need for a respective rule of law (‘war simply must be a crime’, para 337).

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188

  See A Randelzhofer, ‘Die Aggressionsdefinition der Vereinten Nationen’ (1975) 30 EA 627–28. 189

  Current ratification status under accessed 12 June 2012.

190

  See Res RC/Res 6 (adopted 11 June 2010), available at accessed 12 June 2012, and reprinted at (2010) 49 ILM 1334–38. On the results of Review Conference eg K Ambos, ‘The Crime of Aggression After Kampala’ (2010) 53 GYIL 463f; D Scheffer, ‘States Parties Approve New Crimes for International Criminal Court’ vol 14, Issue 16 ASIL Insight (22 June 2010). 191

  See the Rome Statute, as amended, Art. 15 bis and Art. 15 ter, (2) and (3) respectively.

192

  Glennon (n 134) 207–08.

193

  Neuhold, 394. Contra GG Shinkaretskaia, ‘Peaceful Settlement of International Disputes: An Alternative to the Use of Force’ in WE Butler, The Non-Use of Force in International Law (Nijhoff 1989) 39–52. 194

  On this point see Randelzhofer, ‘Die Bedeutung von “peaceful change” für die Kriegsverhütung im geltenden Völkerrecht’, in B Börner, H Jahrreiß, and K Stern (eds), Festschrift Carstens, vol 1 (Heymanns 1984) 465–76; id, ‘“Peaceful change” als Problem de lege ferenda’ in W Fürst, R Herzog, and DC Umbach (eds), Festschrift Zeidler, vol 2 (de Gruyter 1987) 1819–32. 195

  cf the summary by Verdross and Simma (n 28) paras 485–488.

196

  cf R Higgins, The Development of International Law through the Political Organs of the United Nations (OUP 1963) 173, and the comprehensive account given by ND White, The United Nations and the Maintenance of International Peace and Security (Manchester UP 1990). 197

  Röling, 174–87.

198

  TM Franck, ‘Who killed Art. 2(4)? or: The Changing Norms Governing the Use of Force by States’ (1970) 64 AJIL 809. 199

  ibid, 809–10.

200

  Schindler, 18–19; Malanczuk, 217; Henkin (n 144) 138; Schachter (n 142) 125–26.

201

  L Henkin, ‘The Reports of the Death of Article 2(4) are Greatly Exaggerated’ (1971) 65 AJIL 544.

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Ch.I Purposes and Principles, Article 2 (5) Helmut Philipp Aust From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — Responsibility of states

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(p. 235) Article 2 (5) The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. … 5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. … A.  Introduction 1 B.  Drafting History 2–3 C.  The Obligation to Assist the Organization in ‘Every Action’ 4–17 I.  The Scope of the Provision 4–6 II.  Practice in the Context of Enforcement Action under Chapter VII of the Charter 7–11 III.  Practice in Other Contexts 12–15 IV.  Evaluation of the Practice 16 V.  The Special Issue of Permanent Neutrality 17 D.  The Obligation to Refrain from Giving Assistance 18–24 I.  The Scope of the Provision 18 II.  Practice of the Security Council 19–22 III.  Practice of the General Assembly 23 IV.  Evaluation of the Practice 24 E.  Article 2 (5) and General International Law 25–30 I.  UN Enforcement Action and Non-Belligerency 25–27 II.  Non-Assistance under Article 2 (5) and Complicity in the Law of State Responsibility 28–30 F.  Conclusion: Towards an Obligation of Loyal Cooperation? 31–32

Select Bibliography Aust HP, Complicity and the Law of State Responsibility (CUP 2011). Combacau J, Le pouvoir de sanction de l’O.N.U. (Pedone 1974). de Wet E, The Chapter VII Powers of the United Nations Security Council (Hart 2004). Felder A, Die Beihilfe im Recht der völkerrechtlichen Staatenverantwortlichkeit (Schulthess 2007). Forteau M, Droit de la sécurité collective et droit de la responsabilité internationale (Pedone 2006).

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Goodrich LM, Hambro E, and Simons AP, Charter of the United Nations—Commentary and Documents (3rd edn, Columbia UP 1969), cited as GHS. Gowlland-Debbas V, Collective Responses to Illegal Acts in International Law (Nijhoff 1990). Kelsen H, The Law of the United Nations—A Critical Analysis of Its Fundamental Problems (Stevens & Sons 1951). Mahiou A, ‘Article 2, paragraphe 5’ in J-P Cot and A Pellet (eds), La Charte des Nations Unies—Commentaire article par article (Economica 2005) 467. Neff SC, War and the Law of Nations (CUP 2005).(p. 236) Verdross A, ‘Austria’s Permanent Neutrality and the United Nations Organization’ (1956) 50 AJIL 61. Zemanek K, ‘Das Problem der Beteiligung des immerwährend neutralen Österreichs an Sanktionen der Vereinten Nationen, besonders im Fall Rhodesien’ (1968) 28 ZaöRV 16.

A.  Introduction 1  Article 2 (5) consists of two sub-principles: its first part contains a positive obligation and stipulates that UN member States shall ‘give the United Nations every assistance in any action it takes in accordance with the present Charter’. The second part of Art. 2 (5) is negative in character and requires of the UN member States to ‘refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action’. These two parts of Art. 2 (5) may be seen as two sides of the same coin.1 Article 2 (5) highlights the bonds of solidarity between the UN and its member States.2 The provision underlines that the success of a system of collective security depends on the active support of its members as well as their willingness to isolate those States— and today also other actors3—which are considered to endanger international peace and security.4

B.  Drafting History 2  Article 2 (5) has no direct predecessor in the Covenant of the League of Nations. The provision reflects a certain change in the way the system of collective security of the UN was supposed to work in comparison to the League. Article 16 (1) of the Covenant provided that, ‘[s]hould any Member of the League resort to war in disregard of its covenants under Arts 12, 13 or 15, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations…’ and a number of additional consequences set forth in this provision.5 For the case of an illegal war under the Covenant, it was thus envisaged to set sanctions in motion automatically without a further centralized decisionmaking process on the part of the Council of the League.6 In comparison, Art. 2 (5) rests on the assumption that obligations of solidarity for UN member States are only triggered once the Organization has taken action against a State.7 3  Article 2 (5) was not much discussed at Dumbarton Oaks or in San Francisco. At Dumbarton Oaks, proposals existed with language similar to that of Art. 2 (5), although the two parts of it were contained in two distinct paragraphs.8 At San Francisco, the only significant discussion on Art. 2 (5) arose in the context of a French proposal to (p. 237) add a sentence to Art. 2 (5) reading ‘sans qu’un Etat puisse, pour s’y soustraire, invoquer un statut de neutralité’.9 This proposal was meant to underline that a status as a neutral state would not allow a member State to evade its obligations under Art. 2 (5). The proposal was not accepted. However, the sub-committee in which the suggested amendment was discussed ‘tacitly accepted’ that the vote taken on the draft provision covered the French proposal, thus underlining that it considered the status of permanent neutrality to be incompatible with membership in the UN.10 The subsequent practice of the Organization From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

and its member States shows, however, that this was only a consensus on a very general level (see MN 17). Another proposal by Chile to amend Art. 2 (5) would have led to the inclusion of a half-sentence stipulating that ‘whenever disputes affect a Continent or region and do not constitute a danger to the general world peace, the States or other Continents or regions shall not be obligated to participate in operations of a military nature decided upon by the Council and the Assembly’.11 Also this proposal was not accepted.

C.  The Obligation to Assist the Organization in ‘Every Action’ I.  The Scope of the Provision 4  In order to determine the scope of the first half of Art. 2 (5), it needs to be clarified what ‘every action’ means. The prevailing tendency in the literature is to interpret the first half of Art. 2 (5) as covering only enforcement action taken by the UN under Chapter VII of the Charter.12 This view is based on the argument that only the SC is entitled to adopt binding measures. If Art. 2 (5) were to provide for an all-encompassing obligation of UN member States to literally assist ‘every action’ the Organization takes, the carefully circumscribed system of competences of the Charter would be put into jeopardy.13 This view rests on a systematic and contextual analysis of the Charter provisions, which are indeed usually interpreted as transferring the power to adopt binding decisions only to the SC and only insofar as it is acting under Chapter VII of the Charter. It has also convincingly been argued that Art. 2 (5) could not vest more powers in the SC than it possesses under Chapter VII. For instance, Article 2 (5) would not grant the SC the power to order States to make troops available. Such a wide-ranging interpretation of Art. 2 (5) would run against a systematic interpretation of the provisions of Chapter VII of the Charter.14 This restrictive view also connects with the little evidence there is from the drafting history of Art. 2 (5). At San Francisco, the delegate from Norway stressed that the first part of Art. 2 (5) should only be understood to refer to action taken by the SC as this would be the ‘only organ of the Organization having authority to take action’.15 This statement was not challenged by any other delegation. This view was also (p. 238) held by the US Department of State in a report to the US President on the outcome of the San Francisco Conference.16 5  However, this interpretation is not undisputed.17 The ICJ held in its Namibia Advisory Opinion that not only resolutions of the SC under Chapter VII of the Charter are binding upon UN member States. The Court argued that the reference to the specific powers of the SC in Art. 24 (2) would not exclude the possibility of ‘the existence of general powers to discharge the responsibilities conferred in paragraph 1’ of Art. 24.18 More particularly, the Court rejected the argument that Art. 25 would only cover resolutions of the Council adopted under Chapter VII of the Charter.19 This view of the ICJ also found support in the literature. It has been pointed out that if only decisions under Chapter VII of the Charter were binding, decisions of the Council under Chapter VIII (regional enforcement action) would lose much pertinence, as would be the case for decisions on investigations under Art. 34 of the Charter.20 6  Another question is whether ‘action’ taken by other UN organs can also be said to fall within the scope of Art. 2 (5). With respect to the GA, it is indeed the case that most of its powers are confined to the giving of recommendations (see Arts 10, 11 (1), 11 (2), 13, 14). The same holds true for ECOSOC (see Arts 62 (1), 62 (2)). The Secretary-General’s functions as set out in the Charter are quite limited in the first place. A special case is certainly the ICJ, as member States have pledged to comply with the decisions of the Court in cases to which they are a party (Art. 94 (1)). However, decisions of the ICJ can hardly be understood as ‘action’ of the Organization.21 Accordingly, this survey of the competences of UN organs to adopt binding measures indeed appears to speak in favour of the position that only action taken by the SC is covered by Art. 2 (5). Another argument in this regard is that also Art. 2 (2) requires of UN member States to ‘fulfil in good faith the obligations assumed by them in accordance with the present Charter’. Accordingly, when non-binding decisions From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

have been taken, the obligation of good faith requires UN member States not to disregard entirely what the respective UN organ has recommended or called for.22 Eventually, the practice of the UN and its members will be decisive in order to determine the scope of the first part of Art. 2 (5). In this respect, a distinction can be made between practice which is connected with enforcement action under Chapter VII of the Charter (see MN 7–11) and practice which relates to other contexts (see MN 12–15).

(p. 239) II.  Practice in the Context of Enforcement Action under Chapter VII of the Charter 7  In the practice of the SC itself, there are only very few references to Art. 2 (5). In particular, the SC does not refer to this provision when it provides for specific obligations of assistance for UN member States. Rather, these obligations are then integral parts of the resolutions themselves. As such, these obligations benefit from the binding character of resolutions adopted under Chapter VII of the Charter. Their bindingness for UN member States then follows from Arts 25 and 48 of the Charter.23 8  Quite frequently, the SC is calling for or recommending assistance for a given form of action by the UN as well as for action which is in some form endorsed by the Organization. A classic example is the resolution the SC adopted in the context of the Korean crisis in 1950 where it called upon member States ‘to render every assistance to the United Nations in the execution of this resolution’.24 In situations like this, no binding obligation to assist the UN has been established as the SC itself opted against a binding formulation in its resolution.25 The same holds true when the SC ‘urges’ for cooperation of the member States in the achievement of a certain aim.26 The formulation ‘urges’ is particularly often used with respect to cooperation of UN member States with sanctions committees established by the SC.27 At times, the SC includes calls for assistance in its resolutions which raise the question whether the assistance sought would not already be required under Art. 2 (5) itself.28 In the resolution establishing the no-fly zone over Libya in 2011, for example, the SC called ‘upon all Member States, acting nationally or through regional organizations or arrangements, to provide assistance, including any necessary overflight approvals, for the purposes of implementing paragraphs 4, 6, 7 and 8 above; ….29 The argument could be made that already the imposition of a no-fly zone in a binding resolution under Chapter VII requires UN member States under Art. 2 (5), possibly in combination with Art. 25, to permit overflights of other UN member States enforcing such a no-fly zone.30 If all UN member States refused to grant overflight (p. 240) rights, a no-fly zone could not be successfully implemented. The Libyan example shows that some enforcement measures arguably require concrete forms of assistance by UN member States even in the absence of specific decisions of the SC in this regard. In other cases, it will be less clear what exactly is required of States in order to assist the UN in its action. In either case, specific calls for assistance may be seen as a concretization of what the SC expects UN member States to do.31 9  When Art. 2 (5) is invoked directly or indirectly in the course of deliberations before the SC, it is referred to in order to stress that member States in general or a specific State should take steps to enforce a given SC resolution. In a 2007 SC debate on the relationship between the UN and regional organizations, the representative of Uruguay referred to a collective responsibility of UN member States to participate in UN enforcement action; an obligation which he anchored in Art. 2 (5).32 Article 2 (5) was also invoked a number of times with respect to the South African occupation of Namibia and the responsibility of UN member States ‘to take steps to compel South Africa to respect its international obligations with regard to Namibia’.33 Article 2 (5) has also been referred to in order to point out that also the State which is the target of enforcement measures is bound to comply with the resolution ordering the sanctions. With respect to South African support for the racist regime in Southern Rhodesia, Yugoslavia argued before the SC that ‘South Africa has

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directly, openly and in a wholesale manner violated the sanctions imposed by the Security Council against the illegal racist régime of the white minority in Southern Rhodesia. South Africa is thereby infringing one of the fundamental principles of the Charter embodied in Article 2, paragraph 5.’34 10  The Appeals Chamber of the ICTY relied on Art. 2 (5) in conjunction with Arts 25 and 48 of the Charter in order to stress that enforcement measures under Chapter VII of the Charter are not only binding upon the targeted state, but are also ‘mandatory vis-à-vis the other Member States, who are under an obligation to cooperate with the Organization’.35 In this respect, it can also be noted that the ICJ made a passing reference to obligations of cooperation of UN member States with the international criminal tribunals established by virtue of SC resolutions.36 In its Genocide Convention Case the Court considered whether Serbia and Montenegro was in breach of its obligation ‘to prevent and to punish’ the crime of genocide under Art. I of the Genocide Convention. At issue was the question whether the ICTY was an international tribunal within the meaning of Art. VI of the Convention which would have jurisdiction ‘with respect to those Contracting Parties which shall have accepted its jurisdiction’.37 The ICJ found a breach of Art. I by Serbia and Montenegro for having failed to cooperate with the ICTY on the basis that the Federal Republic of Yugoslavia (FRY) had accepted the creation of the tribunal in the Dayton Agreement. In addition, however, the Court pointed out that (p. 241) ‘the admission of the FRY to the United Nations in 2000 provided a further basis for its obligation to co-operate’,38 a formulation which could be read as an implicit reference to Art. 2 (5) (either alone or in combination with Art. 25). As the Court’s basis of jurisdiction derived solely from the Genocide Convention, it was, however, precluded from going further into the details of this point.39 11  At times, Art. 2 (5) is referred to when States or other international organizations point to their responsibility to implement SC resolutions. With respect to the SC Committee established pursuant to Res 126740 Ecuador reported that it has implemented the requirements following from this resolution and the Committee’s list of targeted individuals, ‘on the legal basis provided by Chapter 1, Article 2, paragraph 5 of the Charter’.41 Concerning the same subject-matter, the EU Commission relied on Art. 2 (5) before the General Court of the European Union (previously known as ‘Court of First Instance’) in order to substantiate that EU Member States were not free to disregard SC resolutions.42

III.  Practice in Other Contexts 12  In its early case-law, the ICJ interpreted Art. 2 (5) more widely. In the Reparation for Injuries Advisory Opinion, the Court stressed ‘the importance of the duty to render to the Organization “every assistance”’ which is accepted by the members in Art. 2 para 5 of the Charter. It must be noted that the effective working of the Organization—the accomplishment of its task, and the independence and effectiveness of the work of its agents—requires that these undertakings should be strictly observed. For that purpose, it is necessary that, when an infringement occurs, the Organization should be able to call upon the responsible State to remedy its default, and, in particular, to obtain from the State reparation for the damage that the default may have caused to its agent.’43 13  In 2000, the High-level Panel on UN Peace Operations relied on Art. 2 (5) in its final report (‘Brahimi Report’) in a rather broad manner. It was argued that member States would be expected to give ‘every assistance’ to fact-finding missions instituted by the SG.44 14  States refer to Art. 2(5) from time to time in order to highlight the institutional responsibility of the UN. In these cases, Art. 2(5) is accordingly not employed in order to stress the responsibility of UN member States, but rather to militate for a certain course of UN action itself. In 1972, for instance, the representative of Liberia argued in the SC that ‘it seems to my Government that it is the reasonable responsibility of the Council in

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accordance with the provisions of the Charter under Article 2, paragraph 5, to take steps to compel South Africa to respect its international obligations in regard to Namibia’.45 (p. 242) 15  Furthermore, Art. 2 (5) has been referred to twice by groups of UN member States which introduced draft resolutions into the GA for a reform of the SC. In 2005, a group of twenty-seven States introduced a draft resolution which first noted that ‘the effectiveness, credibility and legitimacy of the work of the Security Council will be enhanced by its improved representative character, its better ability to discharge its primary responsibility and to carry out its duties on behalf of all members’ before reasserting in another preambular paragraph ‘the purposes and principles of the Charter, and recalling that, under Article 2(5) of the Charter, every Member State has pledged to “give the United Nations every assistance in any action it takes in accordance with the present Charter”’.46 Half a year later and in the GA’s next session, a draft resolution was introduced by Brazil, Germany, and India which was in this respect identical.47 These references to Art. 2 (5) are obviously decoupled from any specific form of UN action. Instead, they convey an understanding of Art. 2 (5) as a fundamental principle for the general relationship between the Organization and its member States. The two draft resolutions also referred to the ‘special responsibility’ of the permanent members of the SC to uphold the principles of the UN. Accordingly, Art. 2 (5) has been used here to argue for a more general bond of solidarity between the Organization and its members. The mainly political argument is made that permanent members of the SC which would not support a reform of the SC along the lines provided for in the two draft resolutions would act against the best interests of the Organization. While it is doubtful whether this actually follows from Art. 2(5), this example shows that in some contexts States are willing to interpret Art. 2 (5) as a more encompassing provision than it is usually portrayed as being in the literature.

IV.  Evaluation of the Practice 16  The presentation of the practice concerning the first part of Art. 2 (5) supports the narrow interpretation which conceives the obligation to give assistance to apply only for enforcement measures under Chapter VII of the Charter. In this respect, there is more available practice which is also more directly linked to Art. 2 (5). In comparison, the instances in which the first part of Art. 2 (5) has been invoked in situations beyond the scope of Chapter VII of the Charter are relatively few and far between. However, it is conceivable that Art. 2 (5) might develop in the direction of a broader principle to give assistance to the UN also in contexts which are not related to Chapter VII. The wording of Art. 2 (5) is not entirely clear in this regard and can thus at least not stand in the way of a different reading of the provision evolving in the future.

V.  The Special Issue of Permanent Neutrality 17  A particular problem associated with the first part of Art. 2 (5) is the membership of permanently neutral States in the UN. Permanent neutrality is a general status of States in international law and needs to be distinguished from neutrality in individual armed conflicts (on Art. 2 (5) and this latter form of neutrality see MN 25–27). Especially in (p. 243) the early years of the Organization, it was a widely held view that UN membership and a status as a permanently neutral State would be mutually exclusive.48 Today, this appears to be no longer a practical problem for the Organization. With Austria (since 1955) and Switzerland (since 2002), the UN includes two member States which define themselves as permanently neutral. In practice, especially the membership of Austria led to certain nuances in the application of SC resolutions. In order to reconcile its membership with its status as a neutral State, Austria relied on two complementary arguments.49 First, it held the view that military enforcement measures under Chapter VII of the Charter would not constitute wars in the traditional meaning of the concept under international law. As the law of neutrality would only apply in the case of traditional interstate wars, the problem of neutrality would not arise. In addition, Austria maintained that it would decide on a case-by-case basis on From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

whether its status as a permanently neutral State would allow for participation in SC ordered sanctions.50 Since 1992, Austria has no longer relied on this doctrine.51 When Switzerland joined the UN in 2002, it did not see any contradiction between its status as a permanently neutral State and UN membership.52 Apparently, Switzerland would try to reconcile its status as a permanently neutral State with the necessities of military enforcement measures on a case-by-case basis. This became apparent when the President of the Swiss Confederation explained the Swiss legal position with respect to the 2003 Iraq war. While the President pointed out that Switzerland could not grant overflight rights to US military aircraft due to its status as a permanently neutral State, he emphasized that an authorization to use military force by the SC would have changed the situation.53

D.  The Obligation to Refrain from Giving Assistance I.  The Scope of the Provision 18  The second part of Art. 2 (5) posits that UN member States ‘shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action’. This negative part of Art. 2 (5) is considered to be an ‘important clarification’.54 It is understood as an ‘accessory’ provision, its ‘primary aim being to prevent any hindrance to any action undertaken by the United Nations’.55 Its obligation of (p. 244) non-assistance supplements the principal enforcement action the SC has taken.56 Whereas it is clear that ‘enforcement action’ refers to measures adopted under Chapter VII of the Charter, the meaning of ‘preventive action’ is subject to debate. Hans Kelsen argued that enforcement action may also be of a preventive character. In contrast, the formulation ‘preventive action’ in Art. 2 (5) would not refer to the provisional measures the SC may adopt according to Art. 40 of the Charter. As Art. 40 would expressly stipulate that ‘such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned’, the obligation of non-assistance under Art. 2 (5) could not refer to these measures: ‘The term “preventive action” in Article 2, paragraph 5, can hardly have another meaning than an enforcement action taken for the purpose to prevent a breach of the peace.’57 According to other authors, it is, however, precisely Art. 40 to which the term ‘preventive action’ is referring.58 This discussion does not appear to raise major practical problems. It is fairly uncontroversial that provisional measures under Art. 40 shall leave unaffected the rights of the parties concerned. However, there is nothing inherent in this position to preclude a form of provisional obligation of non-assistance from arising. However, also when the SC judges a situation to warrant the imposition of provisional measures, it is desirable that UN member States form a ‘closed rank’ against the State which has been identified as being responsible for the given situation. Although the measures are provisional, they can still be binding under Chapter VII of the Charter if it transpires from the Resolution that the SC intended the measures to be binding.59 Accordingly, the formulation ‘preventive action’ in Art. 2 (5) should be understood as referring also to situations covered by Art. 40.

II.  Practice of the Security Council 19  In the practice of the SC, obligations of non-assistance are frequently provided for directly in the text of a resolution.60 As is the case with the positive obligations of assistance under the first part of Art. 2 (5), the concrete obligation of non-assistance then derives its binding force from the particular resolutions of the SC. Hence, a recourse to Art. 2 (5) is, strictly speaking, not necessary.61 Such resolutions can be very specific insofar as they specify the different forms of conduct which are considered to be unlawful support for a given State.62 A recurring example from practice is the imposition of an arms embargo on a State. Such embargos can be seen as specific emanations of an obligation not to assist a State targeted by SC enforcement action as the delivery of weapons could potentially aggravate the situation. It has been noted in the literature that to date there have been only

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two sanctions regimes—one against Sudan63 and one in the context of the Hariri murder64 —which did not in some form or another include an arms embargo.65 (p. 245) 20  A different type of resolution provides only in the abstract that ‘Member States shall refrain…from rendering any assistance’ (in this specific case to the illegal regime in Southern Rhodesia).66 It can also be noted that the SC also frequently provides for obligations of non-assistance to non-State actors.67 21  In other cases, the SC is only calling on States to refrain from any action which would endanger or undermine the efforts of the Council in maintaining international peace and security in the context of resolutions adopted under Chapter VII of the Charter.68 In the more recent practice of the SC, such calls are sometimes formulated in a rather indirect and qualified manner. An example in this regard is the formulation used by the SC in Res 1803 in the context of the Iranian nuclear programme, where the SC: calls upon all States to exercise vigilance in entering into new commitments for public provided financial support for trade with Iran, including the granting of export credits, guarantees or insurance, to their nationals, or entities involved in such trade, in order to avoid such financial support contributing to the proliferation sensitive nuclear activities, or to the development of nuclear weapons delivery systems, as referred to in Res 1737 (2006).69 The goal of this paragraph is clearly in line with the rationale underlying Art. 2 (5): the targeted State shall not be strengthened in its efforts to resist UN enforcement measures. However, with respect to what is required from UN member States it can be observed that, firstly, the SC is only calling upon States and, secondly, that even on the basis of this nonbinding requirement it is only ‘vigilance’ that is called for. 22  At times, the SC includes a whole panoply of decisions, recommendations, and calls within a single resolution which may all have a bearing on Art. 2 (5). An example is Res 253 which concerns Southern Rhodesia. The Preamble to this resolution first shows the SC to be ‘gravely concerned’ over trade with the illegal regime in violation of a previous resolution. In its operative part, which was adopted under Chapter VII of the Charter, the SC reaffirms prohibitions of certain dealings with the regime that member States of the UN are required to prohibit (op 3). In the next operative paragraph, the SC lays down binding obligations of non-assistance with respect to certain commercial, industrial, or touristic relations between States and the illegal regime in Southern Rhodesia (op 4). In two additional paragraphs, member States are called upon to implement the resolution (op 8, 11). Finally, the SC: deplores the attitude of States that have not complied with their obligations under Article 25 of the Charter, and censures in particular those States which have persisted in trading with the illegal régime in defiance of the resolutions of the Security Council, and which have given active assistance to the régime.70(p. 246) A similar range of different calls for specific forms of non-assistance can be found in more recent resolutions concerning the nuclear weapons programme of the Democratic People’s Republic of North Korea.71

III.  Practice of the General Assembly 23  In the practice of the GA, there are some instances in the context of Southern Rhodesia in which Art. 2 (5) has been referred to directly in order to stress that member States of the UN have to comply with binding decisions of the SC.72 In other situations in which the GA is calling for non-assistance to a given State, Art. 2 (5) is not mentioned directly. These resolutions frequently concern the Middle East Conflict. The GA then calls for nonassistance in the context of the occupation of the Syrian Golan73 and the Palestinian Territories in the West Bank.74 At times, the GA also more generally calls upon States not to

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hinder UN efforts with respect to peace and reconciliation. In the context of the internal conflict in Afghanistan (prior to the attacks of 11 September 2001), the GA called upon: all signatories of the Tashkent Declaration on Fundamental Principles for a Peaceful Settlement of the Conflict in Afghanistan and the Afghan parties to implement the principles contained in that Declaration in support of the efforts of the United Nations toward a peaceful resolution of the Afghan conflict, in particular the agreement not to provide military support to any Afghan party and to prevent the use of their territories for such purposes, and recalls their appeal to the international community to take identical measures to prevent the delivery of weapons to Afghanistan.75

IV.  Evaluation of the Practice 24  In the situations just described, language is employed by the GA which is similar to Art. 2 (5). However, the legal principle underlying Art. 2 (5) is not directly concerned. As discussed above, the scope of the first half of Art. 2 (5) is not as clearly limited to UN action under Chapter VII of the Charter as is the case with respect to the second part of Art. 2 (5). Here, the wording of the provision is quite clear insofar as assistance is only forbidden which is given to states which are the subject of preventive or enforcement action. Accordingly, the obligation of non-assistance under Art. 2 (5) is only triggered when the SC has passed a binding decision under Chapter VII of the Charter. When the GA is using language similar to Art. 2 (5) it is thus making a political argument not to assist a given State.76 Also in these cases, the use of such similar language may fulfil a legitimate role. It may remind States that as members of the UN they are under (p. 247) a broader obligation not to contradict or impede UN efforts also in situations which are not covered by Chapter VII of the Charter.77

E.  Article 2 (5) and General International Law I.  UN Enforcement Action and Non-Belligerency 25  The general relevance of Art. 2 (5) for the UN System in particular and international law in general is frequently underestimated. It is true that the provision is not too frequently invoked in the practice of the organs of the UN. It is also true that its content is frequently elaborated in greater detail in specific resolutions of the SC. However, this element of redundancy should not lead us to disqualify Art. 2 (5) as a principle of minor importance for the UN. Generally, the principles enunciated in Art. 2 are all particularly important for the interpretation of the Charter. 26  A particularly important function of Art. 2 (5) in this regard is that it connects legal effects from the UN legal system with other branches of international law. The rationale behind Art. 2 (5) may explain why States acted in a given way and may, in certain circumstances, help States to establish their legal position in a given situation. An example of this function of Art. 2 (5) may be its impact on the law of neutrality.78 Still today, States may decide to remain neutral in armed conflicts between other States on an ad hoc basis. Although it was, for a long time, held in the literature that military enforcement action under Chapter VII of the Charter would not lead to a status of war in the classic sense,79 this view is very hard to reconcile with the objective conception of ‘armed conflict’ in contemporary international humanitarian law.80 Accordingly, also when States enforce resolutions of the SC by means of military force, an armed conflict between them and the State targeted by the SC enforcement action comes into being.81 When other States decide not to participate directly in this conflict, they fall under the regime of the law of neutrality.82 If they decide to render support to States enforcing the SC resolution, it is

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questionable whether they can still be considered as neutral States under international humanitarian law. 27  In this context, it has been argued that Art. 2 (5) helps to explain why these supportive states may still claim some benefits of the law of neutrality. This involves, most importantly, the privilege of not becoming a lawful target in the course of the conflict. Article 2 (5) can be read as allowing States to adopt a policy of non-belligerency as it was first developed by the United States in the Second World War prior to their official entry (p. 248) into the war.83 Such policies of non-belligerency are usually viewed with scepticism; they are described as inadmissible ‘half-way houses’ between the status of belligerency and neutrality.84 However, in the presence of a binding decision of the SC under Chapter VII of the Charter, it is admissible for States to discriminate between the side to a conflict which is enforcing the ‘community interest’ and a State which has become the target of enforcement action.85 The admissibility of such a policy of non-belligerency is also a consequence of the direction which SC practice has taken in the context of military enforcement measures. As the SC is habitually only authorizing States to ‘use all necessary means’ for the realization of an objective set forth by an SC resolution,86 UN member States can decide in these situations to what extent they wish to contribute to the collective effort of enforcing international peace and security. In their determination of how they position themselves towards such enforcement measures, the positive as well as the negative sides of Art. 2 (5) constitute a bottom-line of solidarity with the collective efforts which UN member States are not free to disregard.87 In concrete terms, this means that UN member States are not free to support a State which has been identified as the party responsible for a conflict. At the same time, they may discriminate in their behaviour between this responsible State and other States without becoming a belligerent party to the conflict. Rather, they retain the benefit of remaining aloof from the conflict.

II.  Non-Assistance under Article 2 (5) and Complicity in the Law of State Responsibility 28  Another connection between Art. 2 (5) and general international law may be seen in the nowadays generally accepted obligation of States not to render aid or assistance to the commission of internationally wrongful acts by another State. Article 16 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ASR) specifies that: A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.88(p. 249) In addition, Art. 41 (2) ASR provides that in the case of a serious breach of a peremptory norm under general international law (ius cogens), ‘no State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation’.89 Article 41 (2) is complementary to Art. 16 ASR insofar as it sets stricter standards for helping States when particularly serious breaches of international law are at stake. It has been noted that Art. 2 (5) may be seen as a simultaneously more specific and older emanation of the principle embodied in Arts 16 and 41 (2) ASR.90 It is true that the UN Charter is not generally concerned with the invocation and implementation of the responsibility of States for wrongful acts.91 Rather, it has a political goal: the maintenance of international peace and security. Still, the rationale of Art. 2 (5) is somewhat similar to an underlying policy objective of Arts 16 and 41 (2): a wrongdoer shall not be strengthened by the support of other States.92 The general law of State responsibility pursues this objective by the imposition of responsibility to third States helping another State to violate international law. The second half of Art. 2 (5) stipulates a

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similar obligation for a specific field of application—enforcement measures under Chapter VII of the Charter. Despite the primarily political ambit of the UN Charter, it can safely be assumed that almost all situations in which the SC is taking enforcement measures under Chapter VII also involve violations of international law by the targeted State. Although the goal of SC enforcement action is not the invocation of responsibility, the assertion of legality will often be a by-product of SC action. The second part of Art. 2 (5) is thus a special UNrelated norm requiring non-assistance for specific forms of internationally wrongful acts. 29  The obligation of non-assistance under UN law differs in scope as well as in terms of the standards which trigger its applicability from the obligations of non-assistance under Arts 16 and 41 (2) ASR. The scope of Art. 16 ASR is broader insofar as it covers all internationally wrongful acts. In comparison, Art. 2 (5) is more limited as it applies only to situations in which the SC has decided on enforcement measures under Chapter VII of the Charter. The standards for the applicability of the two provisions differ with respect to the conditions under which a helping State incurs responsibility. Article 16 ASR is characterized by fairly restrictive conditions. The aiding or assisting State needs to render its support in full knowledge of the circumstances of the internationally wrongful act. What is more, an analysis of international practice conducted in a different study has argued that international law actually requires the intent of helping States to aid or assist another State in the commission of a wrongful act. Article 16 requires a high subjective threshold before a supporting State can be held responsible under this provision.93 In comparison, Art. 2 (5) lacks such a subjective threshold.94 This difference can be explained because of the presence of a centralized decision-making process.95 As the second part of Art. 2 (5) is only applicable when the SC has (p. 250) decided on enforcement measures under Chapter VII, the general uncertainty for States as to whether or not they would violate international law by virtue of aid or assistance to a given State is removed.96 The stricter standard of Art. 2 (5) can also be explained on the basis of a second consideration. Due to its linkage with Chapter VII of the Charter, Art. 2 (5) protects certain collective goods, namely international peace and security. In this respect, Art. 2 (5) is quite close to Art. 41 (2) ASR which also lacks the high subjective threshold for responsibility which is required under Art. 16 ASR. For Art. 41 (2) ASR this follows primarily from the importance of the legal values it protects as it is only applicable when serious breaches of peremptory norms are at stake.97 In addition, the ILC argued in its commentary to the ASR that due to their magnitude such serious breaches could hardly go unnoticed by other States.98 Accordingly, Art. 41 (2) ASR sets stricter standards for complicit States also in the absence of a centralized decisionmaking process.99 This effect of Art. 41 (2) ASR is somewhat mitigated as the provision only applies ‘after the fact’, insofar as the maintenance of a situation brought about by a serious breach is concerned.100 Arguably, the stricter standards set forth by Art. 41 (2) should, however, generally apply when serious breaches of ius cogens are at stake. 30  In some circumstances, Arts 16 and 41 (2) ASR can be considered as kinds of substitute provisions for Art. 2 (5) when there is a deadlock in the SC. It is not possible to mechanically translate the type of situations in which the SC is taking action into internationally wrongful acts under the law of State responsibility. However, many situations in which the SC could take action under Chapter VII of the Charter but fails to do so for various political reasons involve violations of international law. In these cases, UN member States will find themselves under an obligation under general international law to refrain from supporting the State in question which is responsible for these violations of international law.

F.  Conclusion: Towards an Obligation of Loyal Cooperation?

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31  Article 2 (5) sometimes appears to be a rather forgotten provision among the fundamental principles of the UN. Despite the fact that Art. 2 (5) is not among the most cited provisions in the deliberations of UN organs, it is a provision of greater importance than is usually assumed. This is owed not so much to the way it impacts upon concrete parts of the organizational practice of the UN; rather, its importance relates to its potential to contribute to the systemic understanding of the UN system of collective security. As we have shown, Art. 2 (5) may be seen to contribute a linkage between the UN Charter and important issues concerning the law of neutrality. It also connects UN enforcement action with a crucial element of the law of State responsibility. What is more, there is evidence also in the international practice concerning Art. 2 (5) which speaks in favour (p. 251) of seeing it as a principle providing for an obligation of loyal cooperation between the Organization and its members.101 32  Similar principles are well known in other systems of multilevel governance.102 In EU law, for example, the principle of loyal cooperation requires of the EU and its member States to mutually respect the rights and interests of each other.103 This concept, which was originally developed in German constitutional law doctrine,104 could also fruitfully be employed with respect to the UN.105 In fact, the recognition of such a principle for the UN does not go beyond what the ICJ recognized in its Reparation for Injuries Advisory Opinion.106 In comparison to 1949, however, the need for such a principle is more acute today. Especially with respect to the ever-widening scope of activities of the SC, it can be noted that an obligation of loyal cooperation which would also work in favour of the UN member States could have helped to mediate the conflicts over human rights concerns in the context of so-called ‘targeted sanctions’. In combination with the general principle under Art. 2 (2),107 according to which ‘All Members…shall fulfil in good faith the obligations assumed by them in accordance with the present Charter’, Art. 2 (5) could serve as a building block for a principle of loyal cooperation between the UN and its members. In order not to become an all-encompassing yet meaninglessly vague general principle, one could potentially distinguish between an inner core which relates to the functions of the UN in the field of Chapter VII of the Charter and a wider circle in which this principle could help to establish common positions of how the Organization and its member States are to interact.

Footnotes: 1

  CPF/Mahiou 467.

2

  R Kolb, An Introduction to the Law of the United Nations (Hart 2010) 138.

3

  On UNSC resolutions targeting non-State actors see B Fassbender, The United Nations Charter as the Constitution of the International Community (Nijhoff 2009) 148–50. 4

  V Gowlland-Debbas, Collective Responses to Illegal Acts in International Law (Nijhoff 1990) 380; M Forteau, Droit de la sécurité collective et droit de la responsabilité internationale (Pedone 2006) 201. 5

  The Covenant of the League of Nations (adopted 28 June 1919, entered into force 1 October 1920) 225 Parry 195. 6

  See further Kelsen, 725–26; J Fisher Williams, ‘Sanctions under the Covenant’ (1936) 17 BYIL 130, 135. 7

  A Verdross, ‘Austria’s Permanent Neutrality and the United Nations Organization’ (1956) 50 AJIL 61, 65. 8

  Mahiou (n 1) 467.

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9

  UNCIO VI, 312, Doc 423, I/1/20 and UNCIO VI, 722, Doc 739, I/1/19(a).

10

  UNCIO VI, 722, Doc 739, I/1/19(a).

11

  UNCIO VI, 559, G/7 (i).

12

  Kelsen, 97; GHS, 56; E de Wet, The Chapter VII Powers of the United Nations Security Council (Hart 2004) 376. 13

  Kelsen, 97; Frowein and Krisch on Art. 2 (5) (2nd edn) MN 7.

14

  de Wet (n 12) 263; apparently for a strict duty of assistance: O Corten, Le droit contre la guerre (Pedone 2008) 267. 15

  UNCIOVI, 346–47, Doc 810, I/1/30.

16

  US Department of State, ‘Report to the President on the Results of the San Francisco Conference’ (26 June 1945), reprinted in GHS 56. 17

  Mahiou (n 1) 470.

18

  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, para 110. 19

  ibid, para 113.

20

  See further Peters on Art. 25 MN 11–14; this view is also held by some States, see UNSC Verbatim Record (22 June 2006) UN Doc S/PV.5474 (Resumption 1), at 29 (statement of Mexico). 21

  See, however, S Rosenne, The Law and Practice of the International Court, 1920–2005, vol 1 (Nijhoff 2006) 207. 22

  See further Kolb on Art. 2 (2) MN 27–29; P Neusüß, Legislative Maßnahmen des UNSicherheitsrates im Kampf gegen den internationalen Terrorismus (Utz 2008) 190. 23

  An example of a mandatory call for assistance to UN enforcement action is UNSC Res 1484 (30 May 2003) UN Doc S/RES/1484, op 7: The SC ‘[d]emands that all Congolese parties and all States in the Great Lakes region respect human rights, cooperate with the Interim Emergency Multinational Force and with MONUC in the stabilization of the situation in Bunia and provide assistance as appropriate…’. 24

  UNSC Res 82 (25 June 1950) UN Doc S/RES/82 para III.

25

  For further examples from the practice see UNSC Res 146 (9 August 1960) UN Doc S/ RES/146, op 2 (on the Congo crisis); UNSC Res 253 (23 May 1968) UN Doc S/RES/253, op 16 (on Southern Rhodesia); UNSC Res 282 (23 July 1970) UN Doc S/RES/282, op 6 (on South Africa); UNSC Res 678 (29 November 1990) UN Doc S/RES/678, op 3 (on Iraq and Kuwait); UNSC Res 794 (3 December 1992) UN Doc S/RES/794, op 11 (on Somalia); UNSC Res 940 (31 July 1994) UN Doc S/RES/940, op 11 (on Haiti); UNSC Res 1132 (8 October 1997) UN Doc S/RES/1132, op 8 (on Sierra Leone); UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267, op 9 (on al-Qaida); UNSC Res 1386 (20 December 2001) UN Doc S/RES/ 1386, op 2 (on Afghanistan); UNSC Res 1929 (9 June 2010) UN Doc S/RES/1929, op 15 (on non-proliferation with respect to Iran). 26

  UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267, op 5 (on Al-Qaida).

27

  See eg UNSC Res 1390 (28 January 2002) UN Doc S/RES/1390, op 7; UNSC Res 1989 (17 June 2011) UN Doc S/RES/1989, Preamble; see also the reference to the ‘need of enhanced assistance and cooperation’ between the 1540 Committee and UN member States

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in UNSC Res 1977 (20 April 2011) UN Doc S/RES/1977, Preamble; see also Forteau (n 4) 205. 28

  See also Neusüß (n 22) 191.

29

  UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973, op 9.

30

  This view is also held by MN Schmitt, ‘Wings over Libya: The No-Fly Zone in Legal Perspective’ (2011) 36 YJIL Online 45, 56. 31

  Forteau (n 4) 204.

32

  Statement of Uruguay, UNSC Verbatim Record (28 March 2007) UN Doc S/PV.5649 (Resumption 1), para 4. 33

  See eg the statement of Liberia, UNSC Verbatim Record (28 September 1971) UN Doc S/PV.1585 para 16. 34

  Statement of Yugoslavia, UNSC Verbatim Record (24 October 1974) UN Doc S/PV.1800 para 41. 35

  Prosecutor v Tadić (Decision on the Defence Motion on the Interlocutory Appeal on Jurisdiction) IT-94-1-AR72 (2 October 1995) para 31. 36

  UNSC Res 827 (25 May 1993) UN Doc S/RES/827 (establishing the ICTY); UNSC Res 955 (8 November 1994) UN Doc S/RES/955 (establishing the ICTR). 37

  Convention on the Prevention and Punishment of the Crime of Genocide (adopted 1 January 1948, entered into force 12 January 1951) 78 UNTS 277. 38

  Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43, para 447. 39

  ibid, para 449.

40

  UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267.

41

  UNSC Committee established pursuant to resolution 1267 (1999) ‘Note Verbale’ (25 August 2003) UN Doc S/AC.37/2003/(1455)/67, 2. 42

  Case T-85/09 Kadi v European Commission [2010] OJ C 317/29, para 92.

43

  Reparation for Injuries suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 183. 44

  UNGA ‘Comprehensive Review of the Whole Question of Peacekeeping Operations in all their Aspects’ (21 August 2000) UN Doc A/55/305-S/2000/809 para 32. 45

  UNSC Verbatim Records (1 February 1972) UN Doc S/PV.1632 para 28.

46

  UNGA ‘Draft Resolution introduced by Afghanistan, Belgium, Bhutan, Brazil, Czech Republic, Denmark, Fiji, France, Georgia, Germany, Greece, Haiti, Honduras, Iceland, India, Japan, Kiribati, Latvia, Maldives, Nauru, Palau, Paraguay, Poland, Portugal, Solomon Islands, Tuvalu und Ukraine’ (6 July 2005) UN Doc A/59/L.64. 47

  UNGA ‘Draft Resolution’ (5 January 2006) UN Doc A/60/L.46**.

48

  JL Kunz, ‘Austria’s Permanent Neutrality’ (1956) 50 AJIL 418, 423; HJ Taubenfeld, ‘International Actions and Neutrality’ (1953) 47 AJIL 377, 393, 395; for a different view see, however, P Guggenheim, ‘La sécurité collective et le problème de la neutralité’ (1945) 2 SJIR 9, 44–45; Verdross (n 7) 67.

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49

  K Zemanek, ‘Das Problem der Beteiligung des immerwährend neutralen Österreichs an Sanktionen der Vereinten Nationen, besonders im Fall Rhodesien’ (1968) 28 ZaöRV 16. 50

  See further W Hummer, ‘Der internationale Status und die völkerrechtliche Stellung Österreichs seit dem Ersten Weltkrieg’ in H Neuhold, W Hummer, and C Schreuer (eds), Österreichisches Handbuch des Völkerrechts, Band 1—Textteil (4th edn, Manz 2004) 562 MN 3320f. 51

  ibid, MN 3321.

52

  UNSC ‘Application of the Swiss Confederation for Admission to Membership in the United Nations’, UN Doc S/2002/801 (24 July 2002); see also B Conforti and C Focarelli, The Law and Practice of the United Nations (4th edn, Nijhoff 2010) 40. 53

  ‘La neutralité à l’épreuve du conflit en Irak’, étude préparée par le Conseil fédéral en reponse à un postulat de M Reimann, député au Conseil des Etats, et à une motion déposée au Conseil national par le Groupe parlementaire de l’Union démocratique du centre (UDC), reprinted in L Caflisch, ‘La pratique suisse en matière de droit international public 2005’ (2006) 16 SZIER 605, especially at 651f. 54

  Frowein and Krisch (n 13) MN 8.

55

  Gowlland-Debbas (n 4) 380.

56

  J Combacau, Le pouvoir de sanction de l’O.N.U. (Pedone 1974) 190.

57

  Kelsen, 93.

58

  de Wet (n 12) 376, note 12; Frowein and Krisch (n 13) MN 3.

59

  M Ruffert and C Walter, Institutionalisiertes Völkerrecht (CH Beck 2009) para 420; see further Krisch on Art. 40 MN 13–14. 60

  See eg UNSC Res 1132 (8 October 1997) UN Doc S/RES/1132, op 6 (on Sierra Leone) and the resolutions referred to below. 61

  Forteau (n 4) 201.

62

  See eg UNSC Res 283 (29 July 1970) UN Doc S/RES/283 (on Namibia).

63

  UNSC Res 1054 (26 April 1996) UN Doc S/RES/1054.

64

  UNSC Res 1636 (31 October 2005) UN Doc S/RES/1636.

65

  J Matam Farrall, United Nations Sanctions and the Rule of Law (CUP 2007) 110.

66

  UNSC Res 277 (18 March 1970) UN Doc S/RES/277, op 2.

67

  See UNSC Res 1484 (30 May 2003) UN Doc S/RES/1484, op 7: The SC ‘… demands also the cessation of all support, in particular weapons and any other military materiel, to the armed groups and militias, and further demands that all Congolese parties and all States in the region actively prevent the supply of such support’; UNSC Res 1540 (28 April 2004) UN Doc S/RES/1540, op 1. 68

  See eg UNSC Res 54 (15 July 1948) UN Doc S/RES/54, op 4 (on the Palestine Question); UNSC Res 82 (25 June 1950) UN Doc S/RES/82 para III (on the Korean crisis): ‘calls upon all Member States…to refrain from giving assistance to the North Korean authorities’; UNSC Res 232 (16 December 1966) UN Doc S/RES/232, op 5: ‘calls upon all States not to render financial or other economic aid to the illegal racist regime in Southern Rhodesia’; UNSC Res 591 (28 November 1986) UN Doc S/RES/591, op 9 (on South Africa); UNSC Res 713 (25 September 1991) UN Doc S/RES/713, op 7 (on Yugoslavia). 69

  UNSC Res 1803 (3 March 2008) UN Doc S/RES/1803, op 9.

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70

  UNSC Res 253 (29 May 1968) UN Doc S/RES/253, op 12.

71

  See UNSC Res 1874 (12 June 2009) UN Doc S/RES/1874, op 7, 10–13, 18–20, 28.

72

  See UNGA Res 31/154 B (20 December 1976) UN Doc A/RES/31/154, op 1 and 2; UNGA Res 32/116 B (16 December 1977) UN Doc A/RES/32/116, preamble and op 1 and 2; UNGA Res 33/38 B (13 December 1978) UN Doc A/RES/33/38, preamble and op 1 and 2. 73

  See eg UNGA Res 63/99 (5 December 2008) UN Doc A/RES/63/99, op 6.

74

  UNGA Res ES-7/4 (28 April 1982) UN Doc A/RES/ES-7/4, para 9b; UNGA Res 38/180 A (19 December 1983) UN Doc A/RES/38/180, paras 9, 13, 14, pt D, para 11, pt E, paras 2, 3; UNGA Res 39/146 A (14 December 1984) UN Doc A/RES/39/146[A], para 11, UNGA Res 39/146 B (14 December 1984) UN Doc A/RES/39/146[B], paras 13–14; UNGA Res 40/168 A (16 December 1985) UN Doc A/RES/40/168[A], para 11, UNGA Res 40/168 (16 December 1985) UN Doc A/RES/40/168[B] paras 9, 13–14; UNGA Res 41/162 A (4 December 1986) UN Doc A/RES/41/162, para 11; pt B, paras 9, 13–14. 75

  UNGA Res 55/174 A (23 December 2000) UN Doc A/RES/55/174, op 16.

76

  See already GHS, 58.

77

  cf K Schmalenbach, ‘International Organizations or Institutions, General Aspects’ MPEPIL (online edn) MN 106. 78

  See SC Neff, War and the Law of Nations (CUP 2005) 325; M Gavouneli, ‘Neutrality—A Survivor?’ (2012) 23 EJIL 267, 270. 79

  Zemanek (n 49) 21.

80

  C Greenwood, ‘Scope of Application of Humanitarian Law’ in D Fleck (ed), The Handbok of International Humanitarian Law (2nd edn, OUP 2008) 45f. 81

  Y Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2nd edn, CUP 2010) 29. 82

  W Heintschel von Heinegg, ‘Wider die Mär vom Tode des Neutralitätsrechts’ in H Fischer and others (eds), Krisensicherung und Humanitärer Schutz—Crisis Management and Humanitarian Protection. Festschrift für Dieter Fleck (BWV 2004) 221, 232. 83

  RH Jackson, ‘Address to the Inter-American Bar Association, Havana, Cuba, 27 March 1941’ (1941) 35 AJIL 348, 357–58; for the background paper inspiring this doctrine see H Lauterpacht, ‘Memorandum on the Principles of International Law Governing the Question of Aid to the Allies by the United States, 15 January 1941’ in E Lauterpacht (ed), International Law Being the Collected Papers of Hersch Lauterpacht, vol 5 (CUP 2004) 645. 84

  See Y Dinstein, War, Aggression and Self-Defence (5th edn, CUP 2011) 180; for early critique see EM Borchard, ‘War, Neutrality and Non-Belligerency’ (1941) 35 AJIL 618; HW Briggs, ‘Neglected Aspects of the Destroyer Deal’ (1940) 34 AJIL 569 as well as, for a contemporary view, N Ronzitti, ‘Italy’s Non-Belligerency During the Iraq War’ in M Ragazzi (ed), International Responsibility Today—Essays in Memory of Oscar Schachter (Nijhoff 2005) 197. 85

  A Gioa, ‘Neutrality and Non-Belligerency’ in HHG Post (ed), International Economic Law and Armed Conflict (Nijhoff 1994) 51, 75; Dinstein (n 84) 177; P Daillier, M Forteau, and A Pellet, Droit international public (8th edn, LGDJ 2009) para 584. 86

  See Krisch on Art. 42 MN 5–7.

87

  See also MN Schmitt, ‘Iraq-Kuwait War (1990–91)’ in MPEPIL (online edn) MN 38.

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88

  Art. 16 of the Articles on the Responsibility of States for Internationally Wrongful Acts, annexed to UNGA Res 56/83 (12 December 2001) UN Doc A/RES/56/83; identified by the ICJ as an expression of customary international law in the Genocide Convention Case (n 38) para 419; see on this provision HP Aust, Complicity and the Law of State Responsibility (CUP 2011); V Lowe, ‘Responsibility for the Conduct of Other States’ (2002) 101 Kokusaiho Gaiko Zassi (The Journal of International Law and Diplomacy) 1. 89

  ibid.

90

  ILC Commentary to Art. 16 MN 2, reprinted in James Crawford (ed), The International Law Commission’s Articles on State Responsibility—Introduction, Text and Commentaries (CUP 2002); A Felder, Die Beihilfe im Recht der völkerrechtlichen Staatenverantwortlichkeit (Schulthess 2007) 158–61. 91

  G Nolte, ‘The Limits of the Security Council’s Powers and its Functions in the International Legal System’ in M Byers (ed), The Role of Law in International Politics (OUP 2000) 315, 322–23; for a different view see V Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’ (1994) 43 ICLQ 55. 92

  See also J Quigley, ‘Complicity in International Law: A New Direction in the Law of State Responsibility’ (1986) 57 BYIL 77, 88. 93

  Aust (n 88) 249; see also G Nolte and HP Aust, ‘Equivocal Helpers—Complicit States, Mixed Messages and International Law’ (2009) 58 ICLQ 1, 13–15. 94

  cf Combacau (n 56) 191.

95

  B Graefrath, ‘Complicity in the Law of International Responsibility’ (1996) 29 RBDI 370, 376. 96

  See further Aust (n 88) 32–34.

97

  Aust (n 88) 341.

98

  ILC Commentary (n 90) Art. 41, para 11.

99

  Nolte and Aust (n 93) 16; S Szurek, ‘Responsabilité de protéger, nature de l’obligation et responsabilité internationale’ in Société française pour le droit international (ed), La responsabilité de protéger (Pedone 2008) 91, 113. 100

  C Tomuschat, ‘International Crimes by States: An Endangered Species?’ in K Wellens (ed), International Law: Theory and Practice. Essays in Honour of Eric Suy (Kluwer 1998) 253, 259. 101

  See also P d’Argent and N Susani, ‘United Nations, Purposes and Principles’ MPEPIL (online edn) MN 17; Schmalenbach (n 77) MN 106; C Feinäugle, Hoheitsgewalt im Völkerrecht—Das 1267-Sanktionsregime der UN und seine rechtliche Fassung (Springer 2011) 111–21. 102

  cf Fassbender (n 3) 94–100; see also I Pernice, ‘The Global Dimension of Multilevel Constitutionalism: A Legal Response to the Challenges of Globalisation’ in PM Dupuy and others (eds), Völkerrecht als Wertordnung—Common Values in International Law. Festschrift für Christian Tomuschat (Engel 2006) 973. 103

  Art. 4 (3) of the Treaty on the European Union, Consolidated version of the Treaty on the European Union [2010] OJ C 83/13. 104

  See R Smend, ‘Ungeschriebenes Verfassungsrecht im Bundesstaat’ in R Smend, Staatsrechtliche Abhandlungen und andere Aufsätze (3rd edn, Duncker & Humblot 1994) 39, 51.

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105

  cf Daillier, Forteau, and Pellet (n 85) para 248; Feinäugle (n 101) especially at 115, 118, 120–21. 106

  Reparation for Injuries (n 43).

107

  See also, for a combined reading of Arts. 2 (2) and (5), Kolb (n 2) 57.

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Ch.I Purposes and Principles, Article 2 (6) Stefan Talmon From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — Collective security — Responsibility of non-state actors

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(p. 252) Article 2 (6) The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. … 6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. … A.  Introduction 1–13 I.  The United Nations and Non-Member States 1–2 II.  Article 2 (6) and the pacta tertiis Rule 3–8 III.  Nature of the Provision 9 IV.  Practical Significance of the Provision 10–13 B.  Historical Background 14–23 I.  Article 17 of the Covenant of the League of Nations 14–15 II.  Drafting History of Article 2 (6) 16–20 III.  Draft Declaration on the Rights and Duties of States 21–23 C.  The Addressees of the Obligation 24–29 I.  The United Nations Organization 24–25 II.  Member States of the United Nations 26–27 III.  Non-Member States 28–29 D.  The Text of the Provision 30–38 I.  ‘Shall ensure’ 30–31 II.  ‘States which are not Members of the United Nations’ 32 III.  ‘Act in accordance with these Principles’ 33–36 IV.  ‘So far as may be necessary for the maintenance of international peace and security’ 37–38 E.  Article 2 (6) as the Precursor of a Universal System of Collective Security Based upon the UN Charter 39–75 I.  A Universal System of Collective Security Based upon the UN Charter 39–41 II.  Indications of a Universal System of Collective Security in the Charter 42–43 III.  United Nations and State Practice 44–65 1.  Decisions Addressed to all States, International Organizations, and Other Non-State Actors 46–50

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2.  Non-Member States and Other Actors as Target of Preventive and Enforcement Measures 51–54 3.  Implementation of Preventive and Enforcement Measures by NonMember States 55–63 (a)  Early Practice 56 (b)  Federal Republic of Germany prior to 1973 57 (c)  Republic of Korea prior to 1991 58 (d)  Switzerland prior to 2002 59–62 (e)  Cook Islands 63 4.  Opinion of Member States 64–65 (p. 253) IV.  The ICJ’s Namibia and Kosovo Advisory Opinions 66–67 V.  Legal Basis of a Universal System of Collective Security 68–75 1.  The ‘Reparations for Injuries’ Approach: Objective Security Order 69– 70 2.  The Charter as an ‘Objective Regime’ 71 3.  The Charter as the ‘Constitution’ of the International Community 72– 73 4.  A System Based on Customary International Law 74–75

Select Bibliography Bierzanek R, ‘The Principle of Universality and Its Implementation in the United Nations Organization’ (1970) 9 German Foreign Policy 360. Bindschedler RL, ‘La Délimitation des compétences des Nations Unies’ (1963-I) 108 Rec des Cours 306. ——— ‘Das Problem der Beteiligung der Schweiz an Sanktionen der Vereinigten Nationen, besonders im Falle Rhodesiens’ (1968) 28 ZaöRV 1. Boczek BA, ‘Permanent Neutrality and Collective Security: The Case of Switzerland and the United Nations Sanctions Against Rhodesia’ (1969) 1 Case Western Reserve J Intl L 75. Bohr S, ‘Sanctions by the United Nations Security Council and the European Community’ (1963) 4 EJIL 256. Braud P, ‘Recherches sur l’Etat tiers en droit international public’ (1968) 72 RGDIP 17. Cahier P, ‘Le Problème des effets des traités à l’égard des tiers’ (1974-III) 143 Rec des Cours 589. ——— ‘La Charte des Nations Unies et les Etats tiers’ in A Cassese (ed), Current Problems of International Law (Giuffrè 1975) 81. Combacau J, Le Pouvoir de sanction de l’ONU (Pedone 1974). Conforti B and Focarelli C, The Law and Practice of the United Nations (4th edn, Nijhoff 2010).

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Czempiel EO, ‘Die Vereinten Nationen und die Nichtmitglieder: Über die Praxis und die Möglichkeiten der internationalen Organisationen’ (1968) 9 Politische Vierteljahresschrift 56. Falk RA, The Authority of the United Nations over Non-Members (Center of International Studies 1965). ——— ‘The Authority of the United Nations to Control Non Members’ in RA Falk (ed), The Status of Law in International Society (Princeton UP 1970) 185. Frowein JA, ‘Die Vereinten Nationen und die Nichtmitglieder’ (1970) 25 EA 256. Gunter MM, ‘Switzerland and the United Nations’ (1976) 30 IO 129. Hagemann M, ‘Der Beitritt der Schweiz zum Statut des Internationalen Gerichtshofes und die schweizerische Neutralität’ (1948) 5 Schweiz JB Internat Recht 117. Hsueh SS, L’ONU et les Etats non Membres (Ambilly 1953). Kalala T, Les resolutions de l’ONU et les destinataires non-étatiques (Larcier 2009). Kammerhofer J, ‘Constitutionalism and the Myth of Practical Reason: Kelsenian Responses to Methodological Problems’ (2010) 23 Leiden J Intl L 723. Katzarov C von, ‘Die Stellung der Nichtmitglieder der Vereinten Nationen’ (1951–52) 3 AVR 1. Kojanec G, Trattati e terzi stati (CEDAM 1961). ——— ‘Lo Statuto delle Nazioni Unite e gli Stati non membri’ (1968) 23 Communità Internaz 632. Krafft MC, Thürer D, and Stadelhofer JA, ‘Switzerland’ in V Gowlland Debbas (ed), National Implementation of United Nations Sanctions: A Comparative Study (Martinus Nijhoff 2004) 523. Kunz JL, ‘Revolutionary Creation of Norms in International Law’ (1947) 41 AJIL 119. Leube S, The Position of Non-Member States in the United Nations System: Germany (doctoral thesis, New York University 1951).(p. 254) Martens W, ‘Zur Frage der Bindung von Nichtmitgliedern an die Grundsätze der Vereinten Nationen’ (1968) 7 Der Staat 431. McNeill JH, ‘Regional Enforcement Action Under the United Nations Charter and Constraints Upon States Not Members’ (1975/76) 9 Cornell Intl LJ 1. Prevost JF, Les Effets des traités conclus entre Etats à l’égard des tiers (thèse doctoral Paris 1973). Ross A, Constitution of the United Nations: Analysis of Structure and Function (Rinehart 1950). Ross JF, Neutrality and International Sanctions: Sweden, Switzerland and Collective Security (Praeger 1989). Schenck D von, ‘Das Problem der Beteiligung der Bundesrepublik Deutschland an Sanktionen der Vereinten Nationen, besonders im Falle Rhodesiens’ (1969) 29 ZaöRV 257. Scheuner U, ‘Die Vereinten Nationen und die Stellung der Nichtmitglieder’ in G Schreiber and H Mosler (eds), Völkerrechtliche und staatsrechtliche Abhandlungen. Festschrift Bilfinger (Heymann 1954) 371. Schindler D, ‘Kollektive Sicherheit der Vereinten Nationen und dauernde Neutralität der Schweiz’ (1992) 2 SZIER 435. Soder J, Die Vereinten Nationen und die Nichtmitglieder. Zum Problem der Weltstaatenorganisation (Röhrscheid 1956). Thürer D, ‘UN Enforcement Measures and Neutrality: The Case of Switzerland’ (1992) 30 AVR 69. Tomuschat C, ‘Obligations Arising for States against Their Will’ (1993-IV) 241 Rec des Cours 195.

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Vellas P, Contribution à l’étude des obligations à la charge des tiers en droit international public (l’article 2 § 6 de la Charte des Nations Unies) (Pedone 1950). Verdross A, ‘Le Nazioni Unite e i terzi Stati’ (1947) 2 Comunità Internaz 439. Vitzthum W Graf, ‘Article 2(6)’ in B Simma (ed), The Charter of the United Nations: A Commentary (2nd edn, OUP 2002) 140. Vukas B, Treaties, ‘Third-Party Effect’ MPEPIL (online edn). Widdows K, ‘Security Council Resolutions and Non-Members of the United Nations’ (1978) 27 ICLQ 459.

A.  Introduction I.  The United Nations and Non-Member States 1  Article 2 (6) is one, if not the main, provision of the Charter dealing with the relationship between the Organization and non-members.1 Right from the beginning of the UN, there has been a controversy over whether Art. 2 (6) is capable of having any legal effects at all on non-members and, in particular, whether the UN may take preventive and enforcement measures, including the use of armed force, against non-members which would otherwise be illegal under international law, and whether it can impose any obligations upon nonmembers in order to achieve its aim of maintaining international peace and security. 2  Comments on the provision in the literature have been rather vague and opaque. Thus, it has been said that Art. 2 (6) establishes the principle that ‘actions of non-members are a matter of concern to the United Nations’,2 that it expresses ‘the intention (p. 255) also to influence States not Members of the United Nations’,3 that it ‘reaches out at non-member States and somehow subjects them to the activities of the organization’,4 or that it ‘constitutes a claim to regulate the conduct of non-members to the extent required for the fulfilment of the object of that Article’.5

II.  Article 2 (6) and the pacta tertiis Rule 3  At the heart of the controversy over the legal effects of Art. 2 (6) on non-members lies the fundamental rule of customary international law, as expressed in the maxim pacta tertiis nec nocent nec prosunt, that treaties, including the UN Charter, cannot validly create rights and obligations for non-parties to the treaty.6 The rule follows from the sovereignty of States and from the resulting principle that international law does not as yet recognize anything in the nature of a legislative process by which rules of law are imposed upon a dissenting minority of States.7 4  Hans Kelsen was one of the first who took the view that the Charter could impose obligations on non-members in the interest of international peace and security.8 He argued that, by virtue of Art. 2 (6), non-member States indirectly had the same obligations as member States. Recognizing the tension between Art. 2 (6), as he conceived it, and the pacta tertiis rule, he called the provision ‘revolutionary’.9 5  This view, however, is not borne out by the language of Art. 2 (6) and has therefore rightly been rejected by the overwhelming majority in the literature which takes the view that non-members cannot be bound by an obligation under the Charter to which they are not a party, unless the Charter obligation is reflective of an obligation under customary international law.10 6  The controversy has largely been mitigated by the fact that the principles enunciated in Art. 2(1) to (4) are today generally accepted as forming part of customary international law and some, such as the principle on the prohibition of the use of force in Art. 2 (4), are even considered ius cogens and, as such, are binding on members and non-members alike.11 The customary international law status of the obligation to settle international disputes by peaceful means is not contradicted by Art. 35 (2) of the Charter (p. 256) which requires

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non-member States who want to bring a dispute to the attention of the SC or of the GA to accept, in advance for the purposes of the dispute, ‘the obligations of pacific settlement provided in the present Charter’.12 This special requirement may be explained by the fact that the Charter obligations are much wider and more specific than the general customary international law obligation.13 The customary international law status of the first four principles in Art. 2 has also been confirmed by the GA in its 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (Friendly Relations Declaration) which replaced the term ‘Members’ with ‘every State’, ‘all States’, or just ‘States’.14 7  The obligation in Art. 2 (5) to ‘refrain from giving assistance to any State against which the United Nations is taking preventive or enforcement action’ was already acknowledged as a duty of ‘every State’ in the ILC’s Draft Articles on the Rights and Duties of States,15 and will usually coincide with the general obligation of States not to aid or assist another State in the commission of an internationally wrongful act.16 8  Ultimately, the only problematic issue left with regard to the legal effects of Art. 2 (6) is thus whether non-members are under the obligation set out in Art. 2 (5) ‘to give the United Nations every assistance in any action it takes in accordance with the present Charter’ and, in particular, whether they are under an obligation ‘to accept and carry out the decisions of the Security Council in accordance with the Charter’ as set out in Art. 25.

III.  Nature of the Provision 9  Although, according to the chapeau of Art. 2, the provision is one of the ‘Principles’ according to which the Organization and its members shall act, it does not contain a proper statement of principle but establishes an obligation.17 It is thus not surprising that the statement in paragraph 6 is the only provision of Art. 2 which is not replicated in the 1970’s Friendly Relations Declaration.18

IV.  Practical Significance of the Provision 10  During the first ten years of the UN more than twenty States willing to join remained outside the Organization; at the beginning of the 1990s there were still some eleven States which were not members of the UN. With the increase in membership and the UN in the early 2000s achieving almost complete universality, the practical significance of the relationship between the UN and non-member States was substantially reduced (p. 257) and the scope of application of Art. 2 (6) was said to be a ‘theoretical problem’ and an object of doctrinal debates about the nature of the UN System and international law in general.19 11  In the practice of the UN, the number of express references to Art. 2 (6) or States which are not members of the UN has been constantly decreasing over the years, the more the UN became a universal organization.20 Only on very few occasions has Art. 2 (6) been expressly mentioned in the final version of an SC resolution.21 The last time express reference was made in a binding SC resolution to ‘States not members of the United Nations’ or ‘States non-members of the United Nations’ was in UNSC Res 1054 (26 April 1996).22 12  In recent years the provision has regained some practical significance with the creation of a number of new States which did not, or not immediately, become members of the UN and which were involved in, or the cause of, disputes affecting international peace and security.23 13  The following situations may give rise to the application of Art. 2 (6): (i)  States which choose to stay outside the UN (Vatican City State, Cook Islands);

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(ii)  States which withdraw from the UN (Indonesia, 20 January 1965 to 19 September 1966 24 ); (iii)  States which are expelled from the Organization in accordance with Art. 6 of the Charter; (iv)  new States which are formed as a consequence of the dissolution or dismemberment of an existing member State and which are not accepted as its successor and refuse to apply for new membership (Federal Republic of Yugoslavia, 27 April 1992 to 1 November 2000); (v)  new States in the sometimes extended period between gaining independence and admission to the UN (Kuwait, 19 June 1961 to 14 May 1963; Bangladesh, 16 December 1971 to 17 September 1974); (vi)  de facto States whose status is disputed and which are unlikely to be admitted to the UN (Abkhzia, Kosovo, Nagorno-Karabakh, Somaliland, South Ossetia, Transnistria); (p. 258) (vii)  de facto States which the SC has called upon all States not to recognize and which thus may not be admitted to UN membership (Turkish Republic of Northern Cyprus 25 ); (viii)  quasi-State entities which have not (yet) declared independence (Taiwan); (ix)  non-State entities which are claiming statehood (Saharan Arab Democratic Republic; Palestine, 15 November 1988 to 13 September 1993).

B.  Historical Background I.  Article 17 of the Covenant of the League of Nations 14  Article 17 of the Covenant of the League of Nations has been referred to as an equivalent provision to,26 or a predecessor of Art. 2 (6).27 However, the two provisions are fundamentally different.28 15  Article 17 (1), which is more akin to Art. 35 (2) and Art. 11 (2) of the Charter, simply confers rights on third States and is compatible with general international law.29 In the Eastern Carelia Case, the PCIJ held that Art. 17 (1) did not give the League Council the power to ask for an advisory opinion on a dispute between a member State (Finland) and a non-member State (Russia), if the latter had not accepted the invitation of the League Council to accept the obligations of membership in the League of Nations for the purposes of the dispute,30 or had otherwise consented to the Court’s jurisdiction.31 Article 17 (3), together with Art. 16, is reminiscent of a traditional alliance clause, ie a commitment of the member States to collective self-defence in case of acts of war by a non-member against a member of the League of Nations. Article 17 (4) of the Charter comes closest to Art. 2 (6), in that the Covenant ascribed powers to the League Council to intervene in disputes wholly between non-member States—powers which could be based neither on the Covenant nor on notions of collective self-defence.32 The League never attempted to exercise those powers.

II.  Drafting History of Article 2 (6) 16  Article 2(6) must be seen against the backdrop of World War II which had been started by States not members of the League of Nations, and the decision not to include the ‘enemy States’ as original members of the United Nations. It was therefore considered desirable to include a provision in the Charter that provided basic authority for dealing with nonmember States.33

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(p. 259) 17  The idea behind the present Art. 2 (6) was that member States would adhere to the principles in their relations with non-member States, and that, conversely, non-member States would also act in conformity with those principles.34 According to the Rapporteur, para 6 ‘was intended to provide a justification for extending the power of the Organization to apply to the actions of non-members’.35 Belgium, in particular, was a strong proponent of the provision, considering it to be a ‘most important provision’ which would no longer allow non-member States to rely on the status of neutrality in order to avoid the obligations of the Charter.36 It saw the provision as an affirmation of ‘the right of the Organization to impose on third-party States…respect for those principles’ enumerated in Art. 2.37 The ‘moral and legal basis’ of this right was seen in the fact that the Charter was ‘not a special covenant but a general one’ and that it would ‘stand out as the will of most of the civilized States’ and that it could even be called ‘the collective conscience of humanity’.38 In fact, Belgium argued for the extension of the obligations of non-member States not only to the principles but also to ‘other rules the general application of which is recognized by the International Organization’.39 18  Other States expressed concerns, considering the imposition of an obligation on nonmember States ‘contrary to legal postulates’.40 They argued for the deletion of the provision and suggested that all States should be (made) members of the Organization.41 However, a motion to postpone consideration of the provision was defeated, and the text of the provision was adopted unanimously.42 The vote was taken on the understanding that: the association of the United Nations, representing the major expression of the international legal community, is entitled to act in a manner which will insure the effective cooperation of non-member states with it, so far as that is necessary for the maintenance of international peace and security.43 19  In the Dumbarton Oaks Proposals para 6 originally read: All members of the Organization shall refrain from giving assistance to any state against which preventive or enforcement action is being undertaken by the Organization. The Organization should ensure that states not members of the Organization act in accordance with these principles so far as may be necessary for the maintenance of international peace and security.44 During the drafting process, only two major changes were made.45 First, the first subparagraph was initially made a separate paragraph and later integrated into para 5.46 By giving the present para 6 a distinct section number, it was ‘intended to establish (p. 260) it more clearly as a general principle of a general application, and not limited only to refraining from giving the assistance mentioned in the first section of the original text of paragraph 6’.47 Second, the hortatory ‘should’ was replaced with the mandatory ‘shall’ to ‘mark more strongly the obligations of the Organization’.48 20  The Coordination Committee at its session on 22 June 1945 finally decided to discard the term ‘non-member state’ and to use the phrase ‘state not (or which is not) a Member of the United Nations’ instead.49

III.  Draft Declaration on the Rights and Duties of States 21  The issue of the rights and duties of States not Members of the UN resurfaced in 1948 in the discussions of a Draft Declaration on the Rights and Duties of States submitted by Panama. Article 20 of the Draft Articles provided as follows:

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20. Co-operation in the Pursuit of the Aims of the Community of States It is the duty of every State to take, in co-operation with other States, the measures prescribed by the competent organs of the Community of States in order to prevent or put down the use of force by a State in its relations with another State, or in the general interest.50 22  In their responses to this draft Article, a number of States offered their opinions as to the state of the law. Greece argued that Art. 20 should not appear in the draft, because the obligations in question were contained in particular international law and not general international law.51 The United Kingdom contended that Art. 20 dealt with ‘matters which, for Members of the United Nations, [were] regulated by the Charter’.52 For the United States, the proposed article as worded went ‘beyond the accepted principles of international law’.53 23  The matter was referred to the ILC where the provision was clearly rejected, only one vote being cast in its favour. The overwhelming view was that such a provision was in contradiction to existing international law and that no such duty of assisting the UN in its actions could be imposed on non-member States.54

C.  The Addressees of the Obligation I.  The United Nations Organization 24  The obligation in Art. 2 (6) is addressed to the ‘Organization’.55 As a legal person separate from it member States the UN can be the addressee of rights and obligations. (p. 261) The provision has been referred to and invoked by member States, especially in the early years of the Organization, in support of requests to include certain questions concerning non-member States in the agenda of the GA or the SC,56 or in support of calls for action by the UN against non-member States.57 The provision has also been relied upon to construe an obligation on the part of the UN to admit new States to membership58 and to allow non-members to participate in international conferences held under the auspices of the UN.59 25  As a legal person the UN is acting through its organs. The real addressees of the obligation are therefore the principal organs that have competence in the area of international peace and security—the SC, GA, and the SG. Article 2 (6), however, does not establish any new powers; the organs are to act rather within the existing competence structure laid down in the Charter.

II.  Member States of the United Nations 26  The chapeau of Art. 2 provides that the ‘Organization and its Members shall act in accordance with the following Principles’, including those set out in para 6. As the GA and SC are composed of representatives of the member States, those organs (and thus the Organization itself) can only act if the member States so decide. There is thus at least a subsidiary or secondary duty on the member States, acting through the Organization, to ensure that non-member States act in accordance with the principles in Art. 2.60 27  To the extent that the principles set out in Art. 2 constitute ius cogens, an obligation on member States to ensure that non-member States are acting in accordance with these principles can also be derived now from Art. 41 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts.61

III.  Non-Member States

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28  It has been argued that Art. 2 (6) imposes, at least indirectly, obligations also upon nonmember States.62 Hans Kelsen, the most prominent proponent of this view, argued that ‘if the Charter attaches a sanction to certain behaviour of non-Members, it establishes a true obligation of non-Members to observe the contrary behaviour’.63 However, this (p. 262) view is based on the assumption that Art. 2 (6) ‘may be interpreted to mean that the Organization is authorised to react against a non-Member state which does not act in conformity with the principles laid down in Article 2 with a sanction provided for by the Charter’.64 The Charter in Art. 2 (6), however, does not attach any ‘sanction’ to the behaviour of non-member States; it simply stipulates that the UN ‘shall ensure’ that they conduct themselves in a certain way.65 29  The view that Art. 2 (6) imposes obligations upon non-member States also seems to find some support in UNSC Res 314 (28 February 1972) where the SC stated that ‘all States’ were to implement fully all SC resolutions establishing sanctions against Southern Rhodesia ‘in accordance with their obligations under Article 25 and Article 2, paragraph 6, of the Charter of the United Nations’.66 Such an understanding is contrary to the wording of Art. 2 (6), its drafting history, and general international law.67 Non-member States may, however, be subject to such obligations under general international law.

D.  The Text of the Provision I.  ‘Shall ensure’ 30  Article 2 (6) stipulates a competence of the Organization and its member States to act within the framework of the Charter in order to realize the result set out in that provision. But, based on the wording, it also establishes an obligation to act, and not just a discretionary power.68 31  Opinion on the content of the obligation is divided. While some have said that ‘shall ensure’ means that the Organization must take all the measures which it may deem necessary, including preventive and enforcement action under Chapter VII, to have nonmember States act in accordance with the principles set out in Art. 2,69 the majority takes the view that the Organization may only take political and other non-forcible action against non-members in order to make them comply with these principles.70 The power of the Organization to take preventive or enforcement measures against non-member States may, however, depending on the principle concerned, find its basis in other (general) rules of international law.

II.  ‘States which are not Members of the United Nations’ 32  The obligation in Art. 2 (6) is directed at ‘States’ which are either not yet or no longer members of the UN. States whose membership is suspended continue to be bound by their obligations under Art. 2.71 The obligation does not extend to international organizations or other non-State actors.

(p. 263) III.  ‘Act in accordance with these Principles’ 33  The term ‘these Principles’ refers to the principles set forth in Art. 2.72 There is, however, some confusion over whether it covers all or only some of the principles laid down in that provision. While some have taken the term to mean all principles in paras 1–5,73 others have excluded the principle in para 2,74 or have even limited the scope of application to para 5.75 An examination of the principles shows that para 1 concerns the internal organization of the UN and is of a programmatic character only. The principle in para 2 is solely addressed to member States which have assumed obligations under the Charter in order to allow them to enjoy the rights and benefits resulting from membership. In practice, the reference to ‘these Principles’ is thus limited to the principles in paras 3, 4, and 5.76

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This raises the question of how the Organization is to ensure that non-member States act in accordance with these three principles. 34  The principle of the peaceful settlement of disputes requires the UN to ensure that nonmember States can actually settle their disputes by peaceful means. Articles 11 (2), 32, 35 (2), and 93 (2) of the Charter can be seen as an expression of that obligation. These provisions must therefore be interpreted and applied in light of the Organization’s obligation under Art. 2 (6). In addition, parties to the ICJ Statute but not members of the UN are to be invited to participate in the GA in electing members of the Court in the same manner as the UN member States in order to enhance the acceptance of the Court as a dispute settlement mechanism.77 In consequence of Art. 2 (6), the organs of the UN which are competent to seek advisory opinions from the ICJ must, if necessary, request the Court to give an advisory opinion on legal questions concerning non-member States.78 It has also been claimed that Art. 2 (6) serves as a legal basis for the UN to bring international claims against non-member States,79 although this seems to be going too far. 35  The principle of the prohibition of the threat or use of force requires the UN to take up any situation involving a non-member State which may constitute or result in a threat or use of force. This does not mean that non-member States are under an obligation, similar to that of member States under Art. 51, to report immediately to the SC measures taken by them in the exercise of the right of self-defence in order to enable the SC to take such action as it deems necessary to maintain international peace and security.80Article 2 (6), in and of itself, also does not impose any obligations upon non-member States to carry out the decisions of the SC for the maintenance of international peace and security,81 or authorize the UN to take any preventive or enforcement measures against non-member States. (p. 264) 36  The principle of giving every assistance to the UN in any action it takes in accordance with the Charter requires the UN to open channels of communication and cooperation with non-member States. Article 50 which gives non-members the ‘right’ to consult the SC on special economic problems arising from the carrying out of preventive and enforcement measures can be seen as an expression of that obligation. It may also be argued that the UN must facilitate the establishment by non-member States of permanent observer missions to the Organization to allow them to promote cooperation with the UN, safeguard their interests in relation to the Organization, and report on its activities.82 The practice of the SC of inviting non-member States which maintain permanent observer missions at UN headquarters to nominate judges of international tribunals established by the SC,83 and including those non-member States in the electoral body electing these judges, may be seen as practical examples of providing opportunities for assistance to nonmember States.84 The SG also has invited ‘non-member States having observer status with the Organization’ to inform the Registrar of the ICTR whether they were willing to enforce prison sentences imposed by the Tribunal.85 On the other hand, the statement by legal counsel for the UN in the Reparations for Injuries Case, that the UN ‘unquestionably has the right to insist, under international law, vis-à-vis a State, whether that State be a member or a non-member, that its agents be given the protection necessary for the performance of the functions of the Organization’86 seems to go beyond Art. 2 (6).

IV.  ‘So far as may be necessary for the maintenance of international peace and security’ 37  It was understood at the San Francisco Conference that the intention of the qualification ‘so far as may be necessary for the maintenance of international peace and security’ was to limit the obligation in Art. 2 (6) to matters concerning the maintenance of international peace and security.87 In the debate on the question of the observance of human rights and fundamental freedoms in Bulgaria and Hungary in 1949 it was argued that no action could be taken against the two non-member States because ‘international peace and security were [not] threatened by the alleged violations of human rights’. This From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

view, however, was not accepted. The prevailing view was that ‘in case of a flagrant and continuing violation of human rights, the prolongation of which might endanger peace in the area, the United Nations, in accordance with Article 2 (6), was fully entitled to (p. 265) take up the matter and to make its voice heard’.88 Today, Art. 2 (6) cannot be seen as preventing the UN from concerning itself with human rights violations in the territory of, or by, non-member States. 38  Organs of the UN which are not seised with matters of international peace and security, such as ECOSOC, cannot rely on Art. 2 (6) to justify actions with regard to non-member States, but such actions might find their basis in other provisions of the Charter or general international law.89

E.  Article 2 (6) as the Precursor of a Universal System of Collective Security Based upon the UN Charter I.  A Universal System of Collective Security Based upon the UN Charter 39  It is not only the acts of States, whether members of the UN or not, which may give rise to threats to international peace and security. The actions of non-State actors, such as regional governmental organizations, national liberation movements, rebel groups, and terrorist organizations, may equally affect or endanger international peace and security. A system of collective security thus cannot operate successfully without embracing all sources of threats to the peace, irrespective of whether they originate from within the UN membership or from outside. Article 2 (6) with its limited scope of application does not allow the UN to adequately address threats to international peace and security from outside the Organization. It has therefore been superseded by a universal system of collective security which is based upon the relevant Charter provisions but does not derive its legal force from the Charter as a treaty. 40  This universal, ie generally applicable system of collective security goes beyond a general obligation incumbent upon all international actors not to conduct themselves in a way that constitutes a threat to the peace, breach of the peace, or act of aggression.90 It rather subjects all relevant international actors to the authority of the UN, and in particular the SC, with regard to measures necessary for the maintenance of international peace and security. This means that those actors are under an obligation to give the UN every assistance in any action it takes in accordance with the Charter; and, in particular, to accept and carry out the decisions of the SC, as laid down in Arts 25 and 48. As a result, nonmember States, for example, can no longer rely on their status of neutrality in order to escape preventive and enforcement action ordered by the UN.91 41  This universal system of collective security creates obligations for, and justifies actions against, all international actors in the area of international peace and security. It thus allows the UN to overcome the limitations inherent in a treaty-based system. The legality of actions taken by the SC against member States can be explained on the basis of Art. 25 of the Charter which requires member States to ‘accept…the decisions of (p. 266) the Security Council’. The question of justification is therefore not really an issue with regard to actions directed at member States because it can be argued that any measure ordered by the SC against a member State is covered by its consent to the Charter. While the member State which is the addressee of the measure may not be able to complain that does not automatically mean that a non-member of the UN can rely upon the Charter, a pactum tertii, unless it can be shown that the relevant provision of the Charter was intended by UN member States to accord rights also to third parties.92 Actions by the SC addressed to, or directed against non-members of the Organization, however, cannot be justified in any way

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on the basis of the Charter, as the Charter as a treaty can create obligations for third parties only with their express consent.93

II.  Indications of a Universal System of Collective Security in the Charter 42  There are indications in the text of the Charter itself that its system of collective security was designed to be capable of universal application. The ultimate purpose of the UN is ‘to maintain international peace and security, and to that end: to take effective collective measures’.94 That purpose is not restricted to the relations among member States.95 It is clear from the text of the Charter that the Organization was to be capable of taking preventive or enforcement measures against ‘any State’ and not just against member States.96 It is inherent in a system of collective security that it is to deal with all threats to the peace, breaches of the peace, and acts of aggression and not only those originating from within the membership.97 The pertinent provisions of the Charter are phrased in broad enough terms to cover both members and non-members.98 43  Article 50, which gives non-member States of the UN the ‘right’ to consult the SC on special economic problems arising from the carrying out of preventive and enforcement measures, is based on the assumption that non-member States are justified, or even obligated, to carry out these measures taken by the SC.99 Article 103 provides that obligations of UN members under the Charter shall prevail over their obligations ‘under any other international agreement’. The provision is clearly aimed at the member States, but as international agreements may also be concluded with non-member States it could be argued that the drafters of the Charter implicitly assumed that the Charter could also provide a justification for the violation of agreements with non-member States.

III.  United Nations and State Practice 44  The practice of the UN and of States, both members and non-members of the UN, shows that in the area of international peace and security the UN is regarded as competent to create obligations for, and justify the taking of preventive and enforcement (p. 267) measures against, all international actors, not just member States. As early as 1953, the SC expressed the view that its resolutions can create binding obligations for member States and non-member States alike. In Res 101 the SC recalled ‘to the Governments of Israel and Jordan [at the time a non-member State] their obligations under Security Council resolutions’ and reaffirmed that it is essential that ‘the parties abide by their obligations under…the resolutions of the Security Council’.100 45  It is important, in the present context, to distinguish between binding decisions and mere recommendations. While recommendations may be indicative of a universal system of collective security they are not conclusive. From its very beginning, the UN has addressed recommendations and requests to ‘all States’; ‘every State’; ‘all States and authorities’; ‘all Members and all other States’; and, in situations of civil strife in a country, ‘all parties, movements and factions’ and ‘all parties concerned’.101 Such requests, as a rule, do not raise any problems in terms of international law.102 No special powers are required for the UN to take non-binding action in the area of international peace and security. It thus goes too far to say that ‘the apparent absence of any protests against such resolutions [directed to ‘all States’]…may be taken as acquiescence in the application of the Charter as universal international law’.103 The situation is, however, different if a request infringes existing rights and member States and other actors rely upon these recommendations as a circumstance precluding wrongfulness. For example, in 1950 the SC adopted Res 83 and 84 which recommended that member States intervene with military means in the defence of the non-member State South Korea.104 To the extent that the use of force against the non-

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member State North Korea and the PR of China could not be based on notions of collective self-defence, only the recommendation by the SC could have precluded its wrongfulness.105

1.  Decisions Addressed to all States, International Organizations, and Other Non-State Actors 46  In the resolution practice of the UN, the distinction between member States and other actors has long been losing importance. In the early years of the UN, the SC still made a distinction between operative paragraphs in which it addressed binding decisions to ‘all States Members of the United Nations’ or ‘(all) Member States’, and those couched in nonbinding language in which it called upon or urged ‘States not Members of the (p. 268) United Nations’ or ‘all States’ to act in a certain manner.106 This distinction was given up in 1977 when, in Res 418, the SC, acting under Chapter VII, for the first time addressed a binding decision to ‘all States’ and called upon ‘all States, including States non-members of the United Nations, to act strictly in accordance with the provisions of this resolution’.107 At the time, there were still more than ten States outside the UN. By addressing its decisions to ‘all States’ the SC made clear that it was incumbent upon non-member States, too, to heed its measures.108 Ever since 1977, the SC has addressed binding decisions relating to the imposition, implementation, or administration of sanctions to ‘all States’, irrespective of whether they are members of the UN or not.109 In a legal opinion on Res 661 (1990),110 which employs the same language as Res 418, the Secretariat of UNIDO found that ‘this resolution constitutes a decision of the Security Council in accordance with Art. 39 of the Charter of the United Nations, which is binding on all States. All States are therefore under an international legal obligation to take [the requested] measures’.111 47  The last reference in an SC sanction resolution to ‘States not members of the United Nations’ or ‘States non-members of the United Nations’ can be found in Res 1054 (1996) where the SC called upon ‘all States, including States not members of the United Nations and the United Nations specialized agencies to act strictly in conformity with this resolution, notwithstanding the existence of any rights granted or obligations conferred or imposed by any international agreement or of any contract entered into or any licence or permit granted prior to the entry into force of the’.112 48  In 2003, probably in light of the UN having achieved almost complete universality, the SC returned to the practice of, at least occasionally, expressly addressing decisions or authorizations to ‘member States’ and distinguishing in operative paragraphs between provisions addressed to ‘member States’ and those addressed to ‘all States’.113 The large majority of decisions, however, continues to be addressed to ‘all States’. The return to the (p. 269) ‘member States’ formula does not seem to signify any change in the practice of the SC with regard to the binding force and reach of its resolutions. 49  The explicit reference in the UNSC resolution to ‘States not members of the United Nations’ has been replaced over the years by references to ‘all international and regional organizations, including the United Nations and its specialized agencies’,114 ‘relevant United Nations bodies and other organizations and interested parties’,115 or ‘relevant United Nations bodies and other interested parties’.116 In 1991, the SC for the first time called upon ‘all international organizations to act strictly in accordance’ with a binding decision addressed to all States and imposing an embargo against Iraq.117 The SC, acting under Chapter VII, has also addressed decisions to States and ‘regional organizations’ such as the EU or NATO and has authorized these organizations, or member States acting through or in cooperation with them, to take all necessary measures to carry out certain tasks.118

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50  International organizations such as the EU have consistently implemented economic and other sanctions decisions of the SC, indicating an intention to be bound.119 It has been argued that, because the EU is not a member of the UN, it does not have a direct obligation under the UN Charter to give effect to the decisions of the SC imposing economic sanctions.120 The EU as a subject of international law is, however, subject to the universal system of collective security and thus bound to comply with the decisions of the SC. Both the EU Member States and the European Commission consider the EU bound by decisions of the SC adopted under Chapter VII. Declaration No 13 of the Conference of the Representatives of the Governments of the Member States concerning the common foreign and security policy annexed to the Treaty of Lisbon stresses ‘that the European Union and its member States will remain bound by the provisions of the Charter of the United Nations and, in particular, by the primary responsibility of the Security Council and of its members for the maintenance of international peace and security’.121 The ECJ confirmed that the EU ‘must respect international law’, including (p. 270) binding SC resolutions, in the exercise of its powers.122 To the extent that the EU implements sanctions decisions of the SC that infringe upon existing rights, it can, as a rule, only be the decision of the SC that provides the circumstance precluding the wrongfulness of the action.123

2.  Non-Member States and Other Actors as Target of Preventive and Enforcement Measures 51  The SC has not only addressed demands to non-members but has also imposed preventive and enforcement measures against them. To date, the SC has imposed sanctions under Chapter VII against two non-member States: Rhodesia124 and the Federal Republic of Yugoslavia (Serbia and Montenegro)—FRY. Neither of the two States objected to these measures on the grounds of their non-membership.125 52  From April 1992 to November 2000, the FRY was considered not to be a member of the UN.126 This did not prevent the SC, acting under Chapter VII, from imposing wide-ranging sanctions against the FRY, including the interruption of trade relations and air traffic.127 As the resolutions themselves made clear, some of these measures were contrary to existing treaty obligations of member States toward the FRY. The SC seemed to assume that its decisions could serve as justification of any violation of the treaty rights of the FRY. This view also seems to be shared by the United States which, in a statement to the ILC on the question of State responsibility, declared that ‘an act of State, properly undertaken pursuant to a Chapter VII decision of the Security Council cannot be characterized as an internationally wrongful act’.128 53  Support for the view that the SC, acting under Chapter VII, can adopt measures binding upon non-member States can also be found in Prosecutor v Milan Milutinović. The ICTY’s Trial Chamber III, while not pronouncing on the question of the application of the UN Charter to non-member States in general, nevertheless stated that the ‘constitutional character of the Charter, its near universal membership, the critical (p. 271) importance to the international community of the goal of the maintenance of international peace and security, are all factors that combine to render the Chapter VII resolution establishing the Tribunal applicable to any country that was a part of the former SFRY, irrespective of its United Nations membership at the time of the adoption of that resolution, or at the time of the commission of the offences’.129 The Chamber therefore held that ‘even if the FRY was not a member of the United Nations at the relevant time, Chapter VII of the Charter is open to the interpretation that the Security Council had authority over the FRY in the circumstances of this case’.130 Although the Chamber intended to limit its finding to the circumstances of the case, its reasoning can be applied generally to the question of the binding force of SC decisions for non-member States. The SC’s authority cannot depend on whether a conflict arose in a territory that was once part of a member State or whether the conflict started at a time when the territory in question still belonged to a member State.

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The fact is that the SC, acting under Chapter VII, adopted a resolution that, at the time of its adoption, was to be applicable to a non-member State.131 54  The SC has targeted not only non-member States but also other non-members. In situations of civil strife in a country, the SC now almost routinely addresses appeals and requests to ‘all parties’ to the conflict, not only to the (government of the) member State.132 The SC has imposed sanctions against rebel groups and local de facto governments within the territory of a member State.133 While some have tried to explain these actions on the basis that the decisions of the SC apply not only to the government of a member State but also to ‘subordinate territorial organs of a nation to which the Charter rules apply’,134 the better explanation is that all these actors are subject to the universal system of collective security.

3.  Implementation of Preventive and Enforcement Measures by Non-Member States 55  State practice since 1945 shows that a number of States prior to becoming members of the UN implemented sanctions imposed by the SC against both member and non-member States and reported the measures taken to the SC, suggesting that they felt under an obligation to do so. As non-member States cannot rely on the Charter as a basis (p. 272) for their actions vis-à-vis the target of the sanctions, those actions can only be justified on the basis of a universal system of collective security.

(a)  Early Practice 56  On 29 May 1948, the SC, desiring to bring about a cessation of hostilities in Palestine, addressed a number of requests to ‘all Governments and authorities concerned’ and called upon ‘all Governments to take all possible steps to assist in the implementation’ of the resolution.135 This call upon ‘all Governments’ was interpreted by the President of the SC to mean ‘all States—not only Member States, but non-member States as well’.136 On the instruction of the SC the SG sent a cablegram to States, both members and non-members of the Organization, asking them to report on the steps taken on implementation of the SC’s requests. Several non-member States informed the SG that they would ‘comply with the aforesaid resolution, enforcing it in conformity with the interpretation set forth in your cable’.137

(b)  Federal Republic of Germany prior to 1973 57  In the 1960s the Federal Republic of Germany (FRG) complied with several SC resolutions addressed to ‘all States’ which imposed sanctions against South Africa and Southern Rhodesia, and regularly reported to the SC on the measures it took ‘in accordance with’ the various resolutions.138 In its note of 17 February 1967, the German government stressed, however, that it had taken these measures ‘in spite of the fact that the FRG is not a member of the United Nations’.139 This has been interpreted as manifesting a belief on the part of the FRG that it was in no way bound to participate in such sanctions.140

(c)  Republic of Korea prior to 1991 58  The Republic of Korea (ROK) in 1990/1991 implemented all sanctions imposed by the SC against Iraq and duly reported on the measures it had taken ‘in pursuance of’ the various SC resolutions.141 On no occasion did the ROK government intimate that it was acting independently of the UN. On the contrary, the Government of the Republic of Korea informed the SG that it ‘is abiding by resolutions 687 (1991) and 700 (1991)…and that the competent authorities have also taken domestic measures to ensure the implementation of the relevant provisions of the said resolutions’.142

(d)  Switzerland prior to 2002

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59  In the early years of the UN, Switzerland, insisting on its status as a permanently neutral State, did not take part in economic sanctions regimes imposed by the SC against (p. 273) Rhodesia.143 But, in order not to become a centre for the evasion of sanctions, the Swiss government introduced the practice of the courant normal or the ‘normal trade flow’ for its economic relations with Rhodesia.144 Switzerland insisted that the adoption of these measures could not be interpreted as recognition of a legal obligation on non-member States to apply economic sanctions. These measures were adopted on a purely autonomous and voluntary basis.145 However, as early as 1971 the Swiss Federal Council took the view that Art. 2 (6) might give the UN the authority to involve non-members in collective security operations.146 When the SC imposed an arms embargo on South Africa,147 Switzerland was already applying a weapons embargo against the country nationally so that the question of the implementation of SC resolutions did not arise.148 60  The end of the bipolar world led Switzerland to abandon its restrictive policy of neutrality. In 1990, the country for the first time fully participated in the economic sanctions adopted by the SC against Iraq.149 The Swiss government, however, pointed out that, as a non-member State of the UN, it participated in these sanctions not because it was legally bound to do so under the Charter, but because it had chosen to do so ‘independently’ or ‘on an autonomous basis’.150 On that basis, the country consistently implemented all economic sanctions adopted by the SC until it joined the UN in September 2002. Switzerland, on several occasions, even took part in military measures conceding overflight and transit rights to foreign troops involved in UN authorized military operations.151 It also fully implemented in its domestic law the SC resolutions deciding that ‘all States shall cooperate fully’ with the ICTY and the ICTR and shall comply with requests for assistance or orders of these courts.152 In all cases, where the SC requested ‘all States’ to report on the steps they have taken to give effect to a resolution, Switzerland duly (p. 274) filed reports.153 It should also be noted that, on several occasions, the Swiss government reported on the measures it had taken ‘in order to implement’ a certain SC resolution without including a proviso as to it acting on an independent basis.154 61  In UNSC Res 1373 (2001), the SC decided that ‘all States’ were to take specific measures to combat international terrorism and called upon them to report on actions they had taken to implement that resolution.155 On 19 December 2001, Switzerland submitted its report ‘pursuant to paragraph 6 of resolution 1373 (2001)’ without any proviso that, as a non-member State, it did so independently or that it was not obliged to do so.156 On the contrary, Switzerland stressed that since 1990 it had ‘systematically applied the nonmilitary sanctions decided on by the Security Council’157 and that it cooperated with the international criminal tribunals established by the Security Council.158 It thus seems that since 1990 Switzerland has increasingly accepted that SC sanctions decisions were also binding upon non-member States.159 In any case, Switzerland always seemed to be more concerned about its permanent neutrality than about the pacta tertiis rule.160 62  The opinion in the literature on whether Switzerland was bound to implement SC decisions is divided. While some argued that there was no legal obligation arising from the Charter law for non-member States,161 others held Switzerland bound to implement SC sanctions by virtue of general international law.162 The latter view seems to be the better one as it is difficult to understand how Switzerland could rely on SC ‘decisions’ to justify otherwise illegal actions (such as aiding and abetting the use of force, the freezing of foreign funds and financial resources, and the imposition of restrictive measures against foreign air traffic and aircraft) while, at the same time, not being bound by these decisions —either the Charter is applicable or it is not.163

(p. 275) (e)  Cook Islands

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63  The Cook Islands, one of the few remaining non-member States of the UN, also reported within the prescribed period ‘on measures it has taken to implement United Nations Security Council resolution 1373 (2001) as called for by the Council’.164 In addition, on 9 April 2003 the country adopted the ‘United Nations (Security Council Resolutions) Act’ which allows the country, by way of regulations, to give domestic effect to SC resolutions with respect to international peace and security.165 In its report to the Counter-Terrorism Committee (CTC) of 8 September 2004, the Cook Islands accepted an ‘obligation on States to report to the CTC’ but explained that it had been unable to meet the timetable set by the CTC due to resources constraints.166

4.  Opinion of Member States 64  Over the years, UN member States have repeatedly expressed the opinion that the powers of the Organization with respect to the maintenance of international peace and security also extend to non-member States.167 For example, in 1965 when Indonesia withdrew from the UN several member States argued that the country remained ‘amenable to the jurisdiction of the Security Council’.168 Similarly, in a debate on the expulsion of South Africa from the UN in 1974, Guyana argued that enforcement action can be taken against non-members as the ‘Charter has assumed the character of basic law of the international community and that non-members are expected to recognize this law as one of the facts of international life and to adjust themselves to it’.169 65  In 1966, in the debates leading up to SC Res 232 in which the SC imposed sanctions against Southern Rhodesia,170 several member States took the view that the sanctions provided for under Art. 41 were not only binding upon all members of the UN, but were also obligatory for non-member States in accordance with Art. 2 (6) of the Charter.171 If any member or non-member should substantially fail to carry out the SC’s decision, the United States argued, ‘this failure would be a violation of Charter provisions and obligations’.172

(p. 276) IV.  The ICJ’s Namibia and Kosovo Advisory Opinions 66  The ICJ dealt with the question of whether non-members of the UN can be bound by decisions of the SC in its Advisory Opinions on Namibia and Kosovo. In its Namibia Advisory Opinion the ICJ held that non-members of the UN were not bound by Arts 24 and 25 of the Charter. However, the Court accepted that certain decisions of the SC can be ‘opposable to all States’ and that ‘it is for non-member States to act in accordance with those decisions’ and to ‘give assistance…in the action which has been taken by the United Nations’.173 It is true that the Court’s opinion must be seen within the specific context of the termination of the mandate and cannot necessarily be taken as evidence for a general power of the SC to impose obligations upon non-member States.174 It shows, however, that non-member States must give assistance in the action which has been taken by the UN—a view shared by the SC.175 Speaking on the Court’s Advisory Opinion in the SC in 1971, the representative of Guyana stated that his government trusted ‘that non-Member States of the Organization that have hitherto considered themselves free to pursue courses of conduct in or in relation to Namibia inconsistent with the decisions of this Organization will henceforth desist and acknowledge themselves as being under obligations of a similar nature to those of all Member States’.176 67  In the Kosovo Advisory Opinion, the ICJ stated in very broad terms that ‘the Security Council may adopt resolutions imposing obligations under international law’. The Court did not limit this finding to States, or even to member States.177 The Court, after finding that SC Res 1244 (1999) being adopted under Chapter VII clearly imposed international legal obligations, examined whether the authors of the declaration of independence of Kosovo (which clearly were not members of the UN) were prohibited by that resolution from declaring independence.178 The Court observed that ‘it has not been uncommon for the Security Council to make demands on actors other than United Nations Member States and intergovernmental organizations’.179 It then examined whether the SC intended to create From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

binding legal obligations ‘for such other actors’. The Court’s opinion is thus based on the assumption that the SC, if it intends to do so, can create binding legal obligations for actors other than member States, including non-State actors.180 (p. 277) This view was also put forward by Norway in its submissions to the Court when it argued that according ‘to Article 2 (6) of the UN Charter, even a state that is not a member of the UN has the obligation to act in accordance with the principles of the Charter so far as may be necessary for the maintenance of international peace and security, and it must also comply with Security Council resolutions including resolution 1244’.181

V.  Legal Basis of a Universal System of Collective Security 68  A universal system of collective security which covers all international actors cannot be based on the UN Charter as a treaty which is open only to States and to which not all States have acceded. This leaves the question of the legal basis of such a universal system.

1.  The ‘Reparations for Injuries’ Approach: Objective Security Order 69  In its Advisory Opinion in the Reparation for Injuries Case, the ICJ held that: the vast majority of the members of the international community [assembled in the UN] 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.182 Following that dictum, one could argue that the vast majority of the members of the international community were also able to create an ‘objective’ or universal system of collective security and that, in light of the language of the Charter, they intended to do so. This view finds some support in statements of delegations at the San Francisco conference who considered the UN as representing ‘the authorized expression of the international community’ or even as the ‘collective conscience of humanity’ which had the right to impose obligations on third-party States.183 It has been said that these statements show that there was ‘legislative intention’ present at San Francisco.184 70  It seems unlikely, however, that the ICJ in 1949 attributed general law-making powers to ‘the vast majority of the members of the international community’. Such a view would have established the UN as a world legislature and thus would have revolutionized international law.185 Most authors therefore limit the dictum to the question of the UN’s legal personality.186 The problem with this line of argument—much as with the (p. 278) ICJ’s finding in the Reparation for Injuries Case in general—is that it does not answer, within the framework of the sources of international law, the question of the legal basis of such a universal system of collective security.187 The ICJ, in the Reparations for Injuries Case, effectively created new law.188

2.  The Charter as an ‘Objective Regime’ 71  Sir Humphrey Waldock in his Third Report to the ILC on the Law of Treaties proposed that a State not party to a treaty that establishes an ‘objective regime’ which does not protest against or otherwise manifest its opposition to the regime shall be considered as having impliedly accepted the regime and be bound by any general obligations which it contains.189 One example given for such an objective regime established by treaty was ‘general international organizations’.190 The only evidence advanced for the proposition was the ICJ’s Advisory Opinion in the Reparations for Injuries Case. The ILC decided not to include a special provision on treaties establishing objective regimes in its final draft on the Law of Treaties as the concept was ‘unlikely to meet with general acceptance’. The ILC

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thought that objective regimes could be brought into existence only by custom or by the consent of third parties.191

3.  The Charter as the ‘Constitution’ of the International Community 72  It has been suggested that, in a revolutionary act, the UN Charter has been devised as, or has subsequently become, the ‘constitution of the international community’ as a whole.192 As the constitution of the international community the Charter lays down the basic principles governing the life of the community, enjoys priority over ‘ordinary’ rules, and is binding on all members of the community, including those not members of the UN. For that reason, the SC as the guarantor of international peace and security can address binding decisions to all members of the international community. 73  The idea of the UN Charter being the constitution of the international community may be interesting and appealing, but not one rooted in the doctrine of sources but arrived at by deduction from preconceived ideas. Constitutionalist scholars, on the basis of self-defined criteria or some hypotheses, determine that the Charter constitutes a ‘constitution’ from which certain legal consequences, including universality of Charter (p. 279) law, follow. This approach amounts to law-making by taxonomy.193 What constitutionalist scholars do not satisfactorily explain, is how and why the Charter has become a constitution and who took that decision (apart from the constitutionalists themselves). The Charter is and remains a treaty and must be interpreted and applied in accordance with the law of treaties and general international law.194

4.  A System Based on Customary International Law 74  Even if the UN Charter is regarded as a treaty, its provisions establishing a system of collective security may still be binding on non-members, not by virtue of Art. 2 (6), but because the provisions have given rise to norms of customary international law. The Vienna Convention on the Law of Treaties makes it clear that the pacta tertiis principle does not preclude a rule set forth in a treaty from becoming binding upon third parties as a rule of customary international law.195 This is not to say that the Charter as a whole, from the outset, has been part of customary international law but that the provisions establishing the collective security system have become accepted as such over time. 75  The practice of UN organs, especially the SC,196 the opinion expressed by member States,197 and the consistent and uniform practice of non-member States198 suggest that at least since the 1990s the provisions of the Charter dealing with international peace and security have acquired the status of rules of customary international law that are binding on non-members, both States and non-State actors alike, independently of the Charter.199 With regard to non-State actors such customary rules of international law may be brought about without any involvement on their part.200

Footnotes: 1 

Non-member States are also mentioned in Arts 11 (2), 32, 35 (2), 50, 93 (2) of the Charter. See also Art. 102 (2) which speaks of ‘no party’ to a treaty which can also include non-member States. 2

  GHS, 59.

3 

JA Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public International Law’ (1994) 248 Rec des Cours 345, 357. 4 

B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 150 Rec des Cours 217, 257.

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5

  H Lauterpacht (ed), International Law. A Treatise (8th edn, Longmans Green & Co 1955) 928f. 6

  See Art. 34 VCLT. See also AD McNair, The Law of Treaties (Clarendon Press 1961) 309.

7

  Lauterpacht (n 5) 928.

8

  See Kelsen, ‘Sanctions in International Law under the Charter of the United Nations’ (1946) 31 Iowa L Rev 499, 502; and Kelsen, 85–86, 90, 108, 116, 124, 715. 9

  ibid, 110. A similar view was adopted by A Verdross, ‘Le Nazioni Unite e i terzi Stati’ (1947) 2 Comunità internaz 445; E Jiménez de Aréchaga, Derecho constitucional de las Naciones Unidas: comentario teórico-práctico de la Carta (1958) 63–66. See also the view of several delegates in the UNGA, RP 3 I, 377. For a modern proponent, see eg I Brownlie, Principles of Public International Law (7th edn, OUP 2008) 689. 10

  See eg K Widdows, ‘Security Council Resolutions and Non-Members of the United Nations’ (1978) 27 ICLQ 469–61; D Schindler, ‘Kollektive Sicherheit der Vereinten Nationen und dauernde Neutralität der Schweiz’ (1992) 2 SZIER 459; C Tomuschat, ‘Obligations Arising for States against Their Will’ (1993-IV) 241 Rec des Cours 252; Frowein (n 3) 357; CPF/Salmon, 393, para 13; R Liivoja, ‘The Scope of the Supremacy Clause of the United Nations Charter’ (2008) 57 ICLQ 583, 596. For earlier authors taking the same view, see Vitzthum on Art. 2 (6) (2nd edn) MN 19. 11

  cf UNCIO XVII, 147. See also B Conforti and C Focarelli, The Law and Practice of the United Nations (4th edn, Nijhoff 2010) 152, 154 (with regard to the principles in Art. 2 (2) and (4)). 12

  But see RL Bindschedler, ‘La Délimitation des compétences des Nations Unies’ (1963-I) 108 Rec des Cours 403–07, 423. 13

  See UN Charter, Arts 11 (2), 34, 36–38.

14

  See UNGA Res 2624 (XXV) (24 October 1970) UN Doc A/RES/2624(XXV).

15

  See Art. 10 ILC Draft Articles on the Rights and Duties of States (1949) ILC Yearbook 288. 16

  See Art. 16 of the 2011 ILC Articles on Responsibility of States for Internationally Wrongful Acts. See also E Klein, ‘Beihilfe zum Völkerrechtsdelikt’ in I von Münch (ed), Staatsrecht—Völkerrecht—Europarecht. Festschrift Schlochauer (de Gruyter 1981) 425, 434–37. 17

  See UNCIO VI, 310; XVII, 147 (Canada). See also ‘Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States: Memorandum submitted by the SecretaryGeneral’, UN Doc A/CN.4/2 (15 December 1948) 41. 18

  UNGA Res 2624 (XXV) (24 October 1970) UN Doc A/RES/2624(XXV).

19

  CPF/Mahiou, 482.

20

  For some early examples, see RP I, 40, para 12, 51, paras 50–54; RP 5 I, 52, para 9.

21

  See UNSC Res 314 (28 February 1972) UN Doc S/RES/314 para 2; UNSC Res 320 (29 Sep 1972) UN Doc S/RES/320 para 2; UNSC Res 409 (27 May 1977) UN Doc S/RES/409 para 2. See also UNSC Res 277 (18 March 1970) UN Doc S/RES/277 para 18 (‘Urges, having regard to the principle stated in Art. 2 of the Charter, States not Members of the United Nations to act in accordance with the provisions of the present resolution’). References to ‘States not members of the UN’ many also be found in several draft resolutions; see UN Docs S/14832/Rev.1 (19 January 1982), S/17631 (14 November 1985),

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S/17633 (15 November 1985), S/18705 (19 February 1987), S/18785 (7 April 1987), S/ 1994/541 (6 May 1994), S/1994/571 (16 May 1994), and S/1996/293 (26 April 1996). 22

  For previous resolutions using the same or similar formulations, see UNSC Res 918 (17 May 1994) UN Doc S/RES/918 para 15; UNSC Res 917 (6 May 1994) UN Doc S/RES/917 para 12; UNSC Res 883 (11 November 1993) UN Doc S/RES/883 para 12; UNSC Res 757 (30 May 1992) UN Doc S/RES/757 para 11; UNSC Res 748 (31 March 1992) UN Doc S/RES/ 748 para 7; UNSC Res 661 (6 August 1990) UN Doc S/RES/661 para 5; UNSC Res 591 (28 November 1986) UN Doc S/RES/591 para 12; UNSC Res 558 (13 December 1984) UN Doc S/RES/558 para 3. 23

  See eg UNSC Res 752 (15 May 1992) UN Doc S/RES/752 which deals with the situation in Bosnia and Herzegovina prior to the admission of the new State to the UN on 20 May 1992. 24

  Indonesia’s withdrawal was interpreted as a ‘cessation of cooperation’, rather than withdrawal, which allowed the country to resume its membership without a new application for membership. 25

  See UNSC Res 541 (18 November 1983) UN Doc S/RES/541, UNSC Res 550 (11 May 1984) UN Doc S/RES/550. 26

  See CPF/Mahiou, 475–76.

27

  See Vitzthum on Art. 2 (6) (2nd edn) MN 4.

28

  See Verdross, 441.

29

  cf Art. 36 VCLT.

30

  See League Covenant, Art. 14.

31

  Eastern Carelia [1923] PCIJ Ser B, No 5, 27–28. The Russian government had expressly declined the invitation (ibid, 24). 32

  On Art. 17 of the League Covenant, see E Morpurgo, ‘L’articolo 17 del Patto della S.D.N. ed il diritto internazionale consuetudinario’ (1925) 3 RDI 177–85; A Bavaj, L’interpretazione dell’art. 17 del Patto della Società delle Nazioni (Filelfo 1931); B Weinberg, Völkerbund und Nichtmitgliedstaaten (Helios 1932). 33

  US Department of State, Charter of the United Nations: Report to the President on the Results of the San Francisco Conference (1945) 42. 34

  UNCIO III, 337–38. For the drafting history, see also JH McNeill, ‘Regional Enforcement Action Under the United Nations Charter and Constraints Upon States Not Members’ (1975/76) 9 Cornell Intl L J 4–6. 35

  UNCIO VI, 348.

36

  UNCIO III, 337; VI, 348.

37

  UNCIO III, 337. See also UNCIO I, 561 (Panama) and VI, 305.

38

  UNCIO III, 337.

39

  UNCIO III, 337–38.

40

  UNCIO III, 193–94 (Venezuela); VI, 348 (Uruguay).

41

  UNCIO III, 194; VII, 325 (Venezuela); 237 (Brazil).

42

  See UNCIO VI, 348, 722; XVIII, 112, 113, 375.

43

  UNCIO VI, 722.

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44

  UNCIO III, 3–4.

45

  For suggestions of minor rephrasing, see UNCIO III, 36 (Uruguay), 180 (Mexico).

46

  See UNCIO VI, 687; XVII, 147.

47

  UNCIO VI, 722. See also ibid, VI, 401, 460; and IV, 478.

48

  See UNCIO VI, 83; XVII, 147; XVIII, 375.

49

  UNCIO XVII, 344.

50

  Draft Declaration on the Rights and Duties of States and Explanatory Note Submitted by Panama, UN Doc A/CN.4/2 (15 December 1948) 38. 51

  ibid, 115.

52

  ibid, 92.

53

  ibid, 209.

54

  See (1949) ILC Yearbook 113–16, 144; especially the statements of Hsu, Spiropoulos, Brierly, and Sandstöm. 55

  See McNeill, 5; G Kojanec, Lo Statuto delle Nazioni Unite e gli Stati non membri (1968) 23 Communità Internaz 636; RL Bindschedler, ‘La Délimitation des compétences des Nations Unies’ (1963-I) 108 Rec des Cours 405. 56

  RP I, 38, para 9, 40, para 13 (Polish request to discuss measures against Spain (at the time not a UN member) expressly based on Art. 2 (6)). 57

  See eg SCOR, 1st Year, 34th mtg (17 April 1946) 167, 169 (Poland and France calling for action against Spain); ibid, 2nd Year, 147th mtg (27 June 1947) 1121 (USA calling for action against Albania and Bulgaria); ibid, 5th Year, 523rd meeting (16 November 1950) 13 (Cuba calling for action against North Korea and the PRC); ibid, 19th Year, 1118th mtg (19 May 1964) 4–5 (Cambodia calling for action against South Vietnam). See also RP I, 51–52 (Human rights in Hungary and Bulgaria). 58

  See eg SCOR, 20th Year, 1836th meeting (11 August 1975) 3, paras 22–23 (India arguing for the admission to membership of North and South Vietnam). For earlier examples, see RP I, 39 n 2. 59

  See UN Conference on Diplomatic Intercourse and Immunities, Official Records I (1962) 4, para 37. 60

  For the view that Art. 2 (6) places an obligation upon Member States, see (1949) ILC Yearbook, 74, para 40; ibid, 1964-I, 67, para 6, 69, para 30, 72, para 55, 73, para 67. Contra UNCIO VI, 348 (UK). 61

  cf UN Doc A/C.6/56/SR.13 (23 November 2001) 12, para 62.

62

  Kelsen, 85f, 90, 108, 116, 124, 715; Verdross, 441; Lauterpacht (n 5) 929 fn 1. See also B Fassbender, The United Nations Charter and the Constitution of the International Community (Nijhoff 2009) 78, who, without further ado, seems to have reformulated Art. 2 (6) to read that ‘states which are not Members of the United Nations [shall] act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security’. But see also ibid, 110–11. 63

  Kelsen, 107.

64

  ibid, 106.

65

  See Kammerhofer, 736.

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66

  UNSC Res 314 (28 February 1972) UN Doc S/RES/314 para 2 (emphasis added).

67

  See Widdows, 462; Conforti and Focarelli, 152; R Liivoja, ‘The Scope of the Supremacy Clause of the United Nations Charter’ (2008) 57 ICLQ 595; Kammerhofer, 735. 68

  Kojanec, Lo Statuto delle Nazioni Unite e gli Stati non membri, 636.

69

  See UNCIO III, 36 (Uruguayan proposal on rephrasing of para 6). See also Verdross, 441; JF Ross, Neutrality and International Sanctions: Sweden, Switzerland and Collective Security (Praeger 1989) 33. 70

  See UNCIO III, 337 (Belgium); XVII, 147 (Canada) (‘see to it’); (1960-II) ILC Yearbook, 88, para 26 (‘use its best endeavours’); Widdows, 460–61 (‘do its utmost to urge’); Tomuschat, 252 (‘use its best efforts with a view to inducing’). See also ILC Yearbook (1949) 115, paras 23, 25. 71

  See UN Charter, Art. 5.

72

  RP I, 37.

73

  Fassbender (n 62) 111.

74

  See UNCIO XVII, 147 (USA).

75

  A Salomon, Le préambule de la Charte: base idéologique de l’O.N.U. (Edition des Trois Collines 1946) 180–85 (arguing that Art. 2 (6) was directed at neutral non-member States which the provision required to provide active assistance when the UN was taking preventive or enforcement measures). 76

  See Ross, 33; Kelsen, 107–09; Kojanec, Lo Statuto delle Nazioni Unite e gli Stati non membri, 638–39. 77

  See UNGA Res 264 (8 October 1948) UN Doc A/RES/264 para 1.

78

  See Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) [2010] ICJ Rep 18–28. Contra Eastern Carelia [1923] PCIJ Ser B, No 5, 27–28, where the PCIJ required the consent of the nonmember State in order to give an advisory opinion. 79

  See Reparations for Injuries Suffered in the Services of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 191 (Individual Opinion Judge Alvarez). 80

  Contra H Kelsen, ‘Limitations on the Functions of the United Nations’ (1946) 55 Yale LJ 997, 1010. 81

  Contra Kelsen, 85f.

82

  See United Nations Conference on the Representation of States in their Relations with International Organizations, Official Records I (1976) 110, para 13. 83

  See eg the Annexes to UNSC Res 1165 (30 April 1998) UN Doc S/RES/1165; UNSC Res 1166 (30 April 1998) UN Doc S/RES/1166; UNSC Res 1966 (22 December 2010) UN Doc S/ RES/1966. See also UN Doc S/1998/761 (19 August 1998); S/2002/1131 (11 October 2002) UN Doc S/2002/1131; S/2002/1272 (21 November 2002) UN Doc S/2002/1272. 84

  See eg the Annexes to UNSC Res 955 (8 November 1994) UN Doc S/RES/955; UNSC Res 1329 (5 December 2000) UN Doc S/RES/1329; UNSC Res 1431 (14 August 2002) UN Doc S/RES/1431; UNSC Res 1597 (20 April 2005) UN Doc S/RES/1597; UNSC Res 1966 (22 December 2010) UN Doc S/RES/1966. 85

  See UN Doc A/53/429–S/1998/857 (23 September 1998) 18, para 156.

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86

  Reparations for Injuries Suffered in the Services of the United Nations (Advisory Opinion) [1949] ICJ Pleadings 77. 87

  UNCIO XVII, 147 (USA). See also H Mosler, ‘The International Society as a Legal Community’ (1974-IV) 140 Rec des Cours 1, 206. For Kelsen, 109, the purpose of all obligations imposed by the Charter is—directly or indirectly—the maintenance of international peace and security. 88

  RP I, 52; RP 3 I, 176. See also UNGA Res 1353 (21 October 1959) UN Doc A/RES/1353 on the human rights violations by the PR China in Tibet. 89

  On the competence of ECOSOC to make recommendations to non-member States, see RP III, 256–57. 90

  cf CPF/Mahiou, 479–80.

91

  cf Salomon (n 75) 180–85; Kelsen, 108; H Taubenfeld, ‘International Actions and Neutrality’ (1953) 47 AJIL 377, 385. Contra SC Tucker, The Law of War and Neutrality at Sea (International Law Studies 1957) 176. 92

  cf Art. 36 VCLT.

93

  cf Arts 34, 35 VCLT. Such actions, however, may be justified on grounds of general international law; eg as collective countermeasures. 94

  UN Charter, Art. 1 (1). See also the Preamble, para 1 which is phrased in general terms, and Arts 1 (2), 14, and 55 which generally refer to ‘friendly relations among nations’. 95

  See Kelsen, 106.

96

  UN Charter, Arts 2 (5), 2 (7), 50.

97

  See (1964-I) ILC Yearbook 69, para 30. See also Conforti and Focarelli, 150; Tomuschat, 252–54. 98

  See UN Charter, Arts 34, 39–42.

99

  See also Art. 32 (‘any State…party to a dispute under consideration by the UNSC’) and Art. 35 (2). 100

  UNSC Res 101 (24 November 1953) UN Doc S/RES/101, para B2 and C1 (emphasis added). See also UNSC Res 50 (29 May 1948) UN Doc S/RES/50 and 54 (15 July 1948) UN Doc S/RES/54 which were addressed to both Israel and Jordan, at a time when neither was a member of the UN. 101

  RP I, 39. For examples, see ibid, 40–53; RP 1, I, 22–24; RP 2, I, 18–19; RP 3, I, 175–78; RP 4, I, 72–75; RP 5, I, 50–53; RP 6, I, 91–97; RP 7 to 10 on Art. 2 (6) to be published in vol I; all available at accessed 30 July 2012. 102

  In many cases, such recommendations may just have spelled out existing obligations under customary international law or called for unfriendly but not illegal acts such as the rupture of diplomatic relations. 103

  This view, however, was taken by R Baxter, ‘Treaties and Custom’ (1970-I) 129 Rec des Cours 25, 71. 104

  UNSC Res 83 (27 June 1950) UN Doc S/RES/83 and UNSC Res 84 (7 July 1950) UN Doc S/RES/84. See also JL Kunz, ‘Legality of the Security Council Resolutions of June 25 and 27, 1950’ (1951) 45 AJIL 137, 139. 105

  See also UNGA Res 500 (V) (18 May 1951) UN Doc A/RES/500(V) recommending an embargo on all war material directed towards the PR of China and North Korea.

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106

  See eg UNSC Res 232 (16 December 1966) UN Doc S/RES/232; UNSC Res 253 (29 May 1968) UN Doc S/RES/253; UNSC Res 277 (18 March 1970) UN Doc S/RES/277; UNSC Res 388 (6 April 1976) UN Doc S/RES/388; UNSC Res 409 (27 May 1977) UN Doc S/RES/ 409. 107

  UNSC Res 418 (4 November 1977) UN Doc S/RES/418 paras 2 and 5. The ‘all States’ formula was first used in a draft resolution introduced by Canada and the FRG; see UN Doc S/12433 (31 October 1977). On this resolution, see Widdows, 459–62, who concludes that the term ‘calls upon’ was intended to create a binding obligation for non-member States (ibid, 462). 108

  See Tomuschat, 254.

109

  For a list of resolutions adopted under Chapter VII addressed to ‘all States’, see Conforti and Focarelli, 153–54. 110

  See UNSC Res 661 (6 August 1990) UN Doc S/RES/661 paras 2 and 5.

111

  (1990) UNJYB 311. For the inclusion of ‘non-member States’ in the ‘all States’ formula, see the ICJ’s Namibia (Advisory Opinion) [1971] ICJ Rep 16, 56, para 126. 112

  UNSC Res 1054 (26 April 1996) UN Doc S/RES/1054 para 5. For earlier resolutions using the same or similar formulations, see UNSC Res 918 (17 May 1994) UN Doc S/RES/ 918 para 15; UNSC Res 917 (6 May 1994) UN Doc S/RES/917 para 12; UNSC Res 883 (11 November 1993) UN Doc S/RES/883 para 12; UNSC Res 757 (30 May 1992) UN Doc S/RES/ 757 para 11; UNSC Res 748 (31 March 1992) UN Doc S/RES/748 para 7; UNSC Res 661 (6 August 1990) UN Doc S/RES/661 para 5; UNSC Res 591 (28 November 1986) UN Doc S/ RES/591 para 12; UNSC Res 558 (13 December 1984) UN Doc S/RES/558 para 3. 113

  See eg UNSC Res 1483 (22 May 2003) UN Doc S/RES/1483; UNSC Res 1718 (14 October 2006) UN Doc S/RES/1718; UNSC Res 1822 (30 June 2008) UN Doc S/RES/1822; UNSC Res 1844 (20 November 2008) UN Doc S/RES/1844; UNSC Res 1874 (12 June 2009) UN Doc S/RES/1874; UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970; UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973. Compare also UNSC Res 1487 (12 June 2003) UN Doc S/RES/1487; UNSC Res 1422 (12 July 2002) UN Doc S/RES/1422. 114

  See UNSC Res 1333 (19 December 2000) UN Doc S/RES/1333 para 17.

115

  UNSC Res 1643 (15 December 2005) UN Doc S/RES/1643 para 13; UNSC Res 1893 (29 October 2009) UN Doc S/RES/1893 para 18. 116

  UNSC Res 1929 (9 June 2010) UN Doc S/RES/1929 para 30; UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973 para 25. 117

  UNSC Res 687 (3 April 1991) UN Doc S/RES/687 para 25. See also UNSC Res 748 (31 March 1992) UN Doc S/RES/748 para 7; UNSC Res 917 (6 May 1994) UN Doc S/RES/917 para 12; UNSC Res 1173 (12 June 1998) UN Doc S/RES/1173 para 17; UNSC Res 1343 (7 March 2001) UN Doc S/RES/1343 para 22. 118

  See eg UNSC Res 1639 (21 November 2005) UN Doc S/RES/1639, UNSC Res 1671 (25 April 2006) UN Doc S/RES/1671; UNSC Res 1845 (20 November 2008) UN Doc S/RES/ 1845; UNSC Res 1846 (2 December 2008) UN Doc S/RES/1846; UNSC Res 1851 (16 December 2008) UN Doc S/RES/1851; UNSC Res 1895 (18 November 2009) UN Doc S/RES/ 1895; UNSC Res 1948 (18 November 2010) UN Doc S/RES/1948. 119

  See Arts 215 and 75 TFEU and Chapter 2 of Title V of the TEU. For the practice of the EU and its predecessor the EC in implementing UNSC sanctions, see eg S Bohr, ‘Sanctions by the United Nations Security Council and the European Community’ (1993) 3 EJIL 258–

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62, 265; D Bethlehem, ‘The European Union’ in Gowlland-Debbas (ed), National Implementation of United Nations Sanctions (Martinus Nijhoff 2004) 123–65. 120

  See K Osteneck, Die Umsetzung von UN-Wirtschaftssanktionen durch die Europäische Gemeinschaft (Springer 2004) 307–48. 121

  Declaration [No 13] concerning the common foreign and security policy, annexed to the Final Act of the Intergovernmental Conference (13 December 2007) OJ C 306 (17 December 2007) 255 (emphasis added). 122

  Joined Cases C-402/05 P and C-415/05 P, Kadi and Al-Barakat v Council and Commission, Judgment (Grand Chamber) of 3 September 2008 para 291. See also ibid, para 270 where the European Commission argued that an act adopted by the UNSC was not binding on the Community because it was ultra vires the Charter, not because those acts were not binding on the Community as such. 123

  The EU as a non-injured party regularly will not be in a position to rely upon countermeasures as a circumstance precluding wrongfulness. 124

  See UNSC Res 232 (16 December 1966) UN Doc S/RES/232; UNSC Res 253 (29 May 1968) UN Doc S/RES/253; UNSC Res 277 (18 March 1970) UN Doc S/RES/277; UNSC Res 388 (6 April 1976) UN Doc S/RES/388; UNSC Res 409 (27 May 1977) UN Doc S/RES/409. For the view that these sanctions were directed at a non-member State, see Combacau, 137 note 11; C Leben, ‘Les contre-mesures inter-étatiques et les réactions à l’illicite dans la société internationale’ (1982) 28 AFDI 9, 28. Contra HG Ress, Das Handelsembargo (Springer 2000) 72–73. 125

  See Conforti and Focarelli, 151–52.

126

  See UNSC Res 757 (30 May 1992) UN Doc S/RES/757; UNSC Res 777 (19 September 1992) UN Doc S/RES/777; UNSC Res 1326 (31 October 2000) UN Doc S/RES/1326; UNGA Res 47/1 (22 September 1992) UN Doc A/RES/47/1; UNGA Res 55/12 (1 November 2000) UN Doc A/RES/55/12. See also M Wood, ‘Participation of Former Yugoslav States in the United Nations and in Multilateral Treaties’ (1997) 1 Max Planck YB UN L 231, 241–51; V Jovanovic, ‘The Status of the Federal Republic of Yugoslavia in the United Nations’ (1998) 21 Fordham Intl LJ 1718–36; and Application for Revision of the Judgement of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Preliminary Objections) [2003] ICJ Rep 7, 14–24. 127

  See UNSC Res 757 (30 May 1992) UN Doc S/RES/757; UNSC Res 787 (16 November 1992) UN Doc S/RES/787; UNSC Res 819 (16 April 1993) UN Doc S/RES/819; UNSC Res 820 (17 April 1993) UN Doc S/RES/820; UNSC Res 1160 (31 March 1998) UN Doc S/RES/ 1160. 128

  UN Doc A/CN.4/488 (25 March 1998) 95.

129

  ICTY Trial Chamber III, Prosecutor v Milan Milutinović and others, Case No IT-99-37PT, Decision on Motion Challenging Jurisdiction (6 May 2003) para 62 and, more generally, paras 45–61. 130

  ibid, para 63.

131

  See especially UNSC Res 827 (25 May 1993) UN Doc S/RES/827 para 4, deciding that all States cooperate fully with the Tribunal and comply with requests for assistance or orders issued by a Trial Chamber of the Tribunal.

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132

  See eg UNSC Res 1004 (12 July 1995) UN Doc S/RES/1004; UNSC Res 1355 (15 June 2001) UN Doc S/RES/1355; UNSC Res 1975 (30 March 2011) UN Doc S/RES/1975. For further examples, see Kalala, 58–62, 94–98, 149–50, who also argues that the UNSC, acting under Chapter VII, can impose binding obligations upon international organizations and rebel movements. See also PH Kooijmans, ‘The Security Council and Non-State Entities as Parties to Conflicts’ in K Wellens (ed), International Law: Theory and Practice (Nijhoff 1998) 333–46. 133

  See eg UNSC Res 864 (15 September 1993) UN Doc S/RES/864; UNSC Res 1045 (8 February 1996) UN Doc S/RES/1045; UNSC Res 1127 (28 August 1997) UN Doc S/RES/ 1127; UNSC Res 1173 (12 June 1998) UN Doc S/RES/1173, all concerning UNITA in Angola; UNSC Res 1171 (5 June 1998) UN Doc S/RES/1171 concerning RUF in Sierra Leone; UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267; UNSC Res 1333 (19 December 2000) UN Doc S/RES/1333; UNSC Res 1390 (28 January 2002) UN Doc S/RES/1390 concerning the Taliban in Afghanistan. 134

  See UN Doc S/4417 (6 August 1960) 5. The UNSG’s explanation concerned the application of UNSC decisions to Katanga, a renegade province of the newly independent Republic of Congo. It should be noted that, at the time, the Republic of Congo itself had not yet become a member State of the UN. 135

  UNSC Res 50 (29 May 1948) UN Doc S/RES/50.

136

  SCOR, 3rd Year, 320th meeting (15 June 1948) 3.

137

  UN Docs S/855 (23 June 1948) 2 (Italy), 3 (Hungary), 6–7 (Switzerland) and S/855/Add. 3 (9 July 1948) 1 (Austria). 138

  See eg UN Docs A/AC.115/L.143 (13 October 1965), 20 (sanctions against South Africa); S/7181 (4 March 1966); S/7181/Add.1 (18 May 1966) (sanctions against Southern Rhodesia). For reports of the FRG see also UN Docs S/10852/Add.1, Annexes I and II; UN Doc S/11178/Add.2, Annexes I and II. See further R Zacklin, The United Nations and Rhodesia (Praeger 1974) 84–87, as well as Martens and von Schenck. 139

  UN Doc S/7781 (21 February 1967) Annex 2, 20.

140

  McNeill, 10.

141

  See UN Docs S/21487 (10 August 1990) 2, UN Doc S/21617 (24 August 1990).

142

  UN Doc S/23016 (9 September 1991) 2.

143

  See UNSC Res 232 (16 December 1966) UN Doc S/RES/232; UNSC Res 409 (27 March 1977) UN Doc S/RES/409. See also Zacklin (n 138) 85–87. 144

  The practice of ‘normal trade flow’ meant that Switzerland froze the volume of its bilateral trade with a country at the average level for a period of reference (usually three years) prior to the imposition of sanctions. 145

  In a note, dated 13 February 1967, addressed to the UNSG, the Swiss federal government stated that ‘for reasons of principle, Switzerland, as a neutral State, cannot submit to the mandatory sanctions’ of the UN but offered ‘independently and without recognizing any legal obligation’ to limit its economic exchanges with Rhodesia to those of the previous three years (UN Doc S/7781 (21 February 1967) 58–59). See also RL Bindschedler, ‘Das Problem der Beteiligung der Schweiz an Sanktionen der Vereinigten Nationen, besonders im Falle Rhodesiens’ (1968) 28 ZaöRV 7–14; Gunter, 146–48; R Letsch, Rhodesien, die Vereinten Nationen und die Schweiz (St Gallen Hochschule f Wirtschafts- u Sozialwiss 1983).

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146

  Swiss Federal Council, Report of the Federal Council to the Federal Assembly Concerning Switzerland’s Relations with the United Nations (17 November 1971) 10; quoted in Gunter, 151. 147

  UNSC Res 418 (4 November 1977) UN Doc S/RES/418.

148

  UN Doc S/12644 (13 April 1978). See also MC Krafft, D Thürer, and JA Stadelhofer, ‘Switzerland’ in V Gowlland Debbas (ed), National Implementation of United Nations Sanctions: A Comparative Study (Nijhoff 2004) 525. 149

  UNSC Res 661 (6 August 1990) UN Doc S/RES/661, UNSC Res 670 (25 September 1990) UN Doc S/RES/670. See Thürer, 64–65. 150

  See eg UN Docs S/21585 (22 August 1990), S/26061 (9 July 1993), S/AC.31/1997/28 (18 December 1997). But see also Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) (2002) 2 AC 883, 1102 (Lord Steyn: ‘And, under Article 2(6) of the United Nations Charter, the resolutions [661 and 670] called on the few non-members of the United Nations to abide by the resolutions, and they at least acquiesced’). 151

  See Krafft, Thürer, and Stadelhofer, 526–27.

152

  UNSC Res 827 (25 May 1993) UN Doc S/RES/827 para 4; UNSC Res 955 (8 November 1994) UN Doc S/RES/955 para 2. On the Swiss implementation of these resolutions, see Krafft, Thürer, and Stadelhofer, 563–66. 153

  See eg UNSC Res 1132 (8 October 1997) UN Doc S/RES/1132 para 13 requesting States to report to the SG within thirty days of the date of adoption of the resolution. On 12 January 1998, Switzerland informed the S-G that it ‘intends to implement, independently, the measures provided for’ in paras 5 and 6 of resolution 1132’ (UN Doc S/1998/41 (16 January 1998)). The Secretariat treated the Swiss report as filed ‘in compliance with paragraph 13 of resolution 1132’ (UN Doc S/1998/103 (5 February 1998) 6, para 23). Only six States had reported within the specified deadline; see UN Doc S/1998/112 (10 February 1998) 1, para 4. 154

  See eg UN Doc S/22958 (19 August 1991) 2, informing the UNSG about the measures ‘taken by the Swiss Government in order to implement paragraph 4 of Security Council resolution 700 (1991)’. See also UN Doc S/23338 (31 December 1991); UN Doc S/24160 (24 June 1992); UN Doc S/1994/77 (24 January 1994). 155

  UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373 paras 2, 3, 6.

156

  UN Doc S/2001/1224 (20 December 2001). See also UN Doc S/2002/868 (1 August 2002). 157

  UN Doc S/2001/1224 (20 December 2001) 5. See also ibid, 6, 11.

158

  ibid, 14.

159

  But see the Legal Opinion of the Directorate of Public International Law of the Swiss Federal Department of External Affairs of 7 March 1994 which stated: ‘neither case law nor doctrine offers sufficient evidence to affirm the existence of a legal obligation on the part of non-member states, based on custom, to comply with sanctions imposed by the United Nations’ (reproduced in L Caflisch, ‘La Pratique suisse en matière de droit international public 1994’ (1995) 5 RSDIE 647, 653 (translation provided)). 160

  cf Bindschedler (n 145) 9.

161

  L Hannikainen, Peremptory Norms (Jus Cogens) in International Law (Lakimiesliiton Kustannus 1988) 223; Thürer, 72; K Hailbronner, ‘Sanctions and Third Parties and the

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Concept of International Public Order’ (1992) 30 AVR 2, 11–12; Krafft, Thürer, and Stadelhofer, 527, 549, 566. 162

  Schindler, 458–64; C Linsi, Gegenmassnahmen in der Form des Embargos zur Durchsetzung elementarer Völkerrechtsverpflichtungen in der schweizerischen Aussenpolitik (Helbing & Lichtenhahn 1994) 103–16; AR Schaub, Neutralität und Kollektive Sicherheit (Helbing & Lichtenhahn 1995) 124–25. See also Tomuschat, 256–57. 163

  But see Thürer, 81–82, who relies on the UNSC decisions as a ‘ground of justification’ without taking this reasoning to its logical conclusion. 164

  See UN Doc S/2001/1324 (31 December 2001) encl para 1.9. See also the follow-up reports and the reports pursuant to UNSC Res 1390 (28 January 2002) UN Doc S/RES/1390 para 6: UN Docs S/2002/1445 (17 June 2002); S/2002/1445/Add.1 (6 October 2003); S/ 2004/745 (16 September 2004). 165

  United Nations (Security Council Resolutions) Act 2003, 2003 No 2. The Cook Islands had previously implemented sanctions imposed against Rhodesia and Iraq. 166

  UN Doc S/2004/745 (16 September 2004) encl para 2.1. The CTC lists contact details for ‘Cook Islands (non-member)’ for information and assistance in connection with matters arising under UNSC Res 1373; see UN Docs S/2002/138 (31 January 2002) 10, 18; S/ 2002/700 (2 May 2002) 11; S/2002/1031 (13 September 2002) 11. 167

  See eg GAOR 18th Session, 6th Committee, 806th mtg (6 November 1963) 133, para 12 (Mexico); UN Doc A/CONF.25/16 (1963) 4 (Cuba). See also RP 3 I, 177. 168

  See UN Docs S/6140 (7 January 1965) 3, para 11 (Malaysia), S/6229 (12 March 1965) 2 (UK), S/6356 (17 May 1965) 3 (Italy). See also L Nizard, ‘Le retrait de l’Indonésie des Nations Unies’ (1965) 11 AFDI 498, 512–14. 169

  SCOR, 29th Year, 1798th mtg (22 October 1974) 14, para 95.

170

  In UNSC Res 232 (16 December 1966) UN Doc S/RES/232 para 7, the UNSC, having regard to the principles stated in Art. 2 of the Charter, urged ‘States not Members of the United Nations to act in accordance with the present resolution’ and in para 5 called upon ‘all States not to render financial or other economic aid to the illegal racist régime in Southern Rhodesia’. 171

  See SCOR, 21st Year, 1332nd mtg (9 December 1966) 15, para 59 (Argentina), ibid, 1333th mtg (12 December 1966) 6, para 23 (USA), 11, para 46 (Japan), ibid, 1340th mtg (16 December 1966) 10, para 38 (Uruguay). See also RP 4 I, 74. 172

  SCOR, 21st Year, 1333th mtg (12 December 1966) 6, para 23.

173

  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, 56, para 126 and 58, para 133 (3). See also ibid, 149 (Separate Opinion Judge Onyeama). In its written statement to the Court, Finland said that it was ‘doubtful whether it can be considered that the pertinent provisions of the Charter, although dealing with States in general or expressly with States not members of the Organisation (as in Art. 2, para 6), are binding’. It conceded, however, that similar obligations, as those based on the Charter, may arise for third States from the general principles of international law, ie customary law (ibid, ICJ Pleadings 1970, 375–76). 174

  cf LA Sicilianos, Le réaction décentralisees à l’illicite (LGDJ 1990) 152.

175

  See UNSC Res 301 (20 October 1971) UN Doc S/RES/301 paras 6, 11, and 15.

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176

  SCOR, 26th Year, 1584th mtg (27 September 1971) 19, para 218. See also ibid, 1585th mtg (28 September 1971) 5, para 38 (Liberia). 177

  Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) [2010] ICJ Rep, para 85. 178

  ibid, paras 113–119.

179

  ibid, para 116.

180

  See also M Öberg, ‘The Legal Effects of United Nations Resolutions in the Kosovo Advisory Opinion’ (2011) 105 AJIL 84–86. See, generally, ML Bolani, ‘Security Council Sanctions on Non-state Entities and Individuals’ (2003) 56 Rev Hellen de Droit Int 429–30; JL Florent, ‘Les destinataires non étatiques des résolutions du Conseil de sécurité’ in SFDI (ed), Le sujet en droit international: colloque du Mans (Pedone 2005) 115. 181

  Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) Written Statement of the Kingdom of Norway, 16 April 2009, Annex 2, 20–24. See also ibid, Written Comments of the USA, July 2009, 35 (‘If the obligation to “accept and carry out” the decisions of the Security Council does not apply to non-state actors, then it would be difficult to see how Kosovo’s declaring independence could be seen…as having violated international law, even if its actions were inconsistent with Resolution 1244’). 182

  Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 185. 183

  UNCIO III, 337; VI, 348 (Belgium). See also UNCIO VI, 722 (‘The vote [on what is now para 6 was taken on the understanding that the association of the United Nations, representing the major expression of the international legal community, is entitled to act in a manner which will ensure the effective cooperation of non-member states with it’). See further (1964-I) ILC Yearbook, 69, para 28 (Jimenez de Arechaga saying that the obligation in Art. 2 (6) ‘was grounded on the will of the vast majority of the international community… thereby establishing a fundamental rule of law for all States’). 184

  Ross, 33; C Tomuschat, ‘Völkerrechtlicher Vertrag und Drittstaaten’ (1988) 28 DGVR Berichte 9, 15. 185

  The UN’s legal counsel had taken a different view arguing that the UN’s ‘international personality is recognized not only by the Member States but by the non-member States as well’ and that ‘it is now founded upon a general rule of international law’ (Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Pleadings 74). 186

  See eg Brownlie (n 9) 689–90.

187

  See ICJ Statute, Art. 38 (1). The legal basis of the objective legal personality can be found neither in treaty law nor in customary international law. There is also no general principle of law that would establish such legal personality. 188

  Some of the individual opinions are revealing in this respect; see [1949] ICJ Rep 174, 191 (Individual Opinion Judge Alvarez); 205 (Dissenting Opinion Judge Badawi Pasha). 189

  (1964-II) ILC Yearbook 26–27. See also, arguing pro futuro, AD McNair, ‘Treaties Producing Effects “Erga Omnes”’ in Scritti di Diritto Internazionale in Onore di Tomaso Perassi vol 2 (Giuffrè 1957) 23, 30–33. 190

  ibid, 31, para 14.

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191

  ibid, 1966-II, 231, 334. For the ‘unease at the idea’ of treaties establishing objective regimes, see also ibid, 1960-II, 98, para 71; ibid, 1966-I/2, 79, 91, 317. See further Widdows, 461. 192

  See Kelsen, 109–10; Ross, 40; Verdross, 445; E Jiménez de Aréchaga, Derecho constitucional de las Naciones Unidas: comentario teórico-prático de la Carta (Escuela de Funcionarios Internacionales 1958) 66. For the UN Charter as the ‘constitution of the international community’, see also Simma (n 4) 258–62; Tomuschat, 256; T Franck, ‘Is the UN Charter a Constitution?’ in JA Frowein and others (eds), Verhandeln für den Frieden: Liber Amicorum Tono Eitel (Springer 2003) 95, 97; Fassbender (n 62) 9, 78–82, 109–14, 147–48. 193

  For a critique of constitutionalist thinking and its application to Art. 2 (6), see Kammerhofer, 723–40; M Wood, ‘The Security Council and the “Constitutionalization” of International Law’ (2007) accessed 31 July 2012. 194

  Similar Conforti and Focarelli, 10–12; Osteneck (n 120) 292–307 (with numerous further references). 195

  Art. 38 VCLT.

196

  See MN 46–54.

197

  See MN 64–65.

198

  See MN 55–63.

199

  See also A Tzanakopoulos, Disobeying the Security Council (OUP 2011) 78 (with further references); S Chesterman, ‘Who Needs Rules? The Prospects of a Rules-Based International System’ (2006) 3 note 1, accessed 31 July 2012. For earlier views that non-members are bound by the peace and security provisions of the Charter as customary international law, see Ross, 32; Gunter, 146 n 62. See also (1964-I) ILC Yearbook 67, para 6 (Waldock), 69, para 32 (Yasseen), 72, para 55 (Tunkin), 74, para 6 (Pal). Contra McNeill, 7–9, 11. 200

  cf the creation of rules of customary human rights law, humanitarian law, and international criminal law creating rights and duties for individuals.

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Ch.I Purposes and Principles, Article 2 (7) Georg Nolte From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — Jurisdiction

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(p. 280) Article 2 (7) The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles … 7. 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. A.  Introduction: Is Article 2 (7) Obsolete or as Relevant as Ever? 1 B.  Article 2 (7) in the Context of the Other Charter Principles 2–5 C.  The Text and UN Practice 6–71 I.  ‘Nothing…Shall Authorize the United Nations’ 7–9 II.  ‘To Intervene’ 10–22 1.  The Early Debates 11 2.  Specific Forms of Action 12–17 (a)  The Inclusion of an Item in the Agenda 13–14 (b)  Discussion and Establishment of Committees 15 (c)  General and Specific Recommendations 16–17 3.  Modern Developments 18–22 III.  ‘In Matters…Essentially Within the Domestic Jurisdiction’ 23–64 1.  Matters Within the Domestic Jurisdiction 24–29 2.  ‘Essentially’ 30–32 3.  UN Practice 33–64 (a)  General Significance of the Domestic Jurisdiction Clause 34 (b)  Treaties and Domestic Jurisdiction 35–36 (c)  Provisions of the UN Charter in General 37 (d)  Human Rights 38–44 (e)  Provisions Regarding Non-Self-Governing Territories 45 (f)  Self-Determination and Minority Rights 46–49 (g)  Maintenance of International Peace and Security 50–60 (aa)  Internal Conflicts 51–53 (bb)  Conflict Prevention 54–56 (cc)  Peacekeeping Operations 57–60

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(h)  Trade Relations and Economic Sanctions 61 (i)  Governmental Systems and Elections 62–63 (j)  Internally Displaced Persons 64 IV.  ‘Of Any State’ 65 V.  ‘Or Shall Require…to Submit Such Matters…to Settlement …’ 66 VI.  ‘But…Shall Not Prejudice the Application of Enforcement Measures’ 67–71 D.  Who Decides? 72 E.  Conclusion 73–75

(p. 281) Select Bibliography Abi-Saab G, ‘Some Thoughts on the Principle of Non-Intervention’ in K Wellens (ed), International Law: Theory and Practice (Martinus Nijhoff Publishers 1998) 225. Ahmed K, ‘The Domestic Jurisdiction Clause in the United Nations Charter: A Historical View’ (2006) 10 SYBIL 175. Arangio-Ruiz G, ‘Le domaine réservé—L’organisation internationale et le rapport entre droit international et droit interne’ (1990) 225 Rec des Cours 9. Bailey S, ‘Intervention: Article 2.7 Versus Articles 55–56’ (1994) 12 Intl Rel 1. Bernhardt R, ‘Domestic Jurisdiction of States and International Human Rights Organs’ (1986) 7 HRLJ 205. Bindschedler R, ‘La délimitation des compétences des Nations Unies’ (1963) 108 Rec des Cours 312. Cançado Trindade A A, ‘The Domestic Jurisdiction of States in the Practice of the United Nations and Regional Organisations’ (1976) 25 ICLQ 715. Conforti B, The Law and Practice of the United Nations (4th edn, Martinus Nijhoff Publishers 2010). De Brabandère E, Post-Conflict Administrations in International Law (Martinus Nijhoff Publishers 2009). Goodrich L M and others, Charter of the United Nations (3rd edn, Columbia UP 1969). Henkin L, ‘Human Rights and Domestic Jurisdiction’ in T Buergenthal (ed), Human Rights, International Law and the Helsinki Accord (Montclair 1977). Herdegen M, ‘Der Sicherheitsrat und die autoritative Konkretisierung des VII. Kapitels der UN-Charta’ in U Beyerlin and others (eds), Festschrift für Rudolf Bernhardt (Springer 1995). Huet V, ‘L’autonomie constitutionnelle de l’Etat: déclin ou renouveau?’ (2008) 73 RFDC 65. Jones HH, ‘Domestic Jurisdiction—From the Covenant to the Charter’ (1951–52) 46 ILR 219. Kolb R, ‘Du domaine reserve—Reflexions sur la théorie de la compétence nationale’ (2006) 3 RGDIP 597. Lauterpacht H, ‘The International Protection of Human Rights’ (1947) 70 Rec des Cours 5. ——— International Law and Human Rights (FA Praeger 1950). Martenczuk B, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrates (Duncker & Humblot 1996).

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Matheson M J, ‘United Nations Governance of Postconflict Societies’ (2001) 95 AJIL 76. McGoldrick D, ‘The Principle of Non-Intervention: Human Rights’ in V Lowe and C Warbrick (eds), The United Nations and the Principles of International Law (Routledge 1994). Müllerson R, ‘The International Protection of Human Rights and the Domestic Jurisdiction of States’ in A Carty and G Danilenko (eds), Perestroika and International Law (Edinburgh UP 1990). Nolte G, Eingreifen auf Einladung—Zur völkerrechtlichen Zulässigkeit des Einsatzes fremder Truppen im internen Konflikt auf Einladung der Regierung (Intervention upon Invitation: Use of Force by Foreign Troops in Internal Conflicts at the Invitation of a Government under International Law) (Springer 1999). ——— ‘The Limits of the Security Council’s Powers and its Function in the International Legal System: Some Reflections’ in M Byers (ed), The Role of International Law in International Politics (OUP 2000). Preuss L, ‘Article 2, Paragraph 7 of the Charter of the United Nations and Matters of Domestic Jurisdiction’ (1949) 74 Rec des Cours vol 1, 553–652. Price M, ‘Information Intervention: Bosnia, the Dayton Accords, and the Seizure of Broadcasting Transmitters’ (2000) 33 Cornell Intl LJ 67. Rajan MS, United Nations and Domestic Jurisdiction (Asia Publishing House 1958). Simma B, ‘Human Rights’ in C Tomuschat (ed), The United Nations at Age Fifty (Kluwer Law International 1995). Stein A, Der Sicherheitsrat der Vereinten Nationen und die Rule of Law (Nomos 1999). (p. 282) Verdross A, ‘The Plea of Domestic Jurisdiction before an International Tribunal and a Political Organ of the United Nations’ (1968) 28 ZaöRV 33. Vijapur AP, ‘No Distant Millenium: The UN Human Rights Instruments and the Problem of Domestic Jurisdiction’ (1995) 35 IJIL 51. Watson JS, ‘Autointerpretation, Competence, and the Continuing Validity of Article 2 (7) of the UN Charter’ (1977) 71 AJIL 60.

A.  Introduction: Is Article 2 (7) Obsolete or as Relevant as Ever? 1  Article 2 (7) has been invoked very frequently in the course of the history of the UN. The provision has not, however, proved to be an effective tool for denying the various organs of the UN the power to act. This has led some authors to ask whether Art. 2 (7) has become obsolete.1 On the other hand, the UN Secretary-General has opined as recently as 1998 that Art. 2 (7) would still be as relevant as it was in 1945.2

B.  Article 2 (7) in the Context of the Other Charter Principles 2  Article 2 (7) embodies one of the basic principles of the Organization. US representative John Foster Dulles, speaking at the San Francisco Conference for the sponsoring governments, stated that the provision was designed to make domestic jurisdiction ‘a basic principle of the organization’ and not merely a ‘technical and legalistic formula’.3 He thereby justified the decision of the drafters to move the provision from the Chapter on the pacific settlement of disputes (where it had been in the Dumbarton Oaks Proposals) to the chapter on the basic principles of the Organization.4 This decision constituted an important deviation from the model which was provided by the domestic jurisdiction clause of the Covenant of the League of Nations. Article 15 (8) of the Covenant had applied only to the procedures for peaceful settlement of disputes by the Council of the League. The character of the UN with its increased powers for dealing with a multitude of international problems necessitated, according to Dulles, making domestic jurisdiction a restraint applicable to all From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

organization action. He justified the ‘breadth’ and ‘simplicity’ of the proposed text with a reference to the ‘analogous problem of federalism in the United States’.5 3  Dulles’s statement shows that Art. 2 (7) was designed to define a most important aspect of the basic relationship between the Organization and the member States. While, paradoxically, his constitutional analogy appears less far-fetched today than it may have at the time he made it,6 it is questionable whether the domestic jurisdiction (p. 283) clause still fulfils its original purpose, that is, to protect the sovereignty of the member States.7 Sovereignty, however, is a disputed term. Some question its value by pointing, in particular, to the increased interdependence among States in a period of globalization.8 In practice, however, States and UN organs regularly insist on the continued existence and importance of the principle of sovereignty.9 4  Differences of opinion over sovereignty are often more apparent than real. Today, it is agreed that sovereignty cannot mean complete independence or absolute power over internal matters.10 A formal interpretation views sovereignty as independence within the limits of international law.11 The disadvantage, or perhaps the advantage, of such a formal understanding is that it does not give a clear indication as to the purpose which underlies the concept. The question is therefore whether sovereignty also includes a core of substantive elements. In its 1970 Declaration on Friendly Relations among States, the General Assembly consensually adopted a definition of ‘sovereign equality’ which contained a more substantive concept of sovereignty. According to the Declaration ‘all States enjoy the rights that are inherent in full sovereignty’ and ‘each State has the right freely to choose and to develop its political, social, economic and cultural systems’.12 5  Today, it seems that neither a purely formal nor a disproportionately substantive understanding of sovereignty is generally accepted or appropriate.13 Even the European Union, the most integrated association of States, is still conceived as an organization of limited competences that derives its existence from the consent of the member States, which have preserved certain essential sovereign rights.14 On the other hand, States have entered into more and more treaty obligations and have accepted expansive interpretations of the powers of various international organizations. Again, the example of the European Union shows how far such restrictions on State sovereignty can go without the member States considering that the core of their substantive sovereign rights has (p. 284) been affected. The question of how sovereignty should be conceived of today on the universal level, therefore, cannot be answered without reference to organizational and State practice. Much also depends on the weight that is given to the underlying right of self-determination and to the principle of democratic governance.15 States are not only abstract entities which possess sovereignty as a result of historical development; they are also the organizations of human beings who have formed a political community to determine their common life16 and who have only submitted to a larger community in limited areas. This function of sovereignty as an expression of self-determination and democracy17 has sometimes been played down because sovereignty has so often been invoked as a shield by governments which, in the eyes of many, were not true expressions of the self-determination of the peoples they purported to represent.

C.  The Text and UN Practice 6  The textual exegesis provides some basic insights and should be the point of departure for the interpretation of Art. 2 (7). The practice of the Organization has, however, substantially affected the interpretation of the provision.

I.  ‘Nothing…Shall Authorize the United Nations’

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7  According to its text, Art. 2 (7) protects only against acts of the UN and not against acts of other States. Nevertheless, Art. 2 (7) has sometimes been interpreted as also embodying the general principle of non-intervention.18 During the discussion in the SC of the bombing campaign by NATO States against the Federal Republic of Yugoslavia, for example, India argued that the bombing constituted a violation of Art. 2 (7).19 Since, however, the bombing was not authorized by the SC, the UN was not responsible for this action by the NATO States. Assuming that the extent of protection against acts of the UN and against acts by individual States is not necessarily identical, the better view is that Art. 2 (7) is lex specialis to the general principle of non-intervention.20 The general principle of non-intervention can be derived from Arts 2 (1) and (4) of the Charter and from customary international law.21 8  Article 2 (7) applies to all organs of the UN and to all their activities.22 Article 15 (8) of the League Covenant applied only to activities of the Council of the League. In (p. 285) San Francisco, the sponsoring governments justified the extension of the scope of the domestic jurisdiction clause by pointing to the increased competences of the UN as compared to those of the League, in particular to the increased competences in the economic, social, and cultural fields.23 Indeed, the Charter conceives of the UN as an organization which not only reacts to international crises, but which also addresses their root causes. 9  Article 2 (7) covers all organs and all acts of the international legal person ‘United Nations’. ‘United Nations’, however, does not include legally separate specialized or related agencies. The constitutive instruments of some of those agencies contain specific clauses which limit their power to interfere in the internal affairs of member States.24

II.  ‘To Intervene’ 10  The term ‘to intervene’ has been given both a broad and a narrow interpretation.25 The drafters of the Charter thought that the concept of intervention was so broad that it would even include discussions and recommendations with regard to domestic matters.26 Their intention was to formulate a rule which ensured that the Organization would not ‘go beyond acceptable limits’ of its enlarged functions, ‘especially in the economic, social, and cultural fields’.27 This history militates in favour of a wide interpretation. Under classical international law, however, the term ‘intervention’ had most commonly been defined as ‘dictatorial interference’, thus implying the necessary presence of a use of force or similar form of ‘imperative pressure’.28 Writing in 1947, Lauterpacht argued that the term ‘to intervene’ in Art. 2 (7) had to have the same narrow meaning as under this classical definition and that the provision would therefore ‘not rule out action by way of discussion, study, enquiry and recommendation’.29 Lauterpacht’s concern was that the work of the UN would be seriously impaired if the objection from Art. 2 (7) could be raised against any of its activities. Although his concern was clearly warranted at the time,30 his narrow definition of intervention hardly left any field of application for Art. 2 (7).31 The UN organs, after all, only have powers of recommendation (except for those under Chapter VII which are explicitly excluded by the second sentence of Art. 2 (7)—see MN 67–71). Confronted with this objection, Lauterpacht conceded that a special category of recommendation could violate Art. 2 (7), ie one which ‘is calculated to exercise direct pressure, likely to be followed by measures of enforcement, upon the State in a matter which is essentially within the domestic jurisdiction of a State’.32

(p. 286) 1.  The Early Debates 11  The different theoretical approaches have been reflected in UN practice. The cases concerning the racial discrimination in South Africa are important in this respect.33 Beginning in 1946, India and Pakistan continuously asserted that the treatment of people of Indian origin in South Africa infringed the Charter provisions on human rights, as well as other international agreements.34 The questions of whether the inclusion of this item in the agenda, the making of subsequent recommendations, and the establishment of a commission of inquiry were permissible led to a discussion of the term ‘to intervene’. Some From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

representatives explicitly followed Lauterpacht’s approach35 while others held that the drafters of the Charter had used the word ‘to intervene’ in its ordinary dictionary meaning of ‘to interfere’. They argued that, according to the Charter, only the Security Council was entitled to interfere dictatorially whereas the other UN organs could only recommend. Since Art. 2 (7) authorized the SC to take enforcement measures with respect to matters essentially within domestic jurisdiction, the Article would become meaningless if ‘to intervene’ was restricted to dictatorial interference. South Africa, in particular, objected to the inclusion of the item in the agenda, invoking Art. 2 (7). However, at each session the GA decided in favour of the inclusion of the item in the agenda.36

2.  Specific Forms of Action 12  States have also discussed whether specific forms of action constituted intervention.

(a)  The Inclusion of an Item in the Agenda 13  The question of the inclusion of an item in the agenda was frequently discussed in the early years of the UN.37 In these discussions, however, it was not always clear whether the objection was that the inclusion of a particular item in the agenda constituted an ‘intervention’ or whether the specific issue under consideration was not ‘essentially within the domestic jurisdiction’ of the State concerned.38 Regardless of the approach taken, it was mostly held that the decision to include an item in the agenda did not predetermine the UN’s competence to deal with it.39 14  The cases are rare in which a decision was taken not to include items in the agenda after objections had been raised, and they do not strongly militate in favour of a restrictive interpretation of either the term ‘to intervene’ or the concept of domestic jurisdiction. In 1950, the SC decided against the inclusion of an item proposed by the Soviet Union: ‘The unceasing terrorism and mass executions in Greece’,40 after the United Kingdom (p. 287) had objected that the matter fell essentially within Greece’s jurisdiction.41 Likewise, in the question of Morocco in 1953, France successfully opposed the inclusion of the item in the agenda basing its arguments on Art. 2 (7).42 Other instances of successful opposition to the inclusion of an item in the agenda concern the question of Cyprus in 1955,43 the question of Algeria in 1956,44 and the question of Puerto Rico in 1971.45 More recently, the proposal to include the item of ‘the need to examine the exceptional international situation pertaining to the Republic of China on Taiwan’ was opposed, inter alia, on the ground of Art. 2 (7) and the General Committee decided not to recommend the inclusion of the item in the agenda.46 Such decisions have been exceptional. Given the great majority of sufficiently comparable cases in which it was accepted that the item concerned should be included in the agenda, most of such exceptional cases are better explained by the existence of specific political alliances at the time than by a principled legal assessment.

(b)  Discussion and Establishment of Committees 15  Another early area of dispute was whether the discussion of an item could constitute an intervention in the sense of Art. 2 (7). It was mostly conceded that discussion had to be permissible as far as this was necessary to determine the competence of the organ concerned to deal with the matter.47 Such a discussion, however, cannot easily be separated from a discussion of the substance of the matter. A discussion can exert a degree of political pressure which is comparable to the effect of a recommendation.48 The same is true of the activity of a committee of inquiry which is established to prepare the decision of the main organ.49

(c)  General and Specific Recommendations 16  On the basis of the assumption that recommendations can, in principle, constitute an intervention in the sense of Art. 2 (7), it has been asserted that recommendations that are addressed to all member States are always permissible, while only those which are addressed to a particular member State are excluded.50 Some States argued, for example,

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that a resolution which recommended that a member State suspend the execution of a death sentence imposed by one of its tribunals would amount to an intervention in the internal affairs of that State.51 On its face, such a distinction may have some appeal; in practice, however, it is prone to lead to arbitrary results, particularly when abstract language is used with the clear intention of criticizing a particular State.52 (p. 288) 17  The same holds true for the distinction between general and specific criticism. During the early debates on South Africa some States held that, while Art. 2 (7) does not bar the GA from recommending that a member State reconsider its racial policy in the light of the Principles of the Charter, the GA could not recommend the adoption of specific legislative or administrative measures. Such a recommendation would constitute a directive and would thus amount to an intervention.53 GA Res 820 (IX), however, not only invited South Africa to reconsider its racial policy in the light of the Principles of the Charter, but also to take into consideration certain specific suggestions which were contained in a report submitted by a commission. In this report it was asserted that the exercise of functions and powers conferred on the GA and its subsidiary organs by the Charter did not constitute an intervention prohibited by Art. 2 (7) of the Charter.54 Other specific recommendations were issued in later years.55

3.  Modern Developments 18  The early debates about the term ‘to intervene’ have lost much of their importance.56 Article 2 (7) has not proven to be a provision which serves to frustrate UN activities.57 This is not, however, due to a narrow interpretation of the term ‘to intervene’, but rather to a restriction of the sphere of ‘domestic jurisdiction’ (see MN 23–64). This parallel development makes it possible to interpret the term ‘to intervene’ in the light of the concept of intervention as it has developed in the meantime in general international law. The general concept of intervention, as it was invoked by Lauterpacht in 1947, expanded in the course of the debates leading to the proclamation in 1970 of the Declaration on Friendly Relations among States.58 According to this Declaration, intervention comprises not only ‘armed intervention’ but also ‘all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements’.59 19  It is true that during the elaboration of the Friendly Relations Declaration, a number of States have noted that the general concept of intervention does not necessarily affect the term ‘to intervene’ in Art. 2 (7).60 The Declaration, after all, only addresses the relations between sovereign States and not the delimitation of competences between the UN and its member States. Still, the Declaration has given expression to a consensus about an enlarged concept of intervention under general international law.61 It understands intervention both in terms of the nature of the act, as well as its effects.62 This was confirmed by the ICJ in the Nicaragua Case. In this case, the ICJ stated that: in view of the generally accepted formulations, the principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters on which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, (p. 289) social and cultural system and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices which must remain free ones. The element of coercion which defines and indeed forms the very essence of prohibited intervention is particularly obvious in the case of intervention which uses force.63

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20  While there have since been intense debates about possible new grounds to justify exceptions of what would otherwise be a prohibited intervention, and particularly after the Kosovo Case of 1999 with regard to ‘humanitarian intervention’,64 no further efforts have been made to narrow the general definition of intervention, as it is embodied in the Friendly Relations Declaration and in the Nicaragua judgment.65 This state of general international law should be taken into account when interpreting the term ‘to intervene’ in Art. 2 (7). The reference by the ICJ to the protection of the sovereignty and the free will of the State as the central purposes of the rule of non-intervention militates in favour of a wide interpretation of the term ‘to intervene’.66 If a realistic account is made of the pressure which recommendations by UN organs can exert on many States, the term ‘to intervene’ should be interpreted as potentially including all forms of action by which the UN can pressure States and thereby restrict their ‘choice of a political, economic, social and cultural system and the formulation of foreign policy’.67 If, for example, the GA demanded that the voters in a certain State should not re-elect an office-holder because he or she had criticized the UN, this would prima facie constitute an intervention. Whether such an intervention would actually be barred by Art. 2 (7) depends, however, on additional factors, in particular on the sphere of ‘domestic jurisdiction’ as determined by the applicable rules of international law (see MN 23–64). 21  A wide interpretation of the term ‘to intervene’ cannot, however, go so far as to contradict the practice clearly established by UN organs. This means, for example, that the inclusion of an item in the agenda as such cannot amount to a violation of Art. 2 (7).68 Substantive discussions and subsequent recommendations, on the other hand, can under certain circumstances still be so intrusive as to reach the level of an intervention. It is true that claims that the discussion of an item or a recommendation have violated Art. 2 (7) have rarely been accepted.69 It is not clear, however, whether such objections have been rejected because the majority of States considered that there existed no intervention or because the subject-matter did not essentially fall into the domestic jurisdiction of the State concerned.70 Therefore, taking into account the state of general international law, the better view seems to be that, while the inclusion of an item in the agenda for discussion as such cannot constitute intervention, discussions on the substance of the (p. 290) matter and recommendations can, in principle, indeed amount to an intervention in the sense of Art. 2 (7); but they usually relate to issues which are not ‘essentially within the domestic jurisdiction’ of the States concerned71 (see MN 23–64). 22  This means that the application of Art. 2 (7) ultimately depends on the specific substance of the issue concerned and not on the abstract form of the action. A broad interpretation of the term ‘to intervene’ does not create the danger of unduly restricting the activities of the UN. It is rather the sphere of what is ‘essentially within the domestic jurisdiction of any State’ which has, in theory and in practice, been most intensely debated in the past and it is in this area that the scope of Art. 2 (7) has been most substantially reduced (see MN 23–64).

III.  ‘In Matters…Essentially Within the Domestic Jurisdiction’ 23  The key concept of Art. 2 (7) is the term ‘domestic jurisdiction’. It has a historical predecessor in Art. 15 (8) of the League Covenant. The term ‘essentially’, on the other hand, was introduced in San Francisco in order to adapt the classical concept of domestic jurisdiction to the changed function of the domestic jurisdiction clause under the Charter.72 The common purpose of both provisions was to reassure States, in particular certain domestic constituencies which were important for the ratification of the instruments, that the new Organization would not become a ‘super-State’.73

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1.  Matters Within the Domestic Jurisdiction 24  During the negotiations of the League Covenant a proposal was presented by the League of Nations Commission according to which the League Council would be empowered to make recommendations in a procedure of conciliation in cases of disputes which were likely to lead to a rupture, the non-compliance with which might ultimately give rise to sanctions.74 This proposal led to intense discussions in the United States. In order to allay concerns that the League would be permitted to intervene in American politics, President Wilson suggested supplementing the draft, inter alia, by a domestic jurisdiction clause.75 He thereby took into account a suggestion by William Harold Taft, then President of the League to Enforce Peace, who had expressed concerns that the United States would be ‘seriously and unjustly affected by recommendations against excluding Asiatics or erecting tariffs’.76 After President Wilson’s proposal was accepted by the conference, Art. 15 (8) of the Covenant read: 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. 25  Article 15 (8) concerned the dispute settlement function of the League Council. It stands in the tradition of the ‘vital interest’ clauses, which were contained in arbitration (p. 291) treaties in the era before the World War I.77 Article 15 (8) constituted a major advancement over these treaties insofar as it made the scope of jurisdiction of the international organ dependent on a legal concept, as applied by an international organ, and not on the appreciation of a vague concept by the concerned State itself.78 26  Article 15 (8) of the Covenant did not play a major role during the interwar period.79 Nevertheless, in 1923, the PCIJ rendered a judgment which is still considered to be the leading pronouncement on the concept of ‘domestic jurisdiction’. In the Case of the Nationality Decrees in Tunis and Morocco,80 the PCIJ was requested by the League Council to determine whether a preliminary objection against its jurisdiction was justified. The case concerned a decision by France to give French nationality to residents of Tunis and Morocco, both of which were French protectorates at the time. The United Kingdom, on the other hand, invoked a treaty with France against the application of the nationality decrees to certain persons which the United Kingdom regarded as British nationals. When the United Kingdom brought the dispute before the League Council, France objected that the case concerned a matter solely within its domestic jurisdiction. The Council, for its part, referred this preliminary issue to the PCIJ. The PCIJ responded that matters that are solely within the domestic jurisdiction of a State are such ‘matters which are not, in principle, regulated by international law’ and ‘with respect to which States, therefore, remained sole judge’. It continued with its famous dictum: The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends on the development of international relations.81 27  This dictum has been and is still accepted by most authors as the leading pronouncement on the question of what constitutes ‘domestic jurisdiction’ under the UN Charter.82 It is the basis for the widespread assumption that the area of domestic jurisdiction is constantly being reduced since more and more areas which used to be internal are now being regulated by international law. This observation is basically correct, but it does not give a clear answer as to how to determine the scope of the remaining sphere of domestic jurisdiction. The most important question is how to define specifically the ‘matter’ (within the domestic jurisdiction). Theoretically, what is within the realm of ‘domestic jurisdiction’ can be circumscribed as precisely as possible.83 It would thus be From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

theoretically conceivable, for example, that as far as a State activity is justified by the limitation clause of a human rights provision, it would remain within the domestic jurisdiction of that State. Such an approach, however, is unwarranted. The reasons have been explained by the PCIJ in the Nationality Decrees Case. 28  It is the premise of the Nationality Decrees opinion that the determination by the League Council of whether a matter is (solely) within the domestic jurisdiction of a State (p. 292) must not be identical with the decision on the merits of the case. This means that the decisive question is not whether the State concerned was or was not competent, under international law, to take a particular action, but whether the action was governed in some respect by rules of international law. Such an approach is appropriate for a system which possesses no final judicial authority, but only knows of weaker procedures for dispute settlement. As long as the international organ is not empowered to settle the dispute conclusively, but only to make recommendations, it should be able to take into account the different legal positions concerning the substance of the subject-matter in order to make a recommendation. In the words of the PCIJ: The mere fact that one of the parties appeals to engagements of an international character in order to contest the exclusive jurisdiction of the other is not enough to render paragraph 8 inapplicable…But once it appears that the legal grounds relied on are such as to justify the provisional conclusion that they are of juridical importance for the dispute submitted to the Council, and that the question whether it is competent for one State to take certain measures is subordinated to the formation of an opinion with regard to the validity and construction of these legal grounds, the provisions contained in paragraph 8 of Article 15 cease to apply and the matter, ceasing to be one solely within the jurisdiction of the State, enters the domain governed by international law.84 29  This means that the concept of ‘domestic jurisdiction’ does not denote specific areas which are clearly defined, irreducible, or in any way inherently removed from the international sphere.85 It rather circumscribes areas which, taking into account the situation at issue, are not even prima facie affected by rules of international law. This essentially relative concept leaves much room for the development of international law. In order to remove an area from the sphere of domestic jurisdiction, it is sufficient that this area be regulated by international law only in certain respects. At the time of the League there were substantial areas which were still completely unregulated by international law, eg tariffs and immigration. For many years it still appeared to be a reasonable exercise to draw up lists of certain areas, such as the political system of a State, which fell ‘solely within the domestic jurisdiction’ of any State.86 The development of international law after World War II, however, has led to the coverage of so many fields by (consensual or customary) rules of international law that the definition of ‘matters under domestic jurisdiction’ by the PCIJ does not leave much room for this concept any longer. Even a traditional core area of national sovereignty, such as the general aspects of the organization of security forces, has in 2007 been addressed by the SC under the item ‘role of the Security Council in supporting security sector reform’, albeit with the proviso ‘that it is the sovereign right and the primary responsibility of the country concerned to determine the national approach and priorities of security sector reform’.87 In the same year, the Council similarly addressed the question of natural resources and conflict—while at the same time reaffirming ‘that every state has the full and inherent sovereign right to control and exploit its own natural resources in accordance with the Charter and the principles of international law’.88

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(p. 293) 2.  ‘Essentially’ 30  The substitution in San Francisco of the reference to ‘international law’ in Art. 15 (8) by the term ‘essentially’ was designed to reinforce and widen the scope of the domestic jurisdiction clause of the Charter as compared to that of the League Covenant. This change goes back to an amendment by the sponsoring governments which the representative of the United States, John Foster Dulles, explained in San Francisco. Dulles demanded the deletion of the reference to international law because it could lead to the interpretation that whenever a treaty dealt with a subject, this subject was no longer domestic: Does it mean that because this Charter is a treaty which makes international law, every subject which it deals with is no longer domestic? If so,…the whole purpose of that limitation is done away with, because it would mean that all these matters we talk about, this whole social life of every State which is dealt with…by this Charter would, under the interpretation of the international law phrase, be no longer a matter of domestic jurisdiction, and therefore, the whole effect of the limitation swept away.89 31  Taking into account the interpretation of Art. 15 (8) of the Covenant by the PCIJ, and relating it to the conceivable future development of international law, Dulles’s position was realistic, even prescient. His main preoccupation, however, was the fact that the Charter established an organization with much wider powers than that of the League, ‘an organization which is going to have functions which…will enable it to eradicate the causes of war and not merely…to deal with international disputes after they arise’. He thereby referred to the functions of the Economic and Social Council which should not ‘have the right to decide itself what pattern of social order it wanted, and go behind the governments to intervene directly to impose that pattern on each one of the 50 Member States’.90 32  Dulles’s statement seems to contain a clear rejection of the interpretation of the domestic jurisdiction clause by the PCIJ. This is true, however, only in a limited sense. Dulles did not proclaim a statist or a hard-core conception of domestic jurisdiction. To the contrary, by referring to the American constitutional experience, he argued that ‘a simple principle…is subject to evolution’ and that ‘future generations will thank us for what we do in adopting simple phrases and allowing them to evolve as the state of the world, the public opinion of the world, and the factual interdependence of the world makes it necessary and appropriate that it should evolve’.91 Therefore, the term ‘essentially’ also encapsulates an evolutionist conception. Dulles’s justification for its insertion opens the domestic jurisdiction clause to the practice of the Organization. In practice, UN organs could have relied on the term ‘essentially’, as Dulles had suggested, to strengthen the domaine réservé of States, but it became clear rather quickly that they preferred a restrictive interpretation of this term, which largely left Art. 2 (7) within the confines of the Nationality Decrees judgment of the PCIJ.92

3.  UN Practice 33  In the early years, representatives had heated discussions about the expression ‘in matters essentially within the domestic jurisdiction’. Some representatives followed the definition given by the PCIJ in the Nationality Decrees judgment. Others insisted that the (p. 294) definition by the PCIJ was only applicable to Art. 15 (8) of the Covenant of the League of Nations.93 Many representatives stated that the drafters of the Charter had deliberately refrained from giving a juridical meaning to the expression, and that in the absence of a clearly defined rule, UN practice constituted the relevant case-law in this

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matter.94 Ultimately, however, UN practice has led to a recognition of a substantial reduction of the sphere of domestic jurisdiction and a clarification in a number of areas.95

(a)  General Significance of the Domestic Jurisdiction Clause 34  Today, divergent views are expressed as to the general significance of Art. 2 (7) and the protection of the domestic jurisdiction. While some go as far as saying that ‘it can now safely be said that the domestic jurisdiction exception…has over the years lost its political and legal weight to the point that it has no more than an unsuitable residual value’,96 respect for domestic jurisdiction and sovereignty is regularly expressed in resolutions by the General Assembly and other UN organs.97 This is true in particular for those resolutions which address the issue of elections (MN 62).98 GA resolutions, however, sometimes leave open whether they are only directed towards States99 or also towards the UN.100 Individual States have continued to invoke the domestic jurisdiction clause directly or indirectly.101 Thus, many States continue to insist upon the validity and importance of the clause.102 Even those States which tend to play down the continuing importance of the domestic jurisdiction clause only argue against a ‘rigid interpretation’ of Art. 2 (7) given present-day conditions, and they do not assert that the norm has become obsolete.103 The significance of Art. 2 (7) cannot therefore be determined on a general level, but only by analysing specific areas in which it has been invoked:

(b)  Treaties and Domestic Jurisdiction 35  In its Advisory Opinion on the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, the ICJ has stated that the interpretation of a treaty for the purpose of that pronouncement ‘could not be considered as a question essentially within domestic (p. 295) jurisdiction of a State. It is a question of international law which, by its very nature, lies with the competence of the Court’.104 This ruling indicated the preference of the ICJ to interpret Art. 2 (7) along the lines of the Nationality Decrees judgment of its predecessor. 36  The question whether a matter which is governed by an international agreement can fall essentially within the domestic jurisdiction of a State was also discussed in a number of the cases within the political organs of the UN.105 On these occasions some States relied on the Nationality Decrees opinion and asserted that a matter governed by an international agreement could not fall essentially within the domestic jurisdiction of a party to the agreement.106 Other States, some of them referring to the statement of John Foster Dulles (see n 89), opposed this argument, claiming that a matter which was essentially within a State’s jurisdiction retained that character even when it became the object of an international obligation arising out of an international agreement since Art. 2 (7) included matters which were essentially and not merely solely within the domestic jurisdiction of a State.107 Ultimately, the political organs decided in most cases that the presence of an agreement was sufficient to take a matter outside the domestic jurisdiction of a State. Thus, for example, in the case concerning people of Indian origin in South Africa the GA adopted, inter alia, GA Res 44 (I) in which it referred expressly to the international agreements which had been invoked during the debates.108 This case and others109 demonstrate that States and UN organs have from the outset preferred a restrictive concept of domestic jurisdiction on the basis of the reasoning of the PCIJ in the Nationality Decrees Case.

(c)  Provisions of the UN Charter in General 37  In the early days of the Charter, some States and authors argued that a matter did not lose its domestic character by becoming the object of a Charter obligation since Art. 2 (7) applied to all the Articles of the Charter and made no distinction between provisions which imposed specific international obligations on States and those which did not.110 This position was rejected over the course of the years: many States argued that Art. 10 contained an unlimited power of the GA to take action on ‘any matter within the scope of the present Charter’.111 It was further maintained that the Charter had raised the matters (p. 296) dealt with therein to the category of matters of international concern.112 At first,

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the pertinent cases dealt with the specific Charter provisions on human rights (MN 38–44), non-self-governing territories (MN 45), the self-determination of peoples (MN 46–48), and the maintenance of international peace and security (MN 50–60). By the 1960s, however, the opinion became predominant that the Charter was an indivisible whole.113

(d)  Human Rights 38  During the early years the question whether the Charter provisions on human rights reduced the sphere of domestic jurisdiction was discussed in many cases.114 At that time there were States which argued that the Charter did not create international obligations with respect to human rights and therefore did not remove them from the domestic jurisdiction of States.115 According to those States, the Charter provisions on human rights were declarations of purposes and principles rather than obligations, since they had not been defined in the Charter.116 Others drew a distinction between accidental and systematic violations in which only the latter create a competence for the UN.117 39  From the outset, however, there have also been those States which maintained that human rights were removed from the domestic jurisdiction of States. They held that the Charter provisions on human rights, in particular Arts 1 (3), 55c, and 56, imposed international obligations on all member States and that they therefore fell within the competence of the UN.118 Articles 13b and 62 (2) of the Charter were also mentioned in favour of the UN’s competence for human rights.119 It was contended that to admit the claim of domestic jurisdiction would destroy the Charter’s conception for the protection of these rights, thus rendering meaningless some of its most important provisions.120 This position was confirmed, in particular, by GA Res 616 A (VII), 616 B (VII), and 721 (VIII) concerning South Africa. GA Res 1016 (XI), 1178 (XII), and 1248 (XIII) mentioned GA Res 917 (X) in their Preamble, which called on the government of South Africa to observe the obligations contained in Art. 56 of the Charter. Since the 1960s, the South African contention that the treatment by the GA of the issue of apartheid violated Art. 2 (7) was constantly rejected by overwhelming majorities on the ground that South Africa’s policies were contravening the provisions of the Charter.121 GA Res 1248 (XIII) referred specifically to Art. 56 of the Charter and called upon all member States to bring their policies into conformity with the Charter to promote the observance of human rights. 40  Those States which still opposed the competence of the UN with regard to human rights declared that the Universal Declaration of Human Rights was merely a recommendation which possessed no binding character.122 By the 1960s, however, even those (p. 297) States had modified their point of view in relation to apartheid.123 Since then, human rights have become a most important aspect of the work of the UN, and its competence to deal with such matters has become more and more accepted.124 It has been widely recognized that problems relating to human rights are of interest to all nations, and that the UN Charter has designated them as a matter of international concern.125 41  In recent times, sweeping statements can often be found, according to which human rights no longer belong to the domestic jurisdiction of States.126 According to the Secretary-General, human rights are a concern not only of the UN, but for all actors on the global scene.127 Such statements are unquestionably true in the sense that States have vastly reduced their sphere of unfettered decision-making by agreeing to a large number of human rights declarations and treaties and by participating in the formation of a considerable body of customary international human rights law.128 Those statements are misleading, however, when they seem to suggest that all States are equally bound and limited by ‘human rights’.129 Human rights derive from a variety of sources which do not apply equally to all States. Despite this necessity of making distinctions, the sphere of domestic jurisdiction with respect to human rights has been significantly reduced for all States: this is, first, because the ‘basic rights of the human person’ have acquired the status of ius cogens and of customary international law130 and, secondly, because in order to remove the shield of Art. 2 (7) it is not necessary to prove that a violation of a human rights From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

obligation has indeed occurred, but only to make a plausible prima facie case that this has happened (see MN 27–29). Today, to overcome Art. 2 (7) it is no longer necessary that systematic and widespread violations of human rights be alleged. UN organs have identified specific and individual human rights violations and have demanded that governments remedy those violations.131 UN bodies or Special Rapporteurs have even overcome the objection by a State that ‘the death of an ordinary citizen of a country owing to a natural cause is a matter falling entirely within the domestic jurisdiction of the country’.132 (p. 298) 42  Such developments do not, however, lead to the conclusion that Art. 2 (7) has become obsolete in the human rights context. The mandate of the UN High Commissioner for Human Rights contains a reference to the domestic jurisdiction clause.133 In resolutions concerning certain human rights issues, the GA regularly reiterates the principle of domestic jurisdiction.134 It is also recognized that the protection and implementation of human rights is a task of the State and that the State possesses a large amount of discretion, as part of its domestic jurisdiction, in determining how to fulfil this task.135 The exercise of this power is, however, not an ‘essential’ part of its jurisdiction in the sense that it must be exercised free of international supervision and pressure. Still, the mandate of international human rights organs does not extend ‘to recommending to a country that it should implement the Covenant in one way or the other’; it can ‘only examine the results of its implementation’.136 43  Today, States rarely allege that the principles of sovereignty and domestic jurisdiction provide a shield against the dealing by the UN with systematic violations of human rights. The debate in the aftermath of the Kosovo intervention over the ‘responsibility to protect’137 has, however, given rise to principled invocations of sovereignty and non-interference.138 Still, the ‘World Summit Outcome Document’, while specifying that ‘the international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’, does not specifically refer to Art. 2 (7), but limits itself to requiring the GA (and not the SC), in its ‘consideration of the responsibility to protect’, to ‘bear…in mind the principles of the Charter and international law’.139 Apart from this area, controversial debates have ensued in 2007 and 2008 over the question whether resolutions on a moratorium on the use of the death penalty should include an explicit reference to Art. 2 (7), a proposal which the majority rejected.140 Another more recent example where Art. 2 (7) was controversially discussed in the GA, but ultimately unsuccessfully invoked by a substantial number of States, concerned the human rights situation in Myanmar.141 Finally, a relevant modern debate concerns the question of the selective invocation of human rights.142 While it is true that international law recognizes (p. 299) a general prohibition of the abuse of rights, it is difficult to apply this consideration in the context of Art. 2 (7) in a legally meaningful way. ‘Non-selectivity, impartiality and objectivity’143 are indeed values which must be part of all credible efforts of human rights protection. Their non-observance, however, does not automatically lead to a violation of Art. 2 (7). A State’s domestic jurisdiction is not more or less infringed upon because some other State’s violations of human rights have not been targeted at the same time. 44  In view of the accepted and contested practice of the UN organs it goes too far to say that ‘the principles of non-interference in the internal affairs of States and respect for their sovereignty are still fully in effect as far as human rights are concerned’.144 It is, on the other hand, not self-contradictory when States, while justifying their record with reference to human rights obligations, at the same time continue to insist that the principle of noninterference be respected.145

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(e)  Provisions Regarding Non-Self-Governing Territories 45  The question whether the administration of non-self-governing territories fell within the domestic jurisdiction arose very early.146 States which opposed consideration of this issue by the UN held that the administering States exercised full sovereignty over their non-selfgoverning territories. According to those States, the GA was not entitled to recommend that ECOSOC convene conferences of representatives of non-self-governing territories,147 to establish a permanent machinery to study the information transmitted under Art. 73e of the Charter, or to make recommendations on the policies to be followed.148 Such positions were strongly disputed in the GA.149 It was held that the GA was competent to discuss not only the technical information referred to in Art. 73e of the Charter but also the political situation prevailing in the territory.150 After the adoption in 1960 of GA Res 1514 (XV) it was overwhelmingly held that the issue was essentially removed from the national level and had become the responsibility of the UN.151 An important case was the situation in Southern Rhodesia.152 The case of the Portuguese colonies finally demonstrated the general acceptance of the UN’s competence for non-self-governing territories and the selfdetermination of their peoples.153

(p. 300) (f)  Self-Determination and Minority Rights 46  The question whether the principle of self-determination was removed from the domestic jurisdiction of member States was debated, inter alia, in the cases of Morocco and Tunisia,154 Cyprus and Algeria,155 West Iran,156 and Angola.157 In the early years, a number of States held that the manner in which a State applied the principle of self-determination fell essentially within the domestic jurisdiction. Since the realization of self-determination could lead to the division of existing political entities and the creation of new ones, the principle concerned the composition and political structure of States. It was asserted that nothing could be more clearly within the domestic jurisdiction of a State than its own composition and political structure.158 47  In the course of the years, support grew in favour of the counter-arguments. It was held that if Art. 2 (7) had an overriding effect, many provisions of the Charter would become meaningless.159 It was also argued that self-determination was linked to the discussion on human rights, which sufficed to remove it from domestic jurisdiction.160 GA Res 1188 (XII) finally expressly referred to a right of self-determination and recalled that ‘all States… should promote the realization of that right’. 48  Despite this development, the relationship between the right to self-determination and the domestic jurisdiction clause remained controversial. Ultimately, however, widespread agreement has developed that Art. 2 (7) is inapplicable as far as the principle of selfdetermination applies.161 49  As far as minority rights were concerned some States drew a distinction between minorities living within the metropolitan boundaries of a State, and persons of a non-selfgoverning territory. They expressed the view that the realization of self-determination by the former was a matter essentially within the domestic jurisdiction of that State while the realization of the latter was a question of international competence governed by the provisions of Chapter XI of the Charter.162 The issue was first controversially raised in the Case concerning the Status of the German-Speaking element in the Province of Bolzano.163 Since that case, a substantial internationalization of minority issues has taken place.164 The most important legal developments on the universal level have been the recognition of minority rights by Art. 27 of the International Covenant on Civil and (p. 301) Political Rights and the adoption by the GA of the UN Declaration on the Rights of National or Ethnic, Religious and Linguistic Minorities.165

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(g)  Maintenance of International Peace and Security 50  The question whether a situation relating to the maintenance of international peace and security falls within the domestic jurisdiction of a State has been discussed in numerous cases.166 In the early days, it was contended that the second phrase of this provision constituted the sole exception to Art. 2 (7),167 and that Arts 11 and 14, in particular, did not authorize the GA to intervene in matters essentially within domestic jurisdiction.168 In practice, however, these arguments were not accepted. GA Res 44 (I) concerning the treatment of peoples of Indian origin in the Union of South Africa, for example, expressly referred to Art. 14 of the Charter.169 As far as the SC is concerned, the case of Spain demonstrates that, already in the earliest days of the UN, Art. 2 (7) could be broadmindedly set aside: a report of a sub-committee of the SC stated that, although there was no actual threat to the peace, the fact that the continuance of the particular situation was likely to endanger the maintenance of international peace removed the matter from domestic jurisdiction.170 Today, the major issues in this context are (aa) internal conflicts, (bb) conflict prevention, and (cc) peacekeeping operations: (aa)  Internal Conflicts

51  In November 1999, during an SC debate on the prevention of armed conflict, the delegate of the Netherlands reflected a widespread view when he said that a rigid interpretation of Art. 2 (7) would preclude adaptation to the reality that the overwhelming majority of present-day conflicts on the SC’s agenda were of an internal, domestic nature, whereas Chapters VI and VII and Art. 99 of the Charter appeared to have been drafted with conflicts between States in mind.171 Although this assessment rests on a valid insight, it nevertheless requires some qualifications: the possible limits of the SC’s powers under Chapter VII have not been discussed with reference to Art. 2 (7) but rather with respect to Arts 39 and 24 of the Charter.172 Since the adoption under Chapter VII of SC Res 792 on Somalia, it has been generally accepted that even a situation which causes no physical repercussions abroad may nonetheless constitute a threat to the peace in the sense of Art. 39 of the Charter. Article 2 (7) does, however, in principle apply to all other activities of UN organs, in particular to those under Chapter VI and Art. 99. As long as such activities are directed towards the resolution of internal conflicts which involve (p. 302) clear violations of or threats to human rights, such activities do not, however, concern matters which are essentially within the domestic jurisdiction of any State. This assessment of the legal situation is not new, but rather a consequence of the development of the interpretation of Art. 2 (7) since 1945, especially in the area of human rights.173 It is true that, after Kosovo, a number of States have reinforced their insistence on the principles of sovereignty and non-intervention,174 including in the context of the debates on the ‘responsibility to protect’.175 Those States, however, primarily object to unilateral uses of force, and not so much to the activities of UN organs,176 as has been made clear in the ‘World Summit Outcome Document’.177 52  It has become rare that governments defend other governments which use questionable fighting methods in internal conflicts by describing them as merely ‘solving domestic problems’.178 One example is the position India took during the Kosovo crisis when it insisted that since Kosovo was a recognized part of Yugoslavia the UN had, under application of Art. 2 (7), no role in the settlement of domestic political problems of the country.179 In this case the representative of Slovenia correctly responded that SC Res 1199 (23 September 1998) and 1203 (24 October 1998) had defined the situation in Kosovo as a threat to international peace and security in the region and that this meant that the situation could no longer be a matter which was essentially within the domestic jurisdiction of a State. Consequently, Art. 2 (7) could not apply. But even if the SC had not defined the situation under Chapter VII as a threat to the peace, Art. 2 (7) would not have applied because of the massive violations of human rights which were verifiably occurring.180 The From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

international reaction in 2011 to excessively violent suppression of domestic uprisings or unrest in several Arab states has confirmed this view.181 53  Governments regularly try to maintain that an internal conflict is within the domestic jurisdiction of the country even after they have accepted diplomatic involvement by the UN.182 This is not necessarily a self-contradictory approach since States, by accepting UN involvement, may open their domestic sphere only to a limited degree. Accordingly, in the context of the issue of ‘Protection of civilians in armed conflicts’ the SC, partly after extensive debates, has referred to Art. 2 (7),183 and thereby confirmed (p. 303) that involvement by the UN in this area must remain guided by the concern not to intervene too far in the internal affairs of states. (bb)  Conflict Prevention

54  The GA has demanded that the UN’s activities in the fields of early warning, good offices, and non-military measures to prevent disputes from escalating into conflicts should respect, inter alia, the principle of non-intervention in matters that are essentially within the domestic jurisdiction of any State.184 On this level of generality the statement is certainly correct. The debate in the SC on the prevention of armed conflict which was held in the aftermath of the Kosovo conflict has not changed this assessment, but instead has made it clear that the question is one of degree. During this debate the delegate of the Netherlands claimed that, in the context of conflict prevention, the SC ‘could not avoid addressing the internal situation of States wherever negative developments were apt to degenerate into large-scale atrocities and massive dislocation of civilians’ and that this could not be rejected on grounds of domestic jurisdiction.185 China, on the other hand, insisted that all preventive measures could only be taken upon request, or with the consent and cooperation of the country or parties concerned, when it comes to issues involving the country’s sovereignty.186 55  As far apart as these two statements may appear, they are not fundamentally incompatible. The domestic jurisdiction, or sovereignty, of a country is limited by the powers of the SC under Chapter VII and, to a certain extent, also by its powers under Chapter VI. These provisions give the SC the power to initiate certain preventive measures. Mostly, however, the sending of a fact-finding mission or the setting-up of an early warning system within the territory of a State requires the consent of the State concerned.187 Disagreement mainly exists on the necessary proximity of the danger for the rights and values protected by international law. The discussion in the aftermath of the Kosovo crisis has revealed that some of those States which continue to stress the domestic jurisdiction clause at the same time deplore ‘a tendency of the Council to put too much emphasis on intervention while neglecting effective prevention’.188 Such a seemingly paradoxical position can be explained by the goal of sovereignty-oriented States to prevent more massive forms of intervention. Since most States have expressed their support for ‘a culture of prevention’, it appears that the Kosovo crisis has ultimately resulted in widespread agreement that the powers of the UN organs, in particular those of the SC, to initiate and undertake measures of conflict prevention outside Chapter VII without violating Art. 2 (7) are rather broad. At the same time, the debate in the SC in 2007 on the legitimacy of establishing a Special Tribunal for Lebanon has shown that Art. 2 (7) continues to be invoked, even in the context of measures by the SC under Chapter VII.189 56  The same is true for the good offices of the UN Secretary-General.190 On a general level, some States have insisted that the Secretary-General’s good offices require (p. 304) the consent of the States concerned, while others consider that the Secretary-General possesses freedom of action in this respect.191 In practice, the Secretary-General needs the willingness of the parties concerned to cooperate, so that the insistence on consent is somewhat superfluous.192 Ultimately, the same is true here as in other areas: Art. 2 (7) does not render other provisions of the Charter nugatory and the function of the SecretaryGeneral under Art. 99 is generally understood as encompassing a good offices function. The From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

question how far the Secretary-General may go when exercising this function not only depends on the subject-matter at issue but is also a matter of degree. (cc)  Peacekeeping Operations

57  Peacekeeping is the main area in which the UN, acting through its missions and operations, directly exercises powers within member States. In the annual ‘Report of the Special Committee on Peacekeeping Operations’ it is regularly stressed ‘that peacekeeping operations should strictly observe the principles and purposes enshrined in the Charter’ and, in particular, ‘that respect for the principles of sovereignty, territorial integrity and political independence, and non-intervention in matters that are essentially within the domestic jurisdiction of any State is crucial to…peacekeeping operations’.193 Such statements show that Art. 2 (7) is still insisted upon in principle, but they do not give an indication as to its practical significance in this context. 58  Generally speaking, some States ‘still have reservations about the growing tendency to have recourse to peacekeeping operations and the expansion of their mandates’ and such States have invoked Art. 2 (7) against this perceived tendency.194 Such invocations of Art. 2 (7) are mostly unconvincing. Either a peacekeeping mission is based on the consent of the State(s) or the parties concerned, or it is based on a decision by the SC under Chapter VII. Article 2 (7) is inoperative in both cases, either because the State concerned has voluntarily foregone its claim to exercise its jurisdiction or because the explicit exception for measures taken under Chapter VII applies. The competence of the SC is in such cases often underpinned by the purpose of its measures to give effect to the right of selfdetermination.195 59  More specifically, the reports by the Special Committee do not evince substantial practical issues on which Art. 2 (7) was invoked. This is true even for the Kosovo and the East Timor missions, which have been endowed with very broad and complex mandates.196 This lack of consideration of the domestic jurisdiction clause may appear (p. 305) surprising since, from a formal point of view, every ultra vires act by a peacekeeping mission, being an act by the UN within the domestic jurisdiction of a member State, is necessarily a violation of Art. 2 (7) of the Charter. The lack of invocation of Art. 2 (7) in the practical sphere of peacekeeping can, however, be explained by the fact that the two current legal bases for peacekeeping operations, consent of the State or the parties concerned and decision by the SC under Chapter VII of the Charter, render Art. 2 (7) inapplicable against the peacekeeping mission as such. Although neither of the possible two legal bases justify individual ultra vires acts, it is possible to conceive specific ultra vires acts as being different from interventions by the political organs of the UN. Their illegality is determined, in the first place, by more specific standards. These standards are the terms of the mandate, including the status of forces agreement, the rules of engagement, and the rules concerning the role of civilian police.197 Violations of such rules are usually considered to be violations whose consequences are to be determined within the applicable special legal regimes, or by practical negotiations, or by measures which do not reach the level of Art. 2 (7). 60  It should be clear, however, that just as diplomats may not interfere in the internal affairs of the receiving State (Art. 41 (1) of the Vienna Convention on Diplomatic Relations),198 members of peacekeeping missions must remain within the terms of their mandate. Every act which goes beyond their mandate and which directly affects the receiving State constitutes an intervention into the domestic jurisdiction of that State. This is not only true for those acts by the mission which constitute formal exercises of jurisdiction, but also for such acts which are designed to informally influence the behaviour of persons who are under the jurisdiction of the receiving State. Information policy, for example, can constitute an intervention into the domestic jurisdiction of a State if it goes beyond the spreading of information about the mission and turns into an effort to influence the domestic political process beyond the terms of the mandate.199 At the same time, ‘an From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

effective public information policy capacity’ is ‘vital to the safety and the security of the peacekeeping personnel as well as to the fulfilment of the mandates of the missions’.200

(h)  Trade Relations and Economic Sanctions 61  The intention to preserve the freedom of States to determine their tariff policies was one of the roots of the domestic jurisdiction clauses of the League Covenant and of the UN Charter.201 While the freedom of States to determine their trade relations still exists in principle, treaties, in particular those concluded within the WTO framework, have rendered Art. 2 (7) inapplicable in many situations. States have even been reluctant to invoke Art. 2 (7) where no such treaty law applied. When the GA in 1995 discussed the US embargo legislation against Cuba, the United States reiterated its position that this was ‘a bilateral issue not properly considered by this body’ and that ‘the United States, (p. 306) like other nations, has the sovereign right to determine its bilateral trading relationships’.202 The United States did not, however, expressly invoke Art. 2 (7) in this context and it entered into the substance of the discussion. Since most other States could credibly claim that the application of the American laws had a (legally disputable) extraterritorial effect, this fact alone took the issue out of American domestic jurisdiction.203 Moreover, it is agreed that the GA is not barred by Art. 2 (7) from recommending economic sanctions against a State in response to clear violations of international law.204

(i)  Governmental Systems and Elections 62  Since 1989 the GA has passed resolutions on ‘respect for the principles of national sovereignty and non-interference in the internal affairs of States in their electoral processes’.205 Invoking, inter alia, Art. 2 (7) of the Charter, the GA demanded that electoral assistance by the UN ‘should be provided at the request of interested States, or in special circumstances such as in cases of decolonization, or in the context of regional or international peace processes’. Further demands are not addressed to the UN specifically but are meant to apply to the Organization as well, ie the ‘right of peoples, without external interference, to determine methods and to establish institutions regarding electoral processes’ and ‘any activities that attempt, directly or indirectly, to interfere in the free development of national electoral processes’. These resolutions have divided the UN membership. The sensitivity of the issue of elections also became apparent in 2004 during controversial debates over the propriety and extent of SC involvement with a view to ensuring free and fair presidential elections in Lebanon.206 It is clear, however, that human rights treaties, such as Art. 25 ICCPR, contain certain basic requirements concerning election rules and principles. 63  Apart from the important but rather specific election issue, there is still considerable support for the view that Art. 2 (7) is one of the rules of the Charter which prohibit the Organization from imposing sanctions with an aim to change an existing governmental regime or structure.207 This does not exclude, however, that the UN organs exercise their competences with a view of enabling the exercise of the right of self-determination by restoring or establishing forms of democratic governance in post-conflict situations.208

(p. 307) (j)  Internally Displaced Persons 64  UN organs also put emphasis on the domestic jurisdiction of States in the field of the protection of internally displaced persons. ‘The dialogue with governments is based on the premise that internal displacement falls within domestic jurisdiction and therefore the sovereignty of the State concerned’.209 This approach is due to the necessity of the positive cooperation of the government. Still, ‘sovereignty…carries with it the responsibility of States to provide for the security and well-being of those residing on their territories’.210 Thus, ultimately, it is accepted that when a State cannot fulfil its obligation to perform basic humanitarian functions to internally displaced persons and does not accept the help from

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competent external organizations, it will ultimately be held accountable without being able to invoke Art. 2 (7).211

IV.  ‘Of Any State’ 65  Article 2 (7) protects the domestic jurisdiction ‘of any State’ against encroachment by the UN. This includes member States, groups of member States, but also non-member States. Since non-members are not parties to the UN Charter they cannot invoke Art. 2 (7) against the Organization as such, but must rely on the customary norm of non-intervention. The Organization itself, on the other hand, is bound by Art. 2 (7) in its activities towards non-members.

V.  ‘Or Shall Require…to Submit Such Matters…to Settlement …’ 66  The guarantee against a requirement to submit disputes which concern matters within the domestic jurisdiction to settlement under the Charter has not gained much importance in practice. This is partly due to the considerable reduction over time of what remains within the sphere of domestic jurisdiction (see MN 23–64). It is also due to the fact that UN organs have mostly preferred to treat potential conflicts and situations rather informally. The protection against the requirement to submit matters within the domestic jurisdiction to settlement must be read together with the obligation contained in Art. 2 (3), according to which all member States are under a general obligation to settle their international disputes by peaceful means. The term ‘dispute’ in Arts 33–38 refers to international disputes.212

VI.  ‘But…Shall Not Prejudice the Application of Enforcement Measures’ 67  The second sentence of Art. 2 (7) provides for an exception to the general rule of nonintervention by the Organization into the domestic jurisdiction of member States. It ensures that the key function of the SC, namely the application of enforcement measures under Chapter VII, is not subject to the plea of domestic jurisdiction. This chapter enables the SC to tackle the roots of a conflict before it reaches dimensions which are harder or impossible to manage.213 (p. 308) 68  The exception is limited to enforcement measures and therefore does not, in principle, include recommendations.214 It was indeed the purpose of a successful Australian amendment in San Francisco to ensure that mere recommendations by the SC under Art. 39 would remain subject to the general domestic jurisdiction rule. Australia was concerned that if a stronger State threatened a weaker State with a view to changing its domestic policies, the SC might feel tempted to issue recommendations to both States to modify certain aspects of their domestic policies, instead of acting against the peace-threatening stronger State.215 While the Czechoslovak crisis and the Munich Settlement of 1938 provide a background for this concern,216 it is not immediately apparent why the SC should, under the same conditions, be competent to take enforcement measures but not to issue a recommendation.217 Such a rule could deprive the SC of a less intrusive means which might sometimes calm the situation when an enforcement measure would involve the risk of fanning the flames of conflict. The dangers of such a lacuna, however, are today rather remote. Vast areas which formerly belonged to the domestic jurisdiction of States are now of international concern, which means that they are unquestionably subject to UN jurisdiction (see MN 23–64). It is therefore innocuous if the domestic jurisdiction plea is preserved with respect to SC recommendations. The exclusion of such recommendations from the second sentence of Art. 2 (7) also provides some coherence with the rule that recommendations by the SC under Chapter VI (which are in substance indistinguishable from recommendations under Chapter VII) are subject to the domestic jurisdiction clause.218 This would be in conformity with the drafter’s intention to give the SC full powers for the preliminary resolution of crises but to place limitations with respect to acts by which From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the SC could purport to determine the final settlement of conflicts (see Krisch, Introduction to Chapter VII MN 17). It should be noted, however, that the significance of this distinction has been substantially reduced by practice. 69  Enforcement measures in the sense of Art. 2 (7) are not limited to military enforcement measures. While the term ‘enforcement measures’ in Art. 53 of the Charter is mostly understood to exclude non-military sanctions, it is agreed that the same term in Art. 2 (7) includes all binding decisions which the SC makes under Chapter VII.219 This discrepancy can be explained by the different functions of the provisions: Chapter VIII recognizes the collective security function of regional organizations and only safeguards, in Art. 53, the monopoly of the SC with respect to the decision on the use of force. The second sentence of Art. 2 (7), on the other hand, is designed to set all binding decisions of the SC free from the domestic jurisdiction plea. It is reasonable to leave regional organizations room for applying economic sanctions without SC authorization, but less so to accept the domestic jurisdiction objection against economic but not against military sanctions by the SC. Borderline cases are preventive measures taken under Art. 40. Insofar as these measures are binding, they do fall under the exception and are therefore not subject to the domestic jurisdiction plea.220 (p. 309) 70  It is another important question whether determinations or decisions, which precede actual enforcement measures, are also covered by the exception.221 Such cases include, for example, the establishment of a commission of inquiry to determine whether a threat to the peace exists. Since the exception is limited to the ‘application of enforcement measures’, one is tempted to conclude that such preceding decisions or determinations are not covered by the exception and are therefore subject to the domestic jurisdiction clause. Given the purpose of the exception, however, such a restrictive interpretation appears unwarranted. If the exception did not cover determinations or decisions by the SC which necessarily precede the actual application of enforcement measures, the appropriate fulfilment of the Council’s functions could be impeded.222 Practice shows that such determinations or decisions can even take a matter out of the sphere of domestic jurisdiction (see MN 50, 52). 71  This is true, in particular, for the determination whether a threat to the peace actually exists. The question was intensely debated during the 1990s, in particular in connection with the Lockerbie Case before the ICJ.223 This issue should not, however, be confounded with the question of the delimitation between the general domestic jurisdiction clause and its exception.224 The purpose of the second sentence of Art. 2 (7) is to exempt the core Chapter VII activity of the SC from domestic jurisdiction objections. This purpose could not be achieved if the determination of whether a threat to the peace actually exists were subject to the general domestic jurisdiction clause. This does not mean, however, that objections by individual States against determinations under Art. 39 cannot be based on other grounds, in particular on Art. 39 itself or on Art. 24.225 While it is true that States have sometimes criticized the SC’s far-reaching use of its powers under Chapter VII by alluding or referring to Art. 2 (7), such objections have not gained significant support.226 Other critiques of the legality of SC resolutions under Chapter VII in the humanitarian area include invocations of the domestic jurisdiction clause, but the main emphasis lies on other, legally more plausible arguments.227 Some States, however, have insisted that sanctions should not be tools for interventions in matters within the domestic jurisdiction of States or ‘should not become a method—more or less covert—of intervening in affairs that fall essentially within the domestic jurisdiction of States’.228

(p. 310) D.  Who Decides?

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72  Article 15 (8) of the League Covenant attributed the power to decide whether a matter fell within the domestic jurisdiction to the League Council and thereby took it away from individual States. The proposal of the sponsoring governments in 1945 did not address the question concerning who should be competent to determine whether Art. 2 (7) applied in a given case. This led to a heated discussion in San Francisco. Amendments by Greece to give the ICJ this power and by Belgium to make ‘the Organization’ the judge of the matter failed to attract sufficient support.229 This does not mean, however, that it was recognized that the State which raised the domestic jurisdiction plea was to be the judge in its own cause. It was rather assumed that this question was not specific to the domestic jurisdiction clause but that it was an aspect of the general problem of the interpretation of the Charter.230 Despite some doctrinal efforts to justify a clear competence for either the individual State concerned231 or the acting UN organ,232 the general rules of Charter interpretation have in practice also been applied to Art. 2 (7).233 This means that the UN organs have the power to make a prima facie assessment of the applicability of a particular rule without, however, formally having a determinative say.234 Whether this prima facie assessment is correct depends on previous practice, the acceptance or acquiescence by other States, the determination by judicial organs (eg Art. 96 (1)), but also on the position of the State concerned.235

E.  Conclusion 73  Article 2 (7) was originally intended to strengthen the protection of States against incursions by the new collective security organization into their domestic affairs. In practice, however, Art. 2 (7) has been increasingly eroded and emptied of substance. This is not so much because the term ‘intervention’ has been narrowly interpreted (see MN 10–22) but rather because more and more matters are no longer recognized as belonging to the domestic jurisdiction of States (see MN 23–64). This development raises the question whether Art. 2 (7) has become largely obsolete or whether a new interpretation is necessary. It is true that there are not many matters left which most States continue to insist are essentially within their domestic jurisdiction (see MN 34–64). The most important field is probably the area of political self-organization, including election monitoring (see MN 62–63). However, since Art. 2 (7) still plays a role in some areas or for some States,236 the question arises whether the provision should be conceived differently, taking into account the developments which have occurred in practice. Two approaches merit consideration. (p. 311) 74  The first approach is a theory which has been advanced by Arangio-Ruiz, according to which Art. 2 (7) protects (only) against direct legal effects of UN decisions in the internal legal order.237 This interpretation diverts attention from the determination of specific subject-matters and turns Art. 2 (7) into a protection against the UN becoming a supranational organization. It is questionable, however, whether such protection is necessary and, if so, whether such protection would even be desirable. The UN usually does not purport to take decisions that have direct legal effect within States (except in the peacekeeping area). It should also not be excluded a limine that direct effects are permissible. 75  A second approach would be to conceive Art. 2 (7) as reflecting a principle of proportionality. So far, Art. 2 (7) has generally been understood as a rule which determines whether or not a matter is subject to UN jurisdiction, but not as a rule which determines how far UN organs may go when dealing with a matter which is, in principle, subject to UN jurisdiction. One can certainly take the position that the answer to the question ‘how far?’ depends on the specific provisions of the Charter on which the UN organs base their respective action (eg Art. 39). It is also clear, however, that the countervailing interest against excessive UN intervention is always founded on the principles which are given expression in Art. 2 (7), ie State sovereignty and/or (democratic) self-determination. The

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Member States of the European Union recognized this in 1993 when it cited the principles of proportionality and subsidiarity as general limitations for the exercise of EU jurisdiction (Art. 5 para 3 of the EC Treaty, now Art. 5 para 1 of the Treaty on European Union). Such principles are certainly much more manageable in a system with judicial review. Under the UN Charter, the plea of disproportionality might still today inhibit the functioning of the UN System. It is therefore not surprising that it has so far not played a practical role in the context of Art. 2 (7). Nevertheless, the more the UN Charter acquires a constitutional function, the more the principle of proportionality ought to gain currency as a general limitation of UN action.238(p. 312)

Footnotes: 1

  I Brownlie, Principles of Public International Law (7th edn, OUP 2008) 296; R Bernhardt, ‘Domestic Jurisdiction of States and International Human Rights Organs’ (1986) 7 HRLJ 205, 205; see also G Arangio-Ruiz, ‘Le domaine réservé—L’organisation internationale et le rapport entre droit international et droit interne’ (1990) 225 Rec des Cours 9–484, 36. 2

  UNSG Press Release, ‘Secretary-General reflects on ‘intervention’ in 35th Annual Ditchley Foundation Lecture’ (26 June 1998) UN Doc SG/SM/6613. 3

  UNCIO VI, 507–13; MS Rajan, United Nations and Domestic Jurisdiction (Asia Publishing House 1958) 56. 4

  As to the drafting history of Art. 2 (7) see K Ahmed, ‘The Domestic Jurisdiction Clause in the United Nations Charter: A historical view’ (2006) 10 SYBIL 175, 180ff. 5

  UNCIO VI, 508; Rajan (n 3) 58.

6

  See eg B Fassbender, The United Nations Charter as the Constitution of the International Community (Martinus Nijhoff Publishers 2009) 1; TM Franck, ‘Is the U.N. Charter a constitution?’ in JA Frowein and others (eds), Verhandeln für den Frieden—Negotiating for peace: Liber Amicorum Tono Eitel (Springer 2003); PM Dupuy, ‘The Constitutional Dimension of the Charter of the United Nations Revisited’, (1997) 1 Max Planck YB UN L 1, 30f. 7

  R Jennings and A Watts (eds), International Law, vol 1 (9th edn, Longman 1992) 428; A Verdross and B Simma, Universelles Völkerrecht (3rd edn, Duncker & Humblot 1984) 33, paras 39, 300 and paras 490f; L Preuss, ‘Article 2, Paragraph 7 of the Charter of the United Nations and Matters of Domestic Jurisdiction’ (1949) 74 Rec des Cours 553, 555; R Bindschedler, ‘La délimitation des compétences des Nations Unies’, (1963) 108 Rec des Cours 312, 393; Military and Paramilitary Activities in and against Nicaragua (Judgment) (1986) ICJ Rep 14, 107, para 205. 8

  See eg ‘The End of Sovereignty?’ Roundtable, (1994) 88 ASIL Proc 71; A Rosas, ‘The Decline of Sovereignty: Legal Perspectives’, in J Iivonen (ed), The Future of the Nation State in Europe (E. Elgar 1993) 131, 149f; C Schreuer, ‘The Waning of the Sovereign State: Towards a New Paradigm for International Law’ (1993) 4 EJIL 447. 9

  See eg UNSC Res 2032 (2011) (22 December 2011) UN Doc S/RES/2032(2011); UNGA/ UNSC ‘Identical letters dated 29 September 2011 from the Permanent Representative of Georgia to the United Nations addressed to the Secretary-General and the President of the Security Council’ UN Doc A/66/387 or S/2011/596, Annex III; UNSC Res 1271 (22 October 1999) UN Doc S/RES/1271; UNSC Res 1101 (28 March 1997) UN Doc S/RES/1101. 10

  UNSG Report, ‘An Agenda for Peace’, UN Doc A/47/277 or S/24111, 5, para 17.

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11

  See already Nationality Decrees in Tunis and Morocco, PCIJ Rep Ser B, No 4, 24; H Steinberger, ‘Sovereignty’ EPIL IV (2000) 500, 518. 12

  UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625(XXV).

13

  Brownlie (n 1) 291f; G Dahm and others (eds), Völkerrecht, vol 1, part 1 (2nd edn, Walter de Gruyter 1989) 214f, 217f, 226f, 234f; PM Dupuy, Droit International Public (9th edn, Dalloz 2008) 31f; Jennings and Watts (n 7) 382f. 14

  Judgment on the Treaty of Lisbon of the German Constitutional Court (30 June 2009) accessed 7 June 2012; D Thym, ‘In the Name of Sovereign Statehood: A Critical Introduction to the Lisbon Judgment of the German Constitutional Court’ (2009) 46 Common Market L Rev 1795; PP Craig and G de Búrca, EU Law (OUP 2008) 345f, 353ff; I MacLeod and others, The External Relations of the European Communities (OUP 1996) 17. 15

  M Byers and S Chesterman, ‘“We, the People”: Pro-democratic Intervention in International Law’, in G Fox and B Roth (eds), Democratic Governance and International Law (CUP 2000) 259, 268f. 16

  M Koskenniemi, ‘The Wonderful Artificiality of States’ (1994) 88 ASIL Proc 22, 29.

17

  G Nolte, ‘Sovereignty as Responsibility?’ (2005) 99 ASIL Proc 389.

18

  D McGoldrick, ‘The Principle of Non-Intervention: Human Rights’, in V Lowe and C Warbrick (eds), The United Nations and the Principles of International Law (Routledge 1994) 88; CPF/Guillaume, 490ff; RP I, Supp 4, para 123. 19

  UNSC, ‘3988th Meeting’ (24 March 1999) UN Doc S/PV.3988, 15f.

20

  R Kolb, ‘Du domaine reservé—Reflexions sur la théorie de la compétence nationale’ (2006) 3 RGDIP 597, 602; LM Goodrich and others, Charter of the United Nations (3rd edn, Columbia UP 1969) 63. 21

  Nicaragua [1986] ICJ Rep 14, paras 202f, 212; Kelsen, 770.

22

  CPF/Guillaume, 492f; see also Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) [1950] ICJ Rep 71. 23

  UNCIO VI, 508; Rajan (n 3) 56f.

24

  Constitution of UNESCO: Art. I 3; Statute of IAEA: Art. III A. 6. and D; Constitution of WHO: Art. (c), (d), and (k); Constitution of FAO: Art. I 3 (a) and (b); Articles of Agreement of IMF: Art. IV s 3(b); International Bank for Reconstruction and Development: Art. IV s 10. 25

  CPF/Guillaume, 494f; B Conforti, The Law and Practice of the United Nations (4th edn, Martinus Nijhoff Publishers 2010) 170ff; Goodrich (n 20) 67f; Ahmed (n 4) 183f; Rajan (n 3) 88f; Preuss (n 7) 605f. 26

  Preuss (n 7) 579–83; Kelsen, 772.

27

  UNCIO VI, 486; Preuss (n 7) 576.

28

  L Oppenheim, International Law (7th edn, Longmans 1948) 378; Kelsen, 770.

29

  H Lauterpacht, ‘The International Protection of Human Rights’ (1947) 70 Rec des Cours 5, 19. 30

  Preuss (n 7) 611.

31

  CPF/Guillaume, 494f; Conforti (n 25) 170; HH Jones, ‘Domestic Jurisdiction—From the Covenant to the Charter’ (1951–52) 46 ILR 219, 266; Preuss (n 7) 606; Kelsen, 773.

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32

  Oppenheim (n 28) 378.

33

  See RP I, paras 4–75 and 171–207.

34

  RP I, para 41 fn 34: GA (I/2), Joint 1st and 6th Committee 52f, Annex I (A/149); Jones (n 31) 253f. 35

  RP I, para 342 fn 313: GA (V), Ad Hoc Political Committee, 42nd mtg, para 57; 43rd mtg, para 8; 45th mtg, para 10. 36

  See RP I, para 44 fn 38: GA (VI), Plen, 341st mtg, para 41; GA (VII), Plen, 380th mtg, para 140; GA (VIII), Plen, 435th mtg, para 17; see also RP I, Supp 1, para 120 and RP I, Supp 2, para 136. 37

  RP I, para 354; RP I, Supp 1, para 123; RP I, Supp 2, para 141; RP I, Supp 3, para 284; CPF/Guillaume, 495. 38

  RP I, Supp 1, para 122 fn 137: GA (X), Plen, 530th mtg, paras 108–13; General Committee, 103rd mtg, paras 55 and 56; RP I, Supp 2, para 140 fn 165: GA (XI), General Committee, 107th mtg, paras 28 and 31; CPF/Guillaume, 495; Goodrich (n 20) 67; A Verdross, ‘The Plea of Domestic Jurisdiction before an International Tribunal and a Political Organ of the United Nations’ (1968) 28 ZaöRV 33, 35; Jones (n 31) 242. 39

  RP I, Supp 1, para 122 fn 136: GA (IX), Plen, 477th mtg, paras 224–28; 1st Committee, 751st mtg, para 32; Goodrich (n 20) 67. 40

  RP I, paras 317–319 fn 290: SC 3rd yr, No 35, 493rd mtg 1, 2, 22f and 30.

41

  RP I, para 318 fn 291: SC, 3rd yr, No 35, 493rd mtg, 22 and 23.

42

  RP I, paras 329–32 fn 305: SC, 8th yr, 619th mtg, paras 22–8; RP I, paras 329 fn 308: SC 8th yr, 624th mtg, para 45. 43

  RP I, Supp 1, para 68 fn 65: GA (X), Plen, 521st mtg, para 167.

44

  RP I, Supp 1, para 116 fn 130: SC, 11th yr, 730th mtg, para 85.

45

  RP I, Supp 5, para 38 fn 22: GA (26), General Committee, 192nd mtg, paras 8–10 and 22; S Bailey, ‘Intervention: Article 2.7 Versus Articles 55–56’ (1994) 12 Intl Rel 1, 4f. 46

  UNGA, ‘Summary record of the 2nd meeting’ (7 September 2000) UN Doc A/BUR/55/SR. 2, para 101; UNGA, ‘Summary record of the 2nd meeting’ (14 September 2001) UN Doc A/ BUR/56/SR.2, para 91; RP I, Supp 10, 5 paras 8f. 47

  Goodrich (n 20) 67.

48

  Conforti (n 25) 171.

49

  AA Cançado Trindade, ‘The Domestic Jurisdiction of States in the Practice of the United Nations and Regional Organisations’ (1976) 25 ICLQ 715, 725; Goodrich (n 20) 67f. 50

  RP I, para 360 fn 325: GA (VIII), Ad Hoc Political Committee, 32nd mtg, para 40; 33rd mtg, para 49; 34th mtg, para 8; 38th mtg, para 6; Conforti (n 25) 164. 51

  RP I, para 364 fn 326: GA (III/1), 1st Committee, 186th mtg, paras 442, 445, and 446; GA (IV), 1st Committee, 275th mtg, paras 39 and 46; 276th mtg, para 49. 52

  CPF/Guillaume, 496f; Bindschedler (n 7) 392.

53

  RP I, Supp 1, para 127 fn 139: GA (X), Ad Hoc Political Committee, 5th mtg, para 2.

54

  RP I, para 189 fn 169: GA (VIII), Supp 16, para 893.

55

  RP I, Supp 3, paras 294–297.

56

  Preuss (n 7) 627; Rajan (n 3) 86–102; Ahmed (n 4) 186–89.

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57

  See Goodrich (n 20) 68; CPF/Guillaume, 490.

58

  G Abi-Saab, ‘Some Thoughts on the Principle of Non-Intervention’, in K Wellens (ed), International Law: Theory and Practice (Martinus Nijhoff Publishers 1998) 225, 227; McGoldrick (n 18) 89. 59

  UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625(XXV).

60

  McGoldrick (n 18) 85; CPF/Guillaume, 491f; Cançado Trindade (n 49) 753.

61

  McGoldrick (n 18) 89.

62

  Abi-Saab (n 58) 228.

63

  Nicaragua [1986] ICJ Rep 14, 107, para 205.

64

  See eg A Cassese, ‘Ex iniuria ius oritur’ (1999) 10 EJIL 23–30; B Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’ (1999) 10 EJIL 1; MG Kohen, ‘L’emploi de la force et la crise du Kosovo: vers un nouveau désordre juridique international’ (1999) 32 RBDI 122; F Tesón, Humanitarian Intervention: An Inquiry into Law and Morality (2nd edn, Transnational 1997) 146f; G Nolte, ‘Kosovo und Konstitutionalisierung: Zur humanitären Intervention der NATO-Staaten’ (1999) 59 ZaöRV 941. 65

  Abi-Saab (n 58) 231; G Nolte, Eingreifen auf Einladung—Zur völkerrechtlichen Zulässigkeit des Einsatzes fremder Truppen im internen Konflikt auf Einladung der Regierung (Intervention upon Invitation: Use of Force by Foreign Troops in Internal Conflicts at the Invitation of a Government under International Law) (Springer 1999) 183f. 66

  Abi-Saab (n 58) 230ff.

67

  Nicaragua [1986] ICJ Rep 14, 108.

68

  Goodrich (n 20) 67.

69

  cf Bailey (n 45) 4f.

70

  Goodrich (n 20) 67; Jones (n 31) 242.

71

  CPF/Guillaume, 495; Conforti (n 25) 171; Preuss (n 7) 619; Bindschedler (n 7) 391; but see L Henkin, ‘Human Rights and Domestic Jurisdiction’ in Th Buergenthal (ed), Human Rights, International Law and the Helsinki Accord (Montclair 1977) 36; Bernhardt (n 1) 208. 72

  See at MN 30–32.

73

  Preuss (n 7) 556f.

74

  DH Miller, The Drafting of the Covenant, vol 2 (G.P. Putnam’s Sons 1928) 327 (Doc 19); Ahmed (n 4) 178. 75

  Jones (n 31) 222f.

76

  T Marburg and HE Flack (eds), Taft Papers on the League of Nations (Macmillan 1920) 323. 77

  RR Wilson, ‘Reservation Clauses in Treaties of Obligatory Arbitration’ (1929) 23 AJIL 68.

78

  Preuss (n 7) 562f.

79

  As to this practice Jones (n 31) 223f.

80

  PCIJ Rep Ser B, No 4.

81

  PCIJ Rep Ser B, No 4, No 24.

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82

  Brownlie (n 1) 293; CPF/Guillaume, 497f; McGoldrick (n 18) 86f; Conforti (n 25) 157ff; Bernhardt (n 1) 206; Preuss (n 7) 569. 83

  See eg AP Vijapur, ‘No Distant Millenium: The UN Human Rights Instruments and the Problem of Domestic Jurisdiction’ (1995) 35 IJIL 51, 62; R Müllerson, ‘The International Protection of Human Rights and the Domestic Jurisdiction of States’, in A Carty and G Danilenko (eds), Perestroika and International Law (Edinburgh UP 1990) 66f. 84

  PCIJ Ser B, No 4, 26.

85

  Preuss (n 7) 568; Kelsen, 771.

86

  Verdross (n 38) 36f; Conforti (n 25) 159 and 169.

87

  UNSC, ‘Maintenance of international peace and security: role of the Security Council in supporting security sector reform’ (20 February 2007) UN Doc S/PRST/2007/3. 88

  UNSC, ‘Maintenance of international peace and security’ (25 June 2007) UN Doc S/ PRST/ 2007/22. 89

  Quoted from Rajan (n 3) 57; see also Preuss (n 7) 576.

90

  Quoted from Rajan (n 3) 56.

91

  Quoted from Rajan (n 3) 58.

92

  Goodrich (n 20) 68; CPF/Guillaume, 498, 504f; Kelsen, 776f; Verdross (n 38) 35.

93

  RP I, paras 386–388.

94

  RP I, Supp 1, para 134 fn 142: GA (X), Plen, 525th mtg, paras 62 and 63; General Committee, 103rd mtg, para 33. 95

  Cançado Trindade (n 49) 724f.

96

  UNCHR Report ‘United Nations strategies to combat racism and racial discrimination’ (26 February 1999) UN Doc E/CN.4/1999/WG.1/BP.7. 97

  See eg UNGA Res 65/222 (21 December 2010) UN Doc A/RES/65/222; UNGA Res 65/203 (21 December 2010) UN Doc A/RES/65/203; UNHRC Res 18/6 (29 September 2011) UN Doc A/HRC/RES/18/6; UNGA Res 53/243 (13 September 1999) UN Doc A/RES/53/243; UNCHR Res 2000/3 (7 April 2000) UN Doc E/CN.4/RES/2000/3. 98

  UNGA Res 60/64 (16 December 2005) UN Doc A/RES/60/64; UNGA Res 58/189 (22 December 2003) UN Doc A/RES/58/189; UNGA Res 56/154 (19 December 2001) UN Doc A/ RES/56/154; UNGA Res 54/168 (17 December 1999) UN Doc A/RES/54/168; UNGA Res 52/119 (12 December 1997) UN Doc A/RES/52/119; UNGA Res 48/124 (20 December 1993) UN Doc A/RES/48/124. 99

  Such as UNGA Res 53/101 (8 December 1998) UN Doc A/RES/53/101; UNGA Res 52/48 (9 December 1997) UN Doc A/RES/52/48. 100

  UNGA Res 53/243 (13 September 1999) UN Doc A/RES/53/243; UNGA Res 51/219 (18 December 1996) UN Doc A/RES/51/219; UNGA Res 49/37 (9 December 1994) UN Doc A/ RES/49/37. 101

  eg UNSC, ‘4072nd Meeting’ (29 November 1999) UN Doc S/PV.4072, 14 (China), 15f (Russian Federation), 22 (Brazil), 32 (Libya), 35 (UAE), 41 (Sudan), 45 (Belarus); UNGA, ‘51st session: 11th plenary meeting’ (26 September 1996) UN Doc A/51/PV.11, 2 (Sri Lanka). 102

  UNGA, ‘Report of the Committee for Programme and Coordination on the 2nd part of its 36th session’ (13 September 1996) UN Doc A/51/16 (Part II), 9, para 20.

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103

  UNSC, ‘4072nd Meeting’ (29 November 1999) UN Doc S/PV.4072, 28 (The Netherlands). 104

  The Interpretation of Peace Treaties with Bulgaria, Hungary and Romania [1950] ICJ Rep 70f. 105

  RP I, para 398; RP I, Supp 1, para 141; RP I, Supp 2, para 146; Cançado Trindade (n 49) 724f. 106

  RP I, para 399 fn 350: Case No 18 (SC, 3rd yr, No 56, 281st mtg, 26); RP I, para 399 fn 352: GA (V), Ad Hoc Political Committee, 44th mtg, para 12; GA (XI), Plen, vol 1, 585th mtg, paras 26, 103 and 104; Asylum Case (Judgment) [1950] ICJ Rep 280, 314, 315, 327, and 328 (Pleadings). 107

  RP I, para 400 fn 356: GA (VII), 1st Committee, 548th mtg, para 55; RP I, para 400 fn 355: GA (III/2), 1st Committee, 265th mtg, 276; GA (XI), Plen, 577th mtg, para 102; GA (XII), Special Political Committee, 61st mtg, para 36. 108

  UNGA Res 44 (I) (8 December 1946) UN Doc A/RES/44 (I), para 2.

109

  Comparable references were made in the case concerning Observance of Human Rights in Bulgaria, Hungary and Romania: UNGA Res 272 (III) (30 April 1949) UN Doc A/ RES/272(III) para 3; UNGA Res 294 (IV) (22 October 1949) UN Doc A/RES/294(IV) Preamble; UNGA Res 385 (V) (3 November 1950) UN Doc A/RES/385(V) para 3; in the case concerning the detention of UN military personnel in violation of the Korean Armistice Agreement UNGA Res 906 (IX) (10 December 1954) UN Doc A/RES/906(IX); and in the case of Hungary UNGA Res 1004 (ES-II) (4 November 1956) UN Doc A/RES/1004(ES-II); UNGA Res 1127 (XI) (21 November 1956) UN Doc A/RES/1127(XI); and UNGA Res 1133 (XI) (14 September 1957) UN Doc A/RES/1133 (XI). 110

  RP I, para 413 fn 369: Case No 2 (GA (VIII), Ad Hoc Pol Committee, 14th mtg, para 17); RP I, paras 408–11; Kelsen, 773. 111

  RP I, Supp 2, para 153 fn 177: GA (XII), Special Political Committee, 63rd mtg, para 44; GA (XIII), Special Political Committee, 123rd mtg, para 2. 112

  RP I, Supp 2, para 153 fn 178: GA (XII), Special Political Committee, 63rd mtg, paras 2 and 7. 113

  CPF/Guillaume, 500; Bailey (n 45) 6f; Cançado Trindade (n 49) 730f, 737.

114

  RP I, para 412; RP I, Supp 1, para 145; RP I, Supp 2, para 155; Jones (n 31) 257.

115

  RP I, para 414 fn 370: Case No 11 (GA (VII), Ad Hoc Political Committee, 16th mtg, para 37); Jones (n 31) 259. 116

  RP I, para 414 fn 371: Case No 2 (GA (V), Ad Hoc Political Committee, 41st mtg, para 50); RP I, para 415 fn 373: Case No 11 (GA (VII), Plen, 381st mtg, paras 36–44). 117

  RP I, para 413 fn 368: Case No 11 (GA (VII), Ad Hoc Political Committee, 18th mtg, paras 57–59). 118

  RP I, Supp 1, para 146: GA (VIII), Ad Hoc Political Committee, 17th mtg, paras 13, 14, 37 and 38; GA (X), Plen, 525th mtg, paras 135 and 179; Jones (n 31) 256. 119

  RP I, Supp 2, para 158 fn 186: GA (XII), Special Political Committee, 63rd mtg, para 44.

120

  RP I, Supp 2, para 159 fn 187: GA (XII), Special Political Committee, 63rd mtg, para 2.

121

  RP I, Supp 4, para 57.

122

  RP I, Supp 1, para 147 fn 155: GA (IX), Ad Hoc Political Committee, 42nd mtg, para 23.

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123

  RP I, Supp 3, para 332 fn 362: GA (XIV), Special Political Committee, 146th mtg, para 9; RP I, Supp 3, para 333 fn 363: GA (XV), Special Political Committee, 242nd mtg, para 13; 244th mtg, paras 3 and 16–19; Goodrich (n 20) 70f. 124

  B Simma, ‘Human Rights’ in C Tomuschat (ed), The United Nations at Age Fifty (Kluwer Law International 1995) 263f; McGoldrick (n 18) 94f; Bernhardt (n 1) 205f; RP I, Supp 3, para 330 fn 348: Case No 2 (GA (XV), Special Political Committee, 228th mtg, paras 5 and 6). 125

  RP I, Supp 3, para 330 fn 349: Case No 11 (GA (XIV), Special Political Committee, 141st mtg, paras 11 and 18); Verdross (n 38) 39; Bernhardt (n 1) 208; MJ Bossuyt, ‘Human Rights and Non-Intervention in Domestic Matters’ (1985) ICJ Review 45; Bailey (n 45) 7. 126

  See eg I Oesterdahl, Threat to the Peace (Iustus 1998) 33; E/CN.4/Sub2/1999/29, 15 June 1999, para 15; CERD, ‘Provisional summary record of the 2nd part (public) of the 974th meeting’ (12 March 1993) UN Doc CERD/C/SR.974/Add.1 para 31 (Mr Wolfrum). 127

  UNGA, ‘51st session: 78th plenary meeting’ (10 December 1996) UN Doc A/51/PV.78, 3.

128

  Simma, ‘Human Rights’ (n 124) 263f; McGoldrick (n 18) 94f.

129

  See eg ECOSOC Working Paper, ‘Observance of human rights by States which are not parties to United Nations human rights conventions’ (15 June 1999) UN Doc E/CN.4/Sub. 2/1999/29 para 15; Vijapur (n 83) 62. 130

  Barcelona Traction, Light and Power Company, Ltd (Judgment) [1970] ICJ Rep 3, 32, paras 33f; United States Diplomatic and Consular Staff in Tehran (Judgment) [1980] ICJ Rep 3, 42, para 91; Restatement of the Law: Third Restatement of the US Foreign Relations Law, ii (1987), 165, para 702. 131

  See statement by Italy on behalf of the EU Member States, UNCHR, ‘Summary record of the 50th meeting’ (18 April 1996) UN Doc E/CN.4/1996/SR.50 para 18. 132

  Comp. UNGA, ‘Letter from the Permanent Representative of Myanmar’ (27 October 1996) UN Doc A/C.3/51/12 paras 29 and 34f. 133

  UNGA Res 48/141 (20 December 1993) UN Doc A/RES/48/141 para 3 (a).

134

  eg UNGA Res 65/203 (21 December 2010) UN Doc A/RES/65/203.

135

  UNSG Report, ‘Strengthening of United Nations action in the field of human rights’ (18 December 1993) UN Doc E.CN.4/1993/30 (Mexico); Müllerson (n 83) 64f. 136

  ECOSOC, ‘Summary record of the 2nd part of the 43rd meeting’ (27 November 1998) UN Doc E/C.12/1998/SR.43/Add.1, 8 (Mr Alston, Chairperson, Committee on Economic, Social and Cultural Rights). 137

  See in detail Vashakmadze on Responsibility to Protect MN 5ff.

138

  RP I, Supp 10, paras 22–27.

139

  UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1 para 139.

140

  See UNGA Res 62/149 (18 December 2007) UN Doc A/RES/62/149; UNGA, ‘Summary record of the 41st meeting’ (18 November 2008) UN Doc A/C.3/63/SR.41 and UNGA, ‘Summary record of the 42nd meeting’ (20 November 2008) UN Doc A/C.3/63/SR.42; UNGA Res 63/168 (18 December 2008) UN Doc A/63/430/Add.2 para 30; RP I, Supp 10, paras 11– 17. 141

  See UNGA Res 63/245 (24 December 2008) UN Doc A/RES/63/245; RP I, Supp 10, paras 18–21; the issue was also raised in the SC which ultimately did not adopt a draft

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resolution, UNSC, ‘Draft resolution on situation of human and political rights in Myanmar’ (12 January 2007) UN Doc S/2007/14, 2; see RP I, Supp 10, paras 31–33. 142

  UNGA/UNSC, ‘Final Document of the 11th Ministerial Meeting of the Non-Aligned Movement (31 May–3 June 1994)’ (29 July 1994) UN Doc A/49/287 or S/1994/894, 38; some States have even alleged that it is an ‘inherent weakness in the human rights paradigm [that it] has even allowed Governments and powerful interest groups to repackage human rights, to discard all notions of universality and inalienability, and to use them selectively as political weapons against their opponents’, UNGA, ‘51st session: 78th plenary meeting’ (10 December 1996) UN Doc A/51/PV.78, 2 (Malaysia); see also UNSG Report, ‘Human rights and unilateral coercive measures’ (13 January 1995) UN Doc E/CN.4/1995/43 para 68 (Indonesia). 143

  UNGA Res 46/129 (17 December 1991) UN Doc A/RES/46/129; UNCHR Res 1992/39 (28 February 1992) UN Doc E/CN.4/RES/1992/39. 144

  UNSG Report, ‘Strengthening of United Nations action in the field of human rights’ (18 December 1992) UN Doc E.CN.4/1993/30 (Mexico). 145

  UNGA, ‘Respect for the purposes and principles contained in the Charter of the United Nations (Draft resolution)’ (8 November 2000) UN Doc A/C.3/55/L.47/Rev.1. 146

  RP I, para 422.

147

  RP I, para 423 fn 374: GA (I/2), Plen, 64th mtg, 1346; RP I, Supp 3, para 338 fn 370: GA (XVI), 4th Committee, 1254th mtg, paras 4–10. 148

  RP I, para 423 fn 377: GA (II), Plen, 108th mtg, 734; RP I, Supp 1, para 155 fn 164: GA (IX), 4th Committee, 415th mtg, para 33; 419th mtg, para 16; RP I, Supp 1 fn 466: 424th mtg, paras 9 and 22; 430th mtg, para 12. 149

  RP I, para 424.

150

  RP I, Supp 1, para 154 fn 161: GA (IX), 4th Committee, 418th mtg, para 12; 423rd mtg, para 45. 151

  RP I, Supp 3, para 347 fn 399: GA (XX), 1st Committee, 1403rd mtg, para 12.

152

  See RP I, Supp 3, paras 348–350.

153

  See inter alia UNGA Res 1699 (XVI) (19 December 1961) UN Doc A/RES/1699(XVI) and UNGA Res 3113 (XXVIII) (12 December 1973) UN Doc A/RES/3113(XXVIII). 154

  RP I, para 427.

155

  RP I, Supp 1, para 158.

156

  RP I, Supp 2, para 171.

157

  RP I, Supp 3, para 351.

158

  RP I, Supp 1, para 160 fn 169: Case No 27 (GA (X), Plen, 530th mtg, paras 111 and 112). 159

  RP I, Supp 1, para 160 fn 170: Case No 27 (GA (X), Plen, 529th mtg, para 175).

160

  RP I, Supp 2, para 172 fn 199: Case No 27 (GA (XI), 1st Committee, 838th mtg, para 20); Case No 24 (GA (XI), 1st Committee, 852nd mtg, para 37); some of the first resolutions concerning self-determination referred to Art. 1(2) in their Preamble (UNGA Res 611 (VII) (17 December 1952) UN Doc A/RES/611(VII) and UNGA Res 612 (VII) (19 December 1952) UN Doc A/RES/612(VII) on the situations in Morocco and Tunisia). 161

  A Cassese, Self-Determination of Peoples (CUP 1995) 174f.

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162

  RP I, Supp 1, para 163 fn 177: GA (IX), 1st Committee, 750th mtg, para 31; GA (X), 3rd Committee, 672nd mtg, para 25; 675th mtg, para 48. 163

  RP I, Supp 3, paras 369–75.

164

  K Henrard, ‘Minorities, International Protection’ MPEPIL (online edn); N Lerner, ‘The Evolution of Minority Rights in International Law’, in L Brölman and others (eds), Peoples and Minorities in International Law (Springer 1993). 165

  UNGA Res 47/135 (18 December 1992) UN Doc A/RES/47/135; A Phillips, ‘Promoting and Implementing the UN Declaration: An MRG Perspective’, in A Phillips and A Rosas (eds), Universal Minority Rights (Abo Akademi University 1995). 166

  RP I, para 433; RP I, Supp 1, para 168; RP I, Supp 2, para 177; RP I, Supp 3, para 352.

167

  RP I, para 434 fn 392: Case No 1 (GA (I/2), Plen, 58th mtg, 1188); Case No 9 (GA (VII), Plen, 392nd mtg, para 96); RP I, para 435 fn 396: SC, 1st yr, 1st Ser, No 2, 35th mtg, 181 and 182. 168

  RP I, para 434 fn 393: GA (III/2), 1st Committee, 265th mtg, 275; 268th mtg, 315.

169

  A reference to Art. 14 can also be found in UNGA Res 285 (III) (25 April 1949) UN Doc A/RES/285 (III) concerning the observance of human rights in the Soviet Union, and in UNGA Res 721 (VIII) (8 December 1953) UN Doc A/RES/721(VIII) on the question of the race conflict in South Africa. UNGA Res 611 (VII) (17 December 1952) UN Doc A/RES/ 611(VII) and UNGA Res 612 (VII) (19 December 1952) UN Doc A/RES/612(VII) both referred to Art. 11 of the Charter. 170

  RP I, para 245 fn 217: SC, 1st yr, 1st Ser, Special Supp, 11 para 31.

171

  UNSC ‘4072nd meeting’ (29 November 1999) UN Doc S/PV.4072, 28.

172

  See Peters on Art. 25 MN 81 and Krisch on Art. 39 MN 4–5.

173

  UNSG Press Release, ‘Secretary-General reflects on ‘intervention’ in 35th Annual Ditchley Foundation Lecture’ (26 June 1998) UN Doc SG/SM/6613, 2f; Deputy UNSG Louise Fréchette Press Release, ‘Addressing American Society of International Law’ (30 March 1999) UN Doc DSG/SM/44, 5f. 174

  UNSC, ‘4072nd meeting’ (29 November 1999) UN Doc S/PV.4072, 14 (China), 15f (Russian Federation), 22 (Brazil), 32 (Libya), 35 (UAE), 41 (Sudan), 45 (Belarus). 175

  See Vashakmadze on Responsibility to Protect and MN 43.

176

  UNSC, ‘4072nd mtg’ (29 November 1999) UN Doc S/PV.4072, 7f (France).

177

  UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1 para 139.

178

  UNGA, ‘53rd session: 22nd plenary meeting’ (30 September 1998) UN Doc A/53/PV.22, 31 (Belarus). 179

  UNSC, ‘3988th mtg’ (24 March 1999) UN Doc S/PV.3988, 16 (India).

180

  UNSG Report, ‘Resolutions 1160 (1998), 1199 (1998) and 1203 (1998) of the Security Council’ (17 March 1999) UN Doc S/1999/293; UNSC, ‘Letter from the Secretary-General addressed to the President of the Security Council’ (26 February 1999) UN Doc S/1999/214, UNSG Report, ‘Resolutions 1160 (1998), 1199 (1998) and 1203 (1998) of the Security Council’ (30 January 1999) UN Doc S/1999/99. 181

  eg UNSC Res 1973 (2011) (17 March 2011) UN Doc S/RES/1973 (2011), UNSC Res 2014 (2011) (21 October 2011) UN Doc S/RES/2014 (2011).

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182

  UNSG Report, ‘Human rights violations in the Papua New Guinea island of Bougainville’ (15 April 1996) UN Doc E/CN.4/1996/58 para 8. 183

  UNSC Res 1296 (2000) (19 April 2000) UN Doc S/RES/1296 (2000); UNSC Res 1674 (2006) (28 April 2006) UN Doc S/RES/1674 (2006); UNSC Res 1738 (2006) (23 December 2006) UN Doc S/RES/1738 (2006); UNSC Res 1894 (2009) (11 November 2009) UN Doc S/ RES/1894 (2009). 184

  UNGA Res 51/219 (18 December 1996) UN Doc A/RES/51/219; UNGA Res 47/120B (20 September 1993) UN Doc A/RES/47/120B. 185

  UNSC, ‘4072nd mtg’ (29 November 1999) UN Doc S/PV.4072, 28 (The Netherlands).

186

  UNSC, ‘4072nd meeting’ (29 November 1999) UN Doc S/PV.4072, 14 (China).

187

  ibid.

188

  ibid.

189

  UNSC Res 1757 (30 May 2007) UN Doc S/RES/1757; UNSC, ‘5685th mtg’ (30 May 2007) UN Doc S/PV.5685, 3–6. 190

  See Chesterman on Art. 97 MN 34.

191

  UNGA, ‘Report of the Committee for Programme and Coordination on the 2nd part of its 36th session’ (13 September 1996) UN Doc A/51/16 (Part II) paras 20f and 46 (k). 192

  TM Franck and G Nolte, ‘The Good Offices of the Secretary-General’, in A Roberts and B Kingsbury (eds), United Nations—Divided World (2nd edn, OUP 1993) 174. 193

  (22 February–18 March and 9 May 2011) UN Doc A/65/19, para 23; (22 February–19 March 2010) UN Doc A/64/19 para 22; UNGA, ‘Comprehensive review of the whole question of peacekeeping operations in all their aspects’ (20 March 2000) UN Doc A/54/839 para 51; UN Doc A/54/87 (23 June 1999) para 48; UN Doc A/53/127 (21 May 1998) para 47; UN Doc A/52/209 (28 June 1997) para 40; UN Doc A/51/130 (7 May 1996) para 35; UN Doc A/50/230 (22 June 1995) para 39; see also UNGA, ‘Report of the Committee for Programme and Coordination on the 2nd part of its 36th session’ (13 September 1996) UN Doc A/51/16 (Part II), 16, para 49; UNGA Res 49/37 (9 December 1994) UN Doc A/RES/49/37; UNGA Res 48/42 (10 December 1993) UN Doc A/RES/48/42. 194

  See eg UNGA, ‘53rd session: 29th plenary meeting’ (6 October 1998) UN Doc A/53/PV. 29, 5 (Uruguay). 195

  E de Brabandère, Post-Conflict Administrations in International Law (Martinus Nijhoff Publishers 2009) 68–70. 196

  See UNGA, ‘Comprehensive review of the whole question of peacekeeping operations in all their aspects: report of the Special Committee on Peacekeeping Operations’ (20 March 2000) UN Doc A/54/839. 197

  UNGA, ‘Comprehensive review of the whole question of peacekeeping operations in all their aspects: report of the Special Committee on Peacekeeping Operations’ (20 March 2000) UN Doc A/54/839, paras 8, 12, 16, 54, 111, 134, 139. 198

  500 UNTS 95.

199

  See M Price, ‘Information Intervention: Bosnia, the Dayton Accords, and the Seizure of Broadcasting Transmitters’ (2000) 33 Cornell Intl L J 67, 80, and 108. 200

  UN Special Committee on Peacekeeping Operations Report, ‘Comprehensive review of the whole question of peacekeeping operations in all their aspects’ (20 March 2000) UN Doc A/54/839, para 31.

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201

  See above MN 24.

202

  UNGA, ‘50th session: 48th plenary meeting’ (2 November 1995) UN Doc A/50/PV.48, 14. 203

  UNGA, ‘50th session: 48th plenary meeting’ (2 November 1995) UN Doc A/50/PV.48, 16 (Spain for EU Member States). 204

  UNSG Report, ‘Economic measures as a means of political and economic coercion against developing countries’ (14 October 1997) UN Doc A/52/459, 22, para 76; UNSG Report, ‘Unilateral economic measures as a means of political and economic coercion against developing countries’ (21 October 1999) UN Doc A/54/486, 9, para 49. 205

  UNGA Res 60/64 (16 December 2005) UN Doc A/RES/60/64; UNGA Res 58/189 (22 December 2003) UN Doc A/RES/58/189; UNGA Res 56/154 (19 December 2001) UN Doc A/ RES/56/154; UNGA Res 54/168 (17 December 1999) UN Doc A/RES/54/168; UNGA Res 52/119 (12 December 1997) UN Doc A/RES/52/119; UNGA Res 48/124 (20 December 1993) UN Doc A/RES/48/124. 206

  See UNSC Res 1559 (2004) (2 September 2004) UN Doc S/RES/1559 (2004); UNSC, ‘5028th meeting’ (2 September 2004) UN Doc S/PV.5028, 3–7. 207

  UNGA, ‘Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization’ (12 May 1999) UN Doc A/54/33, para 45. 208

  MJ Matheson, ‘United Nations Governance of Postconflict Societies’ (2001) 95 AJIL 76, 84; V Huet, ‘L’autonomie constitutionnelle de l’Etat: déclin ou renouveau?’ (2008) 73 RFDC 65, 77–87. 209

  UNSG, ‘Internally displaced persons’ (20 October 1995) UN Doc A/50/558, 8 para 22; UNSG Representative Report, ‘Internally displaced persons’ (22 February 1996) UN Doc E/ CN.4/1996/52 para 34. 210

  UNSG Representative Report, ‘Internally displaced persons’ (22 February 1996) UN Doc E/CN.4/1996/52 para 34. 211

  UNSG ‘Internally displaced persons’ (20 October 1995) UN Doc A/50/558, 8 para 22.

212

  Kelsen, 781.

213

  Preuss (n 7) 588; Ahmed (n 4) 189–94.

214

  Conforti (n 25) 171ff; CPF/Guillaume, 505f.

215

  UNCIO VI, 439f.

216

  See Preuss (n 7) 593.

217

  Kelsen, 788; Rajan (n 3) 127f.

218

  Conforti (n 25) 172.

219

  Conforti (n 25) 171f; Kelsen, 786f.

220

  cf UNSC Res 587 (1986) (23 September 1986) UN Doc S/Res/587 and accompanying statements in UNSC, ‘Provisional verbatim record of the 2750th meeting’ (20 July 1987) UN Doc S/PV.2750, 16, 21, 27, 61; but see also ICTY, Prosecutor v Tadić (1996) 32 ILM 44, para 33. 221

  Kelsen, 787f; Conforti (n 25) 172ff.

222

  CPF/Guillaume, 505f; Conforti (n 25) 172ff; Kelsen, 788f.

223

  See Krisch on Art. 39 MN 18.

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224

  GR Watson, ‘Constitutionalism, Judicial Review, and the World Court’ (1993) 34 Harv Intl LJ 1, 35f; B Martenczuk, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrates (Duncker & Humblot 1996) 211ff; but see A Stein, Der Sicherheitsrat der Vereinten Nationen und die Rule of Law (Nomos 1999) 138f and Oesterdahl (n 126) 31f. 225

  Martenczuk (n 224) 120f; Stein (n 224) 299f.

226

  More recently, the case of Lebanon has provided a number of pertinent examples in this respect, see RP I, Supp 10, paras 38f, 43–45, 48. 227

  UNSC, ‘4109th mtg’ (9 March 2000) UN Doc S/PV.4109 (India).

228

  UNGA, ‘53rd session: 40th plenary meeting’ (21 October 1998) UN Doc A/53/PV.40, 21 (Costa Rica); UNGA, ‘53rd session: 40th plenary meeting’ (21 October 1998) UN Doc A/53/ PV.40, 24 (China); UNGA, ‘53rd session: 40th plenary meeting’ (21 October 1998) UN Doc A/53/PV.40, 13 (Myanmar). 229

  UNCIO VI, 509–12.

230

  Preuss (n 7) 594f.

231

  Kelsen, 783f; JS Watson, ‘Autointerpretation, Competence, and the Continuing Validity of Article 2 (7) of the UN Charter’ (1977) 71 AJIL 60, 77f. 232

  H Lauterpacht, International Law and Human Rights (FA Praeger 1950) 181.

233

  Goodrich (n 20) 64f; Conforti (n 25) 175.

234

  See Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, 168; G Nolte, ‘The Limits of Security Council’s Powers and its Functioning in the International Legal System: Some reflections’ in M Byers (ed), The Role of Law in International Politics (OUP 2000) 316f. 235

  See Kadelbach on Interpretation MN 39.

236

  Ahmed (n 4) 197.

237

  Arangio-Ruiz (n 1) 391f.

238

  Kolb (n 20) 628.

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Self-Determination Stefan Oeter From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — Self-determination — Unification

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(p. 313) Self-Determination Prof. Dr. Stefan Oeter A.  The Right of Self-Determination as a Concept of the UN Charter 1–2 B.  Historical Developments 3–22 I.  Evolution of Self-Determination as a Legal Concept 3–5 II.  Chapters XI and XII of the UN Charter 6–7 III.  UN Practice and Decolonization 8–14 IV.  The UN Human Rights Covenants 15–16 V.  The Practice of the ICJ 17–22 C.  Basic Preconditions and Components of the Right of Self-Determination 23– 41 I.  The Bearers of the Right of Self-Determination 23–27 II.  Components of the Right of Self-Determination 28–38 1.  Internal Self-Determination 28–31 2.  External Self-Determination—the Special Case of Decolonization 32 3.  Unification with a Third State 33–34 4.  Is there a Right to Secession? 35–37 5.  Self-Determination and Democracy 38 III.  Self-Determination and Third States—Issues of Recognition and Intervention 39–41

Select Bibliography Alexander Y and Friedlaender RA (eds), Self-Determination: National, Legal and Global Dimensions (Westview 1980). Allison WC, ‘Self-Determination and Recent Developments in the Baltic States’ (1991) 19 Denver J Intl L & Pol’y 625. Alston P (ed), Peoples’ Rights (OUP 2001). Anaya SJ, Indigenous Peoples in International Law (OUP 1996). Binder G, ‘The Case for Self-Determination’ (1993) 29 Stanford J Intl L 223. Brilmayer L, ‘Secession and Self-Determination: A Territorial Interpretation’ (1991) 16 Yale J Intl L 177–202. Brölmann C, Lefeber R, Zieck M (eds), Peoples and Minorities in International Law (Nijhoff 1993). Buchanan A, Justice, Legitimacy, and Self-Determination. Moral Foundations for International Law (OUP 2004). Buchheit LC, Secession: The Legitimacy of Self-Determination (Yale UP 1978). Calogéropoulos-Stratis S, Le droit des peoples à disposer d’eux-mêmes (Bruylant 1973). Cass DZ, ‘Rethinking Self-Determination: A Critical analysis of Current International Law Theories’ (1993) 18 Syr J Intl L & Com 21. Cassese A, Self-Determination of Peoples. A Legal Reappraisal (CUP 1995). Cobban A, The Nation State and National Self-Determination (2nd edn, Collins 1969).

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Coppieters B and Sakwa R (eds), Contextualizing Secession. Normative Studies in Comparative Perspective (OUP 2003). Corntassel JL and Primeau TH, ‘Indigenous “Sovereignty” and International Law: Revised Strategies for Pursuing “Self-Determination”’ (1995) 17 HRQ 343.(p. 314) Crawford J (ed), The Rights of Peoples (OUP 1988). Danspeckgruber W (ed), The Self-Determination of Peoples: Community, Nation and State in an Interdependent World (Lynne Rienner 2002). Doehring K, ‘Das Selbstbestimmungsrecht der Völker als Grundsatz des Völkerrechts’ (1973) 14 DGVR Berichte 7. Fisch J, Das Selbstbestimmungsrecht der Völker: Die Domestizierung einer Illusion (CH Beck 2010). Fox GH, ‘The Right to Political Participation in International Law’ (1992) 17 Yale J Intl L 539. Franck TM, ‘The Emerging Right to Democratic Governance’ (1992) 86 AJIL 46. Gray C, ‘Self-Determination and the Break-Up of the Soviet Union’ (1992) 12 YB European L 465. Guilhaudis J-F, Le droit des peoples à disposer d’eux-mêmes (Presses univ de Grenoble 1976). Gusy C, ‘Selbstbestimmungsrecht im Wandel. Von der Selbstbestimmung durch den Staat zur Selbstbestimmung im Staat’ (1992) 30 AVR 385. Halperin MH and Scheffer DJ, Self-Determination in the New World Order (Carnegie Endowment 1992). Hannum H, Autonomy, Sovereignty, and Self-Determination (University of Pennsylvania Press 1990). Heintze HJ (ed), Selbstbestimmungsrecht der Völker—Herausforderung der Staatenwelt (JHW Dietz 1997). Heraclides A, The Self-Determination of Minorities in International Politics (Cass 1991). Hilpold P(ed), Das Selbstbestimmungsrecht der Völker: Vom umstrittenen Prinzip zum vieldeutigen Recht? (Peter Lang 2009). Islam MR, ‘Secessionist Self-Determination: Some Lessons from Katanga, Biafra and Bangladesh (1985) 22 JPR 211. Kingsbury B, ‘Claims by Non-State Groups in International Law’ (1992) 25 Cornell Intl LJ 481. Kirgis FL, ‘The Degrees of Self-Determination in the United Nations Era’ (1984) 88 AJIL 304. Knop K, Diversity and Self-Determination in International Law (CUP 2002). Koskenniemi M, ‘The Police in the Temple: Order, Justice and the UN’ (1995) 6 EJIL 325. Laing EA, ‘The Norm of Self-Determination’ (1991) 22 Calif W Intl LJ 209. Lâm MC, At the Edge of the State: Indigenous Peoples and Self-Determination (Transnational Publishers 2000). Macedo S and Buchanan A (eds), Secession and Self-Determination (NYU Press 2003). Moore M (ed), National Self-Determination and Secession (OUP 1998). Murswiek D, ‘Offensives und defensives Selbstbestimmungsrecht. Zum Subjekt des Selbstbestimmungsrechts der Völker’ (1984) 23 Der Staat 523. Nafziger JAR, ‘Self-Determination and Humanitarian Intervention in a Community of Power’ (1994) 22 Denver J Intl L & Pol’y 219. Nanda VP, ‘Self-Determination under International Law: Validity of Claims to Secede’ (1981) 13 Case W Res J Intl L 257.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Oeter S, ‘Selbstbestimmungsrecht im Wandel. Überlegungen zur Debatte um Selbstbestimmung, Sezessionsrecht und “vorzeitiger” Anerkennung’ (1992) 52 ZaöRV 741. Ofuatey-Kodjoe W, The Principle of Self-Determination in International Law (Nellen 1977). Pomerance M, Self-Determination in Law and Practice (Nijhoff 1982). Quane H, ‘The UN and Self-Determination’ (1998) 47 ICLQ 537. Raić D, Statehood and the Law of Self-Determination (Kluwer 2002). Rao MK, ‘Right of Self-Determination in the Postcolonial Era. A Survey of Juristic Opinion and State Practice’ (1988) 28 IJIL 58. Reiter E (ed), Grenzen des Selbstbestimmungsrechts: Die Neuordnung Europas und das Selbstbestimmungsrecht der Völker (Styria 1996). Rigo AS, The Evolution of the Right of Self-Determination (Sijthoff 1973).(p. 315) Ronen D, The Quest for Self-Determination (Yale UP 1979). Rosskopf R, Theorie des Selbstbestimmungsrechts und Minderheitenrechts (Berliner Wissenschafts-Verlag 2004). Saxer U, Die internationale Steuerung der Selbstbestimmung und Staatsentstehung (Springer 2010). Shaw M, ‘Peoples, Territorialism and Boundaries’ (1997) 8 EJIL 478. Talmon S, Kollektive Nichtanerkennung illegaler Staaten (Mohr Siebeck 2006). Thornberry P, ‘Self-Determination, Minorities, Human Rights: A Review of International Instruments’ (1989) 38 ICLQ 867. Thürer D, Das Selbstbestimmungsrecht der Völker (Stämpfli 1976). Tomuschat C (ed), Modern Law of Self-Determination (Nijhoff 1993). Turp D, ‘Le droit de secession en droit international public’ (1982) 20 Can YB Intl L 24. Umozurike UO, Self-Determination in International Law (Archon Books 1972). Weller M, ‘The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia’ (1992) 86 AJIL 569. Wheatley S, Democracy, Minorities and International Law (CUP 2005).

Main Text A.  The Right of Self-Determination as a Concept of the UN Charter 1  The right of self-determination is mentioned in the UN Charter in Art. 1 (2). The Charter in its first mention refers to self-determination as a ‘purpose’ of the United Nations, giving the political principle that had been so disputed since the nineteenth century a clearly programmatic character for the new Organization.1 With this reference, guaranteeing selfdetermination of all nations became a central political purpose of the UN, inextricably linked with the purpose of achieving friendly relations among nations. Such friendly relations should be based—according to the Charter—on respect for the principle of equal rights and self-determination of peoples. Such wording indicates that the drafters considered self-determination to be a fundamental principle of international law.2 It remains doubtful whether the formula in Art. 1 (2) of the UN Charter originally intended to codify self-determination as a legal right upon which an individual claim of a specific ‘people’ may be based—most authors initially negated such an interpretation and viewed it (with good reasons) as a not directly applicable principle, a kind of political prescription.3 But with the passage of time such construction increasingly lost its persuasive force. Subsequent development in the UN, in particular the practice of decolonization, transformed the old (political) principle of self-determination into a collective right—a trend which became more From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

or less irrebuttable with the codification of the right of self-determination in the two UN Human Rights Covenants of 1966.4 In hindsight it is clear that self-determination, as it was referred to in Art. 1 (2) of the Charter, constitutes an elementary structuring principle of the legal world order created by the UN Charter, a normative programme (p. 316) oscillating between the basic purpose of the Organization and fundamental legal principle.5 In most writings on ‘ius cogens’ it is even mentioned as one of the few norms of international law of a peremptory character.6 Article 2 (4) of the Charter corroborates such a reading when it prohibits any use of force ‘inconsistent with the Purposes of the United Nations Charter’. Accordingly, it is beyond doubt that self-determination, as a purpose and principle of the UN Charter, constitutes a legally binding norm for all member States of the United Nations, as has been confirmed by a series of resolutions of the GA and SC, but also the jurisprudence of the ICJ, and State practice in the process of decolonization as well as in the cases of creation of new States in Europe after 1990.7 Although Art. 1 (2), due to its programmatic character, cannot define in detail the content and scope of a right to selfdetermination, it sets forth beyond dispute that it forms part of the law of the Charter and is binding upon all members of the UN. Convincing arguments may be made also for the claim that State practice subsequent to the adoption of the Charter has transformed selfdetermination into a principle of customary international law, too.8 2  Self-determination is also explicitly mentioned in Art. 55 of the Charter. Article 55 gives some hints as to the operational measures to be taken by the UN in order to give more substance to the purpose of peaceful and friendly relations among nations ‘based on respect for the principle of equal rights and self-determination of peoples’. Article 55 states that friendly relations among nations (in a normative perspective inextricably linked with selfdetermination) should be promoted by trying to achieve higher standards of living for peoples; solutions of international economic, social, and health problems; international cultural and educational cooperation; and universal respect for human rights and fundamental freedoms. Art. 55 is of a declaratory character concerning the principle of selfdetermination—it does not guarantee it, but it presupposes its existence.9 Interestingly enough, there is no further explicit mention of self-determination in the text of the Charter, not even in Chapter XI which played a decisive role in UN practice concerning selfdetermination during the process of decolonization.10

(p. 317) B.  Historical Developments I.  Evolution of Self-Determination as a Legal Concept 3  As already mentioned, self-determination as a political principle dates back at least to the nineteenth century. However, the first document that might be seen as a revocation of such a principle is the American Declaration of Independence of 1776 which claimed that men have the right to freedom and the right to participate in the exercise of State power, with the ensuing right to alter or to abolish a form of government which fails to guarantee or which disregards such freedom.11 In a comparable manner, the French Revolution claimed a right to freely organize its form of government without any intervention by third States.12 These declarations were rooted in an ancient tradition of political and legal thinking in Europe, dating back to medieval concepts of a right of resistance against an unjust ruler.13 In addition, it was normal for European authors of the seventeenth and eighteenth centuries, like Grotius, Pufendorf, and Kant, to link the legitimacy of transfer of territory from one ruler to another to the consent of the estates possessing a right of (co-)determination in political affairs.14 But only when these concepts started to merge with the new ideas of peoples’ sovereignty, as happened in the American and French revolution, did the arguments become revolutionary. In the context of the US movement of independence, the cause was still largely argued in terms of a right to resistance against a despotic ruler. But with the independence of the Spanish colonies in Latin America, an additional element came up—the declarations of independence in the early nineteenth

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century stated also a ‘natural right’ of peoples in the colonies to determine their own political fate, and this might take the form of independent statehood. In order to avoid violent conflicts over territory,15 Latin American diplomatic practice linked this new right with a preservation of the inherited territorial status quo, in the form of the principle of uti possidetis.16 4  European powers of course did not accept such title to independent statehood, although they finally had to accept the independence of the Latin American States. Some years later, the same claim was also made in Europe, with revolutionary movements striving for ‘national’ self-determination in the form of new nation-states, irrespective of traditional monarchical titles of sovereignty.17 The modern terminology of ‘self-determination’ also evolved in the mid-nineteenth century, as a conceptual weapon of revolutionary nationalism.18 National self-determination became inextricably intertwined with concepts of peoples’ sovereignty.19 Although some minor concessions were made in a number of exceptional cases, in the form of (very limited) plebiscites,20(p. 318) the European ‘concert of powers’ remained by and large opposed to accepting self-determination as a guiding concept of international law. 5  This changed only with World War I. Lenin and the Bolsheviks forged ‘national selfdetermination’ into a political weapon to be used against the Tsarist Russian Empire.21 And US President Wilson, with his famous ‘fourteen points’, used it as a tool to destroy the traditional multinational empires in Central and Eastern Europe, by promising people in the east of Europe their own nation-state.22 The victorious powers were not really consistent in operationalizing the principle in the peace treaties after 1918, and had to compensate many national groups by complex arrangements for minority protection.23 This system of minority protection, which was based on the international treaties and unilateral declarations of some new States, seemed promising, but in the late 1920s proved to be a failure, due to the benign neglect of the major powers, which were not interested in enforcing the international guarantees upon the new States.24 The system of ‘Mandates’ entrusted to the victorious powers in order to lead former colonies of the Entente powers into selfgovernment was also not very successful, since the tendency to control these territories as a kind of protectorate was difficult to contain.25 The new international legal order of the League of Nations thus compromised its high-sounding promises. But the principle of selfdetermination had made its way into international diplomacy and international legal discourse, transforming it from a revolutionary concept of the left into a political principle operated by international diplomacy.

II.  Chapters XI and XII of the UN Charter 6  With the prominence which self-determination had gained as a concept in political-legal discourse, it was difficult to avoid mentioning it in the UN Charter, as the constitutive document of the new international legal order. Nevertheless the first draft of the Charter prepared in Dumbarton Oaks attempted to do exactly this—writing the Charter without mentioning explicitly the term ‘self-determination’.26 The colonial powers sitting at the table knew very well that any reference to self-determination would backfire against them, and would in particular encourage claims of local elites in the colonies to independent statehood. But the Soviet Union blocked these attempts and insisted on mentioning selfdetermination at a prominent place in the Charter.27 The final result of (p. 319) the dispute between the United Kingdom and France on the one hand and the Soviet Union on the other hand was Art. 1 (2) with its reference to self-determination as a fundamental purpose of the UN. Self-determination was not clearly phrased as a collective right but merely as a purpose and principle of the Organization—although the (similarly authoritative) French text speaks of a ‘principe de l’égalité des droits des peuples et de leur droit à disposer d’eux-mêmes’, thus using the language of rights. In essence, the reference was a formula compromise— self-determination was provided for as a guiding principle of the new order, but the modalities of its implementation were left in the dark. There is no doubt that this happened From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

deliberately, since it conformed to the dominant position of colonial powers—all men were in principle equal and entitled to self-determination, but the inhabitants of colonial territories had not progressed enough in the civilizational process to form their own States, and needed benevolent supervision and assistance by European powers to achieve full selfgovernment (the famous ‘sacred trust of civilization’).28 With the new formula, it was put beyond doubt that in principle colonial peoples had a right to self-determination, but it was left to the discretion of the governing powers to decide when these peoples would be ready for full self-government.29 7  Chapter XI and XII of the Charter to a certain degree try to operationalize such a procedural concept of self-determination.30 Article 73 provides that members of the UN ‘which have to assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government’ (the so-called ‘non-self-governing territories’) with the adoption of the Charter recognize ‘the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost…the well-being of the inhabitants of these territories’. To this end, the administering powers shall ‘ensure, with the respect for the culture of the peoples concerned, their political, economic, social, and educational advancement’. They shall also ‘develop self-government, to take due account of the political aspirations of these peoples’, as well as ‘promote constructive measures of development’. In order to achieve a minimal control of the United Nations over these measures, they were obliged—according to Art. 73 (e) of the Charter—‘to transmit regularly to the Secretary-General for information purposes’ relevant information concerning the conditions in the non-self-governing territories. The obligations imposed upon the administering powers of so-called ‘trusteeship territories’ (the former ‘mandates’ of the League of Nations) were in substance more or less the same, with the exception of the much more stringent control exercised by the UN over the policies of the administering powers, through the Trusteeship Council. The path towards self-determination of colonial territories thus was set; the colonial powers could only try to gain time by arguing that the societies in the colonies were still not ready for full self-government.31

(p. 320) III.  UN Practice and Decolonization 8  The colonial powers proved unable to stem the tide of growing claims for selfdetermination in their colonial territories. With the incorporation of the principle of selfdetermination in the UN Charter, the Soviet Union had taken the lead—and it managed to become the spokesman of colonial peoples’ aspirations for independent statehood. It took some time until a stable anti-colonial developed—although a powerful current of anticolonial sentiment had existed in the GA from the beginning.32 More and more colonies had to be allowed independence, and the majority in the GA was gradually changing as a consequence. This became evident with UNGA Res 1514 (14 December 1969), the so-called ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, expressing a strong condemnation of all forms of colonialism and calling for decolonization.33 Even the traditional excuses for upholding colonial structures as a transitional arrangement with a view to achieving ‘civilizational progress’ were not accepted any more; instead the ‘right of self-determination’ of all peoples was stressed, including in particular their right to freely decide upon their political status.34 Article 2 of the resolution stated self-determination, as the goal of decolonization, to be not only a principle, but characterized it as a collective right of all peoples still suffering under colonial rule. 9  An immense number of GA resolutions making similar points followed during the 1960s and 1970s, culminating in the ‘Friendly Relations Declaration’ of 24 October 1970.35 In its Preamble, the ‘Friendly Relations Declaration’ stresses the States’ conviction ‘that the

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subjection of peoples to alien subjugation, domination and exploitation constitutes a major obstacle to the promotion of international peace and security’ and subsequently: that the principle of equal rights and self-determination of peoples constitutes a significant contribution to contemporary international law, and that its effective application is of paramount importance for the promotion of friendly relations among States; based on respect for the principles of sovereign equality. 10  This is supplemented by the formula: ‘Convinced in consequence that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter’. The operative part of the Declaration further elaborates this anticolonial thrust, under the heading of the ‘principle of equal rights and self-determination of peoples’, by stressing at the outset that ‘all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter’. What the last formula means is spelled out a little later by emphasizing: Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to selfdetermination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of (p. 321) the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter. 11  The following paragraph makes the message even clearer by demanding that non-selfgoverning territories should be governed in ‘a status separate and distinct from the territory of the State administering it’—a status that should prevail ‘until the people of the colony or non-self-governing territory have exercised their right of self-determination in accordance with the Charter’. That such emphasis on self-determination should not be misunderstood as an invitation to secessionist movements is made clear in the next paragraph of the Declaration, which stresses that: nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and selfdetermination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. 12  The anti-colonial orientation of these formulations is beyond any doubt—colonialism must find its end, but the ‘newly independent States’ should be protected in their territorial integrity and political independence.36 Only in cases of discriminatory, racist regimes where a part of the population denies the rest of the people any political participation and full citizenship rights might a denial of the respect for political independence and territorial integrity be justified (the last part of the formula cited above must be understood as a reaction to the problem of ‘apartheid’). 13  The enormous number of GA resolutions with an analogous message cannot be enumerated here, or dealt with in detail.37 The content of these resolutions, however, is of the utmost clarity. Self-determination is more or less identified with decolonization.38 What self-determination means in detail is not worked out—except for cases of decolonization.39

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Furthermore, it remains doubtful whether there is much room for self-determination outside the context of decolonization (and illegal occupation).40 14  The practice of UN organs, in particular the GA, thus construed self-determination purely in terms of decolonization—and the strong pressure towards decolonization proved at the same time to be the driving force behind the consolidation of self-determination as a collective entitlement of peoples, as a ‘right’.41 More than a hundred new States were born in the course of decolonization, and the reference to self-determination played a decisive role in these processes of gaining independent statehood.42 Decolonization thus played a decisive role in transforming self-determination from a mere (objective) principle to a (subjective) right, although of a collective nature; but at the same time, decolonization gave rise to doubts as to whether self-determination still constitutes a general principle, or has been narrowed down to a collective entitlement of a merely anti-colonial nature.43

(p. 322) IV.  The UN Human Rights Covenants 15  The transformation of self-determination into a legal entitlement under positive international law was consolidated by the two UN Human Rights Covenants of 1966, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.44 Each Covenant declares (in identical wording) in its Art. 1: ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ Paragraph 2 of this Art. 1 stresses the right to ‘freely dispose of their natural wealth and resources’. Only para 3 then makes an explicit reference to decolonization, by stating that all State parties, including the administering powers having responsibility for non-self-governing territories, ‘shall promote the realization of the right of selfdetermination and shall respect that right, in conformity with the provisions of the Charter of the United Nations’. The two Covenants thus not only transformed self-determination into a collective right under (positive) international law, by codifying it in the form of a treaty obligation, but disconnected the right of self-determination from its strict coupling to the context of decolonization. The systematic structure of the two Covenants makes clear that the right of self-determination is a general entitlement, and that the purpose of decolonization is only a specific emanation of such general right. 16  The initiative for including the right of self-determination in the two Covenants again came from the Soviet Union.45 With a view to the systematic structure of the Covenants, the codification of the right of self-determination as the starting-point for the subsequent codification of (individual) human rights is to a certain degree surprising, since the right of self-determination definitively is a collective right, and not an individual human right. In systematic terms, however, its inclusion may be justified with the argument—prominently put forward by Third World States—that the exercise of the right of self-determination must be seen as a precondition for the exercise of all other human rights.46 One may debate such a claim, but evidently it formed the basis of the construction of Art. 1 of both Covenants. The (more or less declaratory) description of the major components of self-determination in the second sentence of Art. 1 (1) of both Covenants—‘by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’—cannot be read as an exhaustive definition of the components of the right of self-determination. Article 1 of the Covenants again does not give an authoritative definition of what kinds of operational entitlements may be deduced from the right of selfdetermination. If it is understood as a right linked solely to peoples of existing States (and colonial territories), it would be superfluous—beyond decolonization. For the established people of a recognized State the guarantees contained in such a formula would be more or less redundant—they cover entitlements to decide freely on its own political affairs that already follow from the principle of non-intervention. But whether such an argument of potential redundancy may be used as the basis of a claim that Art. 1 of both Covenants also

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covers ethnic groups not constituting a ‘state people’, ie ‘minorities’, is open to doubt47— and still very much disputed. The question will in substance be dealt with below.

(p. 323) V.  The Practice of the ICJ 17  The right of self-determination was also referred to in the jurisprudence of the ICJ, which corroborates its nature as a norm of positive international law. There is relatively little case-law explicitly referring to self-determination, however.48 It took some time until self-determination made its way into the judgments of the ICJ. In the case between Portugal and India over Right of Passage over Indian Territory, for example, the Court did not mention self-determination at all, although India had explicitly invoked such a right and had included it in the arguments of its memorials.49 The first reference made to selfdetermination in a case happened in the Namibia Advisory Opinion.50 In that case, the GA contested that South Africa had a right to maintain governmental authority over Namibia, with the argument that such continued colonial rule violated the right of self-determination. In referring explicitly to such a right of self-determination, the Court seems to have simply assumed that it constituted a norm of positive international law.51 Except for the fact that the argumentation of the Court in that case confirmed the existence of a right of selfdetermination in modern international law, the opinion is not that helpful, since the Court did not say anything in detail on the components and contents of such a right. 18  In the Western Sahara Advisory Opinion, the Court again based its conclusions on the existence of a right of self-determination.52 In referring to UNGA Res 1514 on decolonization, and characterizing the situation in Western Sahara as a case of decolonization, it reaffirmed the right of the people of such colonial territory to decide freely on its political status. A decade later, self-determination was referred to in the judgment on the Frontier Dispute between Burkina Faso and Mali, where the application of the principle uti possidetis was confirmed outside the Latin American context.53 Selfdetermination—thus goes the argument—does not grant a basis to challenge established frontiers, since in the course of decolonization these are inherited from the colonial powers, according to uti possidetis. The Court went a step further in the Eastern Timor Case (Portugal v Australia)54 where it confirmed the erga omnes character of the right of selfdetermination. Eastern Timor had remained (throughout the decades of Indonesian occupation) a non-self-governing territory, with its peoples enjoying a right to selfdetermination which had to be respected by all third parties. Some mention of selfdetermination has also been made in more recent cases, as in the Lockerbie Case (Libya v United States)55 and the Bosnian Genocide Case against the Federal Republic of Yugoslavia56, as well as in advisory opinions such as the Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory).57 However, new insights (p. 324) into the legal character and the contents of the right of selfdetermination cannot be gained from these cases. 19  The same in essence also holds true for the 2010 Kosovo Advisory Opinion. Although the issue of self-determination (and of the legality of third State recognition) was clearly at stake when the request for the Advisory Opinion was formulated, the Court did not give clear-cut answers to all the implicit questions. As a reaction to the various references made in the course of the proceedings to the opinion of the Supreme Court of Canada relating to the secession of Québec, the ICJ stressed: ‘The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it.’

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20  Nevertheless, the Court reaffirmed that during the second half of the twentieth century, ‘the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation’. A great many new States—it continued—‘have come into existence as a result of the exercise of this right’. There were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases. 21  Concerning the issue of secession, the Court stated: Whether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of selfdetermination confers upon part of the population of an existing State a right to separate from that State is, however, a subject on which radically different views were expressed by those taking part in the proceedings and expressing a position on the question. Similar differences existed regarding whether international law provides for a right of “remedial secession” and, if so, in what circumstances. There was also a sharp difference of views as to whether the circumstances which some participants maintained would give rise to a right of “remedial secession” were actually present in Kosovo. The Court considered, however, that it was not necessary to resolve these questions in the present case. ‘The General Assembly has requested the Court’s opinion only on whether or not the declaration of independence is in accordance with international law. Debates regarding the extent of the right of self-determination and the existence of any right of “remedial secession”, however, concern the right to separate from a State.’ As the Court noted, ‘that issue is beyond the scope of the question posed by the General Assembly’. 22  Such deliberate omission to tackle the (implicitly raised) questions of self-determination and of legality of secession was heavily criticized by some of the judges in dissenting opinions. ‘The unilateral declaration of independence of 17 February 2008 was not intended to be without effect’, as Judge Koroma observed. ‘It was unlawful and invalid. It failed to comply with laid down rules. It was the beginning of a process aimed at separating Kosovo from the State to which it belongs and creating a new State. Taking into account the factual circumstances surrounding the question put to the Court by the General Assembly, such an action violates UNSC Res 1244 (1999) and general international law.’ What in fact was primarily at stake was the proper interpretation and application of UNSC Res 1244 (1999). The resolution, Judge Koroma continues, ‘reaffirms the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, of which Kosovo is a component part’. Moreover, the resolution provides for ‘substantial autonomy (p. 325) [for the people of Kosovo] within the Federal Republic of Yugoslavia’.58 ‘In other words, it was intended that Kosovo enjoy substantial autonomy and self-government during the international civil presence but that it remain an integral part of the Federal Republic of Yugoslavia.’ Some of the other judges raised similar concerns in their separate opinions. Even some judges generally in favour of the majority decision appended declarations in which they criticized the far too narrow construction the Court had given to the question put before it. The General Assembly’s request would have deserved—so argued Judge Simma—a more comprehensive answer, assessing whether the right of self-determination (or any other rule, like remedial secession) ‘permit or even warrant independence (via secession) of certain Peoples/ territories’. That the Court did not have the courage to try to give an answer to these heatedly discussed questions should be interpreted as an indication of how divisive and

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controversial the issues of doctrinal construction of the right of self-determination (and of a potential right of secession) still are today.

C.  Basic Preconditions and Components of the Right of SelfDetermination I.  The Bearers of the Right of Self-Determination 23  The overview of the historical evolution of the right of self-determination has demonstrated that there is a clear core area where the bearer of the right is beyond dispute. This is the case of decolonization, where State practice has confirmed that non-selfgoverning territories (as well as trusteeship territories) enjoy a clear right to selfdetermination, understood as a right freely to determine their political status. The ‘people’ in the sense of self-determination in these cases is the autochtonous population of the nonself-governing territories that has been grouped together to a polity by carving out a certain territory in colonial times in order to form a distinct political entity.59 These territories became independent States on the basis of the principle of uti possidetis, which means that the geographical shape of the territories had been definitely established in colonial times— and they simply inherited the boundaries from their colonial rulers.60 Self-determination did not mean that there was any scope for a decision of the local people concerned regarding whether they wanted to belong to the newly independent State, or to a neighbouring State. State practice clearly banned such a far-reaching claim, making the inherited territorial boundaries inviolable.61 24  Whether this excludes other ‘peoples’ from the right of self-determination is still an open issue, despite a fierce debate on the matter for decades. An important strand in international legal scholarship argues that every group of persons bound together by common objective characteristics, like language, culture, religion, race, might be qualified as a ‘people’, as long as such a group has also a common (subjective) understanding of belonging together and being distinct from all the other surrounding groups.62 (p. 326) Such an understanding might be termed as a ‘naturalist’ concept of peoples. Another strand insists on the territorial element of self-determination. Self-determination, thus the argument goes, has always been linked to historically pre-constituted political entities with a specific territory. ‘People’ in this understanding is not simply a group of persons, one could also say an ‘ethnic group’, but the constituent people of a certain territorial entity formed by history.63 25  A careful analysis of State practice clearly supports the second understanding. Beyond the context of decolonization, there has never been any serious international support for a claim of self-determination raised by a simple ‘ethnic group’ having no firm territorial basis in a pre-existing political entity.64 Colliding claims of self-determination of (non-territorial) ethnic groups cannot be solved without having recourse to a defined territory—only when there is a given territory does a plebiscite or referendum make sense in order to then let a majority determine the political status of the territory. Although a traditional, ‘naturalist’ understanding of a ‘people’ can point to the intuition that the term ‘people’ does not in itself have a territorial connotation, a functional perspective of self-determination, construing the concept in the light of the political and legal system in which it is embedded, leads to the insight that a certain degree of ‘territoriality’ is unavoidable if the concept of selfdetermination is to operate productively under our current political circumstances. 26  In essence, the whole debate turns on the question whether ‘ethnic groups’, which qualify as ‘minorities’ in the sense of modern concepts of minority protection, may also qualify also as ‘peoples’ enjoying a right of self-determination.65 In principle one should definitely keep these concepts separate.66 The term ‘minorities’ covers all groups linked together by commonalities like language, culture, religion, race—as long as these groups do not form the majority in a given State. Some of these minorities might have a clear

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territorial basis, a historical settlement area where they used to live together in high concentration. In modern times even such groups will tend to lose their territorial roots to a certain degree, because personal mobility and the resulting waves of migration will spread these groups over a much larger area. Other groups never had clear territorial strongholds but were always scattered among other population groups. Accepting a ‘right of selfdetermination’ for each of these historically-formed groups would mean opening a Pandora’s box of never-ending disputes on territory and political dominance.67 The only way to avoid such endless quarrelling is the way taken by the community of States in twentiethcentury State practice, namely the insistence upon a close linkage between (predetermined) political entities and self-determination. Self-determination is a right that can only sustainably be granted to polities linked to a historically defined territory. Here selfdetermination may well work, with a majority deciding in a plebiscite upon its political status, and clearly defined boundaries that must be accepted by neighbours according to the principle of uti possidetis. (p. 327) 27  Such pre-determined entities may be established States, where it is beyond dispute that the peoples of such States enjoy a continuing right of self-determination protecting them against foreign intervention, alien domination, or illegal occupation.68 They may also be historical entities traditionally enjoying a certain degree of autonomy within States, or member States of federations and federal States.69 The fact that a certain territory has formed a distinct political entity, with a population living together in such an entity for a long time, usually also results in a strong sense of collective identity, irrespective of language, culture, or religion. This does not exclude divergences of opinion— the members of the previously dominant group will not wish to be separated from their kinstate and thus become a minority in a new State, as was the case with Russians in the former republics of the Soviet Union.70 But the international community accepted the claims of such republics, as well as the claims of the former republics constituting the Socialist Federative Republic of Yugoslavia, to form their own States.71 Although in both cases the recognition was mostly based on arguments of dismemberment of the former federations, the international community had no problems in accepting their claims of selfdetermination. Other cases are more disputed, like the unilateral declaration of independence of the former Autonomous Province of Kosovo within Serbia.72 But all in all State practice is clear—the subjects of self-determination which are recognized as States are pre-determined political entities with a clear territorial basis, not ‘peoples’ in a purely personalist, group-based form.

II.  Components of the Right of Self-Determination 1.  Internal Self-Determination 28  As has become clear from the description of the potential bearers of the right of selfdetermination, the consequence of such a right cannot always be independent statehood. The principled presumption in favour of territorial integrity that was so strongly emphasized in the ‘Friendly Relations Declaration’ definitely goes against such an assumption. The historical characteristic of federated States, autonomous regions, and member States of federations is precisely the fact that they are federated or integrated into another State, although provided with a certain degree of political and institutional autonomy. The principle of territorial integrity works not only in favour of centralized, unitary States, but protects also federations, federal States, and quasi-federal constructs. The result of such precedence of territorial integrity is the legal assumption that in these cases self-determination is bound up in the constructs of federation or autonomy. The ‘peoples’ of such entities historically had reasons for entering into a close relationship with another political entity, and as long as there are no exceptional grounds rebutting (p. 328)

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such a presumption in favour of territorial integrity, ‘internal self-determination’ will prevail.73 29  Doctrinal debate of the last two decades has put great emphasis upon this dimension of ‘internal self-determination’. In terms of legal politics, it provides a productive alternative to endless claims for independent statehood in ever smaller political entities, leading to a vicious circle of ever new claims of secession.74 In constructs of federation and/or autonomy it is much easier to balance competing claims of political participation and dominance, with the central State taking over the role of a guarantor for the complex arrangements balancing the competing interests of regional majorities and minorities. ‘Internal selfdetermination’ grants a possibility for majority populations of certain historical entities with different ethnic, linguistic, cultural, or linguistic characteristics than those of the ‘State nation’ to enjoy a high degree of self-government, without falling into counterproductive quarrels over statehood, territory, boundaries, and citizenship. Accordingly, the broad range of solutions of ‘internal self-determination’ is also the preferred tool-box of diplomatic mediators when trying to contain (often secessionist) conflicts over title to territory and self-government.75 30  If such solutions are to work, they must include a certain guarantee of (limited) selfgovernment. The concrete modalities of federation and/or autonomy cannot be set in stone, but must to a certain degree remain flexible. If the federation or autonomy is drastically changed or abolished without the consent of the entity concerned, the question of selfdetermination arises again. Usually, the claim will go towards restoration of the previous state of autonomy, but in cases of brute and violent oppression, it might also convert into a claim for independent statehood, ie ‘secession’.76 The arbiter of these claims should be— and will be—the international community. 31  In another dimension, ‘internal self-determination’ guarantees also the internal right of a given people to determine freely its internal political order.77 In principle it is not the task of third States to intervene in these decisions, although the cases of ‘failed States’ and States destroyed by civil war make it increasingly necessary for the international community to intervene and to assist the efforts of post-conflict peace-building, which will often also be State-building.78

(p. 329) 2.  External Self-Determination—the Special Case of Decolonization 32  A fully-fledged entitlement to form an independent State was historically reserved for cases of decolonization.79 In systematic terms this makes sense, because in most cases that territorial entity is linked to or incorporated into another State ‘internal self-determination’ will take precedence. In these cases, the population of the territory enjoys full citizenship rights and participates freely in the political decision-making of the State concerned. This used to be completely different, however, in cases of colonialism. The indigenous populations of colonial entities had only limited citizenship rights, if any, not entitling them to an equal status with the citizens of the colonial power. They also had no right to participate in the political decision-making of their colonial administering power, or in most cases not even limited participation in the political decision-making of their own territorial entity.80 One cannot speak of ‘self-determination’ in the sense of a State conducting itself ‘in compliance with the principle of equal rights and self-determination of peoples…and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour’ (the relevant formula from the Friendly Relations Declaration). Self-determination, in the sense of self-government on the basis of equality, could accordingly only be achieved by forming an independent State. Decolonization, however, has largely come to an end. There still exists a list of non-self-governing territories administered by the UN, but this list comprises mostly small island territories spread over the oceans. There are still some unresolved cases of decolonization, like Western Sahara and the Occupied Territories of Palestine (or perhaps also Tibet and Kashmir, but these two

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are already highly disputed cases).81 An unconditional right to independent statehood, in doctrine often called ‘external self-determination’, does not exist outside these few remnants of decolonization.

3.  Unification with a Third State 33  Another way in which self-determination can be exercised is by unification with a third State, whether in the form of complete incorporation, or conditioned by some kind of federal or autonomy construction.82 As long as such unification is based upon the will of the people, ie the population of a territorial entity enjoying the right to self-determination, the unification as an exercise of self-determination is unproblematic. Usually the will of the people is not evident but needs a procedural arrangement that confirms that such a will exists. The typical form of such a procedure will be a plebiscite or referendum.83 The exact definition of the group of persons belonging to the people will often be far from easy—the dominant State pushing for unification will argue for a broad construction, including also its citizens residing in the territory in question, whereas the opponents of unification will strive for a restrictive construction, limiting the right of participation to members of the historical population of the territory (and their descendants). (p. 330) 34  When unification is implemented, the right of self-determination of the political entity now integrated into the third State does not perish completely. At least as far as unification was conditioned upon some reserved rights of autonomy, the gross and consistent violation of these rights of (limited) self-government—or their complete abolition —might lead to a resurgence of the right of self-determination.84 The same might happen if an autonomous region accepted incorporation into a State to which it historically was annexed, but this State later decides to join its even bigger kin-state. Again the will of the people of the relevant territory to belong to the State with which unification was accepted might have been conditioned with independent statehood, and thus they might not wish to become a small minority in an even bigger State.

4.  Is there a Right to Secession? 35  Along the lines of the ‘naturalist’ understanding of the term ‘people’, a right to secession has been argued by an important current in legal doctrine.85 If one assumes that an ethnic group might possess a right of self-determination, such right might—at least in extreme cases—transform into a right to form an independent State. Normally such a right to self-determination will be oriented towards modalities of internal self-determination. But if the State completely blocks any ‘internal self-determination’, erodes existing arrangements of autonomy, and subsequently has recourse to brutal forms of violent oppression, ending in gross and consistent patterns of crimes against humanity, forms of ‘ethnic cleansing’, perhaps even genocide, a ‘right to secession’ as an emergency tool seems to be arguable.86 Usually such a claim is founded on assumptions of natural law or a general principle of law, such as self-defence in situations of extreme emergency. 36  There are a number of cases where such a right has been argued in practice. State practice, however, is extremely reluctant to accept such an argument as a justification for a legal entitlement to secession.87 For good reasons, States are afraid of secessionist movements. Secession usually does not solve the political problems lying beneath the surface, and often tends to escalate the situation. Claims of secession regularly produce counter-claims of secession of smaller sub-entities and lead into endless conflicts over territory and boundaries. In addition, even secession is not conceivable without a strong territorial element. As a result, it is not an ethnic group that is seceding, but a certain territory must be separated from the territory of the former sovereign in order to become a new State. But what is the ‘natural’ territory of an ethnic (by definition ‘de-territorial’) group? The conclusion is clear—in the end it is again a territorial entity that is seceding, not the ethnic group. But why ascribe the ‘subjectivity’ of self-determination to an ethnic group, and not to the political entity which attempts to separate? There are two reasons why From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

parties on the ground have a preference for a ‘nationalist’, group-based construction of selfdetermination, and not a territorial understanding. Firstly, a territorial (p. 331) understanding would raise the issue that the population of a certain territory is generally not homogeneous, and that there will be different ethnic, linguistic, religious groups living on the one territory. But who decides on the fate of the territory? This should not be monopolized by one group alone. The ‘secessionist’ group will either have to build a consensus with the other parts of the population, which will often prove difficult, or must at least demonstrate in a referendum that an overwhelming majority wants secession—and as a consequence must then find a compromise on minority protection for the other segments of the population. And, secondly, secession in terms of a pre-determined political entity brings uti possidetis into play, and thus forecloses from the beginning any territorial claims going beyond the established boundaries of the given historical entity.88 37  If one thus concludes that not ethnic groups (or minorities) but only territorial entities of a pre-determined, historical nature can claim rights of self-determination, this does not mean that the issue of secession is completely closed. In exceptional cases of brute oppression, there might be reasonable grounds for political entities to strive for secession. Ongoing or pending genocide may be such a case, but also gross and consistent patterns of (discriminatory) crimes against humanity, targeted massacres among an oppressed population, and large-scale ‘ethnic cleansing’.89 Whether such (exceptional) circumstances, however, can lead to a clear ‘right’ to secession is open to doubt. It is up to the international community to judge the legitimacy of such attempts at secession.90 There will always exist opposite strands of argument, resulting in a large margin of appreciation for external actors. Despite the brute violence characterizing a specific situation, the international actors might still prefer a solution of ‘internal self-determination’, ie a solution of autonomy. Overriding concerns of international policy might demand such a situation—and a clear legal entitlement, a ‘right’ to secession, would create obstacles for all attempts at international mediation. It is thus better to conceive such situations of (exceptional) legitimacy of secession not in terms of a clear-cut (collective) right, but in broader terms of legitimacy open to international moderation and judgment.

5.  Self-Determination and Democracy 38  It has been argued that there exists an intrinsic linkage between self-determination and principles of democratic governance.91 Historically, a good claim may be made in pointing to the inseparable coupling of the principles of national self-determination and peoples’ sovereignty. Self-determination could only be argued on the basis of a political theory that departs from axioms of peoples’ sovereignty. If the wish of the people is irrelevant, because human being are bound to obey a ‘natural’ or divine order, self-determination has no legitimate place in such an order. But does current international legal practice really point to the conclusion that the right of self-determination calls for democratic forms of government? An ‘emerging right to democratic governance’ was argued two decades ago92 —but has State practice really affirmed such a right? (p. 332) Most States at least pay lipservice to principles of democratic governance in their formal constitutions; but in political reality, most States of the world are undoubtedly far from any realization of such a right. Democratic governance still remains the privilege of a few in today’s world, although the Arab Spring of 2011 points to a common quest of nearly all people on the globe to have a democratically responsible form of government. The right of self-determination supports in its essence any people fighting in its majority for democratic institutions of government.93 But does it negate the right of peoples to choose another, more traditional, perhaps even authoritarian form of government? Under traditional categories this is difficult to argue. However, the common manipulations by governing elites, calling their system ‘true emanations’ of democracy and suppressing the will of the majority to have an influence on political decision-making and to see genuine democratic accountability of governing elites, definitively run counter to all ideas of a right of self-determination (in its internal From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

dimension). In this sense, self-determination is again conquering the role of a revolutionary principle, an entitlement on which the weak and the powerless can rely in order to fight the arrogance of the powerful.94 In a sense, it is coming back to its roots as a principle in support of revolutionary change.

III.  Self-Determination and Third States—Issues of Recognition and Intervention 39  When dealing with the issue of a ‘right to secession’, the point has already been made that delicate issues such as the entitlement of a people to its own statehood, the creation of new States, and the settlement of territorial conflicts and boundary issues cannot be left to the unilateral decision of the warring parties. The international community has an important role in moderating such conflicts and judging the validity of competing claims.95 This is in particular true for secessionist conflicts where a self-proclaimed people or a subentity of an established State claims its own statehood, while the government of the previous territorial sovereign claims respect of its territorial sovereignty and integrity. There is an urgent need for the international community to exert moderating pressure upon both sides of the conflict, bringing them to a table in order to negotiate.96 But if the international community wants to have a decisive influence upon the parties, it must do its best to speak with one voice. Only when there is no possibility to play off the different international actors against each other, will international efforts directed towards moderating the conflict have any chance of success. There is nothing worse than unilateral action in such cases, giving malign parties hope of achieving their objectives without any moderation and compromise. In this perspective, the old rule of non-recognition of attempts at secession, as long as the former territorial sovereign has not accepted such secession, has a very good rationale.97 There is—as was stressed above—a principled presumption in favour of territorial sovereignty. Secessions may have legitimate causes in some exceptional cases—but whether this is the case should be sorted out in negotiations, and if this is not possible the third States should at least try to come to a concerted answer and should recognize the secessionist entity as a sovereign State only (p. 333) when more or less all States agree that there is no alternative. Recognition gains in these cases a more or less ‘constitutive’ character, since it is the concerted recognition of the international community that makes the entity claiming a right of self-determination a fully-fledged State, becoming a member of the community of States.98 The ‘constitutive’ character of recognition becomes even more obvious when recognition is linked to certain substantial criteria of constitutional and political structure in order to secure a degree of structural homogeneity between states.99 40  As long as such a collective procedure of concerted recognition is not achieved in diplomatic efforts, a recognition of secessionist entities is ‘premature’, which in traditional terms meant that it is a violation of the principle of territorial integrity and of the prohibition of intervention.100 States should continue to respect these rules—otherwise they damage their political leverage upon the parties to the conflict and risk ending up in open conflict with other third States. 41  A delicate topic in this regard is the issue of civil war that is often ongoing alongside conflicts of self-determination. From a traditional perspective, civil war is a radical (and often very cruel and bloody) form of exercising ‘internal self-determination’. If an oppressive rule has lost the support of its population, the attempt to oust it from power with a rebellion undoubtedly has a certain degree of legitimacy. The entitlement to ‘intervention by invitation’ ends when it becomes obvious that a government no longer has substantial support from its population. But most cases will in reality be situated in a grey zone where the regime still enjoys some support while its opponents, the rebels, claim to have the support of the majority of the population. In such cases, there are good grounds not to intervene in the conflict in support of one side, either the government, or the rebels.

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Support for rebels in such a situation was traditionally qualified as illegal intervention.101 Even the attempt to recognize a rebel government and to claim that it is now the ‘true’ government representing the people of the State concerned is more than problematic. Such a move means that external powers usurp the role of a final judge of the legitimacy of governments, which is a severe danger to genuine self-determination. Intervention from the outside is legal only with a mandate of the UNSC acting under Chapter VII—and even the SC must be careful not to intervene prematurely, without having a safe basis for evaluating support and legitimacy of the competing authorities.(p. 334)

Footnotes: 1

  See only H Kelsen, The Law of the United Nations (Stevens 1950) 9; G Dahm, Völkerrecht, vol 1 (Kohlhammer 1958) 150. 2

  See, however, K Doehring, ‘Self-Determination’ in B Simma (ed), The Charter of the United Nations: A Commentary, vol 1 (2nd edn, OUP 2002) 48. 3

  See the references with Doehring (n 2) 48 at n 1.

4

  Doehring (n 2) 48–49.

5

  See also Doehring (n 2) 49, para 3.

6

  See only HG Espiell, ‘Self-Determination and Jus Cogens’ in A Cassese (ed), UN Law/ Fundamental Rights (Sijhoff & Noorthoff 1979) 167–73; A Cassese, Self-Determination of Peoples (CUP 1995) 133–36; EA Laing, ‘The Norm of Self-Determination’ (1991) 22 Calif W Intl LJ 209, 248–52; D Turp, ‘Le droit de sécession en droit international public’ (1982) 20 Can YB Intl L 24, 28–29; D Raić, Statehod and the Law of Self-Determination (Kluwer 2002) 218–19; U Saxer, Die internationale Steuerung der Selbstbestimmung und der Staatsentstehung (Springer 2010) 213–15. 7

  Doehring (n 2) 49, para 1.

8

  ibid.

9

  Doehring (n 2) 49, para 2.

10

  ibid, para 4.

11

  See J Fisch, Das Selbstbestimmungsrecht der Völker (CH Beck 2010) 80–82; Saxer (n 6) 51. 12

  See Saxer (n 6) 52; see also in more detail Fisch (n 11) 93–103.

13

  Fisch (n 11) 72–74.

14

  See Fisch (n 11) 76–78.

15

  See in detail Fisch (n 11) 82–88.

16

  See also Fisch (n 11) 88–93.

17

  See S Oeter, ‘Demokratieprinzip und Selbstbestimmungsrecht der Völker—Zwei Seiten einer Medaille?’ in H Brunkhorst (ed), Demokratischer Experimentalismus (Suhrkamp 1998) 329–32; see also Saxer (n 6) 61–79. 18

  Fisch (n 11) 133–39.

19

  See Oeter (n 17) 330–33.

20

  See Fisch (n 11) 123–33.

21

  See Doehring (n 2) MN 50 para 9; Raić (n 6) 184–88; Fisch (n 11) 136–39, 148–51.

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22

  Concerning Wilson’s ‘fourteen points’ see K Rabl, Das Selbstbestimmungsrecht der Völker (Korn 1963) 76–80; M Pomerance, ‘The United States and Self-Determination: Perspectives on the Wilsonian Conception’ (1976) 70 AJIL 1, 16–20; Raić (n 6) 177–84; Fisch (n 11) 151–57. 23

  As to the failures of the system of the Paris peace treaties see Rabl (n 22) 96–102; H Hannum, Autonomy, Sovereignty, and Self-Determination (University of Pennsylvania Press 1990) 28–31; P Allot, ‘Self-Determination—Absolute Right or Social Poetry?’ in C Tomuschat (ed), Modern Law of Self-Determination (Nijhoff 1995) 202–05; A Whelan, ‘Wilsonian SelfDetermination and the Versailles Settlement’ (1994) 43 ICLQ 99–115; A Cassese, SelfDetermination of Peoples: A Legal Reappraisal (CUP 1995) 24–28; Raić (n 6) 190–4; Fisch (n 11) 157–66. 24

  See only P Thornberry, International Law and the Rights of Minorities (Clarendon 1991) 46–49; C Weisbrod, ‘Minorities and Diversities: The Remarkable Experiment of the League of Nations’ (1993) 8 Connecticut J Intl L 359–406; PB Finney, ‘An Evil for All Concerned: Great Britain and Minority Protection after 1919’ (1995) 30 J Contemporary History 533– 31; Fisch (n 11) 182–88. 25

  See Raić (n 6) 193–96; see also Doehring (n 2) MN 51 para 11.

26

  See Fisch (n 11) 216; see also M Mazower, No Enchanted Palace. The End of Empire and the Ideological Origins of the United Nations (Princeton UP 2009) 149–51. 27

  See Raić (n 6) 200; Fisch (n 11) 216–18.

28

  Concerning this classical line of argumentation see Fisch (n 11) 199–200; see also Mazower (n 26) 28–65. 29

  See Fisch (n 11) 234.

30

  Raić (n 6) 200–02; K Knop, Diversity and Self-Determination in International Law (CUP 2002) 329–32; Fisch (n 11) 224–25. 31

  See Fisch (n 11) 234.

32

  See Mazower (n 26) 152.

33

  Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 December 1960) UN Doc A/RES/1514(XV). 34

  See also Doehring (n 2) 51–52, para 14; Raić (n 6) 202–09; Fisch (n 11) 226; Saxer (n 6) 234–8. 35

  Declaration on Principles of International Law Concerning Friendly Relations and CoOperation Among States in Accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 December 1970) UN Doc A/RES/2625(XXV). 36

  See also Fisch (n 11) 228–32; Saxer (n 6) 250–59.

37

  See more in detail Raić (n 6) 210–19.

38

  See Raić (n 6) 219; S Wheatley, Democracy, Minorities and International Law (CUP 2005) 66–77. 39

  See, however, Doehring (n 2) 52, paras 15 and 16.

40

  See Doehring (n 2) 53, para 18; Raić (n 6) 220–25; Wheatley (n 38) 77–85.

41

  See also Doehring (n 2) 53, para 18.

42

  See in detail W Ofuatey-Kodjoe, The Principle of Self-Determination in International Law (Nellen 1977) 349–52; Laing (n 6) 216–25.

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43

  See Wheatley (n 38); see also Doehring (n 2) 53, para 18.

44

  See Doehring (n 2) 53, para 19; Saxer (n 6) 238–49.

45

  Doehring (n 2) 53, para 20.

46

  ibid.

47

  See in this regard the arguments of Doehring (n 2) 54, para 21.

48

  See also Doehring (n 2) 54, para 22.

49

  Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Rep 6.

50

  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 267 (Advisory Opinion) [1971] ICJ Rep 16. 51

  See Doehring (n 2) 54, para 24.

52

  Western Sahara (Advisory Opinion) [1975] ICJ Rep 12.

53

  Frontier Dispute (Burkina Faso v Republic of Mali) (Merits) [1986] ICJ Rep 566.

54

  Case Concerning East Timor (Portugal v Australia) (Merits) [1995] ICJ Rep 90.

55

  Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamarhiriya v United States of America) (Merits) [1992] ICJ Rep 210. 56

  Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) [1996-II] ICJ Rep 595. 57

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, paras 118, 122. 58

  United Nations SCOR 4011th meeting UN Doc S/RES/1244 (1999) para 10.

59

  See only Saxer (n 6) 278–81.

60

  On the details of uti possidetis see Saxer (n 6) 763–79.

61

  See only Fisch (n 11) 56–61.

62

  See D Ronen, The Quest for Self-Determination (Yale UP 1979) 39–45; C Gusy, ‘Selbstbestimmungsrecht im Wandel. Von der Selbstbestimmung durch den Staat zur Selbstbestimmung im Staat’ (1992) 30 AVR 385–410; Doehring (n 2) 55–56, paras 28–30. 63

  See TM Franck, ‘Clan and Superclan: Loyalty, Identity and Community in Law and Practice’ (1996) 90 AJIL 359–83; Saxer (n 6) 310–26. 64

  Saxer (n 6) 324–26.

65

  See, on the one hand, Doehring (n 2) 55–56 paras 28–30, on the other hand Saxer (n 6) 286–300, 310–25. 66

  See also Wheatley (n 38) 124–26.

67

  See TM Franck, ‘Postmodern Tribalism and the Right to Secession’ in C Brölmann and others (eds), Peoples and Minorities in International Law (Nijhoff 1993) 3–27 as well as Franck (n 62) 359–83. 68

  See Doehring (n 2) 56, para 33.

69

  See eg O Kimminich, ‘A “Federal” Right of Self-Determination?’ in C Tomuschat (ed), Modern Law of Self-Determination (Kluwer 1993) 83–99, as well as P Thornberry, ‘The

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Democratic or Internal Aspect of Self-Determination with some Remarks on Federalism’ ibid, 101–38. 70

  See only WC Allison, ‘Self-Determination and Recent Developments in the Baltic States’ (1991) 19 Denver J Intl L & Pol’y 625–84. 71

  See M Weller, ‘The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia’ (1992) 86 AJIL 569–607. 72

  See the contributions in P Hilpold (ed), Das Kosovo-Gutachten des IGH vom 22. Juli 2010 (Brill 2012). 73

  As to ‘internal self-determination’ see H Hannum, Autonomy, Sovereignty, and SelfDetermination (University of Pennsylvania Press 1990); P Thornberry, ‘The Democratic or Internal Aspect of Self-Determination with some Remarks on Federalism’ in C Tomuschat (ed), Modern Law of Self-Determination (Kluwer 1993) 101–38; Rosas, ‘Internal SelfDetermination’ ibid, 225–52; Doehring (n 2) 56–57, paras 32–34; W Danspeckgruber, ‘A Final Asssessment’ in W Danspeckgruber, The Self-Determination of Peoples: Community, Nation and State in an Interdependent World (Lynne Rienner 2002) 335–57; Saxer (n 6) 335–51; Fisch (n 11) 61–63. 74

  See A Eide, ‘In Search of Constructive Alternatives to Secession’ in C Tomuschat (ed), Modern Law of Self-Determination (Kluwer 1993) 139–76. 75

  See MW Doyle, ‘UN Intervention and National Sovereignty’ in W Danspeckgruber The Self-Determination of Peoples: Community, Nation and State in an Interdependent World (Lynne Rienner 2002) 67–99. 76

  See S Oeter, ‘Selbstbestimmungsrecht im Wandel. Überlegungen zur Debatte um Selbstbestimmung, Sezessionsrecht und “vorzeitiger” Anerkennung’ (1992) 52 ZaöRV 741, 753–55. 77

  See Doehring (n 2) 56, para 33.

78

  See only C Stahn, The Law and Practice of International Territorial Administration (CUP 2008) in particular 147–58, 395–411, 751–62. 79

  See Raić (n 6) 219–20.

80

  See Doehring (n 2) 59, paras 44–47.

81

  See in this regard Oeter (n 76) 749–53; Saxer (n 6) 532–40.

82

  Doehring (n 2) 58, para 41.

83

  See Fisch (n 11) 68–70.

84

  See Oeter (n 76) 753–55.

85

  See the contributions in M Moore (ed), National Self-Determination and Secession (OUP 1998) and Doehring (n 2) 57–58, paras 35–40; see also VP Nanda, ‘Self-Determination under International Law: Validity of Claims to Secede’ (1981) 13 Case Western Reserve J Intl L 257–80; L Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (1991) 16 YJIL 177–202; D Turp, ‘Le droit de secession en droit international public’ (1982) 20 Can YB Intl L 24–78; D Murswiek, ‘The Issue of a Right of Secession—Reconsidered’ in C Tomuschat (ed), Modern Law of Self-Determination (Kluwer 1993) 21–40; Raić (n 6) 316–72. 86

  See only Doehring (n 2) 58, para 40.

87

  See also Saxer (n 6) 394–400.

88

  See Saxer (n 6) 772–75.

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89

  See Oeter (n 76) 759–60.

90

  See Saxer (n 6) 362–68.

91

  See J Salmon, ‘Internal Aspects of the Right to Self-Determination: Towards a Democratic Legitimacy Principle?’ in C Tomuschat (ed), Modern Law of Self-Determination (Kluwer 1993) 253–82. 92

  See TM Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 AJIL 46–91; see also GH Fox, ‘The Right to Political Participation in International Law’ (1992) 17 YJIL 539–607. 93

  See also Doehring (n 2) 60–61, paras 49–53.

94

  See Fisch (n 11) 269–90.

95

  See Saxer (n 6) 362–68.

96

  See Saxer (n 6) 410–12.

97

  See Raić (n 6) 89–170; S Talmon, Kollektive Nichtanerkennung illegaler Staaten (Mohr Siebeck 2006). 98

  See Saxer (n 6) 718–35.

99

  ibid, 725–30.

100

  See only Raić (n 6) 92–104.

101

  See Doehring (n 2) 63, para 61.

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Ch.II Membership, Article 3 Ulrich Fastenrath From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter

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Article 3 The original Members of the United Nations shall be the states which, having participated in the United Nations Conference on International Organization at San Francisco, or having previously signed the Declaration by United Nations of 1 January 1942, sign the present Charter and ratify it in accordance with Article 110. A.  General 1–2 B.  The Group of Original Members 3–4 C.  Signature and Ratification 5 D.  Special Features 6–10 E.  List of the Fifty-one Original Members 11–12

Select Bibliography Blokker N, ‘International Organizations and their Members’ (2004) 1 Intl Org L Rev 139. Danaher EA, ‘The Representation of China in the United Nations’ (1972) 13 Harv Intl LJ 448. Fastenrath U, ‘Das Recht der Staatennachfolge’ in H Neuhold and B Simma (eds), Neues europäisches Völkerrecht nach dem Ende des Ost-West-Konflikts (Nomas 1996) 65. Müllerson R, ‘New Developments in the Former USSR and Yugoslavia’ (1993) 33 Virginia J Intl L 299. Schermers HG, ‘Succession of States and International Organizations’ (1975) 6 NYIL 103. Schweisfurth T, ‘Vom Einheitsstaat (UdSSR) zum Staatenbund (GUS)’ (1992) 52 ZaöRV 541. Tichy H, ‘Two Recent Cases of State Succession: An Austrian Perspective’ (1992) 44 AJPIL 117. Williamson ED and Osborn JE, ‘A U.S. Perspective on Treaty Succession and Related Issues in the Wake of the Breakup of the USSR and Yugoslavia’ (1993) 33 Virginia J Intl L 261.

A.  General 1  Like the Covenant of the League of Nations (Art. 1), the Charter of the United Nations distinguishes between two groups of members: the original members designated in Art. 3 and those admitted later pursuant to Art. 4.1 The former are defined by two alternative criteria: they either participated in the Founding Conference at San Francisco, or had previously signed the ‘Declaration by United Nations’. In both cases, they must also have signed and ratified the Charter in accordance with Art. 110 thereof, which indeed all the States concerned did. (p. 336) 2  The distinction between two groups was introduced mainly2 for a technical reason: an organization requires a certain number of members a priori in order to be established. It does not create different rights and obligations between the groups.3

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B.  The Group of Original Members 3  The ‘Declaration by United Nations’ was a joint declaration by the States at war with the Axis powers. In its Preamble, they reaffirmed the objectives and principles of the Atlantic Charter; in its operative part, they pledged to make every effort to cooperate in the war and not to conclude a separate ceasefire or peace.4 Open for signature by all States providing material assistance and contributions in the struggle against Nazism, it was the United States, the United Kingdom, the Soviet Union, and China who, on 1 January 1942, first signed the declaration. The next day, the twenty-two other States at war with the Axis powers followed suit; subsequently, another twenty-one States acceded to the Declaration.5 The different dates of signing, along with the fact that the four States headed the list of signatories disregarding alphabetical order, for the first time deliberately accentuated the role of the Great Powers (with the exception of France at that stage), a feature that was to become characteristic of the genesis of the UN as a whole. 4  At the Yalta Conference, it was agreed to invite as participants of the Founding Conference in San Francisco all States that had signed the ‘Declaration by United Nations’ up to that time (8 February 1945)—with the exception of former enemy States—and those ‘associated’ States6 that had declared war on the Axis powers by 1 March 19457 (all of these States then also signed the ‘Declaration by United Nations’). At the very beginning of the San Francisco Conference (Resolution of 30 April 1945), further invitations were extended. At the request of the Latin American States, Argentina was invited, in spite of having declared war only on 27 March 1945; prior to this, Argentina had been refused permission by the United States to sign the ‘Declaration by United Nations’ because of its half-hearted actions against the Axis.8 At Stalin’s request, the Soviet Republics of the Ukraine and Byelorussia, which had already been accepted as original members at Yalta,9 were invited. After it had established a government following its liberation, Denmark was also extended an invitation on 5 June 1945.10 Poland, on the other hand, was denied participation as it failed to form a provisional government of national unity in due time, a condition the Yalta Conference had imposed upon it in order to end the rivalry between the London-based Polish government in exile and the provisional (p. 337) government in Warsaw, which had evolved from the Lublin Committee.11 In the end, these issues resulted in a somewhat laboured definition of original membership.

C.  Signature and Ratification 5  All fifty participants at the Founding Conference signed the Charter on 26 June 1945. For the reasons mentioned (see MN 4), Poland did not sign until 15 October 1945.12 On the question of ratification see Art. 110.

D.  Special Features 6  Although Art. 3 speaks of States as original members, the participants at the San Francisco Conference were aware that several of the participants were not ‘States’ in an international legal sense. This applies to the Soviet Republics of the Ukraine and Byelorussia, which became sovereign States only when the Soviet Union disintegrated at the end of 1991,13 and the Philippines and India, which only gained independence on 4 July 1946 and 15 August 1947, respectively.14 The legal status of Lebanon and Syria was also not free from doubt. These former French mandate territories were declared independent in 1941, subject to the conclusion of treaties to regulate French rights in the area. By the time the San Francisco Conference was held, however, no such treaty had been concluded; Syria and Lebanon were nevertheless generally recognized as independent States, not least because France had relinquished its authority in 1944 in response to British and American pressure.15 In order to cope with participants lacking the characteristics of statehood, the Founding Conference considered replacing the term ‘State’ with ‘nation’. Ultimately, it was

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decided not to do so; instead, it was made clear that for original members—unlike members admitted later16—the characteristics of statehood were not an essential requirement.17 7  The original members are members by virtue of the UN Charter; they need not undergo any admission procedure and are thus exempted from the requirements stipulated in Art. 4. Until today, this provision may remain of relevance if an original member regains statehood either by achieving independence following a period of integration into another State (eg Egypt and Syria, which together formed the United Arab Republic for a short period of time18) or by reunification following a period of division into several sovereign States. 8  Two original members ceased to exist. Czechoslovakia dismembered on 1 January 1993 whereby the Czech Republic and Slovakia came into being. Concerning Yugoslavia, a controversy arose over whether its legal personality was affected by the (p. 338) Yugoslav break-up in 1991–93, which could be considered either as a series of secessions or as dismemberment. While the Badinter Commission19 and the UNSC20 took the position that Yugoslavia became extinct, UNGA Res 47/121 was ambiguous on this matter; however, both the application of the Federal Republic of Yugoslavia for admission to membership with reference to the UNSC Resolution22 and the following admission procedure23 show that the original member Yugoslavia ceased to exist and was not continued by the Federal Republic of Yugoslavia, which later changed its name to Serbia and Montenegro and, after Montenegro had declared itself independent, to Republic of Serbia.24 9  As to the admission of delegates from the People’s Republic of China instead of those of the Republic of China (Taiwan), the UNGA in Res 2758 (XXVI) did not consider it a problem of membership,25 but rather of the legitimate representation of the original member China.26 This stance is consistent under the assumptions (1) that China remains a single and undivided State (an assumption both Chinese governments have long adhered to with reference to the two-systems concept), and (2) that a State is not extinguished even in the event of a successful social revolution.27 Contrary to these assumptions, some States, including the United States, tried to preserve a seat for the Republic of China, in addition to the one for the People’s Republic. While some justified this position with reference to a twonation theory, the United States expressly left this question open, striving instead for a pragmatic solution. These differences notwithstanding, there has been no doubt since the reversal of American foreign policy that the People’s Republic is identical to the original member China and therefore entitled to the permanent seat on the SC.28 10  After the Soviet Union had dissolved, Russia assumed its membership, taking over the seat in the UNGA and UNSC in accordance with a declaration issued by the Council (p. 339) of Heads of the Governments of Independent States at the Alma Ata meeting on 21 December 1991.29 The supposition that the former Soviet Union is identical with Russia as an international legal subject can best explain this result, ie from an international law perspective, what happened was merely a change of name. This view was advanced in a letter from the President of the Russian Federation, Boris N Yeltsin, to the UNSG, which was transmitted by the Permanent Representative of the Soviet Union to the UN (ie it was an official note of the Soviet Union) and circulated among UN members. In this letter, President Yeltsin stated that ‘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 …’, and he requested ‘that the name “Russian Federation” should be used in the United Nations in place of the name “the Union of Soviet Socialist Republics”’.30 However, this was not the position embodied in the Alma Ata declaration,31 according to which the Soviet Union had ceased to exist as a subject of international law and which consequently conceived of the Russian Federation as a successor or a (new) State continuing the former USSR (l’État continuateur).32 Be that as it may, this rather academic dispute did not affect the practice of

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the UN; regardless of how the dissolution of the Soviet Union was legally classified, Russia’s assumption of the Soviet seat did not meet any objections.33

E.  List of the Fifty-one Original Members 11  Signatory States of the ‘Declaration by United Nations’ (with the date of signing by those States that were not among the original signatories): Australia Belgium Bolivia (27 April 1943) Brazil (8 February 1943) Canada Chile (12 February 1945) China Colombia (22 December 1943) Costa Rica Cuba Czechoslovakia (ceased to exist) Dominican Republic(p. 340) Ecuador (7 February 1945) Egypt (27 February 1945) El Salvador Ethiopia (28 July 1942) France (26 December 1944) Greece Guatemala Haiti Honduras India Iran (10 September 1942) Iraq (16 January 1943) Lebanon (1 March 1945) Liberia (26 February 1944) Luxemburg Mexico (5 June 1942) Netherlands New Zealand Nicaragua Norway

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Panama Paraguay (12 February 1945) Peru (11 February 1945) Philippines (10 June 1942) Poland Saudi Arabia (1 March 1945) Syria (1 March 1945) Turkey (24 February 1945) Union of South Africa Union of Soviet Socialist Republics (continued by Russian Federation) United Kingdom United States Uruguay (23 February 1945) Venezuela (16 February 1945) Yugoslavia (ceased to exist) 12  Participants at the UN Founding Conference: All the signatory States of the ‘Declaration by United Nations’ were participants at the UN Founding Conference with the exception of Poland, and the addition of Argentina, Byelorussia, Denmark, and the Ukraine.

Footnotes: 1

  The Founding Conference did not deal with the suggestion of automatic membership for all existing States. On this point, see Khan on History MN 16. 2

  But see MN 6–8.

3

  UNCIO VII, 325.

4

  On this point, see Khan on History MN 33; Text of the Declaration by United Nations in RM, 976. 5

  On this whole question, see RM, 50–56; on the dates of signature, see MN 11.

6

  ‘Associated’ was the term used for those States (above all from Latin America) that had broken off relations with the Axis powers and had assisted the Allies. See GHS, 82; a list of these States can be found in RM, 508. 7

  US Dept of State (ed), Foreign Relations of the United States, The Conferences at Malta and Yalta, 1945 (Government Printing Office 1955) 976. On the special features of the invitations to Syria and Lebanon, see RM, 627–28. 8

  On the discussion over the invitation to Argentina, see UNCIO I, 344–59; UNCIO V, 155– 6, 378–81; GHS, 84; RM, 632–33, 637–39. 9

  On this point, see UNCIO I, 344; UNCIO V, 90–93, 155; RM, 636–39.

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10

  GHS, 84.

11

  UNCIO V, 93–97, 118; US Dept of State (n 7) 973; RM, 628–31, 636–37.

12

  RP I, 164.

13

  On the former absence of statehood of the republics in an international legal sense, see HJ Uibopuu, Die Völkerrechtssubjektivität der Unionsrepubliken der UdSSR (Springer 1975) 55–227. 14

  GHS, 84–85.

15

  GHS, 85; RM, 627–28, 927–28.

16

  On this point, see Fastenrath on Art. 4 MN 12–15.

17

  UNCIO VII, 325; GHS, 85; R Higgins, The Development of International Law Through the Political Organs of the United Nations (OUP 1963) 16–17; RM, 927–28. 18

  See Fastenrath on Art. 4 MN 37, 40.

19

  Opinion No 8 of the Arbitration Commission of the International Conference on Yugoslavia (1992) 31 ILM 1521–23. 20

  UNSC Res 777 (19 September 1992) UN Doc S/RES/777.

21

  UNGA Res 47/1 (22 September 1992) UN Doc A/RES/47/49.

22

  UNGA and UNSC ‘Letter dated 27 October 2000 from the President of the Federal Republic of Yugoslavia to the Secretary-General’ UN Doc A/55/528–S/2000/1043, Annex. 23

  UNSC Res 1326 (31 October 2000) UN Doc S/RES/1326; UNGA Res 55/12 (1 November 2000) UN Doc A/RES/55/12. 24

  On the question of continuity of Yugoslavia as an international legal subject, see MCR Craven, ‘The Problem of State Succession and the Identity of States under International Law’ (1998) 9 EJIL 142–62; W Czaplinski, ‘La continuité, l’identité et la succession d’Etats— évaluation de cas récents’ (1993) 26 RBDI 374–92; Fastenrath, 70–71; W Hummer, ‘Probleme der Staatennachfolge am Beispiel Jugoslawiens’ (1993) 3 SZIER 425, 450–59; T Schweisfurth, ‘Das Recht der Staatensukzession—Die Staatenpraxis der Nachfolge in völkerrechtliche Verträge, Staatsvermögen, Staatsschulden und Archive in den Teilungsfällen Sowjetunion, Tschechoslowakei und Jugoslawien’ in (1996) 35 DGVR Berichte 49, 182–90; M Weller, ‘The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia’ (1992) 86 AJIL 569–607. 25

  RP 5 I, 69.

26

  A similar view on Art. 4 is also expressed by CPF/Feuer 522; M Virally, L’Organisation mondiale (A Colin 1972) 269; cf also Higgins (n 17) 152–58. For a general analysis of the representation of a member when there is a dispute between more than one claimant, see Magiera on Art. 9 MN 26–31. 27

  This is in line with the former socialist theory of international law, cf DDRAkademielehrbuch, Völkerrecht (2nd edn, Staatsverlag der DDR 1981) 166; on this point, see also U Fastenrath, ‘States, Extinction’ EPIL IV (2000) 669–72. 28

  On this whole question, see UNYB (1971) 126–33; Virally (n 26) 269–74; Danaher 448– 53; P Tavernier, ‘L’Année des Nations Unies (18 décembre 1970–22 décembre 1971)— Questions juridiques’ (1971) 17 AFDI 552, 553–56. 29

  (1992) 31 ILM 151.

30

  Appendix to UN Doc 1991/Russia (24 December 1991).

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31

  (1992) 31 ILM 148–49.

32

  On this question see M Bothe and C Schmidt, ‘Sur quelques questions de succession posées par la dissolution de l’URSS et celle de la Yougoslavie’ (1992) 25 RGDIP 811–42; Czaplinski (n 24) 374–92; Fastenrath, 68–70; Müllerson 299–322; Schweisfurth (n 24) 49, 170–82; Williamson and Osborn, 261–74. 33

  On this see YZ Blum, ‘Russia Takes Over the Soviet Union’s Seat at the United Nations’ (1992) 3 EJIL 354–61, 356.

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Ch.II Membership, Article 4 Ulrich Fastenrath From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — Secession — Diplomatic privileges — Diplomatic immunity

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(p. 341) Article 4 (1) Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. (2) The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council. A.  The Concept of Membership: Between Conditional and Absolute Universality 1–11 I.  The Concepts of Conditional and Absolute Universality 1–2 II.  The Controversy about the Criteria for Membership 3–5 III.  The Deadlock over the Admissions Procedure from 1946 to 1955 6–8 IV.  The Realization of the (Quasi-) Universality of the United Nations 9–11 B.  The Material Criteria and the Procedure for Admission 12–32 I.  The Criteria for Admission and their Relevance in Practice: Article 4 (1) 12– 26 1.  Statehood 12–15 2.  Peace-Loving Requirement 16–19 3.  Acceptance of the Obligations Contained in the UN Charter 20–23 4.  Judgment of the UN on the Ability and Willingness to Carry out the Obligations Contained in the Charter 24–26 II.  The Admissions Procedure: Article 4 (2) 27–32 1.  The Functions of the Security Council and the General Assembly 27–28 2.  The Admissions Procedure: Article 4 (2) 29–32 C.  Special Problems 33–41 I.  Divided States 33–34 II.  Merger, Secession, or Dismemberment of States 35–40 III.  ‘Withdrawal’ and ‘Re-entrance’ 41 D.  Observer Status 42–60 I.  The Notion of ‘Observer Status’ and Its Function 42–45 II.  Categories of Permanent Observers 46–53 1.  Non-Member States and Entities 46–48 2.  Intergovernmental Organizations and Institutions 49–50

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3.  National Liberation Movements 51–53 III.  The Limited Rights to Participation of Observers 54–56 IV.  The Privileges and Immunities of Observer Missions 57–60

Select Bibliography Bühler KG, State Succession and Membership in International Organizations: Legal theories versus political pragmatism (Kluwer 2001). Conforti B, Law and Practice of the United Nations (Nijhoff 2005).(p. 342) Franck TM, ‘Admission of a State to Membership in United Nations (Advisory Opinions)’ MPEPIL (online edn). Ginther K and Oppermann T, ‘Grundfragen der Mitgliedschaft in Internationalen Organisationen’ (1975) 17 DGVR Berichte. Grant TD, ‘States Newly Admitted to the United Nations: Some Implications’ (2000) 39 Colum J of Transnatl L 1, 177. ——— Admission to the United Nations, Charter Article 4 and the Rise of Universal Organization (Nijhoff 2009). Higgins R, The Development of International Law through the Political Organs of the United Nations (OUP 1963) 15. Lloyd DO, ‘Succession, Secession, and State Membership in the United Nations’ (1993–94) 26 NYU J Intl L & Pol 761. Rensmann T, ‘International Organizations or Institutions, Observer Status’ MPEPIL (online edn). Saxer U, Die internationale Steuerung der Selbstbestimmung und der Staatsentstehung. Selbstbestimmung, Konfliktmanagement, Anerkennung und Staatennachfolge in der neueren Völkerrechtspraxis (Springer 2010) 737. Scharf MP, ‘Musical Chairs: The Dissolution of States and Membership in the United Nations’ (1995) 28 Cornell Intl LJ 29. Schermers HG and Blokker NM, ‘International Organizations or Institutions, Membership’ MPEPIL (online edn). Suy E, ‘Status of Observers in International Organisations’ (1978-II) 160 Rec des Cours 75. Treves T, ‘The Expansion of the World Community and Membership of the United Nations’ (1995) 6 The Finnish Yearbook of International Law 248. Zimmermann A, Staatennachfolge in völkerrechtliche Verträge: Zugleich ein Beitrag zu den Möglichkeiten und Grenzen völkerrechtlicher Kodifikation (Springer 2000) 589.

A.  The Concept of Membership: Between Conditional and Absolute Universality* I.  The Concepts of Conditional and Absolute Universality 1  From the beginning, it had been undisputed that the UN, as an organization to preserve world peace and security, should have as broad a membership as possible.1 Nevertheless, the San Francisco Conference did not opt for the idea of automatic membership of all States,2 which would have guaranteed the UN’s absolute universality; instead, it was thought that the objectives of the UN would be better and more effectively realized under a concept of conditional universality.3 The admission of new members was therefore made subject to threshold criteria,4 which are laid down in Art. 4. Though seemingly objective they soon turned out to be an instrument under the control of certain member States to promote their own interests (see MN 3–8). In the course of decolonization, by contrast, these criteria were generally disregarded. The concept of conditional (p. 343) universality, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

thus, seemed to have largely been replaced by a concept of automatic admission (see MN 9), a change in policy that also led to structural and functional adjustments of the UN. With the admission of (mostly decolonized) developing States, the UN assumed responsibility for providing multilateral support to States characterized by weak statehood. The UN was consequently endowed with a new development function to be pursued within the overall objective of preserving peace.5 2  The UN Charter reflects the aspiration to absolute universality to a certain extent in Art. 2 (6),6 which stipulates that ‘[t]he Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security’.

II.  The Controversy about the Criteria for Membership 3  In order quickly to attain universality, a number of States as well as the UNSG called for a liberal interpretation of the criteria for membership contained in Art. 4,7 an attempt which was, however, frustrated by the realities of the East-West conflict. When former enemy States and communist people’s democracies that had emerged from revolutionary takeovers applied for membership, the United States and the USSR began to engage in protracted discussions over the meaning of such notions as ‘State’, ‘peace-loving’, and ‘able to carry out the obligations contained in the Charter’. These discussions reflected not only their antagonistic positions towards membership policy8 but their divergent ideas about the nature and functions of the UN more generally. 4  In this context, the question arose whether the admission of a State could be made dependent upon conditions not expressly mentioned in Art. 4 (1). At the San Francisco Conference, the opinion had prevailed that considerations additional to those set forth in Art. 4 (see MN 6–8) were admissible.9 While this view was later adopted by a minority of the ICJ in its Advisory Opinion on Conditions of Admission of a State, the majority considered it illegal to make the admission of a State dependent upon additional conditions, in particular upon the condition that a third State be admitted simultaneously.10 5  At the same time, however, the ICJ argued that the elasticity of the criteria mentioned in Art. 4 (1) called for their broad application. Consequently, it concluded that: Article 4 does not forbid the taking into account of any factor which it is possible reasonably and in good faith to connect with the conditions laid down in that Article… [N]o relevant political factor—that is to say, none connected with the conditions of admission—is excluded.11

(p. 344) III.  The Deadlock over the Admissions Procedure from 1946 to 1955 6  These controversies resulted in a deadlock over the admission procedure, which lasted from 1946 to 1955.12 The Anglo-American-Soviet alliance of World War II, which had been noted to be suffering from an ‘organic defect’ already in 1943,13 had given way to an international community divided along political-ideological lines. It became apparent that greater universality of membership in the UN could not be achieved by a legalistic interpretation but only through a flexible political approach to Art. 4. 7  The deadlock over the admission of new members began when the United States, on 28 August 1946, proposed that the UNSC recommend the admission of eight applicant States uno actu. This proposal met with opposition from the Soviet Union, which insisted on discussing and voting on each application separately.14 On 25 September 1947, Poland tabled a draft resolution in the UNSC recommending the admission of Bulgaria, Finland, Hungary, Italy, and Romania uno actu; this time, it was the United States and its allies who insisted that each application be discussed individually and voted upon separately,15 arguing that the Eastern European allies of the Soviet Union (Bulgaria, Hungary, and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Romania) were not independent States within the meaning of Art. 4 (1) (see MN 12). Over time, linking the admissions of individual States became common practice; as a consequence, only nine out of thirty-one applicants were admitted to the UN16 between 1945 and 1955 with the Soviet Union alone casting its veto forty-seven times in the UNSC.17 The Advisory Opinion of the ICJ on the interpretation of Art. 4 (see MN 4–5) and subsequent recommendations by the UNGA (UNGA Res 197/A (III) and UNGA Res 296 (IV)), which, inter alia, called upon the permanent members of the UNSC to relinquish their veto right in admission cases, were continually disregarded. 8  The impasse over the admission of new members was finally broken with the so-called ‘package deal’ of 14 December 1955. Designed by the UNGA (Res 918 (X)), it made possible the admission en bloc of sixteen States, ten of them European. Under the package deal, the UNSC first voted separately on each applicant’s fulfilment of the membership criteria, and in a second step decided en bloc on recommending to the UNGA their admission (on the admissions procedure see MN 29–30). The package deal was a political solution inasmuch as it maintained the linkage between individual admissions—against the legal doctrine prevailing at that time. It contradicted both the letter of the Charter and its interpretation by the ICJ and the UNGA, but it corresponded to the ‘spirit of the United Nations’ (UNGA Res 817 (IX)) and constituted a decisive step towards universal membership.18 The package deal was facilitated, inter alia, by excluding the most controversial applications: those of divided States (see MN 33–34), ie the two Vietnams and the two Koreas (no German applications were pending at that time).19

(p. 345) IV.  The Realization of the (Quasi-) Universality of the United Nations 9  The UN entered its second phase of development in the course of decolonization,20 during which the international community became a truly global one. The number of applications increased significantly and the change in admission practice allowed for a rapid intake of new members. Membership, which had grown from fifty-one original members in 1945 to only seventy-six members in 1955, reached 159 in 1984.21 With few exceptions, eg Angola (see MN 12), Bangladesh, and Vietnam (see MN 25), newly decolonized States were admitted without the criteria contained in Art. 4 (1) even being mentioned. The admission of new member States thus became a mere procedural formality. Occasionally, however, the admission of a State continued to be linked to the admission of another.22 10  The following phase, beginning in the late 1980s, has been characterized by the consolidation of the international community and changes in the statehood of some States. Since then, the number of member States has risen to 193 (in 2011). On the one hand, micro-States were accepted into the UN on an equal footing with other States (see MN 14– 15). On the other hand, the end of the East-West conflict facilitated the admission of both Koreas as well as of the permanently neutral Switzerland, whose application had not been controversial internationally but domestically (see MN 23). At the same time, the breakup of the Eastern Bloc led to the disintegration of some member States, while it made possible the unification of the two German States. For the most part, these and other changes in statehood did not pose long-lasting problems, if any, with regard to the admission of the successor States to the UN (see MN 37–40). Today, UN membership is (quasi-) universal, with Palestine and Vatican City at least enjoying observer status (on this see MN 48, 55). Apart from the small number of dependent territories (on these see Fastenrath on Art. 73 MN 16), only a few territories and their populations still remain totally outside the UN or are represented by governments which have no control over these territories: Abkhazia, the northern part of Cyprus, Kosovo, South Ossetia, Taiwan (on this see MN 11 and Fastenrath

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on Art. 3 MN 9), Transdniestria, and the Western Sahara (on this see Fastenrath on Art. 73 MN 15). 11  In these cases and if new States should come into existence in the future, Art. 4 is still of importance and may give rise to political controversies as to whether the conditions for membership are fulfilled. As a rule, however, States today try to avoid such controversies as far as possible. Abkhazia, South Ossetia, Transdniestria, and the ‘Turkish Republic of Northern Cyprus’, which are recognized as States either by no, one, or only a few States, have not even applied for membership in the UN. Kosovo, which has been recognized by ninety-one UN member States (and, additionally, by the Republic of China) as of 1 June 2012, has also abstained from applying in light of the controversy over its independent statehood and its unsettled relationship with Serbia. The Taipei government unsuccessfully attempted to rejoin the UN under the name of Republic of China or Taiwan between 1993 and 2007;23 the UNSG returned Taiwan’s application (p. 346) as ‘unreceivable’,24 and the UNSC as well as the UNGA did not place the matter on the agenda.25 The application of Palestine has been postponed in order to find a consensual solution to its conflict with Israel.

B.  The Material Criteria and the Procedure for Admission I.  The Criteria for Admission and their Relevance in Practice: Article 4 (1) 1.  Statehood 12  Article 4 restricts admission to the UN to States, a term that, from the very beginning, has been unanimously interpreted to refer to entities that meet the requirements of statehood under international law: ie a defined territory and a permanent population effectively controlled by an independent government.26 Unlike the League of Nations (cf Art. 1 (2) of the Covenant), the UN thus bars colonies, even self-governed ones, from membership. Between 1946 and 1962, the statehood of applicants was repeatedly called into question during admission procedures for an alleged lack mainly of independent government27 but sometimes also of a sufficiently defined territory. As to independent government, it was judged by some to be missing for the following reasons: foreign occupation (Republic of Korea),28 military occupation as a consequence of World War II (Austria),29 special relations with the former colonial power (Ceylon),30 lack of independence (Angola),31 or total factual dependence (Mongolia).32 As to a defined territory, statehood was disputed on the following grounds: absence of sufficiently defined borders (Israel),33 and claims of neighbouring States to the territory of the applicant State (Mauritania,34 Kuwait,35 Belize36). In order to prove that an applicant for membership was a State within the meaning of Art. 4 (1), reference was also occasionally made to a certain degree of both diplomatic intercourse and international recognition of the applicant State.37 13  Particularly in the first phase of the UN, member States used the admission procedure to further their respective political agendas. As a consequence, the criterion of statehood, and especially the element of independent government, was often applied arbitrarily. This led to considerations to develop objective indicators for the three elements of (p. 347) statehood and to oblige all actors involved to give reasons for their evaluations. From a legal perspective, it was argued, these objective indicators were called for by the prohibition against intervention according to Art. 2 (7) of the Charter.38 Being applicable even where governments lack democratic legitimacy or international recognition, the prohibition against intervention was considered an objective barrier to ideological concepts of statehood, whose application would inevitably infringe the sovereignty of the applicant State. Nevertheless, membership applications continued to be opposed on ideological grounds in several instances.39 Though related to the population and territory elements of statehood rather than to independent government, ideological reasons also underlie the

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UN’s refusal of Taiwan’s application for membership (see MN 11). The example of Taiwan even casts doubt on the possibility of assessing statehood in a way that is free from subjective evaluation. Whether Taiwan is considered a nation of its own, distinct from the Chinese people and territory, in the end depends on an ideological choice, the choice between a One China and a Two Chinas policy.40 14  While the formal concept of statehood as known in general international law was upheld, the principle of effectiveness was interpreted rather generously. Only sporadically did the UNSC screen the effectiveness of an applicant’s statehood in more detail by examining its public expenditures and its financial and political capacity to safeguard its territorial integrity and political independence.41 It exercised such restraint not least because it did not want to put at risk the admission of newly decolonized States, many of which were characterized by weak statehood at the time of their independence. The UNSC refrained from adopting a stricter examination procedure (see MN 29, 31) even when, in October 1970, concerns were expressed in the UNSC that the admission of micro-States with very small power resources would not only impair the UN but also constitute a factual revision of its Charter.42 15  Proposals to introduce an associate membership to address the problem of micro-States were discussed but not pursued further. A Committee of Experts of the UNSG charged with examining such proposals remained without practical consequences.43 Moreover, the Legal Counsel to the UN expressed doubts as to the admissibility of an associate membership. According to his opinion, a formal amendment to the Charter would be required both if applicant micro-States were to be granted associate membership without voting rights and if micro-States which were already members of the UN were given the opportunity to be released from their financial obligations to the UN on the condition that they renounce their voting rights. In addition, he argued that both of these arrangements would be in breach of the principles of sovereign equality of States (Art. 2 (1)) and of indivisible and equal membership in the UN (see MN 22–23). The Legal Counsel instead proposed that microStates be allowed to participate in the UN with a status similar to that of observers. This suggestion was not taken up, however;44 instead, all micro-States that applied for (full) membership were admitted in the 1990s.45

(p. 348) 2.  Peace-Loving Requirement 16  Applicant States must be ‘peace-loving’, a criterion that refers both to their past and present conduct. In both respects, it has given rise to much controversy.46 17  In the Moscow Declaration (30 October 1943), the four powers announced that the UN would be open to ‘all peace-loving States’.47 At that time, this referred to States that either had taken part in the war against the Axis powers or at least had a non-fascist past. The San Francisco Conference further decided to preclude from membership any State whose ruling government had assumed power with the military support of the Axis powers, a decision intended to disqualify Spain.48 At the Three-Power Conference of Potsdam (12 August 1945), it was agreed that mere neutrality during World War II, however, did not make a State non-‘peace-loving’ and should therefore not prevent admission to the UN.49 18  The San Francisco Conference reached an understanding not to judge the ‘peaceloving’ character of applicant States by reference to their political (ie ‘democratic’) institutions, a procedure it considered would have unlawfully interfered in their internal affairs (see MN 13).50 Despite this agreement, references to the political system of applicant States (‘recognized democratic government’) were occasionally made.51 Usually, however, applicant States have been judged to be ‘peace-loving’ by reference to their current international behaviour, in particular whether they had been complying with UN

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resolutions, guaranteeing innocent passage in territorial waters, settling border disputes peacefully, and respecting the principle of non-intervention.52 19  The requirement that applicant States be ‘peace-loving’ has served member States as a useful instrument in their attempts to use admission procedures as leverage for the resolution of bilateral disputes (see MN 1, 11).53 It was, however, of no practical importance in the admission of newly decolonized States (see MN 9).

3.  Acceptance of the Obligations Contained in the UN Charter 20  Applicants must accept the obligations enshrined in the Charter. As regards formalities, this means that applicants must attach to their application for membership a formal declaration expressing their acceptance of these obligations54 (see MN 29). In the early admissions practice, this declaration was made after the UNGA consented to the admission, thus being the final constitutive act of the admission procedure. 21  In legal substance, this declaration comprises the consent of the applicant State to be bound by the UN Charter according to the public international law of treaties.55 (p. 349) ‘Obligations contained in the Charter’ at the least refers to obligations explicitly spelled out in the Charter but extends also to the ‘traditions of the organization’.56 22  The question whether reservations were admissible was raised but not discussed further at the San Francisco Conference,57 although there was a general assumption to answer in the negative.58 As a rule, declarations of acceptance under Art. 4 (1) refer explicitly to acceptance ‘without reservation’59 and there has been no declaration of acceptance with a formal reservation. As an ‘essential element of belonging to a community’ (‘Verband’), the concept of membership underlying Art. 4 (1) is thus founded on the principles of indivisibility and equality.60 Hence, the declaration of acceptance cannot create a special legal relationship through which only the new member State is bound and/ or entitled.61 23  This also holds true for permanently neutral States, even though they occasionally claim a special status. Switzerland—which as a member of the League of Nations was exempted from participating in the implementation of military measures and partially even from economic sanctions62—stated in its application that it: is a neutral State whose status is enshrined in international law. The United Nations recognize that the neutrality of a Member State does not affect the fulfilment of its obligations under the Charter and contributes to the achievement of the purposes of the United Nations.63 This is, however, an interpretative declaration rather than a reservation. Austria did not express any reservations at the time it applied for membership in the UN; subsequently, however, it argued to this effect. It claimed that the UNSC had been fully aware of its international legal status of permanent neutrality when it had recommended its admission to the UN, a fact from which Austria derived that the UNSC had implicitly acknowledged its right to duly consider its international legal obligations emanating from neutrality whenever its duties as a neutral State conflicted with those as a UN member. Accordingly, Austria claimed the right to implement Chapter VII decisions of the UNSC only to the extent they did not collide with the obligations arising out of its permanent neutrality.64 In effect, this placed Austria’s membership in the UN under an implicit reservation.65 In the context of the ‘collective measures’ adopted by the UNSC under Chapter VII of the Charter against Iraq in the Gulf War,66 however, this position was revised in light of Arts 49 and 103 of the Charter,67 ie in the light of an overriding commitment by all UN members to strengthen the UN (p. 350) system of collective security.68 The status of permanent neutrality is thus

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considered compatible with the fulfilment of Charter obligations, which has also been recognized by UNGA Res 50/80(A) (concerning Turkmenistan).

4.  Judgment of the UN on the Ability and Willingness to Carry out the Obligations Contained in the Charter 24  Originally, the admissions criteria were intended to preclude from membership in the UN any State that objectively lacked the resources necessary to effectively comply with the obligations of the Charter, eg to participate in military enforcement measures.69 Actual practice, however, has been rather flexible. When Japan applied for membership, the UN did not even discuss its constitutional renunciation to maintain armed forces;70 likewise, the UN did not consider Austria’s status of permanent neutrality a barrier (see MN 23), even though the compatibility of neutrality and UN membership had been much discussed at the UN’s founding.71 The ability to take part in military operations altogether lost its relevance as a condition for membership when, in the third phase of its development (see MN 10), the UN broadened its admission policy to accept micro-States as members on a grand scale (see MN 15). In order to bring this practice into line with the obligation to make available armed forces to the UNSC as stipulated in Art. 43 of the UN Charter, it must not only be assumed that this obligation is subject to special agreements but also that not every member State is expected to conclude such agreements. 25  Regarding the subjective criterion of willingness to carry out the obligations, the UNGA provided three indicators: applicants should have a history of maintaining friendly relations with other States, of fulfilling their international obligations, and of using procedures of peaceful dispute settlement (UNGA Res 506A (VI)). The willingness of applicant States to comply with the obligations of the Charter has occasionally been disputed in the history of the UN. China expressed doubts over Bangladesh’s willingness, arguing that it had failed to comply with the resolutions of the UNGA to withdraw its troops and repatriate prisoners of war.72 In another case, the United States contested the willingness of the Socialist Republic of Vietnam, accusing it of violations of the human rights of missing American soldiers.73 26  There is a certain overlap between the requirements to be willing to carry out Charter obligations and to be a ‘peace-loving State’.

II.  The Admissions Procedure: Article 4 (2) 1.  The Functions of the Security Council and the General Assembly 27  Both the UNSC and the UNGA must take a positive decision in order for a State to be admitted to the UN. The UNSC recommends the admission of new members and thus enjoys the right of initiative;74 however, admissions only become effective upon the (p. 351) affirmative vote of the UNGA. This procedure allows the UNSC to exercise a considerable degree of control over the admission of new members inasmuch as it can, by not processing an application, prevent the UNGA from voting on an admission case. According to rule 137 of the Rules of Procedure of the UNGA, however, the UNGA may consider an application, if the UNSC does not recommend the applicant State for membership or postpones the consideration of the application. If the UNSC does not deal with an application at all, the UNGA can sidestep the procedure of Art. 4 (2) of the Charter. Upon the request of a member State, the UNGA may ask the UNSC to recommend a State for admission; thereby, the UNGA may form and express its opinion on the matter. 28  The UNSC was accorded the right of initiative because the admission of former enemy States was believed to be a matter of world security,75 a decision that had far-reaching consequences. It empowered the permanent members of the UNSC to veto any admission,76 which they did so frequently during the first phase of the development of the UN (see MN 7) that both the US Senate and the UNGA demanded that the permanent members of the UNSC come to an understanding to abstain from vetoing admissions.77 Some States even tried to derive from the wording of Art. 4 (2) that the decisive and exclusive competence to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

decide upon the admission of new members rested with the UNGA alone, and that the UNSC could merely decide whether or not to approve a non-binding recommendation for admission.78 The ICJ rejected this view in its Advisory Opinion on the Competence of the General Assembly for the Admission of a State, reaffirming instead the right of the UNSC to take the initiative pursuant to Art. 4 (2), based upon its primary responsibility for the preservation of world peace.79

2.  The Admissions Procedure: Article 4 (2) 29  The admissions procedure is opened when a State submits an application for membership to the UNSG, which must contain in a formal instrument the declaration of willingness to accept the obligations contained in the Charter80 (see MN 20–21). According to Rule 60 of the Provisional Rules of Procedure of the UNSC and Rule 136 of the Rules of Procedure of the UNGA, the UNSC and, upon its recommendation, the UNGA will then examine whether the applicant fulfils the admission criteria contained in Art. 4 (1). For this purpose, the UNSC may establish and enlist the services of a special committee on admission (cf Rule 59 of the Provisional Rules of Procedure of the UNSC and UNGA Res 620A (VII)); except for the years between 1948 and 1971, the UNSC has routinely done so.81 30  Apart from linkages (see MN 7–8), the order of priority in which membership applications should appear on the UNSC agenda repeatedly created friction and delayed admission procedures in the UNSC.82 Criticizing the UNSC’s admission policy, the UNGA challenged the stalemate over admissions (UNGA Res 35 (I)) by offering its (p. 352) ‘good offices’ to the UNSC and by calling upon its members to adhere strictly to the criteria set forth in Art. 4 (1) and to respect the tenor of the Advisory Opinion of the ICJ on Art. 4 of the Charter (see MN 4–5) (UNGA Res 197A (III)). 31  The UNSC decides on membership applications on the basis of the application, the formal declaration of acceptance, a report by the Committee on Admission which includes annexes and statements (if it has been commissioned to compile a report), and occasionally also on the basis of a questionnaire.83 In most cases, neither the UNSC nor the UNGA have thoroughly examined whether an applicant met the admission criteria; instead, they have tended to base their ‘judgement of the Organization’ on superficial evidence. In no case has the UNGA refused to admit a candidate upon the recommendation of the UNSC. Neither the UNSC nor the UNGA has ever given reasons for positive decisions on admission.84 32  In order to facilitate their admission, new and even emerging States in today’s practice usually enter into deliberations with other States, in particular members of the UNSC, even before they submit their application and are ready to accept various conditions, eg pledges to peacefully settle disputes they may have with neighbouring States. This was the case with South Sudan85 and, though unsuccessfully, Palestine. By contrast, the Republic of Macedonia failed to adopt such a forehanded approach, which resulted in a delay in its admission of more than eight months over a controversy with Greece.86 Claiming a historic title to the name ‘Macedonia’ for its northern province, Greece feared that the admission of Macedonia without further qualifications to its name might be understood as an implicit recognition of future claims to parts of Greek territory. For similar reasons, it objected to the flag of the new State carrying as the State symbol the star of Vergina, the emblem of the old Macedonian dynasty. According to a compromise reached and following a recommendation by the UNSC,87 Macedonia was finally admitted to the UN under the condition that it be provisionally referred to for all purposes within the UN as ‘The Former Yugoslav Republic of Macedonia’, pending a settlement of the dispute over its name (UNGA Res 47/225). In the case of Taiwan, by contrast, irreconcilable differences with China made

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it impossible to conclude an informal agreement before submitting an application. At the same time, however, filing the application has proved fruitless as well (see MN 11).

C.  Special Problems I.  Divided States 33  With regard to States divided as a consequence of the East-West conflict, the question arose whether to admit only one or both States. It involved intense political struggle, with one side attempting to use the admission to reinforce its contested claim to independent (p. 353) statehood,88 while the other side feared that the chances for reunification would diminish.89 The UNGA, in its Res 918 (X), expressed an explicit preference for divided States to reunite before admission and thereby excluded the two Vietnams and the two Koreas from the ‘package deal’ (see on this MN 8). 34  Divided States were admitted to the UN only after they had formally adjusted their conflicting claims, either in favour of division (even if one side considered it temporary) or reunification. Thus, the two German States obtained membership (UNGA Res 3050 (XXVIII)) after having concluded a treaty (‘Grundlagenvertrag’) which clarified that, under international law, there were two German States. Vietnam, by contrast, reunited before its admission (UNGA Res 32/2). The two Koreas were admitted to the UN only in 1991 (UNGA Res 46/1), after the end of the Cold War had made possible a resolution of the long-lasting conflict between the case for the existence of two independent States on the one hand (the position of North Korea) and the demand for reunification on the other (the position of South Korea)90 (UNGA Res 46/1).

II.  Merger, Secession, or Dismemberment of States 35  When India was partitioned, the Sixth Committee of the UNGA established general principles for the continuity and termination of membership in the UN in cases of changes in statehood. The principles distinguish between the mere amendment of a member State’s constitution or a change of borders, the extinction of a member State, and the creation of a new State.91 36  If a State amends its constitution, even if it undergoes a revolution, its legal personality remains unaffected.92 Consequently, it continues to exist and so does its membership in the UN. The same applies when borders change.93 37  If two or more States unite, two different legal situations may arise. First, one State may continue to exist and incorporate another State, which consequently disappears. If both States are members of the UN, the membership of the latter expires and that of the former is continued. This was the case when the German Democratic Republic acceded to the Federal Republic of Germany on the basis of the treaty of unification (‘Einigungsvertrag’).94 Second, all of the uniting States may cease to exist and form an altogether new State. In this case, the membership of all former States is terminated; however, UN practice does not require an admission procedure for the new State to become a member. The United Republic of Tanganyika and Zanzibar, for instance, participated in the work of the UN organs immediately after the two member States (p. 354) Tanganyika and Zanzibar had merged. It was recognized as one member State with the acquiescence of the UNGA and without any formal admissions procedure.95 Similarly, when the two original members Egypt and Syria merged to form the United Arab Republic, no admissions procedures were followed in order for the United Arab Republic to take up membership in the UN.96 When, on 19 May 1990, the Yemen Arab Republic and the People’s Democratic Republic of Yemen informed the UNSG of their unification as the Republic of Yemen (to be

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effective as of 22 May 1990), the UNGA welcomed the merger in its 45th session (UNGA Res 45/193).97 38  The procedure is different in cases of secession. The original (though smaller) State continues to exist and thus remains a member of the UN; by contrast, the seceding State must go through a formal admission procedure to become a member.98 India could thus retain the original membership in the UN after its partition, while Pakistan had to apply for membership and was ultimately admitted under Art. 4 of the Charter (UNGA Res 108 (II)). The same procedure was followed when Bangladesh seceded from Pakistan99 and Eritrea from Ethiopia,100 as well as after the Soviet Union dissolved.101 39  In case of dismemberment, the original member State ceases to exist and its membership ends, requiring all States newly created on its territory to undergo the admission procedure. This happened to the Czech Republic and Slovakia after the partition of Czechoslovakia on 1 January 1993102 and to the successor States of Yugoslavia.103 The case of Yugoslavia, however, demonstrates how difficult it is to differentiate between dismemberment and a series of secessions. For several years, the legal situation was unclear; in fact, Yugoslavia was deleted from the list of UN members only after Serbia and Montenegro had been admitted.104 40  The United Arab Republic is a special case of dismemberment because it fell apart shortly after it had come into existence through the union of Egypt and Syria (see MN 37). Both States returned to the UN without undergoing the admission procedure,105 a result one can arrive at by two alternative lines of reasoning. It may either be argued that the UN original members Egypt and Syria revived and that they are members by virtue of Art. 3106 or that the union of both States had never been effective and that Egypt and Syria consequently never ceased to exist.

III.  ‘Withdrawal’ and ‘Re-entrance’ 41  When Indonesia ‘withdrew’ its membership on 20 January 1965 and subsequently ‘reentered’ on 19 September 1966, both the UNSG and Indonesia argued that Indonesia had only ended its cooperation but not its membership in the UN and that it was (p. 355) therefore entitled to ‘resume full cooperation in the UN and to take part again in the work of the Organization’ without re-admission. Although Indonesia had not been on record as a member of the UN and had not been assessed for the UN budget, this interpretation was accepted by the UNGA without objection. Indonesia could therefore ‘re-enter’ the Organization simply by resuming its seat.107 This result may find its legal basis either in the assumption that the withdrawal led to a temporarily inactive membership under the standing invitation of the UN to reactivate it at any given time, or in an evaluation of the withdrawal as illegal and void because no Charter provision lays down the possibility of a declaration to that effect.108

D.  Observer Status I.  The Notion of ‘Observer Status’ and Its Function 42  In response to actual needs, the UNSG and the UNGA initiated a practice of granting observer status, ie limited participation rights in the UN, to non-member States, (mostly regional) intergovernmental organizations and institutions, groups of States, and, in the first decades of the UN, national liberation movements.109 Similarly, specialized agencies of the UN enjoy limited rights of participation in the UNGA on the basis of international treaties they have concluded with the UN pursuant to Arts 57, 63, and 70 of the Charter.110 With the exception of the ICRC and the International Federation of Red Cross and Red Crescent Societies, NGOs have not gained observer status and are unlikely to do so in the future, as the UNGA decided to confine this status to States and intergovernmental organizations (UN Doc A/49/747 (9 December 1994)). NGOs can, however, obtain a

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consultative status with ECOSOC and its subsidiary bodies according to Art. 71;111 also, they are invited to other subsidiary bodies, eg the Human Rights Council.112 Efforts by NGOs to upgrade their status were not endorsed by either the so-called ‘Cardoso Report’113 or the Outcome Document of the UN World Summit 2005.114 43  Observer status may be granted on a permanent and general basis, temporarily, or functionally limited to the participation in particular organs or on specific issues.115 44  The purpose of the observer status is twofold. On the one hand, it contributes to realizing the universality principle (see MN 1) by giving non-member States and other territorially based entities the opportunity to participate in the work of the UN.116 (p. 356) On the other hand, the UN seeks to make use of the specific knowledge and experience international organizations and institutions have accumulated.117 45  The observer status dealt with here is to be distinguished from the status of UN member States that participate as observers in organs or subsidiary organs of the UN to which they do not belong.

II.  Categories of Permanent Observers 1.  Non-Member States and Entities 46  The formal observer status of non-member States evolved from the practice of inviting them, on the basis of Art. 35 (2) of the Charter, to participate in those debates of the UNGA that are of particular interest to them, a practice which began with the participation of Albania and Bulgaria in the deliberations concerning the question of Greece.118 Later, nonmember States could be endowed with observer status by informally communicating their intention to establish a permanent observer mission to the UNSG, who, in his function of receiving the credentials of member States (UNGA Res 257A (III)), also accepted these communications.119 If there were doubts about the statehood of a non-member State wishing to establish a permanent observer mission, the UNSG let himself be guided by the degree of diplomatic recognition of the State concerned120 or by the fact that the State concerned was already a member of at least one specialized agency of the UN (‘Vienna Formula’).121 The UNGA accepted this practice of the UNSG without objection. In one case, the invitation to an observer State was renewed by the UNGA itself (UNGA Res 58/314: Holy See). 47  With regard to divided States, the granting of observer status was delayed in certain cases so as not to foreclose the possibility of reunification. The Democratic Republic of Vietnam, for instance, gained observer status only in 1975—twenty-three years after the Republic of Vietnam had become an observer. The German Democratic Republic did not obtain observer status until 1972, twenty years after the Federal Republic of Germany; its admission as an observer was withheld on the grounds that it lacked membership in any of the specialized agencies of the UN.122 48  At present (2011), only the Holy See is listed as a non-member State observer. This classification is questionable inasmuch as the Holy See proper is not a State. Even if the Holy See is considered the same subject of international law as the Vatican City—which is itself controversial—doubts remain because the statehood of the Vatican City can be questioned.123 In the same category of observers, Palestine124 enjoys an observer status at (p. 357) the UN as an ‘entity’.125 All other countries which were once endowed with observer status as non-member States have eventually become members of the UN. Taiwan, Kosovo, and Western Sahara are among those countries that might ask for observer status as non-member States or entities in the future; however, their status is so controversial that

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their admission as observers is highly unlikely (on the Western Sahara Case see Fastenrath on Art. 73 MN 15).

2.  Intergovernmental Organizations and Institutions 49  States organize their cooperation in political, economic, and social matters not only in the UN but, following the principles of subsidiarity and speciality, also on a regional level and in specialized agencies or organizations. In order to avoid rivalries and a dysfunctional drifting apart of policies, these ‘sub-systems’ must be integrated into a comprehensive system,126 an idea which is expressed in Art. 52 (1) concerning the maintenance of international peace and security. For this reason, the UN has established formal and stable relations to political, economic, and social regional organizations or groups of States and has granted to a number of them an observer status at the UN. Among them are regional organizations such as the African Union, the Council of Europe, the League of Arab States, the Organization of American States, the Organization of Islamic States, and the South Asian Association for Regional Cooperation as well as economic organizations including the European Union, the Economic Community of West African States, and the OECD. Other entities on the list of observers include international institutions like the International Criminal Court, the International Seabed Authority, and the International Tribunal for the Law of the Sea, or groups of States like the Commonwealth Secretariat and the Energy Charter Conference. Not all of them maintain a permanent office at UN Headquarters.127 50  In addition to these organizations and institutions, other entities have received a standing invitation to participate as observers. These are the ICRC, the International Federation of Red Cross and Red Crescent Societies, the Inter-Parliamentary Union, and the Sovereign Military Order of Malta.128

3.  National Liberation Movements 51  A third class of observers comprised national liberation movements. Endowing them with observer status played an important role during decolonization because it entailed the collective recognition of the right of certain peoples to self-determination and to have a State of their own.129 Equally important, and for some even more essential, was the fact that liberation movements, by being allowed to participate in the UN, were given the opportunity to further their cause by peaceful means and to thereby serve the UN’s function of preserving world peace and security. The UNGA acknowledged this when it concluded that the effective participation of national liberation movements (p. 358) in the work of international organizations contributed to the strengthening of international peace and cooperation (UNGA Res 35/167). 52  The observer status for national liberation movements has its legal basis in resolutions of the UNGA ‘inviting’ them to participate in the work of the UN. Observer status was explicitly granted to the Palestine Liberation Organization (PLO) in UNGA Res 3237 (XXIX)130 and to the South West Africa People’s Organization (SWAPO) in UNGA Res 31/152. UNGA Res 3280 (XXIX), and UNGA Res 35/167 extended observer status at the UN to all national liberation movements recognized by the Organization of African Unity131 and/ or by the League of Arab States. 53  At present, no national liberation movement is listed as an observer.

III.  The Limited Rights to Participation of Observers 54  The Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character of 14 March 1975,132 which has not yet entered into force, refers in Art. 7 to the following functions of permanent observer missions of States:

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(a)  ensuring the representation of the sending State and safeguarding its interests in relation to the Organization and maintaining liaison with it; (b)  ascertaining activities in the Organization and reporting thereon to the government of the sending State; (c)  promoting co-operation with the Organization and negotiating with it. 55  The rights of observers to participate in the work of the Organization are limited in several respects. Observers do not participate in the work of the UN as a whole but only in the work of the UNGA, its main committees, and in conferences convened under the auspices of the UNGA. The manner of participation is largely based on practice, but partly also regulated in the rules of procedure of the particular bodies133 and, for some observers, in UNGA Resolutions. For the first time, special rights were accorded to the Palestine Liberation Organization and the South West Africa People’s Organization (UNGA Res 43/160). Today, the Holy See, Palestine, and the EU are vested with substantial procedural rights, inter alia, to raise points of order relating to them, to reply, and to co-sponsor resolutions and decisions that refer to them (UNGA Res 58/314; Res 52/250; and Res 65/275, respectively). Observer States additionally enjoy the rights that are accorded to non-member States in Art. 32 (participation in the discussion of a dispute under consideration by the UNSC to which the non-member State is a party) and Art. 35 (2) of the UN Charter (right to bring to the attention of the UNGA or the UNSC any dispute to which they are a party). Thus, the procedural rights vary among individual observers and groups of observers. In general, they are not entitled to vote and, in most cases, to introduce motions. The special status of Palestine as an observer and co-sponsor of the Draft Resolution requesting the Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Territory gave cause for (p. 359) the ICJ’s permission allowing Palestine to submit to the Court a written statement and to participate in the oral proceedings.134 56  The extensive observer rights the EU enjoys at the United Nations correspond to the powers vested in it within the Common Foreign and Security Policy (CSFP) framework. Pursuant to Art. 27 (2) of the Treaty on European Union (TEU), the High Representative of the Union for Foreign Affairs and Security Policy ‘shall represent the Union for matters relating to the common foreign and security policy. He shall conduct political dialogue with third parties on the Union’s behalf and shall express the Union’s position in international organisations and at international conferences’. Provided that the Union has defined a common position on a subject on the UNSC’s agenda, EU member States with a seat in the UNSC shall request that the High Representative be invited to present it (Art. 34 (2), third sub-para, TEU). In addition, the EU has its own European External Action Service (Art. 27 (3) TEU), which maintains a permanent mission to the UN. It is responsible for the day-today coordination of the EU position, including the drafting of EU statements and the adoption of EU positions on resolutions and other texts.135

IV.  The Privileges and Immunities of Observer Missions 57  The extent to which observer missions can fulfil their functions depends on the rights and privileges granted to them in Headquarters Agreements, other host State agreements concluded by the host States with the UN, and/or by unilaterally enacted law of host States.136 Even if observers and their missions are not explicitly mentioned in those agreements, certain privileges and immunities have to be granted to observers invited by UN organs by virtue of the general duty inherent in these agreements to refrain from any measure that may jeopardize the effective functioning of the Organization.137 The attempt to endow permanent observer missions with a legal status similar to that of permanent missions of UN member States138—and to draw on the Vienna Convention (Art. 20) of 1975 for this purpose139—met with the categorical opposition of many States, including the host From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

States of the UN, which have therefore not ratified the 1975 Vienna Convention (not yet in force). 58  The rights and privileges host States accord to permanent observer missions vary from one observer group to another and occasionally even from case to case. They range from a minimum set of rights which merely guarantees that observers can exercise their functions to a set of rights and privileges that resembles those accorded to permanent missions of member States. In particular, a distinction has been made between the rights and privileges accorded to permanent observer missions of non-member States on the one hand and the rights and privileges accorded to other groups of observers on the other. (p. 360) 59  In some cases, the observer missions of non-member States enjoy the same rights and privileges as are accorded to the permanent missions of member States. In Switzerland, permanent observer missions of international organizations accredited to the UN in Geneva enjoy functional rights and immunities.140 In Austria, the rights and privileges of observer missions are laid down in the Austrian Federal Law on the Granting of Privileges and Immunities to International Organizations (Austrian BGBl 677/1977, BGBl I 2/1997, BGBl I 135/2009) and the Regulations issued by the Austrian Federal Government on the Granting of Privileges and Immunities to Permanent Observer Missions (Austrian BGBl 614/1978). They grant permanent observer missions functional immunities if they hold diplomatic rank, ie the same immunities as are enjoyed by the administrative and technical personnel of diplomatic missions. Pursuant to the same law and regulations, permanent observer missions can be granted rights and privileges which are similar in some respects to those of permanent missions of member States if this is necessary for the fulfilment of their functions and in line with the practice of other host States.141 According to the Headquarters Agreement between Austria and the UN (Austrian BGBl III 99/1998), Austria, as a host State of the UN, is obliged to facilitate the entry, transit, and exit of members of permanent observer missions to the extent necessary for the adequate performance of their functions (Art. X s 29) and to grant privileges and immunities (Art. XI s 32 (b)). Provisions similar to Art. X s 29 of the Austrian Headquarters Agreement are contained in the Agreement between Germany and the UN concerning the Headquarters of the UN Volunteers Programme (BGBl II 1996, 905). 60  For the United States, Art. 4 (1) of the Headquarters Agreement between the United States and the UN grants observers at the UN in New York those rights and privileges with respect to entry to, departure from, and residence at the UN Headquarters that are necessary for the fulfilment of their functions.142 In particular, this includes the right to maintain an office near the UN Headquarters in New York. This right was called into question when the US government, on the basis of the 1987 Anti-Terrorism Act, declared its intention to close down the office of the PLO Observer Mission to the UN in New York. In their reaction, the UNSG and the UNGA of the UN pointed out that the PLO had been invited by the UNGA ‘to participate in the sessions and the work of the General Assembly in the capacity of observer’ (UNGA Res 3237 (XXIX)) and that in their view, the PLO Observer Mission to the United Nations was covered by the provisions of ss 11–13 of the Headquarters Agreement. They also indicated that the UN had a right to demand from the United States that the Permanent Observer Mission of the PLO to the UN in New York ‘should be enabled to establish and maintain premises and adequate functional facilities and that the personnel of the Mission should be enabled to (p. 361) enter and remain in the United States of America to carry out their official functions’.143 To the same effect, the US District Court, Southern District of New York, decided in United States v Palestine Liberation Organization and others on 29 June 1988 that ‘the language of the Headquarters Agreement, the long-standing practice under it, and the interpretation given it by the parties to it leave no doubt that it places an obligation upon the United States to refrain from impairing the function of the PLO Observer Mission to the United Nations’,144 a finding that is in line with the practice of other host States (Switzerland and Austria) to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

grant functional immunities to national liberation movements.145 Disregarding the verdict of the US District Court of 29 June 1988, the US State Department, in November 1988, refused to issue a visa to the PLO Chairman, Yasser Arafat, and thus prevented him from participating in the 43rd session of the UNGA on the agenda item ‘Question of Palestine’. The US State Department argued that it had a ‘right to prevent the entry of persons who represent a threat to the security of the United States’;146 the UNGA thereupon resolved that the United States, by refusing to issue a visa to the PLO Chairman, had violated its legal obligations under the Headquarters Agreement between the United States and the UN, according to which the PLO in the capacity of an observer was free to choose the members of its delegation who would participate in the work of the UN.147 When the United States continued to refuse to reconsider its decision, the UNGA decided, ‘under the dictate of the present circumstances’, to deal with the ‘Question of Palestine’ on the premises of the Geneva Headquarters of the UN.148

Footnotes: *  In large parts this contribution is based on the previous editions authored by Konrad Ginther†. In this 3rd edition and in substitution for Mr Ginther, I assume responsibility for slight revisions and general updates. 1

  RM, 433–39 (Dumbarton Oaks) and 843–54 (San Francisco); see also Grant, 70ff.

2

  RM, 358; see also Grant, 129ff.

3

  CPF/Feuer, 519.

4

  Report of the Committee I/2, UNCIO, (1946–47) UNYB 20–21.

5

  See the statements with regard to the admission of Rwanda and Burundi to the UN, Higgins, 22–3 and (1961) UNYB 484–94, and also the declarations of the UNGA before and after the admission of Guinea Bissau to the UN, (1973) UNYB 143–47 and (1974) UNYB 169–70. 6

  Kelsen, 75; see also Talmon on Art. 2 (6) MN 39–41.

7

  See the proposal of the United States in the UNSC (28 August 1946) and the statement of the UNSG, RP I, 173 para 27 and UNGA Res 197 (III) B (8 December 1948); see also Grant, 130–31. 8

  IL Jr Claude, Swords into Ploughshares (3rd edn, Random House 1964) 77–92, passim and W Morawiecki, ‘Institutional and Political Conditions of Participation of Socialist States in International Organizations: A Polish View’ (1968) 22 IO 494–507, 498–99. 9

  UNCIO VII, 326; MM Whiteman, Digest of International Law, XIII (1968) 193.

10

  Conditions of Admission of a State to Membership in the United Nations (Art. 4 of the UN Charter) (Advisory Opinion) [1948] ICJ Rep 56, 63, 67ff. 11

  ibid, 63.

12

  (1946–51) RPSC, 248–56 and (1952–55) RPSC Supp 85–90; see also Grant, 86ff.

13

  MN Laserson, The Development of Soviet Foreign Policy in Europe, 1917–1942: A Selection of Documents (Carnegie Endowment for International Peace, Division of Intercourse and Education 1943) 40–41. 14

  (1946–51) RPSC 282.

15

  ibid, 283.

16

  Afghanistan, Ireland, Sweden, Thailand, Pakistan, Yemen, Burma, Israel, and Indonesia.

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17

  CPF/Feuer, 528.

18

  L Gross, ‘Progress Towards Universality of Membership in the United Nations’ (1956) 50 AJIL 808 and CPF/Feuer, 530. 19

  RP 1 I, 173, paras 26–33.

20

  B Röhling and M Kilson (ed), New States in the Modern World (Harvard UP 1975).

21

  accessed 5 June 2012; see Fastenrath on Art. 3 MN 11. 22

  Examples given by Conforti, 34.

23

  The current administration dropped these attempts in 2008. On the representation of the original member China by the Taipei government until 1971 see Fastenrath on Art. 3 MN 9. 24

  Press release UNGA/10617 (21 September 2007); see also Grant, 175ff; ET-L Huang, ‘Taiwan’s Status in a Changing World: United Nations Representation and Membership for Taiwan’ (2003) 9 Annual Survey of International and Comparative Law 55, and AD Romberg, ‘Applying to the UN in the name of Taiwan’ (2008) 22 China Leadership Monitor 6–7. 25

  Report of the General Committee, UN Doc A/61/250 para 59; UN Doc A/62/250 para 58; UN Doc A/63/250 para 60. 26

  Conforti, 24f; see the arguments for and against the statehood of the Democratic Republic of Vietnam, Higgins, 21 with further references; on the different requirements for original members see Fastenrath on Art. 3 MN 6. 27

  GHS, 88–89 and (1946–51) RPSC 272–73; on the whole question see Grant, 146ff.

28

  (1946–51) RPSC 272–73.

29

  ibid.

30

  ibid.

31

  RP 5 I, 73, para 20.

32

  (1960) UNYB 200–01.

33

  (1946–51) RPSC 272–73.

34

  RP 3 I, 186, para 21.

35

  ibid.

36

  RP 6 I, 124, para 16.

37

  Higgins, 39–42.

38

  (1946–51) RPSC 272.

39

  See the discussion over the application of the German Democratic Republic, (1966) UNYB 205–07; Grant, 152ff (GDR), 160–61 (Korea) and Higgins, 20–21 (Korea). 40

  See the lengthy UNGA debate over this question on 21 September 2007, UN Doc A/62/ PV.2, 2–27; UN Doc A/62/PV.3, 1–12. 41

  RP I, 183, para 53, fn 69.

42

  (1969–71) RPSC 88.

43

  RP 5 I, 72, paras 12–14.

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44

  MN Gunter, ‘What Happened to the United Nations Ministate Problem?’ (1977) 71 AJIL 110–24. 45

  On this whole question Conforti, 27–28; Grant, 238ff.

46

  F Klein, ‘Die Mitgliedschaft in den Vereinten Nationen’ (1948–49) 1 AVR 147, 157.

47

  LM Goodrich and AP Simons, The United Nations and the Maintenance of International Peace and Security (Brookings Institution 1955) 9. 48

  RM, 84–5 and (1946–47) UNYB 20–21.

49

  (1945) Archiv der Gegenwart 347 and Institut für Internationale Politik und Wirtschaft der DDR and Historische Gedenkstätte des Potsdamer Abkommens (ed), Das Potsdamer Abkommen, Dokumentensammlung (3rd edn, Staatsverlag der DDR 1984) 195. 50

  RM, 844–45.

51

  GHS, 90 (opposition of the Western powers to the admission of Bulgaria, Hungary, and Romania). 52

  See the references in (1946–51) RPSC 273.

53

  See eg the blockade of the admission of Bangladesh because of the non-repatriation of Pakistani prisoners of war, UNGA Res 2793 (XXVI) (7 December 1971), (1972) UNYB 216. 54

  See Rule 58 of the Provisional Rules of Procedure of the UNSC and Rule 135 of the Rules of Procedure of the UNGA. 55

  (1946–47) UNYB 20 and Whiteman (n 9) 192.

56

  RP 3 I, 185, para 17, fn 19.

57

  RM, 929.

58

  Klein (n 46) 158.

59

  cf 223 UNTS 23ff, 3043–55.

60

  H Mosler, ‘Die Aufnahme in internationale Organisationen’ (1958) 19 ZaöRV 288 [author’s translation]. 61

  See the statements in the SPC with regard to UNGA Res 273 (III) (11 May 1949) on the admission of Israel, and to UNGA Res 194 (III) (11 December 1948) on Palestine in RP 3 I, 188, paras 27–28. 62

  Conforti, 29f.

63

  (24 July 2002) UN Doc A/56/1009–S/2002/801, Annex.

64

  Conforti, 32.

65

  See the Statement of the Minister for Foreign Affairs, Figl, on 30 December 1955, in EM Csaky (ed), Der Weg zu Freiheit und Neutralität (Österreichische Gesellschaft für Außenpolitik und internationale Beziehungen 1980) 191; A Verdross, Die immerwährende Neutralität Österreichs (Verlag für Geschichte und Politik 1977) 59–63 and F Ermacora, Zwanzig Jahre österreichische Neutralität (Metzner 1975) 82–84, 92. 66

  UNSC Res 661 (6 August 1990) UN Doc S/RES/661; UNSC Res 670 (25 September 1990) UN Doc S/RES/670; UNSC Res 678 (29 November 1990) UN Doc S/RES/678. 67

  See Reinisch and Novak on Art. 49 MN 9–10.

68

  S Stadlmeier and H Vetschera, ‘Dauernde Neutralität und Kollektive Sicherheit im Lichte des Golfkrieges 1990/91’ (1991) 29 Österreichische Militärische Zeitschrift 314–20 and G Hafner, ‘Die Embargo-Beschlüsse der Vereinten Nationen’ (1990) 20 Economy 2–6.

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69

  See eg the US Dept of State on the possible UN membership of the Vatican State; RM, 509. 70

  GHS, 92.

71

  GHS, 92; UNCIO VII, 327; Whiteman (n 9) 193.

72

  RP 5 I, 73, para 13.

73

  RP 5 I, 73, paras 17–21.

74

  On the practice of the UNGA only to admit new members on the basis of a positive recommendation see RP 10 I, 8f, para 14. 75

  RM, 436.

76

  RP I, 197ff, paras 86–87.

77

  See Senate Res 239 (11 June 1948), (1949) 43 AJIL 634; UNGA Res 296 (IV) K (22 November 1949) UN Doc A/RES/296 (IV). 78

  Kelsen, 61–63; comprehensively on this Grant, 13ff, with further references.

79

  Competence of the General Assembly for the Admission of a State (Advisory Opinion) [1950] ICJ Rep 8–10. 80

  Rule 135 of the Rules of Procedure of the UNGA, Rule 58 of the Provisional Rules of Procedure of the UNSC, cf Annex I to this commentary. 81

  Grant, 61; cf also RP 9 I, Art. 4, para 3; RP 10 I, Art. 4, para 2.

82

  (1946–51) RPSC 271.

83

  ibid; in more detail see Grant, 52ff.

84

  RP 9 I, Art. 4, para 10, but see RP 8 I, Art. 4, para 19 (concerning the former Yugoslav Republic of Macedonia). 85

  (26 July 2011) UN Doc S/2011/451. Concerning the admission to other international organizations and institutions according to the Interim Accord between Greece and Macedonia cf Application of the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of Macedonia v Greece), ICJ Judgment, 5 December 2011 (not yet published). 86

  RP 8 I, Art. 4, para 19; Grant, 204f; M Wood, ‘Macedonia’ MPEPIL (online edn) MN 17.

87

  UNSC Res 817 (7 April 1993) UN Doc S/RES/817.

88

  On the effect of legitimation and recognition through admission see H Mosler, ‘The International Society as a Legal Community’ (1974-IV) 140 Rec des Cours 60. 89

  On the membership policy concerning the two German States see (1966) UNYB 205–07; with regard to the two Koreas and Vietnams, see (1956) UNYB 110–12 and (1958) UNYB 104–08; on Korea see also (1948–49) UNYB 381–83; GK Kindermann, ‘Die Teilstaaten Koreas im Weltgeschehen des letzten Jahrzehnts’ (1983) 37 Aus Politik und Zeitgeschichte 3–19 and M Haas (ed), Korean Reunification: Alternative Pathways (Praeger 1989). 90

  Kindermann (n 89) 17–19.

91

  RP I, 176, para 36 (Report of the Sixth Committee of the UNGA).

92

  On this see U Fastenrath, ‘States, Extinction’ EPIL IV (2000) 669.

93

  I Brownlie, Principles of Public International Law (6th edn, OUP 2003) 80–82; Conforti, 49ff.

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94

  See Vertrag zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands —‘Einigungsvertrag’ (Unification Treaty) (adopted 31 August 1990, entered into force 29 September 1990), (1990) BGBl II 889; (1990) 45 EA 515ff; RP 8 I, Art. 4, para 12. 95

  RP I, 174, para 29.

96

  (1958) UNYB 106.

97

  RP 8 I, Art. 4, para 11.

98

  RP I, 176, para 36 (Report of the Sixth Committee of the UNGA).

99

  RP 5 I, 73, para 17.

100

  RP 8 I, Art. 4, para 7.

101

  RP 8 I, Art. 4, paras 7, 13, 14; on the legal situation of Russia see Fastenrath on Art. 3 MN 10. 102

  RP 8 I, Art. 4, para 15.

103

  RP 8 I, Art. 4, para 16f; RP 10 I, Art. 4, para 9.

104

  See on this Fastenrath on Art. 3 MN 8.

105

  See GHS, 18 and (1961) UNYB 168.

106

  See Fastenrath on Art. 3 MN 7; Schermers and Blocker, MN 11.

107

  See RP 3 I, paras 29–35 and J Klabbers, An Introduction to International Institutional Law (CUP 2002) 124–25. 108

  Conforti, 43.

109

  cf passim Rensmann, MN 1; RG Sybesma-Knol, The Status of Observers in the United Nations (Vrije Universiteit Brussel 1981) passim. 110

  See Meng on Art. 57 MN 48–134 and on Art. 63 MN 6–7, Landwehr on Art. 70.

111

  See Hobe on Art. 71 MN 19–23.

112

  G Sweeney and Y Saito, ‘The NGO assessment of the new mechanisms of the UN Human Rights Council’ (2009) 9 HRL Rev 203–23. 113

  UNGA ‘We the peoples: civil society, the United Nations and global governance, Report of the Panel of Eminent Persons on United Nations-Civil Society Relations’ (11 June 2004) UN Doc A/58/817. 114

  UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1.

115

  B Bartram and D Pardo Lopez, ‘Observer Status’, MN 2, in R Wolfrum (ed), United Nations: Law, Policies and Practice, vol 2 (Nijhoff 1995), 936. 116

  cf A El-Erian (Special Rapporteur of the ILC) on the occasion of the Codification Conference of the Convention on the Representation of States in their Relations with International Organizations of a universal character (13 February 1975) UN Doc A/CONF. 67/3. 1/SR. 8, 4–5. 117

  UN Doc A/49/747 (9 December 1994); Rensmann, MN 3.

118

  RP I, 199, para 91.

119

  On the beginning of this practice, see (1948–49) UNYB 973–74. The first observer missions were established by Italy, Korea, and Switzerland. For the practice of the Secretary-General, see also Suy, 94–95 and Sybesma-Knol (n 109) 25–28.

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120

  Sybesma-Knol (n 109) 26–27.

121

  E Suy, ‘Observers in International Law’ in R Wolfrum (ed), Antarctic Challenge, vol 2 (Duncker & Humblot 1986) 264. 122

  Sybesma-Knol (n 109) 58ff.

123

  Y Abdullah, ‘The Holy See at United Nations Conferences: State or Church?’ (1996) 96 Colum L Rev 1835, 1855–67. 124

  Initially, Palestine gained observer status as a national liberation movement under the name PLO, UNGA Res 3237 (XXIX) (22 November 1974) UN Doc A/RES/3237(XXIX); in 1988 the UNGA decided that the designation Palestine should be used, UNGA Res 43/177 (15 December 1988) UN Doc A/RES/43/177; on the legal status of Palestine under general public international law see Y Ronen, ‘ICC jurisdiction over acts committed in the Gaza Strip: Art. 12(3) of the ICC Statute and non-state entities’ (2010) 8 Journal of International Criminal Law 3, 13. 125

  Executive Office of the UNSG Protocol and Liaison Service, Permanent Missions to the UN, UN Doc ST/SG/SER.A/298. 126

  UNCIO XII, 701, 850 and Suy, 99.

127

  See n 125.

128

  ibid.

129

  cf Sybesma-Knol (n 109) 246–47; K Ginther, ‘Liberation Movements’ EPIL III (1997) 245–49. 130

  See n 124.

131

  For an overview see Ginther (n 129) 248–49.

132

  Text reproduced (1975) 69 AJIL 730–58.

133

  eg Human Rights Council Res 5/1, para 18 lit b (participation of observer States in the Universal Periodic Review Mechanism). 134

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Order of 19 December 2003) [2003] ICJ Rep 428, 429. 135

  P Serrano, ‘Description of the European Union Delegation in New York’, accessed 5 June 2012. 136

  Rensmann, MN 7; Sybesma-Knol (n 109) 41–42.

137

  Rensmann, MN 26.

138

  HF Köck, ‘Multinational Diplomacy and Progressive Development of International Law, Observer Missions’ (1977) 28 Österr ZöRVR 79, and Sybesma-Knol, 41–42; with regard to national liberation movements, see UNGA Res 35/167 (15 December 1980) UN Doc A/RES/ 35/167. 139

  See n 132.

140

  In an exchange of letters between the Swiss Government and the Secretary-General of the UN of 22 October/4 November 1946, it was agreed that the provisions of the Headquarters Agreement between Switzerland and the UN of 11 June/1 July 1946 should also apply to all the services and all the conferences which the UN established or convened in future. By Decree of 31 March 1948/22 May 1958, the Swiss government granted to both permanent missions of member States and to observer missions of non-member States at the UN in Geneva the same privileges and immunities as are granted to diplomatic missions accredited with the Swiss Confederation. On the basis of the above-mentioned agreement,

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by Decree of 25 June 1975, the Swiss government granted privileges and immunities to the Permanent Observer Mission of the PLO at the UN in Geneva. 141

  cf ‘The Explanatory Memorandum with respect to the Regulations by the Austrian Federal Government of Privileges and Immunities accorded to Permanent Observer Missions’ (1979) 30 Österr ZöRVR 376. 142

  11 UNTS 11–41.

143

  UNGA Res 42/229 A (2 March 1988) UN Doc A/RES/42/229, para 2; see also, with the same effect, UNGA Res 42/230 (23 March 1988) UN Doc A/RES/42/230. 144

  Order and Opinion of 29 June 1988, 88 Civ 1962 (ELP) 35 (reproduced in (1988) 27 ILM 1056–91). See also T Fitschen, ‘Closing the PLO Observer Mission to the United Nations in New York: The Decisions of the ICJ and the US District Court, Southern District of New York’ (1988) 31 GYIL 595–620 and E Suy, ‘Recht und Praxis der Amtssitzabkommen. Der Status der PLO-Vertretung als Musterfall und Bewährungsprobe’ (1988) 36 VN 82–86. 145

  cf ‘The Opinion of the Legal Office of the Austrian Ministry for Foreign Affairs on the Rights and Privileges of the PLO in Austria as Host State’ (1979) 30 Österr ZöRVR 377–79. 146

  (1989) 37 VN 74.

147

  UNGA Res 43/48 (30 November 1988) UN Doc A/RES/43/48.

148

  UNGA Res 43/49 (2 December 1988) UN Doc A/RES/43/49.

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Ch.II Membership, Article 5 Christian Tams From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter

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(p. 362) Article 5 A member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security Council. A.  Introduction 1–5 B.  Drafting History 6–9 C.  Interpretation 10–28 I.  Prerequisites 11–15 II.  Procedure 16–19 III.  Effects 20–22 IV.  Restoration Membership of Rights and Privileges 23–26 V.  Evasion 27–28 D.  Concluding Observations 29

Select Bibliography Blum Y, ‘UN Membership of the “New” Yugoslavia: Continuity or Break?’ (1992) 86 AJIL 830. ——— ‘Consistently Inconsistent: the International Court of Justice and the former Yugoslavia (Croatia v. Serbia)’ (2006) 103 AJIL 264. ——— ‘Was Yugoslavia a Member of the United Nations in the Years 1992– 2000?’ (2007) 101 AJIL 800. Ciobanu D, ‘Credentials of Delegations and Representation of Member States at the United Nations’ (1976) 25 ICLQ 351. Combacau J, Le pouvoir de sanction de l’O.N.U. (Pedone 1974). Erasmus G, ‘The Rejection of Credentials: A Proper Exercise of General Assembly Powers or Suspension by Stealth?’ (1981) 7 SAYIL 40. Gross L, ‘On the Degradation of the Constitutional Environment of the United Nations’ (1983) 77 AJIL 569. Halberstam M, ‘Excluding Israel from the General Assembly by a Rejection of its Credentials’ (1984) 78 AJIL 179. Jhabvala F, ‘The Credentials Approach to Representation Questions in the UN General Assembly’ (1977) 7 Calif W Intl LJ 615. Jiménez de Aréchaga E, Derecho Constitucional de las Naciones Unidas (Escuela de Funcionarios Internacionales 1958). Klabbers J, An Introduction to International Institutional Law (CUP 2002). Klein E, ‘Zur Beschränkung von Mitgliedsrechten in den Vereinten Nationen’ (1975) 23 VN 51. Klein F, ‘Die Mitgliedschaft in den Vereinten Nationen’ (1948–49) 1 AVR 147. Magliveras KD, Exclusion from Participation in International Organizations (Kluwer 1997).

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Makarczyk J, ‘Legal Basis for Suspension and Expulsion of a State from an International Organization’ (1982) 25 GYIL 476. Ohse G, Austritt, Ausschluß und Suspension der Mitgliedschaft in den Vereinten Nationen mit Rückblick auf die Zeit des Völkerbundes (Schwarzbold 1971). ——— ‘Ausschluß und Suspension der Mitgliedschaftsrechte in der UNO’ (1971) 19 VN 103.(p. 363) Schütz HJ, ‘Membership’ in R Wolfrum (ed), United Nations. Law, Policies and Practice (Springer 1995) 877. Suttner R, ‘Has South Africa been illegally excluded from the United Nations General Treaties’ (1984) 17 CILSA 279. Wood M, ‘Participation of Former Yugoslav States in the United Nations and in Multilateral Assembly?’ (1997) 1 Max Planck YB UN L 231.

A.  Introduction* 1  Article 5 provides for the suspension of the rights and privileges of membership of member States against which enforcement or preventative action has been taken by the Security Council. Suspension is one of the ‘membership sanctions’ available to the United Nations and is thus regulated as part of Chapter II of the Charter (‘Membership’). Article 5 enables the UN to discipline a member State, so as to ensure that it does not prevent the Organization from discharging its function.1 In the view of the drafters, the Organization had to be able to exercise its powers against a State which poses a threat to or has breached international peace and security or committed an act of aggression without ‘procedural manoeuvring’ from that State.2 Article 5 was intended to ensure this; it thus serves a very specific, instrumental, function,3 but is not intended to permit the punishment of a member for past violation of Charter obligations.4 2  While Art. 5 gives rise to some intricate problems of interpretation,5 it has played a limited role in practice. The progressive expansion of its enforcement powers (notably under Chapter VII) has enabled the UN to take decisive action against member States without suspending them. More importantly, notwithstanding the occasional call for a member State to be suspended, Art. 5 sets up strict procedural requirements: just like expulsion from and admission to the UN, suspension requires joint action by the Security Council and General Assembly—which in practice has been difficult to obtain.6 As a consequence, more flexible forms of curbing membership rights have evolved in practice;7 these, however, have not usually been ‘corollaries of sanctions’,8 but substitutes for them. 3  Article 5 has to be read in the context of other Charter provisions envisaging ‘membership sanctions’. The most obvious link is between suspension and expulsion, regulated in Art. 6. While often treated together9 (and indeed following the same procedural regime), suspension and expulsion are subject to different requirements, produce different effects, and follow different rationales. Under Art. 5, a member State can only be suspended if preventive or enforcement action has been taken against it by the Security Council; by contrast, UN (p. 364) members can be expelled if they have persistently violated Charter principles.10 Suspension is thus a follow-up to an existing institutional action; expulsion is a direct response against treaty breaches.11 As regards their effects, expulsion severs the organizational ties between the Organization and a member State.12 By contrast, suspension is more flexible: it is a temporary measure that (as will be shown13) can affect specific rights and privileges enjoyed by a member State. Furthermore, suspension leaves unaffected the obligations of the suspended member State —whereas an expelled State is no longer bound by the Charter.

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4  A special provision envisaging the suspension of membership rights can be found in Art. 19. It is more specific than Art. 5 in that it deals with a particular membership right, namely voting in the General Assembly. Procedurally, at least in theory, a member State loses this particular membership right automatically if it is in arrears with its financial contributions— although admittedly, the General Assembly’s approach in practice is much more pragmatic.14 By contrast, suspension of membership rights pursuant to Art. 5 is anything but automatic, but requires discretionary political decisions by the UN’s two main political organs. 5  The UN is by no means the only international organization given the power to suspend member States. In fact, suspension provisions are a rather common feature of constitutive documents.15 Typically, however, these documents do not establish a link between suspension on the one hand, and preventive or enforcement action on the other; in this respect, Art. 5 may be said to be an unusual suspension clause. It deserves to be noted that the League Covenant (while permitting the expulsion of members) did not contain any suspension provision along the lines of Art. 5.

B.  Drafting History 6  Even though Art. 5 could not be modelled on a pre-existing Covenant provision, the drafters relatively quickly agreed in principle that the new Charter should contain a suspension clause. Yet notwithstanding this agreement in principle, the drafting history of Art. 5 highlights some of the difficult points of its interpretation as well as uncertainty about the relationship between the suspension and expulsion clauses. 7  Some form of suspension clause already appeared in President Roosevelt’s Outline Plan put forward in late 1943.16 In the view of the United States, a suspension clause was preferable to the idea of expulsion, strongly favoured by the Soviet Union.17 (Eventually, as noted above, the Charter was to have both.) The initial draft of Art. 5, however, did not yet link suspension to preventive or enforcement action. Instead, the Outline Plan viewed suspension as a sanction against a member State that had violated ‘the peace of nations’18 —without clarifying whether UN action against the (p. 365) responsible State would have had to be taken beforehand.19 That uncertainty was resolved during the debates preceding the San Francisco Conference, and Point V(B)(3) of the Dumbarton Oaks Proposals contained a suspension clause very similar to that eventually adopted.20 8  At San Francisco, the suspension clause attracted considerable attention. It did so largely because many States were keen to exclude the possibility of expulsion and offered to accept a more stringent suspension clause instead.21 On that basis, Committee I/2 (Membership, Amendments, Secretariat), having failed to agree on an expulsion clause, proposed to permit suspension in two alternative settings: first, in cases of preventive or enforcement action (as in the eventual Art. 5); and second, as a response to ‘grave and persistent violation of Charter principles’ (terms used to describe prerequisites for expulsion in Art. 6). Eventually, the executive committee, stressing the need for an expulsion clause, put an end to this amalgamation: at its insistence, the expulsion clause was retained alongside the suspension clause, and the conditions for both ‘disentangled’.22 9  A separate strand of debate concerned the procedure governing suspension. States at San Francisco affirmed that suspension would require joint action by the Security Council and the General Assembly.23 The second clause of Art. 5 (empowering the Security Council to restore rights and privileges without mentioning the Assembly) seemed to be at odds with this approach and gave rise to discussion.24 Amendments aimed at involving the General Assembly in the process, however, failed to attract the required support. As a consequence, notwithstanding the considerable amount of debate at San Francisco, the

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eventual version of Art. 5 reproduced Point V(B)(3) of the Dumbarton Oaks Proposals almost to the letter.

C.  Interpretation 10  Article 5 follows a rather clear structure. The provision mentions substantive prerequisites for suspension (see MN 11–15) and lays down the procedure to be followed (see MN 16–19). Suspension being designed to be a temporary measure, the second clause specifies the procedure for restoring membership rights and privileges (see MN 23–26). These aspects will be addressed in the following sections, which also deal with the legal effects of suspension (MN 20–22) and outline how practice has evolved outside the framework of Art. 5 (MN 27–28).

(p. 366) I.  Prerequisites 11  The suspension of the rights and privileges of membership of a member State, in accordance with Art. 5, can only take place once the Security Council has taken preventive or enforcement action against that State. The formulation of this substantive condition brings out the instrumental character of Art. 5: unlike expulsion, suspension is not a direct response against conduct of the recalcitrant State, but a measure accompanying institutional action by the Security Council25 (which of course is typically triggered by member State conduct disapproved by the Organization, or even member State conduct that ‘persistently violate[s] the Principles contained in the present Charter’26). 12  The meaning of the term ‘preventive or enforcement action’ has prompted considerable discussion.27 Given the lack of practice under Art. 5, the depth and detail of this debate may be surprising. As will be shown, the core meaning of the term seems clear enough, and while there are some doubts about the penumbral meaning, the Organization’s unwillingness or inability to apply Art. 5 means that this is unlikely to be practically relevant. 13  As regards the core meaning, it is beyond doubt that the term ‘enforcement action’ comprises military and non-military sanctions imposed under Arts 41 and 42 of the Charter.28 This reading is in line with Art. 2 (5) and (7) of the Charter, which use the terms ‘enforcement measures’ and ‘enforcement action’ in relation to binding Chapter VII action.29 The same is true for binding measures by which the Security Council seeks to ensure compliance with ICJ judgments pursuant to Art. 94 (2): while that provision (just like Art. 5) has yet to be applied, it is based on the idea that the Security Council could become the ICJ’s ‘enforcement agent’; in this case, its measures would clearly qualify as ‘enforcement action’.30 14  Whether measures adopted under Art. 40 of the Charter would be sufficient to permit a decision on suspension is controversial.31 On the face of it, it does not seem clear why this should be problematic: after all, Art. 40 expressly enables the Security Council to ‘prevent an aggravation of the situation’, which would seem to be a preventive measure par excellence. The real question is whether Art. 40 permits the imposition of legally binding measures. This is a broader question going beyond, and only tangentially affecting, Art. 5.32 For present purposes, it may thus be sufficient to note that while the wording of Art. 40 (‘calls upon’) does not settle the matter, the purpose of the measure suggests an affirmative answer.33 On that basis, binding provisional measures imposed under Art. 40 should be seen as ‘preventive measures’ for the purposes of suspension.34 (p. 367) 15  The bigger issue raised by the debate is whether non-binding measures adopted by the Security Council could qualify as ‘preventive or enforcement action’ for the purposes of Art 5. This question is discussed with respect to Chapter VI action,35 but equally arises with respect to non-binding measures adopted under Chapter VII.36 The term ‘action’ seems broad enough to cover non-binding measures as well: while some organized activity of the Council going beyond mere deliberations is certainly required, the term From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

‘action’ is neutral with respect to the effects of that activity.37 A more restrictive understanding, however, would seem to follow from the purpose of Art. 5 as an additional or supplementary measure: it would be surprising for the ‘corollary’ to entail far-reaching legal effects if the Security Council’s principal action did not impose any legal obligations.38 On that basis, a suspension would usually seem to require the imposition of legal obligations on a member State—which could then be supplemented by a membership sanction. Instances in which the Security Council, for political reasons, leaves open whether its actions are binding might qualify as an exception to this rule.39 However, in this case, it is highly unlikely that proposals for a suspension should muster the required support.

II.  Procedure 16  Article 5 is considerably more precise in prescribing the procedure governing suspension. The eventual decision to suspend a member State is taken by the General Assembly; it presupposes a recommendation by the Security Council. (As noted above, both steps presuppose the previous involvement of the Security Council, which must have taken preventive or enforcement action.) In requiring the joint action of both organs, Art. 5 follows the same procedure as Art. 4 (admission of new members) and Art. 6 (expulsion). As was clarified by the ICJ with respect to the admissions procedure, the participation of both organs in the decision-making process is indispensable.40 The Security Council recommendation in itself produces no legal effects; more importantly, without a Security Council recommendation, the General Assembly cannot validly act.41 17  The first step in the procedure is a recommendation, by the Security Council, to suspend a member State from the exercise of the rights and privileges of membership. This recommendation, while not binding, must be made following the usual procedures governing Security Council decision-making. More specifically, it is a non-procedural matter in the sense of Art. 27 (3) that requires the affirmative vote of nine members, and that can be vetoed by each of the five permanent members.42 Article 5 says very (p. 368) little on the content of the recommendation: presumably it would be made in a Security Council resolution, perhaps even the same resolution by which the Council had taken the preventive or enforcement measures that Art. 5 presupposes. To the extent that the Security Council wanted to suspend specific rights and privileges of a member State,43 it would have to say so expressly. 18  The actual decision to suspend a member is taken by the General Assembly. Its decision is an independent step in the process and discretionary: while the General Assembly is unlikely to ignore a recommendation of the Security Council, it is not bound by it.44 Procedurally, pursuant to Art. 18 (2), the decision requires a two-thirds majority of the members present and voting in the Assembly (including the affected State).45 19  As is clear from these considerations, the procedure set out in Art. 5 is designed to ensure that member States are not suspended lightly. While this approach is sensible in theory, it has probably been carried too far—especially as the suspension procedure proper can only be initiated once the Security Council has agreed to take enforcement or preventive action against the member State concerned: unlike expulsion, suspension thus requires two rounds of decision-making in the Security Council.46 The result is a procedure that in practice has proven too demanding to be applied. Permanent members of the Security Council are effectively shielded from suspension; other ‘candidates’ for suspension will often be able to find support among one of the P5. Experience since 1945 suggests that, while preventing abuse, the procedure of Art. 5 has stifled the application of a potentially useful membership sanction. Not surprisingly, practice has evolved differently.

III.  Effects

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20  Article 5 says very little on the effects of suspension. It seems clear that—unlike in the case of expulsion—a suspended State continues to be a member of the UN and remains bound by obligations flowing from membership47 (such as the duties to contribute to the expenses of the Organization, or to carry out the decisions of the Security Council, etc). What is affected is ‘the exercise of the rights and privileges of membership’. This formula has given rise to some debate. A preliminary point concerns the use of the terms ‘rights and privileges’. Taken together, these refer to benefits and entitlements flowing from membership in the UN. They include (to give just some examples48) the representation, participation, and voting in the General Assembly; the eligibility to be elected onto other main and subsidiary organs of the Organization and to participate in their work; or the right to nominate candidates for election to the International Court of Justice.49 Conversely, the suspension does not automatically affect rights and privileges established (p. 369) under other documents—eg membership rights in specialized agencies (flowing from the agency’s constitutive document) or rights as an administering power granted by a trusteeship agreement.50 While this much is generally agreed, considerable uncertainties remain. 21  The most fundamental disagreement concerns the potential for ‘targeted’ suspensions. It is not clear whether the Organization should be able to suspend only some of the rights and privileges flowing from UN membership. The wording suggests that this may be problematic: a suspension affects ‘the exercise of the rights and privileges of membership’, rather than ‘any of the rights and privileges’; this seems to indicate that the Organization can either suspend all rights and privileges or none of them.51 The drafting history supports this strict reading. While the Outline Plan had envisaged that member States could be prevented ‘from exercising any or all of its membership rights’,52 the more flexible wording was later abandoned, and the Coordination Committee at San Francisco expressly declared that suspension would affect ‘all and not…some [rights and privileges]’.53 The strict approach, however, seems at odds with the functional understanding of Art. 5 outlined in the Introduction. If the suspension of a State is intended to ensure that the Organization can properly discharge its functions, then this need not always require the suspension of all rights and privileges of membership. In fact, a flexible understanding (allowing for targeted suspension) would much better take account of the discretionary character of Art. 5, which places so much emphasis on the cooperation between the Security Council and General Assembly. Methodologically, the right to suspend all rights and privileges might imply the possibility of a targeted suspension.54 This indeed was the approach put forward by the Legal Counsel in an opinion presented in 1968,55 and it seems preferable to the strict reading favoured by the drafters. In order to avoid doubts, the Security Council and General Assembly would be expected to specify which rights and privileges flowing from membership they seek to suspend; on that basis (and provided they agree), the targeted suspension should be accepted.56 22  It is a separate matter whether particular rights and privileges of membership should be ‘ring-fenced’ from suspension. This has been notably discussed with respect to rights and privileges flowing from the ICJ Statute. Given that international law encourages the peaceful settlement of disputes by the ICJ, writers have sought to introduce a distinction between the narrower circle of ‘UN membership rights and privileges’ and rights and privileges enjoyed by States as ‘members of the international judicial community’.57 However (p. 370) laudable the intentions informing it, this approach seems difficult to sustain.58 It treats the ICJ Statute as if it were a separate treaty, even though Arts 92 and 93 (1) unequivocally declare it to be an integral part of the Charter and link participation in the Statute to UN membership. On that basis, the better view is that a suspension can affect rights and privileges recognized by the ICJ Statute. This illustrates the diversity of the rights and privileges that can be suspended under Art. 5. On that basis, one can only hope that if they ever were to apply Art. 5, the Security Council and General Assembly

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would exercise their discretion and suspend only specific rights and privileges of membership.

IV.  Restoration of Membership Rights and Privileges 23  In its second clause, Art. 5 regulates the restoration of membership rights and privileges. By expressly addressing the matter, the drafters underlined that suspension was meant to be a temporary measure. As regards its effects, the restoration reverses the initial decision to suspend membership rights or privileges. However, it is subject to a different procedure: whilst the General Assembly and Security Council need to cooperate in order to effect suspension, membership rights and privileges can be restored by the Security Council acting alone. As noted above, the matter was discussed at San Francisco, where proposals to involve the General Assembly in the process failed to muster sufficient support.59 As a result, the second clause of Art. 5 is strangely at odds with the ‘joint action approach’ otherwise underlying Arts 4–6.60 The divergence may perhaps be justified because of the link between suspension and preventive or enforcement action: as the organ bearing primary responsibility for the maintenance of international peace and security, the Security Council may indeed be best placed to decide whether the ‘additional sanction’61 of suspending membership rights and privileges remains necessary.62 Yet on that basis, one wonders why the General Assembly should have been involved in the suspension procedure in the first place. Be that as it may, the Charter text is clear enough, and given the impossibility to apply Art. 5 so far, one should perhaps be relieved that the drafters, at San Francisco, did not further complicate the procedural regime. 24  While identifying the competent actor, Art. 5 does not prescribe how and under which circumstances suspended rights and privileges can be restored. Just as with regard to its decision to recommend suspension, the Security Council would presumably act by way of a resolution. Its decision would be governed by Art. 27 (3), ie require the affirmative vote of nine members, with a possibility of a veto by any of the permanent members. 25  In deciding about the restoration of rights and privileges, the Security Council enjoys a wide margin of discretion. If Art. 5 were ever to be applied, one would expect the Security Council to restore suspended rights or privileges at a time when the preventive or enforcement action taken has ceased or become unnecessary—eg because its aims have been met. However, it would be wrong to construe this as a legal condition.63 (p. 371) During the debates at San Francisco, States rejected the idea that restoration should only be permitted once the preventive or enforcement action had been discontinued.64 In practice, such a condition would be extremely difficult to apply: eg how would one classify situations in which enforcement or preventive action gradually were to produce results; and who should determine whether even after the lifting or easing of some of the measures taken against a recalcitrant State, the suspension of rights and privileges would remain necessary and useful?65 Lastly, experience with Art. 5 since 1945 suggests that the procedure is overly regularized and complex; attempts to further regularize it by reading strict legal conditions into Art. 5 should thus be regarded with caution. On the basis of these considerations, the restoration of suspended rights and privileges is indeed best ‘decoupled’ from the underlying preventive or enforcement measures: bearing primary responsibility for the maintenance of international peace and security, the Security Council can decide to leave the ‘additional sanction’ in place even after the principal sanction has been terminated; conversely, it need not wait for the termination of the principal sanction before restoring suspended rights and privileges.66 26  Lastly, one may wonder whether the Security Council could restore some of the suspended rights and privileges, while leaving others suspended for the time being. Article 5 does not settle this matter conclusively; and since no State has ever had rights or privileges suspended let alone restored, practice provides no guidance. If Art. 5—as suggested67—is understood as a flexible mechanism allowing for the suspension of specific

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rights and privileges, there would seem to be no reason to restrict the Security Council to ‘all or nothing’ decisions: just as a suspension could be targeted, so could the restoration of rights and privileges. This further underlines the discretionary character of the restoration procedure.

V.  Evasion 27  As noted at the outset, no member State has so far been suspended in line with Art. 5. Nevertheless, organs of the Organization have taken action against particular States with a view to curbing some of their membership rights. The ‘de-credentialization’ of South Africa, Portugal, and Israel within the General Assembly provides the most prominent example in point:68 it effectively precluded the member States concerned from exercising their right to be represented in, and participate in the work of, the General Assembly. The assertion, by the General Assembly’s credentials committee, of a right to scrutinize the credentials of a member State delegation has rightly been criticized.69 For present purposes, it is important to note that—whatever its legality—de-credentialization followed a rationale very different from that underlying suspensions under Art. 5 proper. Rather than a ‘corollary to a sanction’,70 the rejection of credentials was a substitute for a sanction: an important political and symbolic measure that allowed a majority of UN (p. 372) member States to express their disapproval of the policies of South Africa, Portugal, and Israel. As a direct response against what was perceived (rightly or wrongly) to amount to a violation of Charter principles, the decredentialisation approach, if anything, followed the logic underlying Art. 6—not Art. 5.71 28  The UN’s handling of Yugoslavia’s status during the 1990s provides a second illustration of how membership problems have been dealt with pragmatically, rather than on the basis of Art. 5 (or Art. 6).72 In 1992, upon a recommendation of the Security Council, the General Assembly decided ‘that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the UN’ and ‘shall not participate in the work of the General Assembly’.73 This had the effect of suspending some of Yugoslavia’s rights and privileges of membership (while not affecting other rights, and Yugoslavia’s obligations). Unlike in the case of South Africa and others, this decision was based on ‘joint action’ between the Security Council and the General Assembly and adopted at a time when the Council had taken ‘preventive or enforcement action’ against Yugoslavia.74 All this suggests that in late 1992, Security Council and General Assembly might have applied Art. 5. However, the resolutions adopted suggest that they chose not to, but instead opted to evade the Charter provisions.75 Both Council and Assembly proceeded from the assumption that the Socialist Federal Republic of Yugoslavia (SFRY) had ceased to exist:76 on that basis, however, and given that it could not automatically continue the SFRY’s membership, the FRY could not have been a member in the first place—which makes it difficult to see how specific membership rights could be suspended. As regards the intention of the drafters, the resolutions were not adopted to enable the UN effectively to discharge its functions—which it could, in principle, even though it would be some time before it chose to do so effectively. Instead, with the benefit of hindsight, UNSC Res 777 and UNGA Res 47/1 seem relevant mainly as an assessment, by the UN’s two main political organs, of the FRY’s claim to State identity.77 As the legal debate of the following years was to show, the pragmatism displayed by Assembly and Council considerably complicated an already confusing situation—and made it all the more difficult for other actors within the UN (such as the Legal Counsel,78 or the ICJ79) to arrive at convincing legal conclusions, before the FRY’s new (p. 373) membership bid of 2001 finally clarified matters pro futuro.80 Yet while the episode may hold important lessons about the risks of an overly pragmatic approach to questions of

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membership, it suggests that UNSC Res 777 and UNGA Res 47/1 had little to do with suspension as envisaged in Art. 5.

D.  Concluding Observations 29  Article 5 is a curious provision. The instrumental understanding of suspension, meant to be a ‘corollary to a sanction’,81 is dubious; the procedural requirement of joint action of the two main organs has meant that the provision is extremely difficult to apply. Experience since 1945 suggests that Art. 5 is not really necessary: the instances in which the UN would need to suspend members in order effectively to discharge its functions are few and far between—in most cases, the UN can act against the will of member States if only the Security Council reaches agreement on the matter; conversely, the suspension of a permanent member of the Council (which might break a deadlock) is effectively excluded. It does not come as a surprise, then, that Art. 5 has yet to be applied and that practice has evolved differently. In retrospect, the uncertainties relating to that practice might have been prevented had the drafters agreed on a more straightforward suspension clause. Already in his Law of the United Nations, Kelsen had observed that the ‘[s]uspension of the exercise of the rights of membership could be an appropriate sanction against any violation of obligations of a Member’.82 In Arts 5 and 6, the drafters instead opted for an overcomplicated procedure, which has effectively precluded the UN from making use of a potentially useful membership sanction.

Footnotes: *  The author is grateful to Gail Lythgoe for valuable research assistance. 1 

Magliveras, 103. Makarczyk speaks of ‘the restoration of the integrity of the legal system of organization’ (1982) 25 GYIL 479. 2 

Magliveras, 125; GHS, 98; Bentwich and Martin, 24.

3

  See Jiménez de Aréchaga: ‘corolario de una sanción’, 149; similarly Combacau: ‘sanction supplémentaire’, 75; and Kelsen: ‘additional measure/sanction’, 714. This is a helpful clarification even though terms like ‘corollary’ or ‘supplementary’ could suggest that the suspension would be automatically tied to the principal sanction it seeks to facilitate: for more on this see MN 23–25. 4

  Magliveras, 123; Makarczyk, 479; Kelsen, 714.

5

  See eg MN 11–15.

6 

For details see MN 16–19.

7

  See MN 27–28.

8

  cf Jiménez de Aréchaga (n 3).

9

  Typically with the proviso that suspension is ‘the less rigorous measure’: see eg Schütz, 882; similarly Klabbers, 122. 10

  Tams on Art. 6 MN 10–15.

11 

According to Dahm, vol 2, 177, the requirement of preventive or enforcement action qualifies as a ‘formal condition’—as opposed to the ‘substantive condition’ (violation of Charter principles) required by Art. 6. 12

  Tams on Art. 6 MN 18–21.

13 

See MN 21.

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14

  For details see Tomuschat on Art. 19 MN 17–28.

15

  For details see Magliveras, 131–62; Amerasinghe, 114–17.

16

  Outline Plan for the Establishment of an International Organization for the Maintenance of International Peace and Security, Point IV (reproduced in RM, 994). 17

  See GHS, 96.

18

  cf Outline Plan (n 16).

19

  cf Magliveras, 104.

20

  The first two clauses of that provision ran as follows: ‘The General Assembly should, upon recommendation of the Security Council, be empowered to suspend from the exercise of any rights or privileges of membership any member of the Organization against which preventive or enforcement actions have been taken by the Security Council. The exercise of the rights and privileges thus suspended may be restored by decision of the Security Council.’ 21

  See eg UNCIO VII, 113–14.

22

  For details see UNCIO V, 498–502 (executive committee referring the matter back to Committee); UNCIO VII, 193–6 (renewed debate in Committee I/2); and UNCIO VII, 329–32. cf also Tams on Art. 6 MN 7–8. 23

  See UNCIO IX, 115–17.

24

  UNCIO IX, 117–19.

25

  Given the clear language of Art. 5, measures authorized by the General Assembly (pursuant to UNGA Res 377 (V) 3 November 1950) UN Doc A/RES/377 (V) would not qualify as preventive or enforcement action for the purposes of suspension. 26

  cf Art. 6.

27

  See notably Magliveras, 106–20; Schütz on Art. 5 (2nd edn) MN 7–18.

28

  Magliveras, 107; Kelsen, 714; CPF/Leben and Forteau, 536.

29

  For details see Aust on Art. 2 (5) MN 25–27 and Nolte on Art. 2 (7) MN 67–71.

30

  CPF/Leben and Forteau, 536; Kelsen, 714; GHS, 96.

31

  See eg Magliveras, 106–20.

32

  For details see Krisch on Art. 40 MN 13–14.

33

  See eg Kelsen, 740–42; GHS, 306.

34

  The opposite view is based on the assumption that Art. 40 does not impose binding obligations: see eg Kelsen, 714. 35

  See notably Arts. 36 (1) and 37 (2).

36

  cf Krisch on Art. 39 MN 48–49.

37

  A point rightly stressed by Schütz on Art. 5 (2nd edn) MN 18.

38

  cf Dahm, vol 2, 177; Kelsen, 714; Magliveras, 110 for similar approaches.

39

  Schütz on Art. 5 (2nd edn) MN 18.

40

  See Competence of the General Assembly for the Admission of a State [1950] ICJ Rep 4, 7–9; and Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, 162–3 (both relating to Art. 4 (2) of the Charter).

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41

  While the ICJ has decided on the procedure governing admission, its reasoning applies to Art. 5 as well. In fact, the Court, in its Admissions opinion, expressly referred to Art. 5: Competence of the General Assembly for the Admission of a State [1950] ICJ Rep 4, 8: ‘Under Articles 4, 5 and 6, the Security Council co-operates with the General Assembly in matters of admission to membership, of suspension from the exercise of the rights and privileges of membership, and of expulsion from the Organization.’ See further (2 December 1968) UN Doc A/C.2/L. 1030 (statement of the Legal Counsel submitted pursuant to a request made at the 1236th meeting of the Second Committee) UN GAOR 23th Session, Annexes (Agenda Item 34), para 25. 42

  CPF/Leben and Forteau, 537; Kelsen, 507–08.

43

  See MN 21.

44

  CPF/Leben and Forteau, 537.

45

  Dahm (vol 2), 178; CPF/Leben and Forteau, 537.

46

  Magliveras, 124.

47

  Schermers and Blokker, § 139; Kelsen, 713; Bentwich and Martin, 25; Jiménez de Aréchaga, 149; Dahm (vol 2), 177. 48

  See further Magliveras, 125–26. Klabbers rightly notes that member States will typically care most about their voting rights within an organization (An Introduction to International Institutional Law, 122). 49

  Whether these particular entitlements are classified as ‘rights’ or ‘privileges’ is of no practical relevance, as the decision to suspend a member State can affect both. On that basis, it seems curious that the use of the term ‘privileges’ in Art. 5 should have prompted debate: cf Kelsen; 712; Ohse, 129; Schütz on Art. 5 (2nd edn) MN 25. In contrast, in assessing the effects of a suspension, it may be necessary to distinguish between the existence of a given right or privilege on the one hand, and its enjoyment on the other: by way of illustration, Leben and Forteau differentiate between the right to be elected onto a UN organ with restricted membership (which can be suspended) and the exercise, by elected members, of their temporary office. As they note, it is not entirely clear whether the Security Council and General Assembly could simply terminate the term of office of a member State suspended from the UN (CPF/Leben and Forteau, 540). 50

  See Kelsen, 712; CPF/Leben and Forteau, 540; and—for trusteeship agreements—Art. 81 of the Charter. It should be noted that under some constitutions of organizations belonging to the ‘UN family’, suspension from the UN can produce ripple effects: see eg Art. II (4) of the UNESCO Constitution. 51

  On that basis, Conforti distinguishes ‘total suspension’ in the sense of Art. 5 from instances of ‘partial suspension’, eg envisaged in Art. 19, 39–40. 52

  cf n 16.

53

  UNCIO XVII, 346; and further UNCIO XVIII, 130.

54

  Schermers and Blokker, § 1468; Schütz on Art. 5 (2nd edn) MN 26.

55

  UN Doc A/C.2/L.1030, para 16.

56

  A point rightly stressed by Schütz on Art. 5 (2nd edn) MN 26.3

57

  Kelsen, 713; Ohse, 132–3; GHS, 97.

58

  Magliveras, 127; Schütz on Art. 5 (2nd edn) MN 28.

59

  MN 9.

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60

  cf Dahm, vol 2, 178: ‘A curious result.’ (‘Ein sonderbares Ergebnis.’).

61

  CPF/Leben and Forteau, 541.

62

  For these, and other, explanations see UNCIO III, 197, 224 (Venezuela), 234 (Netherlands), 350 (Honduras), 356 (Norway). 63

  This is a popular argument in the literature: cf eg Magliveras who suggests that if the Security Council refuses to lift the suspension, membership rights and privileges should be automatically restored upon termination of the preventive or enforcement action (Exclusion from Participation in International Organizations, 128). 64

  Mexico: UNCIO III, 182.

65

  Kelsen, 713–14. Contrast Magliveras, 128–30, for attempts to construe legal links between enforcement or preventive action on the one hand, and restoration decisions on the other. 66

  CPF/Leben and Forteau, 540–41.

67

  MN 21.

68

  For details on this see Erasmus (1981) 7 SAYIL 40; Halberstam (1984) 78 AJIL 179; Jhabvala (1977) 7 Calif W Intl LJ 615; Suttner (1984) 17 CILSA, 279; Magliveras, 203–29; Amerasinghe, 128–30; Gross, 569; and cf Tams on Art. 6 MN 23 for a brief summary. 69

  See references (n 69).

70

  cf n 3.

71

  cf further Tams on Art. 6 MN 23.

72

  See Blum (1992) 86 AJIL 830; and the ensuing debate reproduced in (1993) 93 AJIL 240– 51; as well as Wood (1997) 1 Max Planck YB UN L 241f. 73

  UNGA Res 47/1 (22 September 1992) UN Doc A/RES/47/1, based on UNSC Res 777 (1992) UN Doc S/RES/777. 74

  cf UNSC Res 713 (1991) UN Doc S/RES/713; UNSC Res 743 (1991) UN Doc S/RES/743; UNSC Res 757 (1991) UN Doc S/RES/757; UNSC Res 760 (1992) UN Doc S/RES/760; UNSC Res 770 (1992) UN Doc A/Res 1054; UNSC Res 771 (1992) UN Doc A/RES/771. 75

  Leben and Forteau rightly label it ‘un faux précédent’ (CPF/Leben and Forteau, 551).

76

  Hence the operative part of UNSC Res 777 (1992) UN Doc S/RES/777 was preceded by the following preambular paragraph: ‘Considering that the state formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist.’ 77

  cf Klabbers, 117–19, who treats the ‘Yugoslav episode’ as a problem of ‘State succession and membership’. 78

  cf his attempt to elucidate the meaning of UNSC Res 777 (1992) UN Doc S/RES/777 and UNGA Res 47/1 (29 September 1992) UN Doc A/47/485. 79

  Contrast the Court’s ‘consistently inconsistent’ approach displayed in the proceedings between Bosnia and Hercegovina and Serbia and Croatia and Serbia: [1996] ICJ Rep 595; [2004] ICJ Rep 308; [2007] ICJ Rep 43; [2008] ICJ Rep 412. On all of these see Blum, (2009) 103 AJIL 264. 80

  For much more on this see Blum (2007) 101 AJIL 800; and Blum (2009) 103 AJIL 264.

81

  n 3.

82

  Kelsen, 714.

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Ch.II Membership, Article 6 Christian Tams From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter

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(p. 374) Article 6 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. A.  Generalities 1–6 B.  Drafting History 7–8 C.  Requirements for the Application of Article 6 9–17 I.  Substantive Conditions 10–15 1.  ‘has persistently violated’ 10–11 2.  ‘the Principles contained in the present Charter’ 12–15 II.  Procedural Requirements (‘expelled…by the General Assembly upon the recommendation of the Security Council’) 16–17 D.  The Legal Effects of Expulsion 18–21 E.  Practice 22–25 I.  Israel and South Africa 23–24 II.  The Federal Republic of Yugoslavia (FRY) 25 F.  Practice of Other International Organizations 26–27 G.  Assessment 28

Select Bibliography Amerasinghe CF, Principles of the Institutional Law of International Organizations (2nd edn, Cambridge 2005). Combacau J, Le pouvoir de sanction de l’ONU. Etude théorique de la coercition non militaire (Pedone 1974). Glos GE, ‘Termination of Membership in the United Nations’ (1960) 2 Malaya Law Review 226. Gross L, ‘On the Degradation of the Constitutional Environment of the United Nations’ (1983) 77 AJIL 569. Jenks CW, ‘Expulsion from the League of Nations’ (1935) 16 BYIL 155. ——— ‘Some Constitutional Problems of International Organizations’ (1945) 22 BYIL 11. Klein F, ‘Die Mitgliedschaft in den Vereinten Nationen’ (1948–9) 1 ArchivVR 147. Leben C and Forteau M, ‘Article 6’ in JP Cot, A Pellet, and M Forteau (eds), La Charte des Nations Unies, Commentary (3rd edn, Economica 2005). Magliveras KD, Exclusion from Participation in International Organizations (Kluwer 1997). Makarczyk J, ‘Legal Basis for Suspension and Expulsion of a State from an International Organization’ (1982) 25 GYIL 476.

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Ohse G, Austritt, Ausschluß und Suspension der Mitgliedschaft in den Vereinten Nationen mit Rückblick auf die Zeit des Völkerbundes (Schwarzbold 1971). Patel CN, ‘The Legal Aspects of State Expulsion from the United Nations: South Africa a Case in Point’ (1982/3) 3 NULR 197. Schermers HG and Blokker N, International Institutional Law (3rd edn, Springer 1995). (p. 375) Schütz HJ, ‘Membership’ in R Wolfrum (ed), United Nations: Law, Policies and Practice (Springer 1995). Singh N, Termination of Membership of International Organizations (Praeger 1958). Sohn LB, ‘Expulsion or Forced Withdrawal from an International Organization’ (1964) 77 Harv L Rev 1381. Zeidler F, Der Austritt und Ausschluß von Mitgliedern aus den Sonderorganisationen der Vereinten Nationen (Lang 1990).

A.  Generalities 1  Pursuant to Art. 6, member States can be expelled from the UN. The Organization is thus competent to resort to the severest form of what has been termed a ‘sanction of nonparticipation’.1 This severe sanction is available under narrowly defined circumstances only, namely if two of the UN’s main organs agree that a member State ‘has persistently violated the Principles contained in the present Charter’. To date, Art. 6 has never been applied. 2  Article 6 has to be read in the context of other provisions that envisage the curbing of membership rights of States. It is closely linked to Art. 5, which regulates the suspension of membership rights, and the special provision of Art. 19, which deals with voting rights in the General Assembly. While these suspension provisions, however, merely affect rights flowing from a member State’s position within the UN, expulsion—just like withdrawal2— terminates a State’s membership. Moreover, the membership sanctions of Arts 5, 6, and 19 form part of the Charter’s sanctions regime, which notably includes the SC’s competence to take binding enforcement action under Chapter VII of the Charter with a view to preserving or restoring international peace and security. In practice, enforcement action has been found to be a more suitable way of responding against a member State that ‘has persistently violated the Principles contained in the present Charter’. 3  Article 6 has a forerunner in Art. 16 (4) of the Covenant of the League of Nations. Pursuant to that provision, a member State could be expelled for any violation of its obligations under the Covenant, if only the Council unanimously so decided. While this provision did not play a major role, it was applied, and the League’s practice informed the drafting of Art. 6 of the Charter. Article 16 (4) of the Covenant was resorted to only once, when in 1939 the Council unanimously—albeit with only seven out of 14 possible votes3— declared that by invading Finland, the Soviet Union had ‘placed itself outside the League of Nations’ and was ‘no longer a Member of the League’.4 Already in 1934, there had been (unsuccessful) attempts, sponsored by the United Kingdom, to expel Liberia for its continued practice of slavery.5 Irrespective of the open wording, League (p. 376) practice suggests that the sanction provided for in Art. 16 (4) should be resorted to only in exceptional circumstances. This is confirmed by two studies, submitted by the League of Nations Secretary-General and a sub-committee of the Committee on Amendments to the Covenant, which inquired whether Art. 16 (4) could be applied to member States failing to pay contributions. While pointing out that the provision made no distinction between fundamental and ‘other’ obligations, both studies also found that expulsion should only be resorted to after other measures had been exhausted and in response to serious breaches.6

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Article 6 UN Charter formalizes this understanding by adopting the more stringent requirement of a persistent violation of Charter principles. 4  Still, even given this more restrictive language, there is considerable discussion as to the usefulness of expulsion clauses in constituent documents of international organizations. The debate may be briefly recapitulated here, as it sheds light on the nature of Art. 6 and has a bearing on its interpretation. There is little doubt that by expelling recalcitrant members, an organization can achieve a number of goals. For example, expulsion may be a means of showing strength and determination vis-à-vis an ill-willed member, or it may solve an institutional deadlock, if one member blocks decision-making processes. What is more, the mere existence of an expulsion clause may be a deterrent for potential law-breakers or enhance the institutional ‘discipline’ among wavering member States, especially if the respective organization has become an indispensable forum for the coordination of international activities. In short, it may therefore be said that the possibility of expelling members can enhance an organization’s effectiveness considerably. 5  On the other hand, the immediate effects of expelling member States may very often be counterproductive. In the first place, expulsion does not remedy the violation, but frees the law-breaker from the very commitments whose violation has caused the measure. While sending a clear signal, an organization expelling a member State thus loses the ‘institutional grip’, and possibly all remaining influence. It has been asserted that wavering members could be better disciplined within the organization, and that generally all purposes for which expulsion is deemed to be necessary could be served by other, more constructive measures, notably suspension or (within the UN context) indeed sanctions under Chapter VII. With particular regard to the UN’s special character as a World Organization, two additional arguments need to be considered: the first relates to the UN’s aspiration to achieve universal membership.7 The expulsion of member States necessarily runs counter to this aspiration. If taken as an absolute aim, universality would therefore seem to rule out the possibility of expulsion. The second, related aspect is that of constitutionality: those stressing the constitutional features of the Charter have rightly questioned whether it would be a legitimate measure at all to permanently expel States from the ‘organized international community’.8 6  Based on these arguments, Art. 6 has been described as an unnecessary, or undesirable provision.9 In response, it may be said that there may well be situations in which, (p. 377) for the reasons outlined above, expulsion seems the only feasible means to preserve the integrity of an organization. The very fact that a provision on expulsion was included in the Charter would also prompt questions as to whether the UN indeed strives at unqualified universality.10 On the other hand, it is clear that the principles of universality and constitutionality should inform the interpretation and application of Art. 6. In the light of these principles, the provision ought to be interpreted restrictively as providing a ‘measure of last resort’.

B.  Drafting History 7  Competing views about the usefulness of expulsion clauses are clearly reflected in the drafting history of Art. 6. In fact, the provision was inserted against the pronounced opposition of a number of States, including, at least originally, the United States and the United Kingdom. Neither the Draft Constitution (June 1943) nor the Staff Charter (August 1943) contained any provision concerning the expulsion of members. The Informal Political Agenda Group discussed the matter, but also opted against an expulsion clause, as an expelled member otherwise could argue that it was freed from its Charter obligations.11 During the discussions at Dumbarton Oaks (August–October 1944), the Soviet Union insisted upon including a provision for expulsion, which it held to be an important disciplinary measure. The United States and the United Kingdom initially were opposed, but eventually accepted the Soviet view so as to avoid conflict.12 Thus Chapter V Section B 3 of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the Dumbarton Oaks Proposals provided that a member that ‘persistently violated the principles contained in the Charter’ could be expelled from the Organization. 8  At the San Francisco Conference, this draft provision met with considerable criticism. In its report of 25 May 1945, the relevant ‘sub-committee on expulsion and suspension’ recommended that the possibility of expulsion be omitted and replaced by a more stringent suspension clause, which would provide an adequate and sufficient sanction.13 In the relevant Committee I/2 (membership, amendments, Secretariat), the expulsion clause was supported by a simple majority, but failed to obtain the necessary two-thirds majority.14 The Executive Committee, however, took a different view and, on procedural grounds, referred the matter back to Committee I/2.15 In the ensuing discussion, the ‘anti-expulsionist’ States —under considerable pressure from the United States and the Soviet Union—eventually withdrew their opposition. In the end, ‘after a good deal of procedural wrangling a provision on expulsion was finally placed in the Charter’.16 As is clear from the deliberations, the ‘pro-expulsionist’ group, however, agreed that it was an exceptional remedy and that re-admission should not be excluded.17

(p. 378) C.  Requirements for the Application of Article 6 9  In order to ensure that expulsion is not resorted to lightly, Art. 6 requires a ‘persistent violation’, by a UN member, of ‘Principles contained in the present Charter’. This is considerably more precise than the reference to ‘any violation’ in Art. 16 (4) of the Covenant, but by no means self-explanatory. Much therefore depends on the assessment of the two organs involved in the process, namely the GA and SC. As Art. 6 clarifies, both need to concur, with the SC recommending and the GA effecting the expulsion. In practice, this requirement of joint action, by the SC and GA, has ensured that Art. 6 is not resorted to lightly.

I.  Substantive Conditions 1.  ‘has persistently violated’ 10  The first substantive condition set out in Art. 6 relates to the character of the violation in question, which must have been ‘persistent’. This suggests that the violation of Charter principles must have been repeated. The expression ‘persistently’ furthermore points to a continuous determination to repeat the law-breaking practice. Single, one-off violations, however grave they may be, therefore could not justify expulsion.18 A further restriction would seem to result from the qualification of expulsion as a ‘measure of last resort’: while Art. 6 does not expressly require the prior exhaustion of other, less rigorous measures, a purposive interpretation would suggest that feasible means short of expulsion should be tried first.19 11  Although this clarifies to some extent the meaning of the expression ‘persistent violation’, the organs responsible for ascertaining whether violations are persistent enjoy a wide margin of appreciation. In exercising their discretion, they may take into account factors such as the State’s (un)willingness to cooperate with the Organization, or the subjective element (intent, negligence) of the violation. Although the wording of Art. 6 seems to emphasize the ‘quantity’ of violations, their decision may also depend on the importance of the Principle violated; hence a small number of violations may be held to be ‘persistent’, if the Principle in question is of major importance.20

2.  ‘the Principles contained in the present Charter’ 12  The ‘persistent violation’ furthermore must have affected ‘the Principles contained in the present Charter’. The scope of this requirement is not easy to determine: a first uncertainty results from the use of the plural form (‘Principles’). This could be understood

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as requiring the violation of more than one Charter Principle. However, it seems more convincing to interpret the use of the plural form as meaning ‘any of the Principles’.21 13  The question remains how the term ‘Principles’ ought to be interpreted. In literature, various readings have been suggested: in line with the heading of Chapter I of the Charter, it has been argued that ‘the principles referred to in Art. 6 are presumably those set forth in Article 2’.22 Others have argued that the persistent violation of any obligation arising from the Charter might justify expulsion according to Art. 6.23 This, in turn, (p. 379) has been criticized as being too ‘open’ a view: fulfilling all obligations in good faith was merely a ‘general provision, a gamble on the future, an act of faith’.24 In the context of Art. 6, only precise rules of conduct for the States—not for the Organization as such, as in Art. 2 (1), (6), and (7) for example—could be used as a basis for the grave decision to resort to expulsion. On the other hand, such basic rules were contained not only in Art. 2 (3), (4), and (5), but also in Art. 1 of the UN Charter.25 14  Of these three interpretations, the latter seems the most convincing. On the one hand, the meaning of the term ‘Principles’ is unduly restricted if the term is seen as a reference to Art. 2 of the Charter alone. In other international documents, it often denotes rules which go beyond the scope of Art. 2—the reference to ‘principles of the Charter’ in the GA’s Friendly Relations Declaration may be seen as one example in this regard.26 Moreover, one of the Principles contained in Art. 2 (2) requires member States to ‘fulfil in good faith the obligations assumed by them in accordance with the present Charter’. If taken literally, any breach of obligations could be seen as a violation of the Charter Principle of Art. 2 (2).27 Both practical and theoretical arguments therefore speak against a narrow interpretation pursuant to which the term ‘Principles’ is seen as a reference to Art. 2. On the other hand, the ‘open interpretation’ referred to above is equally unconvincing. In fact, according to that interpretation, any Charter obligation would acquire the importance of a Principle. This, however, construes Art. 6 effectively along the lines of Art. 16 (4) of the League Covenant—even though the drafters intended to move away from the open language of that provision. What is more, the ‘open interpretation’ also neglects that in international documents, the qualification of some rules as ‘principles’ is intended to stress their particular importance.28 In line with this general understanding of the term, as well as with the restrictive reading of expulsion as a measure of last resort, the expression ‘Principles contained in the present Charter’ is best understood as referring to the basic rules of the Charter governing the relation between States and the Organization.29 15  When inquiring which of the Charter rules are of such a ‘basic’ character, the views expressed by UN organs acquire particular importance. The elaboration of basic principles governing interstate relations—notably in the GA’s Friendly Relations Declaration or in the SC’s presidential statement of 31 January 199230—therefore is at least of indicative value. Of perhaps even greater importance are pronouncements of the ICJ stressing the ‘essential’ or ‘fundamental’ character of certain norms.31 However, despite these attempts at clarification, it will have to be determined in each individual case whether a (p. 380) certain Charter obligation has acquired the status of a Principle. It would also seem to follow from the evolutionary nature of the UN Charter that new Principles may emerge over the course of time, or that the importance of certain rules may increase.32 Therefore, the SC and GA retain a margin of appreciation in determining whether a persistent violation has affected a Charter Principle.

II.  Procedural Requirements (‘expelled…by the General Assembly upon the recommendation of the Security Council’)

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16  In contrast to the substantive conditions, the procedural requirements governing expulsion are relatively straightforward. Just like Art. 4 (admission of new members) and Art. 5 (suspension of membership rights), Art. 6 expressly requires a recommendation by the SC and a decision by the GA. This requirement of ‘joint action’ of the UN’s two main political organs is clearly designed to render expulsion difficult. It is worth noting that there is no impartial assessment of the member State’s wrongful acts. Instead, the evaluation is entrusted to the same two organs that eventually recommend, or decide on, the expulsion, namely the SC and GA.33 17  Article 6 is silent on the required majorities, but these can be determined by having regard to the general rules governing decision-making by the GA and SC. For the SC, a recommendation to expel a member State constitutes a ‘non-procedural matter’; accordingly, Art. 27 (3) of the UN Charter requires the affirmative vote of nine members, including the concurring votes of the permanent members. Consequently, each of the five permanent members can veto the expulsion of members.34 The actual decision to expel a member is taken by the GA. Pursuant to Art. 18 (2), its decision requires a two-thirds majority of the members present and voting (including the affected State). The GA is not bound by a recommendation of the SC; but without the explicit recommendation of the SC, the GA is not entitled to expel a member. If the SC fails to make a recommendation, eg because of the negative vote of a permanent member, the GA therefore has no competence to act by itself.35 In practice, it has sometimes tried to influence the process by ‘requesting’ the SC to make a recommendation, but to no avail.36 This in turn has resulted in the (ab)use of the credentials procedure, which on occasion has been used as a ‘quasi-sanction’ subject to less demanding procedural requirements.

(p. 381) D.  The Legal Effects of Expulsion 18  Article 6 does not elaborate on the effects of an expulsion. In principle, however, it is clear that the expulsion terminates the bond of membership which exists between the Organization and its members. Since the Charter does not require notification of the GA’s decision according to Art. 6, expulsion takes effect at the moment of the GA’s decision. Just like terminations generally, the expulsion releases the expelled State and the Organization from the obligations stipulated in the treaty;37 in other words, it breaks the organizational ties between the member State and the UN and its individual members. This does not mean, however, that all legal links between the Organization and the expelled State cease to exist. First, reciprocal obligations between the expelled State and individual members of the UN outside the organizational structure of the UN are not affected. And secondly, expulsion is valid ex nunc and therefore does not nullify unfulfilled obligations incurred during the period of membership.38 19  In relation to the Organization, the expelled State henceforth acquires the status of a non-member. Pursuant to Art. 2 (6), the Organization is therefore held to ensure that expelled members act in accordance with Charter Principles in the field of international peace and security. More importantly, the expelled State of course continues to be bound by those Charter rules that have become part of general international law. As expulsion is no outlawry, the expelled State enjoys the rights which the Charter grants to non-members.39 Curiously, this may lead to a situation in which a State expelled from the UN possesses more rights than a suspended member, eg the right to appear before the organs of the UN, including the SC, if it is a party to a dispute.40 20  The effects of an expulsion are limited to the State’s position under the UN Charter and do not affect that State’s position with respect to separate agreements. Therefore, as a matter of principle, expulsion from the UN does not automatically entail expulsion from the specialized agencies, nor does it release the State from its obligations under trusteeship agreements concluded pursuant to Art. 81.41 However, a number of provisions expressly provide for expulsion to have ‘knock-on’ effects: most importantly, it follows from Art. 93 (1) From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

that the expelled State automatically ceases to be a party to the ICJ Statute.42 In order to appear before the ICJ as a non-member, it would therefore either have to become a party to the ICJ Statute under Art. 93 (2) or satisfy the requirements for an ad hoc participation set out in Art. 35 (2) in relation to UNSC Res 9 (1946).43 Also, a number of constitutive documents of specialized agencies expressly provide that a member expelled from the UN will cease to be a member of the specialized agency: hence (p. 382) expulsion from the UN automatically entails the loss of membership in UNESCO (Art. 2, s 5) and IMO (Art. 10), as well as the IRO (Art. 4, s 6). 21  Lastly, it should be noted that while it is a conclusive act, expulsion need not be permanent. Although Art. 6 does not expressly mention this, re-admission would be possible under the procedure prescribed in Art. 4 of the UN Charter.44 There is no difference between admission and re-admission.

E.  Practice 22  Practice regarding Art. 6 is scarce; to date, no member State has been expelled from the UN.45 Unfortunately, the reason for this is not the lack of persistent violations of Charter Principles. However, typically such persistent violations, to the extent that the UN is capable of addressing them, are addressed by Chapter VII measures rather than membership sanctions—in this respect the astonishing evolution of Chapter VII since 1990 has made recourse to Art. 6 (and Art. 5) less pressing. To the extent that States have been willing to curb another State’s membership (rights), proposals to apply Art. 6 have failed to muster the necessary support within the GA and/or SC. There have, however, been occasional attempts to apply Art. 6 in relation to Israel and South Africa, and doubts relating to the status of the Federal Republic of Yugoslavia within the UN during the period 1992–2000. While not a proper application of Art. 6, these episodes illustrate aspects of the provision and therefore should be briefly noted.

I.  Israel and South Africa 23  Attempts to apply Art. 6 have been mainly directed against Israel and South Africa. For example, on 22 December 1955, an SC draft resolution moved ‘to expel Israel from the United Nations under Article 6 of the Charter for her persistent violation of the principles of the Charter’.46 The SC, however, did not vote on it. In relation to South Africa, Art. 6 was invoked in several draft resolutions submitted to the GA. In 1961, a proposal which would have drawn the SC’s ‘attention’ to Art. 6 failed to receive the required majority.47 However, one year later, the UNGA adopted Res 1761 (XVII) requesting the SC ‘if necessary to consider action under Article 6 of the Charter’.48 The SC did not react to this request, but on 12 August 1969 passed a resolution condemning South Africa’s ‘persistent defiance of the authority of the United Nations’, in which it also referred to ‘its responsibilities under Art. 6 of the UN Charter’.49 The UN came closest to actually applying the provision when in October 1974 the SC discussed a (p. 383) draft resolution ‘recommend[ing] to the General Assembly the immediate expulsion of South Africa from the United Nations in compliance with Article 6 of the Charter’.50 In the ensuing debate, many of the general arguments pro or contra expulsion were reiterated, with some representatives, eg stressing that expulsion was a ‘negative’ measure of ‘very last resort’.51 Eventually, the draft resolution failed to be adopted due to the negative votes of three permanent members of the SC (United States, United Kingdom, France). 24  Given the lack of success of these attempts to expel members pursuant to Art. 6, States seeking to ‘discipline’ unpopular member States have relied on other strategies. In particular, the GA, during the 1970s and 1980s, developed what has been termed the ‘credentials approach’.52 Pursuant to Rule 27 of the GA Rules of Procedure, the examination of credentials was originally seen as a formal matter, which only gained importance if there were conflicting claims of rival governments.53 However, re-interpreting this rule, the GA

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and its Credentials Committee challenged the credentials of both South Africa (since 1974) and Israel (in 1982) and thereby effectively prevented these States from participating in GA debates. For present purposes, it is important to distinguish this—legally problematic— (ab)use of the credentials procedure from the process of expulsion according to Art. 6: while it can be explained as an attempt to circumvent the strict procedural conditions set out in Art. 6 (as well as Art. 5), the ‘de-credentialization’ affected one particular membership right, but did not sever the organizational ties between the UN and Israel/ South Africa.

II.  The Federal Republic of Yugoslavia (FRY) 25  The status of the Federal Republic of Yugoslavia (FRY) within the UN has given rise to problems of a more complex nature.54 On 24 September 1992, the GA adopted Res 47/1 (by a recorded vote of 127:6:26) stating ‘that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the UN’; this meant that it ‘should apply for membership in the United Nations and that it shall not participate in the work of the GA’.55 That decision had been recommended to the GA by the SC in its Res 777 of 19 September 1992. During the debates, some member States sharply criticized this as a ‘de facto expulsion’ of a UN member.56 And indeed, support for this reading (p. 384) might be drawn from the fact that eight years later, the FRY was admitted to the UN as a new member57—which seems to imply that it had not been a member between 1992 and 2000. Still, for three reasons, it is unconvincing to read UNGA Res 47/1 as amounting to an expulsion in the sense of Art. 6. First, Art. 6 was not invoked by the sponsors of Res 47/1 of the GA, nor was it mentioned in introducing the draft resolution in the GA.58 Secondly, attempts by some member States to persuade the SC and GA to adopt ‘an act of definitive termination of membership of former Yugoslavia in the United Nations’ did not find support.59 Finally, and most importantly, the effects of the GA resolutions only affected specific (albeit important) membership rights of the FRY. While, therefore, the FRY was prevented from actively participating, or voting, it did retain a seat in the GA and continued to pay a share of the UN budget.60 In the light of these considerations, UNSC Res 777 and UNGA Res 47/1 (similar to the ‘credentials approach’ addressed in the preceding section) illustrate how flexibly the Charter’s ‘portfolio’ of membership sanctions can be adapted to changing political circumstances; but cannot be interpreted as an expulsion of a member State.61 If ‘Yugoslavia’ (un-technically speaking) for eight years remained outside the UN, then this was not due to the General Assembly’s decision on membership rights, but because, over time, the international community came to accept that the FRY could not continue the international legal personality and UN membership of the former Socialist Federal Republic of Yugoslavia. State succession, rather than a GA resolution, thus brought the SFRY membership to an end and made necessary a new application by the FRY. UNGA Res 47/1 thus did not expel a UN member State, but helped to form the international community’s assessment of the relationship between the SFRY and the FRY.

F.  Practice of Other International Organizations 26  Given this lack of clear practice under Art. 6, expulsion clauses of other international organizations may be briefly considered. At the outset, it should be said that the clear majority of constituent documents of international organizations do not contain an expulsion clause.62 Existing clauses often stipulate that expulsion can only be resorted to after suspension of membership rights has led to no result, which would seem to underline the character of expulsion as a measure of last resort.

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(p. 385) 27  Attempts to expel member States have, on the whole, been largely unsuccessful. If at all, expulsion has only been resorted to where the procedural requirements were less rigid than under Art. 6 of the Charter.63 In the clear majority of cases, proposals to expel members, however, have failed to obtain the necessary support.64 Just as within the UN, this has led States to resort to more flexible forms of sanctioning member States. For example, Israel’s credentials were challenged in the IAEA after proposals for suspension had not obtained the necessary support.65 Similarly, South Africa was de facto excluded from the UPU in 1979, although the Constitution did not contain an expulsion clause.66 Other organizations have amended, or threatened to amend, their constitutions in order to strip certain States of their membership or to force them to withdraw (so as to avoid expulsion). In 1947 the ICAO added Art. 93 (b) to its constitution (the Chicago Convention) in order to create the legal basis for expelling Spain, which thereupon withdrew voluntarily.67 Similarly, the 1964 General Conference of the ILO adopted an amendment of the ILO Constitution to allow for the expulsion—by a two-thirds majority of the votes—of any ILO member which had been found guilty by the UN of pursuing a policy of racial discrimination. South Africa, the obvious ‘target’ of this amendment, withdrew immediately, although the amendment had not yet come into force.68 This suggests that the line between expulsion and (forced) withdrawal has sometimes been blurred in practice.69

G.  Assessment 28  The above analysis shows that UN experience with Art. 6 is at best ambiguous. Irrespective of the conceptual arguments advanced against the very idea of expelling States from a ‘World Organization’, the lack of actual practice is telling: it seems that (p. 386) after having narrowly opted for the insertion of the provision into the Charter, the UN has lacked the necessary resolve actually to apply it. Given the strict procedural requirements to which Art. 6 is subject, it seems unlikely that it will be applied in the near future. The practice of curbing rights of member States has therefore evolved outside the framework set by Art. 6. While this has led to more flexibility, it has also meant that there is less predictability, and less legal certainty.

Footnotes: 1

  W Friedmann, The Changing Structure of International Law (Stevens 1964) 88ff.

2

  cf Schermers and Blokker, 95; Amerasinghe, 117. While the UN Charter does not contain any statutory provision providing for withdrawal, the San Francisco Conference passed an ‘Interpretative Declaration’ proclaiming that the UN would not force member States to remain within the Organization, see UNCIO VII, 267. 3 

There were four abstentions including the Finnish vote. Three other Council members, among them the Soviet Union, did not participate in the discussion. Although the procedure was criticized eg by Leo Gross, ‘Was the Soviet Union Expelled from the League of Nations?’ (1945) 39 AJIL 35–44, it seemed to conform with the Rules of Procedure of the League Council, cf Magliveras, 25–26. 4

  (1939) 20 LNOJ 506, 508; cf already (1939) 20 LNOJ 531–41. LN Official Records, 20th Assembly, Plenary (1939) 26–36. 5

  (1934) 15 LNOJ 511; cf G von Gretschaninow, ‘Der Versuch eines Ausschlußverfahrens gegen Liberia nach Art. 16 Abs. 4 der Völkerbundssatzung’ (1935) 5 ZaöRV 174–78.

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6

  The SG’s report is reproduced in (1927) 8 LNOJ 505; the sub-committee’s study ibid, 507– 8. It should be noted that in contrast, a number of commentators held that Art. 16 (4) could be used in response to any violation of the Covenant, including breaches of mandate agreements under Art. 22, see eg W Schücking and H Wehberg, Die Satzung des Völkerbundes (2nd edn, Vahlen 1924) 636; Jenks (1935) 16 BYIL 157. 7

  See only GHS, 73–74.

8

  cf B Fassbender, UN Security Council Reform and the Right of Veto (Nijhoff 1998) 154– 56. 9

  Kelsen, 714–15; Makarczyk, 482–83; Schermers and Blokker, 96–97; Jenks, 22 BYIL 25.

10

  See Magliveras, 34–35.

11

  cf RM, 362–63.

12

  cf RM, 433, 437–39.

13

  UNCIO VII, 113–14.

14

  UNCIO VII, 114.

15

  UNCIO V, 498–502; cf RM, 852 and, for the renewed debate in Committee I/2, UNCIO VII, 193–96. 16

  Sohn, 1400; UNCIO VII, 277–78. The discussion is summarized in UNCIO VII, 329–32.

17

  cf UNCIO VII, 330.

18

  Makarczyk, 484; Schütz, 882; but see Magliveras, 44–45.

19

  GHS, 99.

20

  Contra R Khan, Implied Powers of the United Nations (Vikas Publications 1970) 121.

21

  cf Kelsen, 711.

22

  GHS, 99.

23

  Kelsen, 710.

24

  CPF/Leben and Forteau, 559 (translation by the author).

25

  ibid.

26

  Annex to UNGA Res 2625 (XXV) (24 October 1970) General Part, Point 3; cf also the reference, in Art. 52 VCLT, to ‘principles of international law embodied in the Charter of the United Nations’. 27

  Kelsen, 710.

28

  See eg UNGA Res 1962 (XVIII) (13 December 1963) on ‘Principles Governing the Activities of States in the Exploration and Use of Outer Space’, which laid down basic rules of outer-space activities; see also UNGA Res 2625 (XXV) (24 October 1970) on the ‘Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’ (emphases added). 29

  CPF/Leben and Forteau, 559–60.

30

  (31 January 1992) UN Doc S/23500.

31

  By way of example, the judgment in the East Timor case may be mentioned, where the ICJ referred to the principle of self-determination of peoples as ‘one of the essential principles of contemporary international law’ (Jurisdiction and Admissibility) [1995] ICJ Rep 90, 102.

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32

  On the evolutionary character of the Charter see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding UNSC Res 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, 31; and already Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) [1950] ICJ Rep (Dissenting Opinion Judge Alvarez) 18. 33

  In view of some, this procedure is unsatisfactory, as it requires political organs to make legal determinations, see Kelsen, 711; Magliveras, 40. There is no denying that the impartiality of the procedure could have been enhanced by entrusting the legal assessment of the situation to a judicial body. An example of such a division of competences can be found in Part. XI LOSC, where the suspension of membership rights is conditional upon a finding of the Sea-Bed Disputes Chamber that there had been a gross and persistent violation of Part. XI; see Arts. 186 and 185 (2) LOSC. However, it is clear that the drafters of the Charter chose to leave all competences to the UNGA and UNSC. 34

  For details see Zimmermann on Art. 27 MN 221.

35

  In respect to the identical procedure under Art. 4 (2), this was confirmed in the ICJ’s Advisory Opinion on the Competence of the General Assembly for the Admission of a State [1950] ICJ Rep 4, 7–9; cf also Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, 162–63. The ICJ’s reasoning applies by analogy. 36

  See MN 23.

37

  cf Art. 70 (1) VCLT.

38

  cf Art. 70 (1) (b) VCLT.

39

  Kelsen, 715; Schütz, 882. Contra Magliveras, 51, who argues that expelled States ‘should form a separate category of their own to which none of these privileges [of nonmembers] apply’. Suffice it to say that the Charter does not recognize such a third category of ‘expelled States’, and that the provisions prescribing procedural rights of non-members are clearly worded. 40

  cf Art. 32 UN Charter, and see Kelsen, 715; Tams on Art. 5 MN 3.

41

  As a corollary, its rights remain untouched, except for those that stem from its membership of the UN (such as those mentioned in the second sentence of Art. 84 of the UN Charter); cf Kelsen, 659; cf UNCIO X, 620–21 with regard to the effects of withdrawals on trusteeship agreements. 42

  cf Legality of Use of Force (Former Republic of Yugoslavia v. Belgium) [2004] ICJ Rep 279, paras 46–47, 73–91. 43

  See Oellers-Frahm on Art. 93 MN 9–13.

44

  The silence, in Art. 6, on the possibility of re-admission may be contrasted to the express reference, in Art. 5, to the restoration of suspended rights and privileges, cf Magliveras, 49– 50. While Art. 4 can be applied to expelled member States which were not original member States, it seems to exclude re-admission of original members. This probably has to be seen as a ‘technical insufficiency’, see H Kelsen, ‘Membership in the United Nations’ (1946) 46 Colum L Rev 396. 45

  Expulsion of States under Art. 6 must be distinguished from the expulsion of specific governments claiming to represent a State. The UNGA’s decision, in UNGA Res 2758 (XXVI) (25 October 1971) to ‘expel’ the representatives of the Republic of China from the UN and instead ‘restore all its rights to the People’s Republic of China’ therefore did not constitute an application of Art. 6.

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46

  UN Doc S/3519.

47

  GAOR 16th Session 1067th Plen mtg, paras 107–110, 112.

48

  GAOR 16th Session 1165th Plen mtg, para 33.

49

  UNSC Res 269 (12 August 1969) UN Doc S/RES/269.

50

  SCOR 29th Year Supp (October–December 1974) 34, UN Doc S/11543; summarized in (1974) 28 UNYB 109–15. 51

  SC (29), 1796th–1808th meeting, UN Doc S/PV.1808 (1974), 17–18.

52

  See Magliveras, 203–29; Amerasinghe, 128–30; Gross, 569–84; M Halberstam, ‘Excluding Israel from the General Assembly by a Rejection of its Credentials’ (1984) 78 AJIL 179–92. 53

  cf Magiera on Art. 9 MN 19ff.

54

  For a discussion see eg M. Wood, ‘Participation of Former Yugoslav States in the United Nations and in Multilateral Treaties’ (1992) 1 Max Planck YB UN L 231. In its 2004 judgment in the Legality of Use of Force Cases, the ICJ rightly spoke of the ‘rather confused and complex state of affairs that obtained within the United Nations surrounding the issue of the legal status of the Federal Republic of Yugoslavia within the Organization’ (2004) ICJ Rep 308, para 73. According to some commentators, the ICJ’s jurisprudence on ‘Yugoslavia’ has made matters rather more complex and confused: see eg YZ Blum, ‘Consistently Inconsistent: the International Court of Justice and the Former Yugoslavia (Croatia v. Serbia)’ (2009) 103 AJIL 264. 55

  UNGA Res 47/1 (22 September 1992) UN Doc A/RES/47/1.

56

  Pursuant to the Zambian representative, ‘the effect of this…resolution is in fact to expel Yugoslavia’, UN Doc A/47/PV.7, 173; see also the Tanzanian statement: ibid, 176. 57

  See UNSC Res 1326 (31 October 2000) UN Doc S/RES/1326 and UNGA Res 55/12 (1 November 2000) UN Doc A/RES/55/12. 58

  See eg the remark by the UK representative: ‘The situation is without precedent and was clearly not foreseen by the authors of the Charter’, UN Doc A/47/PV.7, 144–45. A number of UN members sharply criticized this as a circumvention of the procedures prescribed in Arts 4–6, see UN Doc A/47/PV.7, 162 (Zimbabwe), 167 (Kenya), 194–95 (Guyana). 59

  cf the letter of Slovenia addressed to the UN Secretary-General, (5 August 1993) UN Doc A/48/292, S/26246. 60

  For details see (29 September 1992) UN Doc A/47/485 (letter of the Under-Secretary and Legal Counsel of the United Nations to the Permanent Representatives of Bosnia and Hercegovina and Croatia). 61

  cf YZ Blum, ‘Reply’ (1993) 87 AJIL 249; and id, ‘UN Membership of the “New” Yugoslavia: Continuity or Break?’ (1992) 86 AJIL 833. 62

  Expulsion is provided for in the constituent documents of the Council of Europe (Art. 8), the League of Arab States (Art. 18), the Common Market for Eastern and Southern Africa (Art. 171), and the financial agencies of the UN family (see Art. 26, s 2 IMF Agreement, Art. 6, s 2 IBRD Agreement, Art. 5, s 2(a) IFC Agreement, Art. 7, s 2(a) IDA Agreement). In addition, it is provided for in most of the commodity agreements, eg Cocoa Agreement 1975 (Art. 73); Coffee Agreement 1976 (Art. 66); Tropical Timber Agreement 1983 (Art. 40);

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Sugar Agreement 1984 (Art. 41); Olive Oil Agreement 1986 (Art. 58); Natural Rubber Agreement 1987 (Art. 64); Jute Agreement 1989 (Art. 44). Whether expulsion is permitted in the absence of express clauses is controversial. Pursuant to one view, expulsion is an implied power of international organizations (see eg Schermers and Blokker, p 104). Others argue that without an express provision, organizations cannot expel member States (Amerasinghe, pp 122–24). The best view, however, seems to be that expulsion is possible under the conditions, set out in Art. 60, para 2(a) VCLT; for the termination of multilateral treaties, cf B Simma, ‘Reflections on Article 60 of the Vienna Convention on the Law of Treaties and its Background in General International Law’ (1970) 20 Österr ZöR 66–67; Magliveras, 231–40. 63

  eg when the IMF and IBRD expelled Czechoslovakia in 1954, the respective proposal required a simple majority of the Governors exercising a majority of the weighted voting power. On the application of the IMF’s expulsion procedure see J Gold, Membership and Non-membership in the International Monetary Fund (1974) 345–60. 64

  A summary of the various attempts to apply the expulsion provisions is given by Schermers and Blokker, 101–02; and D Ruzié, Organisations internationales et sanctions internationales (A Colin 1971) 41–49; cf also with regard to the UN special agencies, Zeidler, passim. 65

  Gross, 574–80.

66

  Zeidler, 263–68; Magliveras, 69–75. Attempts to introduce expulsion clauses had remained unsuccessful, see Magliveras, 67–69. 67

  T Buergenthal, Law-Making in the International Civil Aviation Organization (Syracuse UP 1969) 38–46; Magliveras, 58–64. 68

  See ILO Official Bulletin (1964) Supp 1 to No 3, 8–12; cf E Osieke, Constitutional Law and Practice in the International Labour Organization (Nijhoff 1985) 31. In 1965, the WHO adopted a similar amendment to Art. 7 of its Constitution, see (1965) 18 UNYB 724–25. 69

  cf Schermers and Blokker, 100; Sohn, 1416.

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Ch.III Organs, Article 7 Matthias Lippold, Andreas Paulus From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter

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Article 7 (1) 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. (2) Such subsidiary organs as may be found necessary may be established in accordance with the present Charter. A.  Introduction and travaux préparatoires of Article 7 1–7 B.  Principal Organs, Article 7 (1) 8–12 C.  Subsidiary Organs, Article 7 (2) 13–39 I.  Definition, Systematic Interpretation, and Preconditions for a Lawful Establishment 13–29 1.  Definition of the Term: Subsidiary Organ 13–14 2.  Independence 15 3.  Preconditions for Establishing a Subsidiary Organ 16–24 (a)  Literal and Systematic Interpretation of Article 7 (2) 16–20 (b)  Joint Subsidiary Organs 21–23 (c)  Form 24 4.  Scope of the Power to Create Subsidiary Organs 25–29 (a)  Principle of Attribution of Powers, Implied Powers, Inherent Powers 25–27 (b)  Subsidiary Organs Ultra Vires? 28–29 II.  Subsidiary Organs in Practice 30–39 1.  Composition and Participation 30–32 2.  Functions and Practice 33 3.  Duration 34 4.  Scope of Powers of the Subsidiary Organ and Legal Status 35–39 D.  Treaty Organs and United Nations Family: Specialized Agencies, Treaty Organs, and Conferences 40–47 E.  Remedies 48

Select Bibliography Amerasinghe CF, Principles of the Institutional Law of International Organizations (CUP 2005). Czasz PC, ‘The Complexification of the United Nations System’ (1999) 3 Max Planck YB UN L 1.

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de Wet E and Nollkaemper A, Review of the Security Council by Member States (Intersentia 2003). Klabbers J, An Introduction of International Institutional Law (CUP 2009). Ramcharan BG, ‘Lacunae in the Law of International Organizations: The Relations between Subsidiary and Parent Organs with Particular Reference to the Commission and (p. 388) Sub-Commission on Human Rights’ in Nowak M and others (eds), Festschrift Ermacora (1988) 37–49. Reinisch A, Challenging Acts of International Organizations before National Courts (OUP 2010). Reuter P, ‘Les Organes Subsidiaires des Organisations Internationales’ in Chaumont C (ed), Hommage d’une Génération de Juristes au Président Basdevant (1960) 415–30. Rudolf B, ‘United Nations Committees and Subsidiary Bodies’, MPEPIL (online edn). Sarooshi D, ‘The Legal Framework Governing United Nations Subsidiary Organs’ (1996) 67 BYIL 413. Schermers HG and Blokker N, International Institutional Law—Unity within Diversity (Nijhoff 2011). Schmalenbach K, ‘International Organizations or Institutions, Legal Remedies against Acts of Organs’, Max Planck Encyclopedia of Public International Law, . ———‘International Organizations—General Aspects’, MPEPIL (online edn). ——— Die Haftung internationaler Organisationen (Lang 2004). Szasz PC, ‘The Complexification of the United Nations System’ (1999) 3 Max Planck YB UN L. Torrez-Bernárdez S, ‘Subsidiary Organs’, in RJ Dupuy (ed), Manuel sur les organisations internationales: a Handbook on International Organizations (Nijhoff 1998).

A.  Introduction and travaux préparatoires of Article 7 1  International organizations act through their organs.1 Hence, Art. 7 of the Charter of the United Nations is of central importance for the structure of the UN. As Hans Kelsen put it, Art. 7 ‘pretends to give a classification of all the organs, those which are already established by the Charter and those which may be established in the future’.2 Other founding treaties of international organizations contain similar provisions.3 2  Article 7 can be regarded as the successor to Art. 2 of the Covenant of the League of Nations.4 However, Art. 7 distinguishes itself from its predecessor not only by the numbers of principal organs, but also by including a specific provision that addresses the establishment of subsidiary organs. The Covenant of the League of Nations did not contain a provision similar to Art. 7 (2) regarding subsidiary organs, which were nevertheless established in the practice of the League.5 (p. 389) 3  Article 7 in its present form can be traced back to the Dumbarton Oaks Proposals for a General International Organization6. Its Chapter IV on Principal Organs reads: 1.  The Organization should have as its principal organs: a.  A General Assembly; b.  A Security Council; c.  An international court of justice; and

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d.  A Secretariat. 2.  The Organization should have such subsidiary agencies as may be found necessary. 4  Although the final wording and substance of Art. 7 closely resembles the provision of the Dumbarton Oaks Proposal, many modifications and amendments were discussed during the drafting process. This applies in particular to the number of principal organs. The Dumbarton Oaks Proposals already mentioned ECOSOC in Chapter IX. For this reason it was proposed to count ECOSOC among the principal organs.7 Upon the recommendation of Committee II/3, unanimously endorsed by Committee I/2, the Conference included ECOSOC in Art. 7 (1).8 The recommendation of the Committee II/4 to create ‘A Trusteeship Council’ that would rank as a principal organ was also adopted.9 Apart from ECOSOC and the Trusteeship Council, another difference from the League system is the inclusion of the International Court of Justice as one of the principal organs of the Organization. Although the Court had been mentioned in the Covenant of the League of Nations,10 the PCIJ did not form part of the League of Nations. The inclusion was not beyond dispute as the Report of the Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice of 10 February 194411 and later a proposal of Mexico demonstrate; however, the opinion that the Court should be separated from the Organization for the benefit of greater independence of the Court12 did not influence the drafting process. As a legal consequence of the (p. 390) inclusion in Art. 7 (1), the Court is not only bound by its Statute which forms an integral part of the Charter (see Art. 92), but also by the provisions contained in the Charter of the United Nations itself.13 In addition to the organs that are listed in Art. 7 (1), Ecuador proposed to establish a further principal organ named ‘The Educational and Cultural Council’.14 This was not adopted in the final version of the text. Cuba’s proposal to establish a ‘Council for Economic Cooperation and Moral Interests’ similarly did not find enough support.15 5  The second paragraph of Art. 7 was intended to provide the ‘constitutional authority’16 for establishing subsidiary organs. The provision was considered as Art. 8, before it was finally included in Art. 7.17 The original French term ‘organe auxiliaire’ has been changed into ‘organe subsidiaire’.18 6  The relationship of Art. 7 (2) to the specific provisions in the Charter was highly controversial. Discussions arose since the second paragraph of Art. 7 and the specific provisions of the then Art. 21 (now Art. 22) and the then Art. 30 (now Art. 29) ‘were somewhat overlapping’.19 During the eighth meeting of the Coordination Committee on 30 May 1945, the Iranian Delegate, Ali Akbar Siassi, expressed the opinion that the answer to the question whether either the then Art. 8 (now Art. 7 (2)), or the then Art. 21 (now Art. 22) should be deleted, depended on whether one considered the Assembly and the Organization to be synonymous or whether they constituted different entities.20 In the latter case he suggested including both provisions.21 Other delegates considered Art. 8, now Art. 7 (2), to be meaningless and favoured its deletion.22 One delegate suggested combining Art. 7 and Art. 8 and raised the question of whether the subsidiary (p. 391) organs to be created would belong to the parent organs or to the Organization.23 The discussion on the relationship between general and specific provisions was strongly linked with the wording of Art. 7 (2). One delegate suggested deleting the then Arts 21 and 30 (now Arts 22 and 29) if Art. 7 (2) stated that the subsidiary organs are those of the Organization and are founded by the principal organs.24 Consequently, all principal organs would have been empowered to establish subsidiary organs explicitly, which renders specific provisions unnecessary. With regard to the content, an opposite suggestion was to add the formula ‘as provided for in the various chapters’.25 As the tenth meeting of the Coordination Committee, on 4 June 1945, the Committee added ‘in accordance with the present Charter’ to the provision.26 However, there were different interpretations concerning the meaning of the addition: while the author of the amendment, Bailey, intended to ‘make a general reference to similar From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

provisions in other parts of the Charter’ (emphasis added), others suggested naming ‘those organs empowered to create subsidiary agencies, such as the Assembly, the Security Council, and the Economic and Social Council’ specifically.27 The provision was amended to what would become the final version during the fourth Meeting of the Advisory Committee of Jurists on 9 June 1945, for the purpose of harmonization with the specific provisions.28 At the same meeting, the Advisory Committee of Jurists decided that all three provisions that became Art. 7 (2), Art. 22, and Art. 29 should remain in the Charter.29 7  It was temporarily considered to include a third paragraph30 that affirms the equal right of men and women to participate in the Organization, similar to Art. 7 (3) of the Covenant of the League of Nations,31 but finally this provision was adopted as Art. 8 of the Charter. A further proposal to incorporate technical agencies and services created by the League of Nations32 did not find its way into the final version.

B.  Principal Organs, Article 7 (1) 8  Article 7 (1) establishes the principal organs of the UN, namely the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice, and the Secretariat. The enumeration of the six principal organs is exhaustive insofar as no additional principal organs may be established except by an amendment to the Charter (Arts 108, 109). Likewise, any change in their composition, functions, and powers could only be brought about by an amendment to the Charter, as was done by the two amendments, effective from 31 August 1965, and 24 September 1973, which enlarged the membership of the SC and ECOSOC, respectively. (p. 392) 9  The name of the Human Rights Council, established in 200633 at the initiative of the 2005 Summit of Heads of State and Government,34 points to the intention to eventually amend the Charter to elevate the Human Rights Council to the status of a principal organ.35 However, as the UN reform did not lead to formal Charter amendments, the Council was constituted as a subsidiary organ to the GA (rather than to ECOSOC, as was the case with its predecessor, the Commission on Human Rights).36 This status was reviewed and confirmed by the General Assembly after five years, in 2011, and will be reconsidered in between ten and fifteen years.37 However, as long as the Charter is not amended for other purposes, it seems unlikely that States would amend the text for the sole purpose of changing the status of the Human Rights Council. 10  It is not possible to deduce a hierarchical order between the principal organs from objective criteria, such as the nature or the composition of the respective organ. The founding document that creates principal organs decides on a hierarchy between them.38 A hierarchical order between the aforementioned organs cannot be derived from Art. 7 (1) either. Neither the nature of the General Assembly as plenary organ nor its unlimited membership raises it over other principal organs such as the Security Council. The case-law of the International Court of Justice supports the view that no provision in the Charter subordinates one organ to another. Thus, in its second Advisory Opinion on the admission of States to the UN, the ICJ stated that the Security Council is not subordinate to the General Assembly;39 later, the Court decided in the Certain Expenses Case that Art. 24 UNC gave the Security Council a primary, but not exclusive responsibility.40 Article 12 may indicate that the Security Council enjoys a higher rank for the time when it is exercising its functions; however, in the meantime, as Art. 14 shows, the GA is not deemed to be entirely inactive.41 Neither do the responsibilities conferred upon (p. 393) the Security Council limit the jurisdiction of the ICJ ratione materiae.42 In the words of the Court, the functions between the SC and ICJ are ‘separate but complementary’.43 With the exception of ECOSOC and the TC (see MN 12), this applies in principle to all principal organs. On the other hand, the GA enjoys a primary position among the principal organs because Art. 15 provides that it shall receive and consider reports from the other principal organs, but this right of

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information does not include the right of the GA to issue directives to the other principal organs where there is no such authority under other Articles of the Charter. 11  The complementary nature of the relationship of the principal organs to a certain extent enables one organ to scrutinize the actions of another organ via a third organ: the GA is not prevented from requesting an advisory opinion from the ICJ concerning a legal question related to a subsidiary organ of the SC, as the Court found in the Kosovo opinion,44 rejecting the argument that only the SC may request an Advisory Opinion in a situation where one of its own subsidiary organs is involved.45 With the exception of binding SC resolutions, principal organs are not legally bound by statements of other principal organs, however, the principle of good faith between different organs of the Organization may require a principal organ to take statements of facts made by other principal organs into consideration.46 While the International Court of Justice relied on factual qualifications by the GA, the Secretary-General, the Security Council, and its subsidiary organs several times in its case-law,47 the Court did not consider itself bound by GA resolutions.48 12  The situation is different with respect to the position of the GA vis-à-vis ECOSOC and the TC. Although ECOSOC and the TC may act independently within the sphere of their competences, Arts 60 and 87 of the Charter place them ‘under the authority’ of the GA; this means that the activities of ECOSOC and the TC may be, and in fact have been, initiated and reviewed by the GA. Article 66 expressly stipulates that ECOSOC (p. 394) shall, within its competences, carry out the recommendations of the GA and perform such other functions as may be assigned to it by the GA. On the other hand, Art. 62 suggests that the ECOSOC is not completely dependent on the GA.49 The World Summit proposed to delete Chapter XIII about the Trusteeship Council, but the Charter has not yet been amended.50 The SG is not a principal organ, but forms part of the Secretariat, a principal organ. But the SG has his own sphere of competence with respect to his or her administrative functions and may, on the basis of Art. 99, undertake diplomatic activities on his or her own initiative in order to prevent the escalation of international conflicts.51

C.  Subsidiary Organs, Article 7 (2) I.  Definition, Systematic Interpretation, and Preconditions for a Lawful Establishment 1.  Definition of the Term: Subsidiary Organ 13  While the term ‘organ’ raises no further questions for the interpretation of Art. 7, the adjective ‘subsidiary’ deserves a closer look. In the course of the drafting process, the French term ‘organe auxiliaire’ was changed into ‘organe subsidiaire’,52 hence the conduct of subsidiary organs does not need to be of inferior nature (see also below).53 The term ‘subsidiary organ’ is defined neither in Art. 7 (2) nor elsewhere in the Charter, nor in the early practice of the Organization, as indicated by the Repertory of Practice.54 In his Summary of Internal Studies of Constitutional Questions relating to Agencies within the Framework of the United Nations55 the SG stated that: ‘A subsidiary organ is one which is established by, or under the authority of, a principal organ of the United Nations in accordance with Art. 7, para 2, of the Charter, by resolution of the appropriate body. Such an organ is an integral part of the Organisation.’ The UN Repertory of Practice affirms: (a)  A subsidiary organ is created by, or under the authority of, a principal organ of the United Nations; (p. 395) (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;

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(c)  A subsidiary organ may be discontinued by, or under the authority of, a principal organ. 56 14  These formal definitions do not go beyond what may be inferred from the mere wording of Art. 7; but in view of the wide range of differences in the structure, composition, function, and powers of the organs established in the practice of the UN, it seems neither possible nor useful to develop a more substantive definition. This formal approach has been adopted also by a part of the legal literature according to which ‘primary organs are created in the constitution of an international organization…subsidiary organs are created subsequently, by a decision of one of the organs mentioned in the constitution’.57 On the basis of the definitions offered above, one may doubt whether the Military Staff Committee established by Art. 47 constitutes a subsidiary organ. It has been established by the Charter and not by a principal organ. Therefore, some scholars argue that the Military Staff Committee is no subsidiary organ in the sense of Art. 7 (2), and rather constitutes an organ which is neither principal nor subsidiary in nature.58 According to Jaenicke, the Military Staff is the only subsidiary organ established by the Charter itself.59 The latter position can be based on the theory that the subsidiary nature in the meaning of a lower hierarchical position can reveal itself twofold: either the organ is created by a principal organ, or an organ that has been established by the constitution will be assigned with powers and functions by a principal organ.60 As the Military Staff Committee shall advise and assist the SC (Art. 47 (1)), it is thus to be regarded as a subsidiary organ.

2.  Independence 15  Subsidiary organs possess a certain degree of independence in relation to the principal organ,61 which is important in order to distinguish them from entities that are simply an integral part of the principal organ. In the second session of the GA, the question was raised whether the Main Committee should be considered a subsidiary (p. 396) body. Some representatives of the Sixth Committee argued in favour of the subsidiary nature of the Main Committee because it continued to function between two sessions. Hence, the provisions regarding the Main Committee and the subsidiary organs in the Rules of Procedures of the GA should be merged. The majority, however, considered the Main Committee as an integral part,62 identical in composition to the Plenary.63 According to Sarooshi, it is decisive whether the entity in question exercises functions in a way that is independent from the principal organ and its operations. Hence, sessional committees, subcommittees, and working groups would not be considered as subsidiary organs.64 Furthermore, Jaenicke has argued that the rules of procedure of the GA and ECOSOC differentiate between subsidiary organs and main committees or sessional bodies, from which he drew the conclusion that Arts 21, 30, 77, and 90 serve as a legal basis for the establishment of sessional bodies, rather than Arts 7 (2), 22, 29, and 68.65 It is controversial whether chambers established by the International Court of Justice in accordance with Art. 26 (2) of the ICJ Statute possess such a degree of independence from the Court that they should be considered subsidiary organs.66 However, the better view is that the Chambers are acting as the Court, not as its subsidiary.67

3.  Preconditions for Establishing a Subsidiary Organ (a)  Literal and Systematic Interpretation of Article 7 (2) 16  Article 7(2) does not contain many preconditions that have to be fulfilled for lawfully establishing a subsidiary organ. It just states that subsidiary organs ‘as may be found necessary may be established in accordance with the present charter’. The first part of the provision grants the respective organ discretion concerning the establishment of a subsidiary organ within the legal framework provided by the Charter.68 The latter part of Art. 7 (2) is open to interpretation, however, with regard to the relationship between the

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special provisions of Arts 22, 29 and 68, on the one hand, and the general provision of Art. 7, on the other. (p. 397) 17  In contrast to Art. 25, where it is debatable whether ‘in accordance with the present charter’ refers to the decision of the SC or to the implementation of such decisions by member States,69 the wording of Art. 7 (2) is unambiguous.70 The Charter offers no specific preconditions regarding subsidiary organs except in Art. 22, Art. 29, and Art. 68,71 although the latter provision does not mention ‘subsidiary organs’ explicitly. The provisions stipulate that a principal organ may establish such subsidiary organs ‘as it deems necessary for the performance of its functions’. One may ask, however, whether principal organs will be entitled to establish subsidiary organs only if the Charter grants them this right in specific provisions such as Arts 22, 29, and maybe 68. Secondly, it is debatable whether Art. 7 (2) constitutes a provision granting authority on its own that consequently would be applicable next to Arts 22, 29, 68, or whether the latter provisions are leges speciales to Art. 7 (2). Hence, the question is whether Art. 7 (2) refers to the functional limitations contained in Arts 22 and 29 and whether the scope of powers based on the general or the specific provisions differs. 18  Kelsen, for instance, argued that the expression ‘in accordance with the present charter’ in Art. 7 (2) can support an interpretation according to which Art. 7 (2) alone cannot give authority to establish a subsidiary organ.72 Consequently, such a restrictive interpretation would lead to the result that only the GA and the SC (and ECOSOC) are empowered by the Charter to establish subsidiary organs, since similar provisions to Arts 22 and 29 (and Art. 68) that name the establishment of subsidiary organs explicitly are missing for other principal organs.73 In other words, only those organs that can rely on a specific provision would be empowered to establish subsidiary organs. Given the practice of the TC74 and the SG75 to establish subsidiary organs,76 it is doubtful whether such a restrictive approach is the correct interpretation. The travaux préparatoires offer arguments for both sides, but finally argue (p. 398) against the restrictive interpretation. It is true that French delegate Fouques-Duparc proposed that only those organs which can rely on a specific provision granting authority should be entitled to establish subsidiary organs.77 In the end, the San Francisco Conference decided to keep both the special provisions (Arts 22, 29) and the general provision of Art. 7 (2). If the founders of the Organization had desired to restrict the numbers of organs being capable of creating subsidiary organs, they would have done so by following the above-mentioned proposal. Therefore, the drafting history ultimately speaks against a restrictive approach.78 A broader approach also finds support in systematical considerations: Art. 7 (2) has to be read in conjunction with Art. 7 (1), which means that all principal organs are included.79 If one adopted the narrower position, Art. 7 (2) would have no scope of application. In addition, a restrictive interpretation would find itself in contradiction with the view in legal literature according to which the power of an organ to establish a subsidiary entity does not depend on a specific provision.80 There is no evidence that the founders wanted to restrict the other organs’ capability regarding the creation of subsidiary organs. Hence, the provision ‘according the present charter’ should not be understood in such a way that only the GA, the SC, and ECOSOC are enabled to set up subsidiary organs. 19  The adoption of the broader view does not, however, dispose of the question of the relationship between Art. 7 (2) and the more specific provisions. Sarooshi adopts a broad interpretation of Art. 7 (2) and argues that Art. 7 (2) is ‘per se a source of authority to establish subsidiary organs’81 that applies to all principal organs independently from the existence of a specific provision.82 Consequently, Art. 7 (2) would provide broader authority to the SC and the GA because Art. 7 (2) lacks a functional limitation similar to Art. 22 and Art. 29.83 It appears more convincing, however, to regard Arts 22 and 29 as leges speciales.84 The reference ‘in accordance with the present charter’ argues in favour of this position. It would make no sense to refer to the Charter and at the same time exclude the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

provisions regarding subsidiary organs in different chapters. This view is also supported by the San Francisco Conference where the committees attached great importance to harmonizing the wording of Art. 7 (2) and of the special provisions, which had been the reason for introducing the reference to the present Charter in the first place.85 20  According to Sarooshi, both Art. 7 (2) and the specific provisions have a field of application: a mere delegation of powers would be based on the specific provisions, whereas (p. 399) the exercise of certain functions that requires an implied power such as the establishment of the UNAT or the ICTY would be covered by Art. 7 (2).86 This novel view, however, cannot be based on the jurisprudence of the ICJ on which Sarooshi relies. In the Advisory Opinion on the UN Administrative Tribunal, the Court refers to Arts 7 (2), 22, and finally 101, according to which the GA regulates the staff, to conclude that the GA has the power to establish a tribunal to adjudicate staff cases.87 In Application for Review, the Court again used Art. 7 (2) and Art. 22 jointly to conclude that ‘the object of both those Articles is 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.’88 In Certain Expenses, the Court used Art. 22 alone when discussing a legal basis for establishing subsidiary organs by the General Assembly.89 Hence, one cannot derive from these judgments that Art. 7 (2) has its own field of application different from Arts 22 and 29 (for the special case of joint subsidiary organs see below). Rather, Art. 7 (2) has to be read in conjunction with the Arts 22 and 29 that determine the legal basis and therefore are leges speciales. Therefore, Art. 7 (2) does not offer a broader basis with fewer preconditions than the Arts 22, 29, and 68.90

(b)  Joint Subsidiary Organs 21  The passive wording of Art. 7 (2), which appears to be a compromise against the background of the discussions during the drafting process, leaves it open which entity can rely on the provision to create subsidiary bodies (for principal organs, see above). Hence, Art. 7 (2) does not allow for conclusions regarding the creation of a joint subsidiary organ by the principal organs or the Organization itself.91 Thus, in the aftermath of the World Summit Outcome, the GA and the SC jointly established the Peacebuilding Commission (PBC). Both the GA and the SC relied on Arts 7, 22, and 29 as its legal basis (see Paulus on Art. 29 MN 20 and Khan on Art. 22 MN 21). Consequently the termination of the PBC or an amendment of the PBC’s structure require that the GA and the SC act concurrently (see also Paulus on Art. 29 MN 20; Khan on Art. 22 MN 21). By ECOSOC Res 2008 (LX) of 14 November 1976, and UNGA Res 31/93 of 14 December 1976, the Committee on Programme and Coordination, originally established as a subsidiary organ of ECOSOC only, should function ‘as the main subsidiary organ of the Economic and Social Council and the General Assembly’ for planning, programming, and coordinating UN activities with financial implications. Another example is the establishment of the UN Special Fund (now suspended) as ‘an organ of the United Nations administered under the authority of the Economic and Social Council (p. 400) and the General Assembly’; its Governing Council was to be elected by ECOSOC, and its Managing Director was to be appointed by the SG after consultation with the Governing Council, ‘subject to confirmation by the General Assembly’.92 These resolutions do not mention a legal basis. 22  Furthermore, a joint subsidiary organ can also be established by two international organizations, for instance the UN/FAO Intergovernmental Committee for the World Food Programme, a joint UN/FAO Unit for administrative coordination,93 or the UN (UNCTAD)/ GATT International Trade Centre which serves as an example of a joint subsidiary organ of a UN subsidiary organ. The first case of this sort was an agreement between the GA and IDA, which was approved by UNGA Res 1594 (XV) of 27 March 1961, whereby a Liaison Committee composed of the SG and the President of IDA, or their representatives, was

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created to assure the coordination of technical assistance and other development activities of both organizations. 23  Once established, a joint subsidiary organ of the GA and a specialized agency cannot be terminated or be changed in its composition by the GA unilaterally, which is why it could be argued that Art. 22 has to be interpreted strictly and applies only within the UN.94 A letter from the UN Secretariat to the Legal Counsel of the FAO of 4 January 1963,95 cited Arts 7 (2), 22, 29, and 68 and the Rules of Procedure of ECOSOC and the TC, without, however, indicating how and to what extent these provisions might serve as a constitutional basis for the preceding statement.

(c)  Form 24  In general, principal organs establish subsidiary organs by adopting a resolution.96 Procedural requirements and their consequences are unclear. In the case of the GA, the ECOSOC, and the TC, reference has to be made to Arts 18, 67, and 89 of the Charter.97 In case of a joint subsidiary organ, both principal organs issue concurring resolutions. It is also possible that a principal organ might adopt an entity as its subsidiary organ only ex post.98

4.  Scope of the Power to Create Subsidiary Organs (a)  Principle of Attribution of Powers, Implied Powers, Inherent Powers 25  Although Art. 7 (2) constitutes a ‘constitutional authority’99 for establishing subsidiary organs, the power to create them is not unlimited. Rather it depends on the power and competences of the Organization and of the respective organ. Therefore, besides the reasons offered above, it is not convincing to argue that Art. 7 (2) is broader in scope (p. 401) than Art. 29. The legality of the creation of the international criminal tribunals does not for instance depend on whether it is based on Art. 7 (2) or Art. 29,100 but on whether the SC has the power to resort to such a mechanism under Chapter VII of the Charter. The principle according to which no organ could delegate more powers than it possesses (nemo plus iuris transferre potest quam ipse habet) does not fully apply to the creation of subsidiary organs by principal organs. UN practice shows that a principal organ may create subsidiary organs without delegating its own power; consequently the powers of the subsidiary organ may differ from those of the principal organ (for the distinction between delegation and authorization see also Paulus on Art. 29 MN 9).101 Hence, a non-judicial organ will not be prevented from creating a judicial body if this is required by the functions of the principal organ. 26  In principle, international organizations—and therewith their organs—possess a limited power conferred upon them by the member States.102 This principle of (explicit) attribution of powers is supplemented by the doctrine of implied powers, according to which the powers of an international organization and its organs do not have to be stated explicitly in the Statute only, but can also derive from an interpretation of their provisions and functions.103 In the words of the Court, implied powers are those ‘which…are conferred…by necessary implication as being essential to the performance of [the organ’s] duties’.104 The doctrine of implied power can be illustrated by the ICJ Advisory Opinion in the UNAT Proceeding. By way of interpretation of explicit Charter provisions the Court found an implied power on which an Administrative Tribunal could be based. The ICJ considered Art. 101 to be sufficient together with the consideration that another interpretation was contrary to the principles and purposes of the Charter to promote justice and freedom.105 The Court’s approach was twofold: first it stated that the Organization had the power to establish an Administrative Tribunal under the Charter. In a second step, the Court found the GA competent to (p. 402) establish an independent judicial tribunal whose decisions bind the GA. The Court thus distinguished between the delegation of powers and the exercise of functions. Not being a judicial organ, the GA did not delegate its powers to the tribunal, rather it exercised its function to regulate staff by setting up the UNAT.106 Hence, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the principal organ does not necessarily delegate its own powers, rather it just needs to act within its powers and in the exercise of its functions.107 27  Although the concept of implied powers is generally accepted, its content is not.108 Especially in its Certain Expenses opinion, the ICJ established a broad understanding by considering it already to be sufficient when the establishment of a subsidiary organ serves the fulfilment of the purposes of the UN.109 According to Seyerstedt, the Court embraced the doctrine of inherent powers, which can be described as a result-orientated approach according to which an international organization has all the powers necessary for the fulfilment of the objectives and purposes of its constituent treaty, unless the latter contains explicit (or implicit) prohibitions.110 Whether the doctrine of inherent power is more precise than the doctrine of implied powers is controversial.111 In the WHO Advisory Opinion, however, the Court demonstrated a restrictive application.112 It is possible to deduce limits from this case-law. The exercise of implied powers must not violate international law in general and the Charter, especially the distribution of powers and functions within the UN.113 In addition, a principal organ must not delegate all of its powers to a subsidiary organ, but their powers must be of a limited nature.114

(p. 403) (b)  Subsidiary Organs Ultra Vires? 28  If an organ acts outside or beyond its constitutionally ascribed functions, it will act ultra vires.115 If a subsidiary organ may not have been lawfully established—or if the subsidiary organ exceeds its powers under its mandate—the actions might be regarded as ultra vires. First it has to be mentioned that the statement that an act is ultra vires presupposes a determination as to the limits of the conferred powers which depend on the interpretation of the provision and on the applied rule of interpretation. It is debatable whether an ultra vires act leads to nullity of its establishment and of all acts stemming from that subsidiary organ, or whether they are still valid but voidable. It is possible that a subsidiary organ has been unlawfully established—for instance in violation of provisions of the Charter or in violation of procedural requirements.116 If the establishment of an organ would lead to a violation of ius cogens, one can assume the nullity of the act.117 The legal consequences of all other substantive or procedural errors are much disputed.118 Some argue that only clear or manifest errors should lead to the nullity of the act in question.119 An act can only be valid or invalid.120 Others propose a distinction regarding the legal consequences: they depart from a strong dichotomy between validity and invalidity and introduce voidability which can lead to an invalidity ex nunc.121 Taking into account that the establishment of a subsidiary organ can become effective immediately, it appears to be difficult or impractical to declare all consequent acts of such organ null and void.122 Other scholars argue that an act cannot be void in the absence of an obligatory review mechanism; thus the legal consequences depend on the reviewability.123 The (p. 404) ICJ furthermore distinguishes between ultra vires acts of the Organization and those of its organs, the latter possibly remaining ‘intra vires’ the Organization as a whole.124 29  This supports the view that one has to make a distinction between the validity of ultra vires acts towards third parties on the one hand and within the Organization on the other hand.125 There is a presumption of validity in favour of the third party that is not aware of the ultra vires nature of an act. It has to be stressed that the burden of proof lies with the party claiming an act to be ultra vires. In Certain Expenses, the ICJ established a presumption of legality for acts of the UN that are not in violation of the purposes of the UN.126 In its Namibia opinion, the Court found that a resolution, having been adopted by the requisite majority, ‘must be presumed to have been validly adopted’.127 In most cases, these presumptions lead to the validity of an act that is arguably ultra vires, since they cannot be rebutted easily. In addition, one needs to consider the difficulties in deciding who shall decide. While some argue that it is up to States alone to decide on the ultra vires nature of an act of the Organization in the exercise of auto-interpretation of international law in general,128 others regard the respective organ itself as the authoritative interpreter From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

of the legality of its acts.129 Under consideration of the strong presumption of legality established by the ICJ, one can take a pragmatic approach accepting the auto-interpretation of all parties concerned even in the absence of a legally binding decision of a competent judicial organ.130

II.  Subsidiary Organs in Practice 1.  Composition and Participation 30  Subsidiary organs are either composed of States, which are represented by government delegates, or of individuals who have been selected on the basis of their personal capacity or expertise and are not subject to instructions from their governments. The International Law Commission may serve as an example for the latter case. As a rule, the organ is composed of a limited number of States. The principle of equitable geographical representation plays a central role in the practice of the GA on the distribution of seats.131 The principle of balanced representation also applies to independent subsidiary expert bodies such as the ILC.132 Further examples are the GA’s Advisory Committee on Administrative (p. 405) and Budgetary Questions (GA Res 14 (I), 13 February 1946) or the International Civil Service Commission (GA Res 3357 (XXIX), 18 December 1974), as well as UNCTAD’s Trade and Development Board.133 States either allocate a specific number of the available seats to each geographical region according to an agreed pattern, and the seats are then filled by electing States on the basis of nominations made by the regional groups in the GA (eg GA Res 2997 (XXVII), 15 December 1972, establishing the Governing Council of UNEP), or they require the President of the GA to allocate the seats on on the basis of equitable geographical representation in consultation with the regional groups (eg GA Res 3182 (XXVIII), 18 December 1973, relating to the enlargement of the Committee on the Peaceful Uses of Outer Space). The geographical element, however, can also be used to exclude a member State from a subsidiary organ from the beginning by forming regional organs.134 As the examples of the Executive Board of UNICEF or the Governing Council of the Special Fund (GA Res 417 V) show, non-member States also can become members of a subsidiary organ (Res 1995) when ‘all States’ are potential members.135 Another possibility of participation of non-member States is in a consultative role, possibly including voting rights.136 However, a State participating as an observer on a committee with limited membership cannot serve as co-sponsor of a proposal before the committee. The committee’s report can indicate the support of a non-member State, though.137 Furthermore, a subsidiary organ can be composed of the executive heads or their representatives of the UN and specialized agencies.138 It is a question of the powers conferred upon a subsidiary organ whether it is competent to invite observers to its meetings.139 Alternatively, the representatives in question can be invited as official guests.140 According to a statement by the Office of Legal Affairs of the UN Secretariat, the Credentials Committee of the General Assembly was competent to prevent States, that were not members of the Committee, from participating in their meetings as observers.141 31  The question arises under which circumstances a State can be excluded from participation in a subsidiary organ and whether such exclusion has to be considered as a sanction or just as an exercise of the competence to organize one’s own affairs. The latter argument was presented by the Second Committee of the General Assembly in 1968 during the discussion whether to suspend South Africa’s membership of UNCTAD. According to the Legal Counsel of the United Nations the question of suspension of rights of member States is answered solely in Art. 5 UNC (p. 406) which requires a joint action by the GA and the SC.142 The GA considered a two-third majority to be sufficient in order to change the composition of UNCTAD but failed to obtain such majority in the specific case.143 In March 2011, the GA suspended Libya from the Human Rights Council, a subsidiary organ of the GA,144 on the recommendation of the Human Rights Council that referred to the suspension

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mechanism contained in its founding resolution in cases of ‘gross and systematic violations of human rights’.145 32  The languages used in a subsidiary organ correspond to those in the parent organ.146 Further information about the composition of subsidiary organs can be found in the Rules of Procedure of the respective main organ.147

2.  Functions and Practice 33  In view of the wide spectrum of functions entrusted to subsidiary organs, it is not possible to present them in an exhaustive list. It must suffice to mention the following typical categories:148 (a)  Committees or groups of experts with a purely advisory function, such as the GA’s Advisory Committee on Administrative and Budgetary Questions (UNGA Res 14 (I), 13 February 1946), the SG’s Advisory Board on Disarmament (established at the request of the GA by UNGA Res 37/99 K, 13 December 1982), the High-level Panel on African Development (SG 1993), the Panel on UN Peace Operations (SG 1999, Report of 21 August 2000, (2000) 39 ILM 1402), and others. (b)  Commissions, committees, or groups of experts who have been entrusted with studying specific problems and/or preparing decisions to be taken by a principal organ (eg drafting conventions, declarations, resolutions, or organizational decisions). They are either established on an ad hoc basis for a particular question and terminated after having accomplished their task, such as the Committee on Defining Aggression (UNGA Res 895 (IX), 4 December 1954), the Committee on Principles of International Law Concerning Friendly Relations and Cooperation Among States (UNGA Res 2625 (XXV), 24 October 1970), the Committee on the Peaceful Uses of the Sea-Bed (GA Res 2750 C (XXV), 17 December 1970), the Ad Hoc Committee on the Restructuring of the Economic and Social Sectors of the UN System (UNGA Res 3362 (S-VII), 16 September 1975), the Intergovernmental (p. 407) Expert Group on the Review of the Administrative and Financial Functions of the UN (UNGA Res 40/237, 18 December 1985), and many others; or on a permanent basis for more comprehensive and lasting problems, such as the Committee on Contributions (UNGA Res 14 (I), 13 February 1946), the ILC (UNGA Res 174 (II), 21 November 1947), the Commission on Narcotic Drugs (ECOSOC Res 9 (I), 16 February 1946, Res 49/1991, 21 June 1981), the Disarmament Commission (UNGA Res 502 (VI), 11 January 1952, S-10/2, 30 June 1978), the Committee on Outer Space (UNGA Res 1472 A (XIV), 12 December 1959), the Decolonization Committee (UNGA Res 1654 (XVI), 27 November 1961), UNCITRAL (UNGA Res 2205 (XXI), 17 December 1966), the Committee on Information (UNGA Res 34/182, 18 December 1979), the Commission on Sustainable Development (UNGA Res 47/191, 22 December 1992; ECOSOC, 12 February 1993), and others. 149 (c)  Commissions for the promotion of regional cooperation among States in the economic and social field, such as the regional commissions of ECOSOC for Europe (ECE), Asia and Pacific (ESCAP), Latin America (ECLAC), Africa (ECA), and Western Asia (ESCWA), established by ECOSOC Res 36 (IV), 28 March 1947, 37 (IV), 25 March 1947, 106 (VI), 25 February and 5 March 1948, 671 (XXV), 29 April 1958, 1818 (LV), 9 August 1973. Since 1985, UN Centres for Peace and Disarmament in Africa, in Latin America and the Caribbean, in Asia and the Pacific have been established (UNGA Res 40/151, 16 December 1985; 41/60, 3 December 1986; 42/39, 30 November 1987).

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(d)  UN Observer or Visiting Missions in areas of international conflict or civil war, in particular those verifying the implementation of ceasefire, armistice or peace agreements or monitoring human rights situations, or for other fact-finding purposes, such as UNMOGIP (India/Pakistan, UNSC Res 447/1948, 21 April 1948), UNTSO (Palestine, UNSC Res 50/1948, 29 May 1948, 73/1949, 11 August 1949), Iraq/Iran Observer Group (UNSC Res 514/1982, 12 July 1982), Special Rapporteur to examine the human rights situation in Afghanistan (ECOSOC Res 37 (1984), 24 May 1984), Investigation Commission for Angola (UNSC Res 571/1985, 20 September 1985), ONUVEN (Nicaragua, UNSC Res 637/1989, 27 July 1989), and others. For dealing with worldwide and lasting problems permanent organs have been established, such as the UN High Commissioner for Human Rights as the Organization’s principal officer with the permanent mandate to play an active role in preventing human rights violations throughout the world and to engage in a dialogue with all governments to secure respect for human rights (UNGA Res 48/141, 20 December 1993). (e)  Commissions, committees, or individuals entrusted with mediation or conciliation between parties to an international conflict, such as the UN Mediator in Palestine (UNGA Res 186 (S-2), 14 May 1948), the Conciliation Commission for Palestine (UNGA Res 194 (III), 11 December 1948), the Good Offices Committee on South-West Africa (UNGA Res 1143 (XII), 25 October 1957), the UN Commission for India and Pakistan (UNGA Res 1714 (XVI), 19 December 1961), the Good Offices Mission for Afghanistan and Pakistan (UNGOMAP) established on the basis (p. 408) of the Memorandum of Understanding between Afghanistan and Pakistan of 14 April 1988 (UN Doc S/19834, 19835, 20250), and the so-called ‘Special Representatives’ of the SG in numerous other cases. (f)  UN peacekeeping forces, which have been placed at the front or armistice line between the armed forces of the parties to an international conflict for the purpose of preserving the ceasefire or armistice, see Bothe on Peacekeeping MN 27 . (g)  Institutions temporarily exercising governmental functions such as the councils or commissions assisting in the administration of colonial or trust territories placed under the authority of the UN until these territories gained independence: the Councils for Libya and Somalia (UNGA Res 289 A (IV), 21 November 1949), the Commission for Rwanda-Burundi (UNGA Res 1743 (XVI), 23 February 1962) and the Council for Namibia (UNGA Res 2248 (S-IV), 19 May 1967). In 1999, the SC, acting under Chapter VII of the Charter, established UN Administrations with the overall power to exercise all legislative and executive jurisdiction necessary for rebuilding governmental structures and securing democratic elections in territories where civil war situations had led to grave and widespread violations of humanitarian law: the UN Transitional Administration in Eastern Slavonia (UNTAES, UNSC Res 1037, 15 January 1996), the UN Administration for Kosovo (UNMIK, UNSC Res 1244, 10 June 1999), the UN Transitional Administration in East Timor (UNTAET, UNSC Res 1272, 29 October 1999) (cf Bothe on Peacekeeping MN 27 ; Paulus on Art. 29 MN 57 ). (h)  The so-called ‘operational agencies’ entrusted with the management and operation of programmes and funds for financial, technical, and other forms of assistance to developing countries, areas in distress, or refugees, such as WFP (UNGA Res 1714 (XVI), 19 December 1961), UNDP (UNGA Res 2029 (XX), 22 November 1965), UNEP (UNGA Res 2997 (XXVII), 15 December 1972), UNFPA (UNGA Res 3019 (XXVII), 18 December 1972), UNRWA (UNGA Res 302 (IV), 8 December 1949), and UNHCR (UNGA Res 319 (IV), 3 December 1949); all these agencies have an organizational sub-structure with an intergovernmental body (‘governing council’, ‘governing committee’, or ‘governing board’) for policy decisions and an administrative head (‘administrator’, ‘managing director’, or ‘executive director’) assisted by an international staff for approving and supervising the proposed projects, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

for allocating the available funds, and for running the day-to-day business of these agencies. Smaller funds, in particular those providing emergency relief to particular countries, are generally administered directly by the Office of the Secretary-General and its staff. 150 So-called operational agencies 151 enjoy a higher degree of independence than subsidiary organs usually do and depart in part from the system envisioned in the Charter. They also constitute an exception to the fiscal control provided by the Charter. The financing departs from the method established by the Charter according to which the GA apportions the expenses. 152 Operational agencies, however, are funded by voluntary contributions 153 which lead to a loss of financial control of the GA and the SG. 154 (i)  The Human Rights Council (see MN 9 , see also Khan on Art. 22 MN 53 ) plays a special role. Composed of forty-seven member States elected by the GA, it was (p. 409) established as a subsidiary organ of the GA, but is a ‘principal organ in waiting’ for a formal amendment of the Charter to this effect. The Office of the High Commissioner of Human Rights in Geneva, while a separate entity, provides ‘substantive support’ to the Council 155 which has thus its own supporting structure as part of the UN human rights machinery. (j)  Autonomous organizations, such as UNCTAD (UNGA Res 1995 (XIX), 30 December 1964), UNIDO (until 1985; UNGA Res 2152 (XXI), 17 November 1966), and UNCDF (UNGA Res 2186 (XXI), 13 December 1966). These agencies were established as ‘subsidiary organs’ of the GA but function as autonomous organizations; they have a full organizational structure with a policy-making organ, composed of government delegates of the participating States, and a Secretariat, but, as subsidiary organs of the GA, their administrative expenses are paid from the UN budget and they report through ECOSOC to the GA. UNGA Res 2152 (XXI) of 17 November 1966, stated expressly that UNIDO, ‘established as an organ of the GA, shall function as an autonomous organization within the United Nations’. UNGA Res 2186 (XXI) of 13 December 1966, used the same language with regard to UNCDF. Since 1985, UNIDO has been converted into a separate international organization, related to the UN as a specialized agency under Art. 57 of the Charter (UNGA Res 34/96, 13 December 1979, 40/180, 17 December 1985), and has consequently ceased to be a subsidiary organ of the GA. (k)  Institutions with judicial functions, such as the UN Administrative Tribunal for the adjudication of claims of UN civil servants against the Organization arising under their contracts of employment (Statute adopted by UNGA Res 957 (X), 8 November 1955), the UN Compensation Commission for resolving claims against Iraq arising from Iraq’s unlawful invasion and occupation of Kuwait (UNSC Res 687 E, 3 April 1991), the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (Statute adopted by UNSC Res 827, 25 May 1993), and the International 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 (Statute adopted by UNSC Res 955, 8 November 1994). (For more detail, see Paulus on Art. 29 MN 43–47 , 76.)

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(l)  Institutions for training and research, such as UNITAR (established by the SG at the request of the GA by Res 1934 (XVIII), 11 December 1963, 41/172, 5 December 1986), the UN University (UNGA Res 2951 (XXVII), 11 December 1972, 3081 (XXVIII), 6 December 1973), and the UN Institute for Disarmament Research (UNIDIR, UNGA Res 37/99 K, 13 December 1982, and 39/148 H, 17 December 1984). (m)  Sanctions committees (see Paulus on Art. 29 MN 36 ).

(p. 410) 3.  Duration 34  The period of existence of subsidiary organs differs according to the subsidiary organs’ functions and tasks. They can be established either for a limited or for an unlimited period of time (so-called standing committees); however, even in the latter case their duration depends on the will of the principal organ, which is free to terminate their existence at any time (at least if it provides for a resolution of outstanding issues).156 The qualification in the text of the resolution as standing committee can only mean that no subsequent decision will be needed for the continuance of that subsidiary organ beyond the session of its parent organ at which it is established. Thus, to avoid misinterpretation, the qualification ‘permanent’ should be avoided. Although many subsidiary organs serve a specific purpose, they will be not terminated automatically; it is up to the principal organ to dissolve them.157

4.  Scope of Powers of the Subsidiary Organ and Legal Status 35  The scope of powers of a subsidiary organ depends on the principal organ. As shown above, there is no general rule which would prevent a subsidiary organ from rendering decisions that are binding on the parent principal organ if this organ has accorded the subsidiary entity such powers (see Khan on Art. 22 MN 28). However, as this is the exception to the rule, the principal organ needs to do this explicitly.158 Under Chapter VII of the Charter, the SC possesses comprehensive powers for the maintenance of international peace and security and can therefore establish subsidiary organs such as Criminal Tribunals, Sanctions Committees, or Territorial Administrations that may directly affect individuals (cf Peters on Art 25 MN 34–44; Paulus on Art. 29 MN 40; Krisch on Art. 41 MN 41). However, in its Kosovo opinion the ICJ held that the resolutions establishing subsidiary organs need to address individuals explicitly. Since the Court found that this had not been the case in SC Res 1244 (10 June 1999), the Court concluded that the UNMIK administration did not cover individuals who therefore were not prevented from issuing a unilateral declaration of independence159 (for the extensive powers of subsidiary organs of the SC see Art. 29). 36  Once established the subsidiary organ becomes part of the Organization. The legal personality of the UN that derives from Art. 104 extends to subsidiary organs. Therefore, a subsidiary organ can enter into contractual relations with other organizations or States.160 However, the international status of the organs of the UN excludes the possibility to create a corporate body in a domestic legal system.161 The subsidiary organ does not possess a legal personality distinct from the parent organ and the UN, since it remains dependent on the parent principal organ.162 Subsidiary organs are obliged to carry out the task accorded to them.163 In addition, the Human Rights Council is empowered to make (p. 411) recommendations directly to member States. Recommendations of a subsidiary organ cannot bind other subsidiary organs in a technical sense, but the principle of good faith in the sense of Organtreue (mutual respect between organs of the same organization) may oblige them to consider the position of the other subsidiary organ.164 37  The tasks accorded to a subsidiary organ may require the creation of a sub-subsidiary organ (see Paulus on Art. 29 MN 25). The principle of delegatus non potest delegare does thus not apply to the UN. However, in practice, the parent organ needs to explicitly permit the creation of sub-organs, which is also due to budgetary considerations.165 The GA has even requested ECOSOC to refrain ‘to the maximum extent possible…from establishing new From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

subsidiary bodies’.166 Practice thus supports the view that the power to establish a subsidiary organ is vested in the principal organ only. One example for an authorization of a subsidiary organ to create subsidiary bodies can be seen in GA Res 2152 (XXI) establishing the United Nations Industrial Development Organization (UNIDO) which was later to become a specialized agency. By virtue of this resolution, the GA not only established UNIDO but also authorized its Industrial Development Board, which despite its name was still a subsidiary organ of the GA,167 to establish subsidiary organs (para 14). 38  The subsidiary organ often appoints a Rapporteur to report to the parent principal organ.168 The experts of such bodies are entitled to immunity in order to ensure their independence.169 Furthermore, experts are expected to serve their full term, the removal of a member ‘for lack of regular participation is unprecedented in the practice of the United Nations system’.170 A commission can require a sub-commission to report directly to the Council instead of reporting just to the commission if there are compelling reasons to do so. States that, although being eligible for membership, are not represented in a commission can become members of the sub-commission.171 39  It is possible for a subsidiary organ to create a joint organ with an international organization: thus, the Intergovernmental Panel on Climate Change (IPCC, 1988) is a joint organ of UNEP and the World Meterological Organization (see also MN 21).172

(p. 412) D.  Treaty Organs and United Nations Family: Specialized Agencies, Treaty Organs, and Conferences 40  The term ‘treaty organ’ stands for the special category of organs (commissions, committees, or similar bodies) that have been established under a separate convention or other international agreement, but have such a close functional and organizational relationship with the UN that they have been referred to as ‘treaty organs of the UN’.173 They perform functions for the implementation of conventions or other international agreements that have been prepared and adopted in the pursuit of purposes of the UN, and they are administratively and financially linked to the UN by arrangements under which their expenses are financed in whole or in part from the UN budget, their Secretariat services are furnished by the UN Secretariat, and their reports are reviewed by the competent UN organ. In some cases, even the appointment of the members of the ‘treaty organ’ has been entrusted to the competent UN organ. Since the treaty organs are based on a treaty, it is possible that the membership differs from the membership of the UN.174 41  For instance, in the course of the transfer of functions of the League of Nations to the UN, the Permanent Central Opium Board (PCOB) and the Drug Supervisory Body (DSB), which had been established as organs within the League of Nations system under the narcotic drug conventions of 1925, were brought under the authority of the UN by the Protocol of 11 December 1946,175 which was ‘approved’ by the GA with Res 54 (I) on 19 November 1946. The Protocol provided, inter alia, that the members of both bodies were from then on to be appointed by the SG with the approval of ECOSOC and that their expenses were to be borne by the UN budget. The functions of PCOB and DSB were later transferred to the International Narcotics Control Board (INCB), which was established by the Single Convention on Narcotic Drugs of 13 March 1961.176 The Convention expressly ‘recognizes’ the competence of the UN with respect to the international control of drugs and provides that the members of INCB shall be appointed by ECOSOC, that the expenses of INCB shall be borne by the UN, that INCB’s Secretariat services shall be furnished by the SG, and that INCB shall submit an annual report to ECOSOC. After the Convention had entered into force, ECOSOC ‘approved’ the consequential organizational and financial obligations of the UN (ECOSOC Res 1195 (XLII), 16 May 1967). The UN Repertory of

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Practice commented that under these arrangements the INCB had a position within the UN ‘similar in some respects to that of subsidiary organs’.177 42  A further group of ‘treaty organs’ consists of those that have been established under various human rights conventions for the purpose of controlling their implementation by the contracting States. These are the Committee on the Elimination of Racial Discrimination (Convention on the Elimination of All Forms of Racial Discrimination, adopted by UNGA Res 2106 (XX), 21 December 1965, 660 UNTS 195); the Human (p. 413) Rights Committee (International Covenant on Civil and Political Rights, adopted by UNGA Res 2200 (XXI), 16 December 1966, 999 UNTS 171); the Committee on the Elimination of Discrimination against Women (Convention adopted by UNGA Res 34/180, 18 December 1979, 1249 UNTS 13); the Committee against Torture (Convention against Torture, adopted by UNGA Res 39/46, 10 December 1984, 1465 UNTS 85); and the Commission against Apartheid in Sports (Convention adopted by UNGA Res 40/64, 10 December 1985, 1500 UNTS 161). 43  A cooperation between a subsidiary organ and a specific (human rights) treaty is also possible, as demonstrated by the Committee on Economic, Social and and Cultural Rights (CESCR), which is a subsidiary organ of ECOSOC178 but carries out the monitoring functions that are assigned to ECOSOC in Part IV of the International Covenant on Economic, Social and Cultural Rights (ICESCR).179 Although it was the intention to establish the same close organizational relationship of these committees with the UN as in the case of the INCB, they have departed from this model inasmuch as their members are appointed by the State parties to these conventions, but in all other respects they follow the model of the INCB. The members are paid from the UN budget (with the exception of the Racial Discrimination Committee, the Committee against Torture, and the Commission against Apartheid in Sports, whose members are paid by the respective State parties),180 the SG provides the necessary staff and facilities for their meetings so that the cost of these services also falls on the UN budget (with the exception of the Committee against Torture, where the expenses for servicing the Committee have to be reimbursed by the State parties), and they report annually to the GA on their activities. By virtue of Art. 43 of the Covenant on Civil and Political Rights, the members of the Human Rights Committee are entitled to the privileges and immunities of experts on missions for the UN. The SG has concluded that even in the absence of such a provision, the members of the Racial Discrimination Committee are protected by the Convention on the Privileges and Immunities of the UN, 1 UNTS 15, because the Committee fell into the category of ‘treaty organs of the UN’.181 The functional relationship of these five human rights committees with the UN is evidenced by the fact that all the conventions that established them have been prepared within the UN in furtherance of their special purpose of promoting universal respect for human rights, and that they all were formally ‘adopted’ by the GA. 44  A similar but less close relationship with the UN exists in the case of the Disarmament Committee (since 1984 called Conference on Disarmament), which was established by agreement between the participating States in 1961 and is considered part of the machinery in the UN Programme of Action for Disarmament.182 A further case of this sort is the Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea, which was established by Res I of (p. 414) the UN Conference on the Law of the Sea in 1982. Both bodies are serviced by the UN Secretariat, and the Preparatory Commission is financed from the regular UN budget.183 However, the GA did not formally ‘adopt’ the international agreements that established the two bodies, but merely ‘endorsed’ or ‘welcomed’ them, so that the two bodies cannot be considered as being formally incorporated into the UN System. But by servicing and financing these bodies, the GA has at least recognized the special and continuing interest of the UN in their work. Thus, it may be legitimate to include them in the list of ‘UN-related

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bodies’, as is done in the UN Yearbook, but it would probably be going too far to qualify them as ‘treaty organs of the UN’. 45  The ‘treaty organs of the UN’ are certainly not subsidiary organs of the GA because they have neither been established by the GA nor brought under the control of the GA in the sense that the GA may change their terms of reference or issue directives to them. In the memoranda on the legal status of these organs (see MN 40), the SG has always emphasized that they may not be considered subsidiary organs of the GA. Inasmuch as they perform functions of the UN, it may be permissible to characterize this relationship by calling them ‘treaty organs of the UN’ if it is clearly understood that any legal consequences drawn from this qualification need a further specific legal foundation in a resolution by the competent UN organ or in another legal instrument with binding force for the UN. Thus far, the GA has never used the term ‘treaty organ of the UN’ in one of its resolutions relating to the aforementioned bodies; on the other hand, no objection has apparently been voiced against that term as it has been used by the UN Secretariat. 46  Subsidiary organs have to be distinguished from international conferences. It is possible that a conference might be convened ‘by or under the auspices of an international organization’,184 however, as States are free to convene a conference, the conference need not necessarily be considered as a subsidiary organ.185 47  In the complex institutional system that has evolved in the practice of the UN,186 subsidiary organs constitute one of many instruments by way of which the establishment of a new (institutional) entity can be achieved for the fulfilment of the objectives of the Organization.187 The flexibility of this instrument, however, also constitutes a challenge for mechanisms of oversight and control.

E.  Remedies 48  Due to the fact that subsidiary organs (especially those of the Security Council, see Paulus on Art. 29) are affecting more and more individuals directly, the question of (p. 415) remedies against acts of subsidiary organs is gaining considerable attention (for details see Paulus on Art. 29 MN 43 and Paulus and Leiss on Art. 103 MN 43). Given the legal capacity of the UN in domestic legal systems,188 the question of remedies against acts of organs of the United Nations is linked to the immunity of the Organization. As the ICJ opined in Cumaraswamy, ‘any such claims against the United Nations shall not be dealt with by national courts but shall be settled in accordance with the appropriate modes that “the United Nations shall make provision for”’.189 Because of the immunity of the United Nations, national courts usually hold claims brought against the United Nations to be inadmissible.190 Thus, it will be the task of the United Nations itself to provide for effective mechanisms of accountability not only for the Organization, but also for its subsidiary bodies.191

Footnotes: 1

  Torres Bernárdez calls subsidiary organs ‘the chevilles ouvrières of international organizations: the place where, and the means through which, the work is done and the activities are carried out’, S Torres Bernárdez, ‘Subsidiary Organs’ in RJ Dupuy (ed), Manuel sur les organisations internationales. Handbook on International Organizations (Nijhoff 1998) 151. 2 

H Kelsen, The Law of the United Nations: A critical analysis of its fundamental problems (Stevens, 1950) 136. However, as Kelsen himself notes with a view to Arts 52, 53, Chapter IX and X, ‘the classification presented as exhaustive is evidently not exhaustive’, at 145; the

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dichotomy of principal organs and subsidiary organs has come under criticism, cf Torres Bernárdez (n 1) 119ff. See also Khan on Art. 22 MN 58. 3

  See eg Art. 11 of the Convention on the International Maritime Organization (adopted 6 March 1948, entered into force 17 March 1948) 289 UNTS 3 (IMO Convention); Art. 7 of the Constitution of the United Nations Industrial Development Organization (adopted 8 April 1979, entered into force 21 June 1985) 1401 UNTS 3 (UNIDO Constitution); Art. 53 of the Charter of the Organization of American States (adopted 30 April 1948, entered into force 13 December 1951) 119 UNTS 3 (OAS Charter). 4

  Art. 2 of the Covenant of the League of Nations (adopted 28 June 1919, entered into force 10 January 1920) reads: ‘The action of the League under this Covenant shall be effected through the instrumentality of an Assembly and of a Council, with a permanent Secretariat.’ 5

  D Sarooshi, ‘The Legal Framework Governing United Nations Subsidiary Organs’ (1996) 67 BYIL 422; see also Paulus on Art. 29 MN 2; Khan on Art. 22 MN 2; see furthermore B Rudolf, ‘United Nations Committees and Subsidiary Bodies’ MPEPIL (online edn) accessed 26 September 2011, who discusses Art. 5 (2) of the Covenant as the legal basis for committees. Art. 5 of the Covenant as the League of Nations reads: ‘All matters of procedure at meetings of the Assembly or of the Council, including the appointment of Committees to investigate particular matters, shall be regulated by the Assembly or by the Council and may be decided by a majority of the Members of the League represented at the meeting.’ 6

  UNCIO III 3.

7

  See UNCIO III 86; see also Tentative Draft of the Coordination Committee and the Advisory Committee of Jurists, Subject to Final Approval of the Coordination Committee of 18 June 1945, UNCIO XX 506. 8

  Verbatim Minutes of fourth Meeting of Commission I, 24 June, 1945, 5, UNCIO VI 167, Commission I, General Provisions. 9

  ibid, 167.

10

  Art. 14 of the Covenant reads: ‘The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.’ 11

  ‘It cannot, we think, be doubted that the Court has to some extent suffered in the past from its organic connexion with the League, which, whether logically or not, resulted in its prestige being dependent to some extent upon the varying fortunes of the League. Moreover, this organic connexion was doubtless responsible, at any rate in part, for the unwillingness of some States to become parties to the Statute, and for the fact that others severed their connexion with the Court when they withdrew from the League.’ ‘Report of the Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice of February 10, 1944’ (1945) 39 AJIL Sup 1. 12

  Mexico argued for an ‘Elimination of the International Court of Justice from the number of principal organs’, Opinion of the Department of Foreign Relations of Mexico Concerning the Dumbarton Oaks Proposals for the Creation of a General International Organization, 31 October 1944, Doc.2 G/7(c), 23 April 1945, UNCIO III 86. See also page UNCIO III 90: ‘It is considered advisable that the Permanent Court of International Justice should not be included among the organs of the future General International Organization, but that it

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enjoy full autonomy…in as much as like the juridical institution that it is, the Court will need to maintain, to the highest degree possible, independence in the exercise of its functions …’ 13

  cf S Rosenne, The Law and Practice of the International Court: 1920–2005, vol 1 (4th edn, Nijhoff 2006) 106; V Gowlland-Debbas ‘Article 7 UNC’ in A Zimmermann and Christian Tams (eds), The Statute of the International Court of Justice (OUP 2006) 85 Comm Statute MN 12. 14

  Delegation of Ecuador to the United Nations Conference on International Organization— Comments and Amendments to the Proposals for the Establishment of a General International Organization as Submitted by the Dumbarton Oaks Conference, Doc 2 G/7 (p), 1 May 1945, at 9, in UNCIO III 9: Dumbarton Oaks, 1945, 402. 15

  UNCIO III 506; see also UNCIO VII 58: a ‘Council of Intellectual Cooperation’ had also been proposed. 16

  UNCIO III 107, Commission I Doc 1187, Fifth Meeting of the Commission I, 23 June 1945. 17

  The Coordination Committee accepted the suggestion by the delegate of the USSR, SA Golunsky, that the then Art. 8 should become the second paragraph of Art. 7, Tenth meeting of the Coordination Committee, 4 June 1945, in UNCIO XVII 52. 18

  D Sarooshi (n 5) 432; the term ‘organismes auxiliaires’ has been used by delegates, UNCIO IXX 41, but did not replace the term ‘organes subsidiaires’ that can be found in the final version as well as in earlier draft versions. 19

  This was an expression of the Secretary, Darlington, during the eighth meeting of the Coordination Committee, 30 May 1945, UNCIO XVII 37. 20

  The drafted provision in question reads: ‘The organization may establish subsidiary agencies as its principal organs may find necessary.’ 21

  UNCIO XVII 37.

22

  F Nieto del Rio (Chile), C de Freitas Valle (Brazil). HMG Jebb (United Kingdom), ibid.

23

  A Pelt (Netherlands), ibid.

24

  HMG Jebb, UNCIO XVII 38; however, he was of the opinion that the Organization had the right to set up subsidiary bodies even without a specific provision, ibid, 37. 25

  Chairman L Pasvolsky, ibid.

26

  On the suggestion of KH Bailey (Australia), UNCIO XVII 51.

27

  J Fouques-Duparc (France), UNCIO XVII 51–52.

28

  UNCIO XVII 405.

29

  UNCIO XVIII 134.

30

  cf Uruguay, Doc 2 G/7 (a) (1), 4, UNCIO III 37.

31

  The provision stipulates: ‘All positions under or in connection with the League, including the Secretariat, shall be open equally to men and women.’ 32

  Summary Report of Ninth Meeting of Committee I/2, 18 May 1945, UNCIO VII 58.

33

  UNGA Res 60/251 (15 March 2006) UN Doc A/RES/60/251 para 1; see also Khan on Art. 22 MN 53. 34

  See Outcome Document of 24 October 2005, UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1 paras 157–60.

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35

  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 291 (‘In the longer term, Member States should consider upgrading the Commission to become a “Human Rights Council” that is no longer subsidiary to the Economic and Social Council but a Charter body standing alongside it and the Security Council’). 36

  ECOSOC Res 5 (I), UN Doc E/RES/5 (I) of 16 February 1946 On the Commission on Human Rights, see Riedel on Art. 68 (2nd edn) MN 94ff; Res 60/251 (n 34) para 1. On the different stages of the process, see Spohr, ‘United Nations Human Rights Council’ 14 (2010) Max Planck YB UN L 169, 174–75. On the Commission and the reasons for its dissolution, see Riedel and Giacca on Art. 68 MN 69; Khan on Art. 22 MN 53. 37

  UNGA Res 65/281 (17 June 2011), UN Doc A/RES/65/281 para 3. For the original review provision, see UNGA Res 60/251 (n 33) ibid. 38

  CF Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn CUP 2006) 142; Art. 54 of the Charter of the Organization of American States (OAS), 119 UNTS 3, entered into force 13 December 1951, serves as an example for a founding treaty of an international organization that establishes a hierarchy between principal organs: ‘The GA is the supreme organ of the Organization of American States. It has as its principal powers, in addition to such others as are assigned to it by the charter …’ cf also Art. 77 of the Charter of the OAS. 39

  Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) [1950] ICJ Rep 8: ‘The General Assembly and the Security Council are both principal organs of the United Nations. The Charter does not place the Security Council in a subordinate position.’ 40

  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep 151, 163. 41

  See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, paras 25–32; Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) (Advisory Opinion) [2011] [Kosovo opinion] available at accessed 12 December 2011, paras 22– 24. 42

  Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Jurisdiction and Admissibility (Judgment) [1984] ICJ Rep 392, 434–35. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep, 136, 148. 43

  ibid, 434–35; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Provisional Measures) [1993] ICJ Rep 3, 19, Order of 8 April 1993. 44

  Kosovo opinion (n 41) para 28.

45

  cf the Declarations, Separate and Dissenting Opinions of Judge Skotnikov accessed 1 December 2011, Judge Keith accessed 1 December 2011, Judge Tomka accessed 1 December 2011, and Judge Bennouna accessed 1 December 2011. 46

  In the words of K Del Mar, ‘prima facie weight…should be attributed to factual qualifications made by the Court’s fellow principal organs’, K Del Mar, ‘Weight of Evidence

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Generated through Intra-Institutional Fact-finding before the International Court of Justice’ (2011) 2 Journal of International Dispute Settlement 393, 414. 47

  See for instance Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Order) [2000] ICJ Rep 111, para 44; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), 71, paras 190, 274ff; for a detailed analysis, see Del Mar (n 46) 403. 48

  But see Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion), Dissenting Opinion of Judge Koroma, at 2 accessed 12 December 2011; see also de Mar (n 47) 410ff. 49

  cf Amerasinghe (n 38) 143.

50

  The relevant passage reads: ‘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’, UNGA Res 60/1 (16 September 2005) UN Doc A/ RES/60, para 6. 51

  This special function of the SG has been expressly recognized in UNGA Res 41/91 (4 December 1986) UN Doc A/RES/41/91. 52

  See MN 5.

53

  See also Torres Bernárdez (n 1) 113: ‘[T]he qualification of an organ as “subsidiary” should not be understood as implying a hierarchy of functions between “principal” and “subsidiary” organs in the sense that the latter deals with minor tasks only.’ Likewise, ‘importance’ is not an appropriate criterion by which to distinguish between organs since it is a rather relative concept, ibid, 112; but see Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (Advisory Opinion of 13 July) (Dissenting Opinion Judge Hackworth) [1954] ICJ Rep 47, 79: ‘The term “subsidiary organ” has a special and well recognized meaning. It means an auxiliary or inferior organ; an organ to furnish aid and assistance in a subordinate or secondary capacity.’ 54

  UN RP (1945–54) vol 1, 224: ‘The term “subsidiary organ”does not appear to have been defined by any organ of the United Nations. In the practice of the United Nations such expressions as “Commissions”, “committees”, “subsidiary organs”, “subsidiary bodies”, and “subordinate bodies” have been used interchangeably.’ 55

  UN Doc A/C.1/758.

56

  UN Repertory of Practice (n 54) 228.

57

  HG Schermers and N Blokker, International Institutional Law—Unity within diversity (5th edn, Nijhoff 2011) 155. 58

  cf Kelsen (n 3) 47, according to Kelsen, the Military Staff Committee is an auxiliary organ, but no subsidiary organ in the sense of Art. 7 (2); Sarooshi (n 5) 432; but see C Stavpopoulos, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Oral Statements CR 1954 295: ‘There are, in addition, a few organs which may not be characterized as either principal or subsidiary under Art. 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 established directly by Article 47 of the Charter, but is not a principal organ under Article 7.’ accessed 12 December 2011; the travaux allow

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for the conclusion that subsidiary is not necessarily identical with auxiliary, and that therefore organs can exist that are neither principal nor subsidiary, but auxiliary. 59

  Jaenicke on Art. 7 (2nd edn) MN 1; see also Torres Bernárdez (n 1) 117; PC Szasz, ‘The Complexification of the United Nations System’ (1999) 3 Max Planck YB UN L 3. 60

  K Schmalenbach, ‘International Organizations or Institutions, General Aspects’, MPEPIL (online edn) accessed 26 September 2011, para 82; same Torres Bernárdez (n 1) 136. cf Art. 7 of the Constitution of the United Nations Industrial Development Organization, 1401 UNTS 3, entered into force 21 June 1985 confirming the view that both primary organs and founding documents can establish a subsidiary organ. 61

  Khan on Art. 22 MN 3; Paulus on Art. 29 MN 10; Sarooshi (n 5) 416.

62

  UN Repertory of Practice, vol I (n 56) 225.

63

  cf Jaenicke on Art. 7 (2nd edn) MN 6: ‘a similar move to amend the Rules of Procedure of ECOSOC with the aim of limiting the discussion of questions in the Plenary that had already been discussed in a committee of the whole failed to obtain the necessary majority (UN Doc E/AC.24/SR.97).’ 64

  Sarooshi (n 5) 417–18.

65

  Jaenicke on Art. 7 (2nd edn) MN 7.

66

  Sarooshi is advocating the view that chambers that are established by the Court possess the necessary degree of independence to be classified as subsidiary organs, Sarooshi (n 5) 418; cf S Rosenne, ‘Article 27 of the Statute of the International Court of Justice’ (1992) 32 Virginia J Intl L 213, 228: ‘It follows from the Statute and the Rules of Court that, once a chamber is constituted under Article 27(2) of the Statute, the Court itself has nothing more to do with the chamber or with the case.’ Kelsen considered Art. 21 and Art. 50 of the ICJ Statute as specific authorizations for the establishment of subsidiary organs, see Kelsen (n 2) 139. 67

  In this sense P Palchetti, ‘Article 26’, in Comm ICJ statute MN 2: ‘… the chambers are an integral part of the organization of the Court. They are formed of judges who are at the same time members of the Court. Their activity is regulated by the Statute and Rules of the Court. Above all, under Article 27, the decisions of chambers are to be considered as rendered by the Court.’ 68

  ‘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 power or criteria for its judgement’, Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1948] ICJ Rep 57, 64. 69

  See Peters on Art. 25 MN 56ff; cf 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) (Dissenting Opinion Judge Bedjaoui) [1992] ICJ Rep 114, 157. 70

  The same applies for the French version: ‘Les organes subsidiaires qui se révéleraient nécessaires pourront être créés conformément à la présente Charte.’ The Spanish version reads: ‘Se podrán establecer, de acuerdo con las disposiciones de la presente Carta, los órganos subsidiarios que se estimen necesarios.’ 71

  Art. 68 mentions commissions instead of subsidiary organs, however, as the repertory stated, ‘such expressions as “Commissions”, “committees”, “subsidiary organs”, “subsidiary bodies” and “subordinate bodies” have been used interchangeably.’ Repertory of Practice (n

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54) 224. Furthermore, the Rules of Procedure of ECOSOC refer to the establishment of subsidiary organs (see Chapter V Sessional Bodies and Subsidiary Organs Establishment). 72

  Kelsen (n 2) 138.

73

  If one considers chambers of the ICJ as subsidiary organs, Art. 26 of the Statute of the ICJ is an integral part of the Charter according to Art. 92 of the Charter. However, because of the judicial authority of the Chambers, this view should be rejected. 74

  The Charter does not contain a specific provision for subsidiary bodies of the Trusteeship Council, however, the Rules and Procedures authorize the establishment of commissions, according to Torres Bernárdez (n 1) 120, the Trusteeship Council could rely on the general authorization contained in Art. 7 (2); cf Schermers and Blokker (n 58) 172. 75

  cf for instance UN Repertory of Practice Supplement No 10 (2000–09) vols 1, 3: ‘During the period under review, the Secretary-General continued the practice of establishing such bodies found to be necessary to assist him in the performance of his functions under the Charter.’ However, the Repertory states: ‘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.’ 76

  See Jaenicke on Art. 7 (2nd edn) MN 33.

77

  UNCIO XVII, 51–52: ‘Mr Fouques-Duparc…suggested as an alternative that those organs empowered to create subsidiary agencies, such as the Assembly, the Security Council, and the Economic and Social Council, be specifically named.’ 78

  See also Jaenicke on Art. 7 (2nd edn) MN 28; Paulus on Art. 29 MN 5. cf Legal Opinion of the Secretariat of the United Nations (1991) UNJYB 297: ‘In the case of the United Nations the legal capacity to establish subsidiary organs is conferred upon three of the principal organs of the United Nations: the General Assembly, the Security Council and the Economic and Social Council …’ See also recently the Interoffice memorandum to the Chief, Treaty and Legal Assistance Branch (2010) UNJYB 509 (referring only to the special provisions without, however, putting forward a view of its own). 79

  Sarooshi (n 5) 423; cf also Torres Bernárdez (n 1) 120.

80

  Schermers and Blokker (n 57) 172; Amerasinghe (n 38) 140; cf Jebb (United Kingdom), UNICO XVII, 37; see also Belgium, expressing the view that the GA would be competent to establish subsidiary organs ‘even if Article 22 did not exist’ GOAR 2nd Session First Committee 74th Meeting, 143. 81

  Sarooshi (n 5) 423.

82

  ibid, 425.

83

  ibid.

84

  See Paulus on Art. 29 MN 5; Jaenicke on Art. 7 (2nd edn) MN 28.

85

  UNCIO XVII 405.

86

  Sarooshi (n 5) 425.

87

  Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (Advisory Opinion of 13 July 1954) [1954] ICJ Rep 47, 58. 88

  Application for Review of Judgement No 158 of the United Nations Administrative Tribunal (Advisory Opinion) [1973] ICJ Rep 166, 172. 89

  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion of 20 July 1962) [1962] ICJ Rep 151, 165.

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90

  But see Khan on Art. 22 MN 28.

91

  Jaenicke on Art. 7 (2nd edn) MN 28; see also Letter to the Legal Counsel of the Food and Agriculture Organization of the United Nations, 4 January 1963, (1963) UNJYB 168; see also Szasz (n 59) 43: ‘It is not explicitly foreseen in any constitutional instrument that two or more organs established under it should be able to establish a joint subsidiary organ, but there is no reason to exclude that possibility in principle …’; in the same way Jaenicke (2nd edn) MN 34. 92

  UNGA Res 1240 (XIII) (14 October 1958), ECOSOC Res 692 (XXVI) (31 July 1958).

93

  UNGA Res 1714 (XVI) (19 December 1961), UNGA Res 2095 (XX) (20 December 1965).

94

  Jaenicke on Art. 7 (2nd edn) MN 36: Art. 7 (2) would then serve as a legal basis.

95

  (1963) UNJYB 168–69.

96

  According to Sarooshi, this includes also the case of the establishment of a subsidiary organ by a recommendation, see Sarooshi (n 5) (unified Command as subsidiary organ, but see also Paulus on Art. 29 MN 9, 54). As shown above, subsidiary organs can also be established by their constituent treaty. Hence, the method of establishment does not constitute a suitable criterion for distinguishing between principal and subsidiary organs, see Torres Bernárdez (n 1) 124; see above the discussion about the legal status of the Military Staff Commission for the different conceptual definitions of a subsidiary organ. 97

  With regard to the Security Council, see Paulus on Art. 29 MN 15; Sarooshi (n 5) 445.

98

  Memorandum to the Secretary of the Ad Hoc Committee of the International Conference on Kampuchea (1984) UNJYB 160. 99

  See MN 5.

100

  cf also Paulus on Art. 29 MN 6; but see Sarooshi (n 5) 425.

101

  cf also Schmalenbach (n 60) para 83.

102

  Jurisdiction of the European Commission of the Danube (Advisory Opinion) 8 December 1927 PCIJ Ser B, No 14, 64: ‘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 fulfilment 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 also Competence of the International Labour Organization in regard to Examination of Proposals for the Organization and Development of the Methods of Agricultural Production and other Questions of a like Character (Advisory Opinion) PCIJ Series B, Nos 2/3, 45–55; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, 78; cf also Schermers and Blokker (n 57) 155ff. But see F Seyersted, ‘Basic Distinctions in the Law of International Organizations: Practice Versus Legal Doctrine’ in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (Kluwer Law International 1996) 691. 103

  cf Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article IV) (Advisory Opinion) PCIJ Series B 28; Reparation for injuries suffered in the service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 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.’; Effect of awards of compensation made by the U. N. Administrative Tribunal (Advisory Opinion of 13 July 1954) [1954] ICJ Rep 47, 57.

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104

  Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 182–83; cf Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep 57. See also Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (Advisory Opinion of 20 July 1962) (Dissenting Opinion Judge Moreno Quintana) [1962] ICJ Rep 151, 245 (condition that no explicit power exists). 105

  Effect of awards of compensation made by the U. N. Administrative Tribunal (n 105) 57: ‘Capacity to do this arises by necessary intendment out of the Charter.’ 106

  ibid, 61. The UNAT has been abolished as of 31 December 2009 and replaced by the Office of Administration of Justice, see UNGA Res 61/261 (4 April 2007) UN Doc A/RES/ 61/261 para 4, as well as UNGA Res 62/228 (22 December 2007) UN Doc A/RES/62/228 and UNGA Res 63/253 (24 December 2008) UN Doc A/RES/63/253. 107

  To be precise, the ICJ left the question open whether UNAT constituted a subsidiary organ as such qualification would add nothing to answer the question whether the GA was competent to establish the tribunal (Award Opinion) [1954] ICJ Rep 61. 108

  Judge Hackworth criticized the broad approach, Reparation for injuries suffered in the service of the United Nations (Dissenting Opinion Judge Hackworth) [1949] ICJ Rep 198: ‘It is to be presumed that such powers as the Member States desired to confer upon it are stated either in the Charter or in complementary agreements concluded by them. Powers not expressed cannot freely be implied. Implied powers flow from a grant of expressed powers, and are limited to those that are “necessary” to the exercise of powers expressly granted.’ 109

  Certain Expenses [1962] ICJ Rep 168: ‘But 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.’ 110

  F Seyersted, ‘Basic Distinctions in the Law of International Organizations: Practice Versus Legal Doctrine’ in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (Kluwer Law International 1996) 691–99. cf also K Skubiszewski, ‘Implied Powers of International Organizations’ in Y Dinstein (ed), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Nijhoff, 1989) 855, 868. 111

  cf J Klabbers, An Introduction to International Institutional Law (2nd edn, CUP 2009) 75. 112

  See Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, 78–79; cf D Akande, ‘The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice’ (1998) 9 EJIL 437–67. 113

  In Certain Expenses (n 89) [1962] ICJ Rep 166ff the ICJ denied a violation of the competences of the Security Council. As the deployment of UNEF was consented to by the States concerned, no coercive measures of the Security Council under Chapter VII were necessary. See Jaenicke on Art. 7 (2nd edn) MN 31 for further examples. See also Schermers and Blokker (n 57) 184–86, according to whom the implied power must be necessary for the Organization to perform its functions, may not circumvent an explicit power, and may not violate international law or the internal structure of the UN. 114

  See Paulus on Art. 29 MN 15.

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115

  cf Schmalenbach (n 60) para 51. See also Amerasinghe (n 38) 141: ‘An important limitation, however, is that the functions entrusted to and performed by a subsidiary organ cannot go beyond the functions of the international organization concerned as defined in its constituent instrument’; similarly Torres Bernárdez (n 1) 130. 116

  cf also E Osieke, ‘Legal Validity of Ultra Vires Decisions of International Organizations’ (1983) 77 AJIL 239; see also the WHO Advisory Opinion: ‘The mere fact that a majority of States, in voting on a resolution, have complied with all the relevant rules of form cannot in itself suffice to remedy any fundamental defects, such as acting ultra vires, with which the resolution might be afflicted.’ Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, 82. 117

  cf Paulus and Leiss on Art. 103 MN 19.

118

  This has played a major role in the Case concerning the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion of 8 June 1960) [1960] ICJ Rep 150, 171. It has remained controversial whether the decisions had been void and needed therefore to be confirmed or whether the decisions had been nevertheless legally binding and were therefore confirmed (cf M Reisman and D Pulkowski, ‘Nullity in International Law’, MPEPIL (online edn) accessed 26 September 2011, para 21: ‘The ICJ refrained from concluding that unlawfulness necessarily entailed nullity’); B Martenczuk, Rechtsbindung und Rechtskontrolle des Sicherheitsrats (Duncker & Humblot 1996) 122. Regarding the effect of formal mistakes on the validity of a legal act cf Appeal Relating to the Jurisdiction of the ICAO Council (Judgment) (Separate Opinion Judge Dillard) [1972] ICJ Rep 46, 100. 119

  Certain Expenses (Dissenting Opinion Judge Fitzmaurice) [1962] ICJ Rep (n 89) 204; this can be based on an analogous application of Art. 46 VCLT; cf also the legal reasoning of the United Kingdom and the United States in 1962 ICJ Pleadings (Certain Expenses of the United Nations), (statement of 17 May 1962) 337 and 416. 120

  cf Certain Expenses (Separate Opinion Judge Morelli) [1961] ICJ Rep (n 89) 222: ‘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.’ 121

  RY Jennings, ‘Nullity and Effectiveness in International Law’ in D Bowett (ed), Cambridge Essays in International Law: Essays in Honour of Lord McNair (Stevens 1965) 64. 122

  cf Osieke (n 116) referring to the special nature of decisions of international organizations. 123

  Osieke (n 116) 248.

124

  Certain Expenses (n 91) 168; cf K Schmalenbach, International Organizations or Institutions, General Aspects, MPEPIL (online edn) accessed 26 September 2011, para 42. 125

  cf AL Paulus, ‘Kompetenzüberschreitende Akte von Organen der Europäischen Union’ in B Simma and C Schulte (eds), Völker- und Europarecht in der aktuellen Diskussion, Akten des 23. Österreichischen Völkerrechtstages (Linde 1999) 49, 50. 126

  Certain Expenses (n 89) [1962] ICJ Rep 168.

127

  cf Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 22, para 20.

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128

  Separate Opinion Judge Bender in Certain Expenses (n 89) [1962] ICJ Rep 196, Dissenting Opinion Judge Winiarski, ibid, 232, Independent Opinion Judge Gros, in Interpretation of March Agreement of 25 March 1951, 99, 104. 129

  Morelli, Certain Expenses (n 89) 216, 224; cf Osieke (n 116) 241; however, as stated in Certain Expenses, it is up to each organ, first, to decide on the legality of its acts; but this does not exclude a further assessment by third parties. 130

  cf JA Frowein, ‘The Internal and External Effects of Resolutions by International Organizations’ (1989) 49 Heidelberg Journal of International Law 778, 783. 131

  See Jaenicke on (2nd edn) MN 9; see also Supplement No 4 (1966–69) (UN Repertory of Practice) vol 1, 105. 132

  UNGA Res 36/39 (18 November 1981) UN Doc A/RES/36/39 stipulates the following basis of allocation: (a) Eight nationals from African States; (b) Seven nationals from Asian States; (c) Three nationals from Eastern European States; (d) Six nationals from Latin American States; (e) Eight nationals from Western European or other States; (f) One national from African States or Eastern European States in rotation, with the seat being allocated to a national of an African State in the first election held after the adoption of the Res 36/39; (g) One national from Asian States or Latin American States in rotation, with the seat being allocated to a national of an Asian State in the first election held after the adoption of the Res 36/39. 133

  RP, Art. 7, Supplement No 3 (1959–66) vol 1, 202.

134

  Schermers and Blokker (n 57) 930.

135

  Repertory, vol 1 (n 54) 226; (1963) UNJYB 169.

136

  One example was Switzerland’s participation in the ECE until 1971; since then it has been admitted as a full member, see Jaenicke on Art. 7 (2nd edn) MN 9. 137

  Internal Memorandum (1983) UNJYB 169.

138

  ‘Establishment of Joint Bodies by the United Nations and Other Inter-Governmental Organizations—Letter to the Legal Counsel of the Food and Agriculture Organization of the United Nations’ (1936) UNJYB 169: Technical Assistance Board, ECOSOC, Res 22A (IX) and the Administrative Committee on Co-ordination, ECOSOC Res 13 (III). 139

  Schermers and Blokker (n 57) 132.

140

  Memorandum to the secretary of the Economic and Social Council (1963) UNJYB 171ff.

141

  (1983) UNJYB 173–74.

142

  (1968) UNJYB 195ff.

143

  Schermers and Blokker (n 57) 931.

144

  UNGA Res 65/265 (1 March 2011) UN Doc A/RES/65/265.

145

  UNGA Res 60/251 (15 March 2006) UN Doc A/RES/60/251 para 8. Accordingly, a majority of two-thirds is required for such recommendation. 146

  Cable to the Chief of the Governing Council Secretariat, United Nations Environment Programme (1983) UNJYB 169: ‘The Department of Conference Services is not aware of any case where a subsidiary organ has provided that one of its subsidiary bodies would use fewer languages than itself…’ The principal organs decide on the working languages, thus ‘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.’

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147

  Rules 96ff of the Rules of Procedure of the General Assembly, Rules 24ff of the Rules of Procedure of the ECOSOC, Rule 27 of the Rules of Procedure of the Security Council. 148

  The following list is an updated version of the list contained in Jaenicke on Art. 7 (2nd edn) MN 12–22. 149

  A comprehensive list of all subsidiary bodies of the GA and ECOSOC can be found at and accessed 11 November 2011. 150

  See also Szasz (n 59) 7ff.

151

  Szasz uses the term ‘quasi-autonomous bodies (QAB)’ (n 59) 7; see also Khan on Art. 22 MN 49. 152

  cf Art. 17 (2); for exceptions see Arts 42, 43, 44, 45.

153

  Szasz (n 59) 13.

154

  ibid, 14.

155

  This is the wording of the official website accessed 11 November 2011. 156

  cf the ICJ in Effect of awards of compensation made by the U.N. Administrative Tribunal (Advisory Opinion of 13 July 1954) [1954] ICJ Rep 47, 61. 157

  cf the Memorandum to the Officer-in-Charge, Office of the United Nations Commissioner for Namibia (1990) UNJYB 271. 158

  Torres Bernárdez (n 1) 134–35.

159

  Kosovo opinion (n 41) 45.

160

  (1990) UNJYB 276; see also Klabbers (n 113) 52.

161

  (1990) UNJYB 259; Klabbers (n 111) 52.

162

  cf Jaenicke on Art. 7 (2nd edn) MN 26.

163

  cf Annex I of UN Doc A/37/11, Schermers and Blokker (n 57) 755 ‘the committee, as a subsidiary organ of the General Assembly …, is bound to carry out its tasks in accordance with any directives addressed to it by the Assembly’. 164

  Schermers and Blokker (n 57) 780.

165

  On 18 May 1973 ECOSOC decided that its subsidiary bodies (except the regional economic commissions) need prior approval by the Council for the creation of standing or ad hoc sessional bodies (1973) UNYB 593. In para 5 of Res 3351 (XXIX), the GA decided ‘that subsidiary bodies of the General Assembly should not under ordinary circumstances create new standing bodies…which require additional resources without the approval of the Assembly and requests the other principal organs of the United Nations to take a similar decision with regard to their respective subsidiary bodies’. Regarding UNDP, see also United Nations Juridical Yearbook 1991, 299; a subsidiary body like the Governing Council of UNEP may not delegate its decision-making to one of its subsidiary bodies without the approval of the GA as parent body, (1991) UNJYB 286. 166

  UNGA Res 32/197 (20 December 1977) UN Doc A/RES/32/197, Annex para 12.

167

  Torres Bernárdez (n 1) 140.

168

  Schermers and Blokker (n 59) 279.

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169

  cf also Art. 108. In its Advisory Opinion Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights [1999] ICJ Rep 62, 83, para 43, statement that a Special Rapporteur of the former Sub-Commission on the Prevention of Discrimination and the Protection of Minorities of the Human Rights Commission enjoys immunity by virtue of the applicable privileges and immunities of the UN. 170

  (2004) UNJYB 347; the Office of Legal Affairs pointed out that the concept of replacement ‘is relatively unheard in the United Nations system’, one precedent being the election of ad litem judges of the ICTY and ICTR. 171

  (1973) UNJYB 158.

172

  UNGA Res 43/53 (6 December 1988) UN Doc A/RES/43/53 para 5.

173

  Memoranda of the SG of 15 September 1969, (1969) UNJYB 207–10, and of 17 August 1976, (1976) UNJYB 200–01. At the beginning it was not clear whether treaty organs could be regarded as organs of the United Nations. The Secretary-General answered this question in the negative, see UN Doc E/1732 (26 June 1950); however, as Szasz (n 61) at 19, pointed out, it is possible to interpret the conclusion of the SG in the sense of Art. 96 to the effect that they are not entitled to request advisory opinions from the ICJ. 174

  Szasz (n 59) 20.

175

  12 UNTS 179.

176

  520 UNTS 204; amended by Protocol of 25 March 1972, 26 US Treaties and Agreements 1439. 177

  RP 3 I, 202, para 11.

178

  Established by ECOSOC Res 1985/17 (28 May 1985).

179

  International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3. See Riedel and Giacca on Art. 68 MN 97. 180

  cf Art. 11 (7) of the International Convention against Apartheid in Sports, UNGA Res 40/64 G (10 December 1985); Art. 17 (7) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 26 June 1987, entered into force 26 June 1987) (1465) UNTS 85; cf Art. 8 (6) of the International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195. 181

  Memorandum of the SG of 15 September 1969, (1960) UNJYB 207–10.

182

  UNGA Res S-10/2 (30 June 1978).

183

  See UNGA Res 1722 (XVI) (20 December 1961), and UNGA Res 37/66 (3 December 1982) UN Doc A/RES/37/66, respectively. 184

  cf Art. 1 (5) of the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character (adopted 13 March 1975, not yet entered into force): ‘“conference” means a conference of States convened by or under the auspices of an international organization’; cf also Torres Bernárdez (n 1) 142– 42. 185

  However, subsidiary organs can be named as congress or conference, as the example of the United Nations Conference on Trade and Development (UNCTAD) demonstrates. 186

  cf Szasz (n 59) 3, 53; Khan on Art. 22 MN 58.

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187

  cf Szasz (n 59) 54.

188

  K Schmalenbach, Die Haftung internationaler Organisationen (Lang 2004) 69ff. Legal capacity means the capability to possess rights and duties in a (domestic) legal system; A Reinisch, International Organizations Before National Courts (CUP 2000) 39. 189

  Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62, 89. 190

  J Wouters and P Schmitt, ‘Challenging Acts of Other United Nations’ Organs, Subsidiary Organs, and Officials’ in A Reinisch (ed), Challenging Acts of International Organizations Before National Courts (OUP 2010) 81–83. However, it is possible that subsidiary organs can be subject to judicial review by international tribunals or domestic courts: in the case of Slobodan Milosevic v The State of the Netherlands (2001) 48 NILR 357–61, the District Court of The Hague did not limit itself to Art. 17 of the Dutch Implementation Act, according to which Dutch law shall not apply to custodial sentences ordered by the ICTY in premises used by the ICTY in the Netherlands. The District Court considered the ICTY to be an impartial and independent body. Therefore, a violation of Art. 6 ECHR was denied: JG Lammers, ‘Challenging the Establishment of the ICTY Before the Dutch Courts: The Case of Slobodan Milosovic v The Netherlands’ in E de Wet and A Nollkaemper (eds), Review of the Security Council by Member States (2003) 107. In the case of Rukundo v Switzerland the Swiss Supreme Court incidentally reviewed the legality of the Security Council resolution on which the ICTR is based and came to the result that the procedures before the ICTR are in accordance with human rights; Emmanuel Rukundo v l’Office fédéral de la justice Nr. 1A.129/2001; Oxford Law Reports Kennung: ILDC 348 (CH 2001); E de Wet, ‘Zur Zukunft der Völkerrechtswissenschaft in Deutschland’ (2007) 67 ZaöRV 787. 191

  See eg CCPR/C/94/D/1472/2006 (29 December 2008) para 10. Nabil Sayadi and Patricia Vinck v Belgium 7 (asserting the responsibility of the UN member States for the listing of its nationals on the UN ‘terror lists’ of the Sanctions Committee established by UN SC Res 1267, see Paulus on Art. 29 MN 45); for criticism of the committee’s decision see M Milanovic, ‘The Human Rights Committee’s Views in Sayadi v Belgium: A Missed Opportunity’ (2009) 1 GoJIL 519; cf also Paulus on Art. 29 MN 49c.

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Ch.III Organs, Article 8 Anja Papenfuæ, Sabine von Schorlemer From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter

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(p. 416) Article 8 The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs. A.  Introduction 1 B.  Origins 2–6 I.  League of Nations 2–3 II.  UN Drafting History 4–6 C.  Legal Content 7–110 I.  General Characteristics and Importance of Article 8 7–11 II.  The Wording of Article 8 and Problems of Interpretation 12–29 1.  ‘United Nations’ 13–16 2.  ‘Shall Place No Restrictions’ 17–20 3.  ‘Eligibility of Men and Women’ 21–24 4.  ‘To Participate in Any Capacity’ 25–28 5.  ‘In its Principal and Subsidiary Organs’ 29 III.  UN Practice 30–110 1.  The Period 1945 to 1975 31–38 2.  The Period 1975 to 1985 39–45 3.  The Period 1985 to 2000 46–72 4.  The Period 2000 to date 73–110 D.  Problems of Application 111–137 I.  Legal Protection 111–116 1.  Competence of Women to Invoke Article 8 111 2.  The CEDAW Optional Protocol 112–116 II.  Relationship between Article 8 and Article 101 (3) 117–124 1.  The SG’s Authority in Staff Matters 117–118 2.  Relation of Gender and ‘Geographical Distribution’ 119–123 3.  Relation of Gender and ‘Qualification’ 124 III.  Other Problems 125–141 1.  Political Resistance 125–126 2.  The Problem of Reverse Discrimination 127–131

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3.  Attractiveness of a UN Career 132–134 4.  Developing Countries 135–137 E.  Perspectives 138–141

Select Bibliography Bouayad-Agha F and Hernandez H, Inspection of the Application of United Nations Recruitment, Placement and Promotion Policies, Pt I, JIU/REP/95/1 (1995). ———, Inspection of the Application of United Nations Recruitment, Placement, and Promotion Policies, Pt II, Placement and Promotions, JIU/REP/96/6 (1996). (p. 417) Conaway CP and Shoemaker J, Women in United Nations Peace Operations: Increasing the Leadership Opportunities (Women in International Security/ Georgetown University, Washington, DC 2008). Daes EI, Advancement of the Status of Women in the UN Secretariat in an Era of “Human Resources Management” and “Accountability”: A New Beginning?, JIU/REP/ 94/3 (1994). D’Amico F, ‘Women Workers in the United Nations: From Margin to Mainstream?’ in KM Meyer and E Prügl (eds), Gender Politics in Global Governance (Rowman & Littlefield 1999). Devaki J, Women, Development and the UN. A Sixty-year Quest for Equality and Justice (Indiana UP 2005). Skard T, ‘Getting Our History Right: How Were the Equal Rights of Women and Men Included in the Charter of the United Nations?’ (2008) 1 Forum for Development Studies, 37. Timothy K, ‘Equality for Women in the United Nations Secretariat’ in A Winslow (ed), Women, Politics and the United Nations. Contribution in Women’s Studies No 151 (Praeger 1995).

A.  Introduction 1  At the founding of the United Nations, the advancement of women was not a policy priority. This has changed significantly.1 The legal foundation for the advancement of women is to be found in Art. 8 UN Charter, which prescribes equal rights for men and women in all UN bodies. Although Art. 8 is a specific reiteration of the principle of nondiscrimination, which figures in different parts of the Charter (Preamble para 2, Arts 1 (3), 13, 55 (c), 76 (c)), it became the basis for a legal framework aiming at gender equality.

B.  Origins I.  League of Nations 2  Article 7 (3) of the Covenant of the League of Nations, which was included upon an intervention of an international women’s delegation with President Wilson, contained a clear statement to promote actively the principle of equality between men and women. All positions under or in connection with the League, including the Secretariat, had to be open equally to men and women. 3  In this respect the disposition of the League of Nations was more progressive than the later Art. 8 of the UN Charter, which restricts itself to a ‘negative’ and less far-reaching formulation instead.2

II.  UN Drafting History

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4  The drafting history of Art. 8 itself is rather short: no proposal was made at the Conference of Dumbarton Oaks in the late summer of 1944, and at the outset of the San Francisco Conference, June 1945, it was originally considered superfluous to include Art. 8. 5  Some delegates feared that an inclusion of the principle of equality between men and women could lead to interference in the freedom of member States regarding the (p. 418) selection and composition of their delegations.3 Furthermore, as some Articles of the Charter already embodied the principle of non-discrimination there seemed to be no need for a provision such as Art. 8.4 6  However, at San Francisco in 1945, a number of feminists working under the umbrella of the Inter-American Commission on the Status of Women were finally successful in having non-discrimination on the grounds of gender written into the Charter.5

C.  Legal Content I.  General Characteristics and Importance of Article 8 7  The general character of Art. 8 is rather vague, which may be due to the fact that its content was not discussed thoroughly during the drafting process.6 Article 8 expresses an overall intention of the UN to promote the participation of women in UN organs. However, it gives neither an indication of which instruments should be used to achieve this goal, nor who will be responsible. Accordingly, it was clear from the beginning that UN practice7 would play an important role for the final legal understanding of the norm. 8  Article 8 supports the rights of women to participate equally in the UN. From a legal point of view Art. 8 only concerns equal rights of men and women with regard to posts in the UN System. It does not, however, contain a legally binding mandate of the UN to promote women. Initiatives of member States to review Art. 8 in the latter sense failed.8 9  Article 8 proved to be of particular importance in the field of service regulations. The efforts of the United Nations General Assembly (UNGA) and the Secretary-General (SG) to implement Art. 8 UN Charter led to numerous improvements in the UN Staff Regulations and Staff Rules. Also most of the specialized agencies have amended discriminatory provisions in the service and administrative regulations. Today, the Staff Regulations of the UN and various statutes of the specialized agencies of the UN (eg UNESCO, ILO) also contain the principle of non-discrimination. 10  Furthermore, the interpretation of Staff Regulations, eg Staff Regulation 4.4,9 has to be tested in relation to Art. 8, which, together with Art. 101 UN Charter, provides ‘the parameters within which regulations may be promulgated’.10 11  Altogether Art. 8 raised general awareness for gender-sensitive aspects in the UN System and serves as the cornerstone of a wide spectrum of gender-related activities of the UN.

(p. 419) II.  The Wording of Article 8 and Problems of Interpretation 12  The wording of Art. 8 raises some problems of interpretation.

1.  ‘United Nations’ 13  Article 8 addresses the obligation of non-discrimination to the ‘United Nations’ in general, lacking, however, a more specific reference to the member States. As States are the founding members of the UN and contributors to UN finances, ‘United Nations’ in general may be interpreted extensively to oblige also member States to consider men and women equally, eg in appointing delegations to UN meetings and conferences. At an early stage of the UN’s history, the Economic and Social Council (ECOSOC) recommended

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member States to consider women equally with men in appointing delegations to organs and agencies of the UN and to international bodies and conferences’.11 14  Also, the Platform for Action of the Fourth UN Women’s Conference in Beijing (1995),12 which may be seen as an agenda for women’s empowerment, asked governments to take action, in particular to aim ‘at gender balance in the lists of national candidates nominated for election or appointment to United Nations bodies, specialized agencies and other autonomous organizations of the United Nations system, particularly for posts at the senior level’.13 However, this does not mean that States are under an obligation by virtue of Art. 8. It may be held that Art. 8 should rather serve as a model or constitute a ‘source of inspiration’ for member States.14 15  According to a more restrictive interpretation of Art. 8, only the SG, as the senior employer, is obliged to accord men and women equal treatment in appointment, promotion, and employment. Consequently, all UN organs should be obliged to respect Art. 8. 16  In a decision of the UN Administrative Tribunal (UNAT), Mullan v Secretary-General, the Tribunal declared that Art. 8 was a rule creating a legal obligation on the UN organs;15 in particular, it was seen as the obligation of the SG to implement Art. 8. This approach is reflected by the fact that non-discrimination between men and women also became an important rule in the UN specialized agencies.

2.  ‘Shall Place No Restrictions’ 17  Astonishingly, the Charter chose a negative formulation not to restrict women’s eligibility to participate in the UN organs. 18  Originally, the delegations of Brazil, the Dominican Republic, and Mexico submitted an amendment to the Dumbarton Oaks Proposals which reflected the former wording of the Covenant of the League of Nations, Art. 7(3): ‘There should be a Secretariat…, all positions being open equally to men and women.’16 19  In reply, however, several delegates stated that the inclusion of a reference to equal rights for women ‘was unnecessary since it is understood that women are not excluded (p. 420) from participation in this and other international organizations’.17 A clause specifically mentioning the representation and participation of women might be interpreted as undue interference in the domestic affairs of the member States.18 Consequently, the wording that ‘[t]he Organization shall place no restrictions on the representation and participation of men and women on an equal basis’ was accepted.19 20  However, the Advisory Committee of Jurists held on 14 June 1945, that due to the lengthy and complicated drafting process the intent of the Draft Article was not clearly expressed. For that reason, a redrafting was proposed as follows: ‘The Organization shall not discriminate between men and women as regards eligibility…’20 In the end, however, there was no majority for that and the UN Charter does not, finally, promote full participation of women as was the concept of the Covenant of the League of Nations.21 This ‘weak approach’ may be partially responsible for the fact that it took until the 1970s for the UN to take a leading role in the promotion of women’s rights.

3.  ‘Eligibility of Men and Women’ 21  Article 8 does not express clearly what is expected of the ‘United Nations’—should the UN guarantee equal rights with respect to access to UN posts only, or should it take further measures like creating equal working conditions for men and women? Administrative rules and regulations governing staff allowances, benefits, and conditions of employment are often latently discriminatory; eg under former Staff Rule 29 (a) a distinction was made between men and women in that a married man was automatically entitled to payment of all allowances and the cost-of-living adjustment at dependency rates, while a married woman

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was entitled only if her husband was incapacitated and dependent on her for full and continuing support.22 22  Under a more restrictive interpretation the term equal ‘eligibility’ of men and women would restrict the meaning of equal rights to application processes in the international civil service. Originally, the Staff Regulations established by the UNGA23 merely laid down that there should be equality of access to the Secretariat posts: men and women were equally eligible for all posts. Later, a broader definition of the principle of equality was included which made general reference to the Charter. Staff Regulation 4.3 read that in accordance with the Principles of the Charter, selection of staff members should be made without distinction as to race, sex, or religion. However, this regulation was confined to the staff selection process, making no reference to the equal treatment of men and women in the conditions of service. 23  In a more expansive interpretation, Art. 8 could be read so as to demand the equal treatment of men and women, not only regarding access to the international civil service, but also in determining the conditions of employment. The Preparatory Commission (p. 421) made it clear in an early stage of the UN that the equal rights of the sexes should apply not only to access to the posts, but also to the conditions of employment under the services regulations.24 Also UNAT, in a leading decision in 1972, declared that Art. 8 was decisive in determining the conditions of employment under the service regulations. It stated that by making a distinction between wife and husband in connection with home leave travel expenses, the rules made a distinction by reason of sex between staff members contrary to the principle in Art. 8.25 24  The practice of the UN since the late 1980s to promote women’s participation in the UN System, in particular the so-called empowerment approach and gender mainstreaming,26 also indicates that Art. 8 should not be interpreted as an obligation of the UN to guarantee equal rights with respect to access to UN posts only. As a consequence, Art. 8 should be taken into account by the SG while recruiting staff (Art. 101 (3) UN Charter) and while applying the Staff Regulations and Staff Rules.

4.  ‘To Participate in Any Capacity’ 25  The wording of Art. 8 leaves open the question whether equal treatment of women is required with regard to all possible posts within the UN System, including national delegations at UN conferences. 26  Various UN organs adopted a wide interpretation presuming that Art. 8 accords equal treatment within the whole UN machinery. For example, the Commission on the Status of Women (CSW) has promoted from its very beginning an expansive interpretation of Art. 8. In the formulation ‘to participate in any capacity’, it saw two obligations: one applicable to the international Secretariat, and the other applicable to the UN delegations. According to the CSW, Art. 8 not only requires the UN to enable women to participate on an equal footing in the activities of the Secretariat, but also addresses the member States with respect to the participation of women in the UNGA, in the commissions, committees, and conferences of the UN. 27  On the basis of the CSW’s reports, ECOSOC did in fact recommend member States to consider women equally with men in appointing delegations to organs and agencies of the UN and to international bodies and conferences.27 28  However, it may be maintained that Art. 8 UN Charter does not create automatically an obligation for member States to consider the principle of non-discrimination in recruiting

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men and women for their delegations. As outlined above,28 it addresses the UN and not the UN member States as such.

5.  ‘In its Principal and Subsidiary Organs’ 29  Non-discrimination is most relevant with respect to the eligibility in ‘principal’ and ‘subsidiary’ organs. That means that Art. 8 applies not only to the principal organs of the UN (GA, SC, ECOSOC, TC, ICJ and the Secretariat, see Art. 7 (1) UN Charter) but also to the subsidiary organs which may be established, for example, by the GA according to Art. 22 (1) UN Charter (eg UNCTAD, WFP, UNEP, UNDP) or by the (p. 422) SC according to Art. 29 UN Charter. It does not, however, apply to the specialized agencies.

III.  UN Practice 30  Due to the rather general character and vague legal content of Art. 8, UN practice was of paramount importance for its concretization.

1.  The Period 1945 to 1975 31  In 1946 the CSW was established,29 which became an important policy-making body of the UN on all questions relating to women. In 1949, the CSW urged that Art. 8 of the Charter ‘should be progressively implemented’ and requested the SG to prepare a report on the nature and proportion of posts in the Secretariat occupied by women.30 From its inception, the CSW has regularly called upon the SG to appoint women and to report on the equality of male and female employees. On 20 December 1952, in its Res 640 (VII), the UNGA decided to open the Convention on the Political Rights of Women for signature, ratification, and accession, a step in the process ‘to implement the principle of equality of rights for men and women contained in the Charter of the United Nations’.31 32  However, up to 1970, no particular measures to promote women were taken in the Secretariats and the UNGA.32 As a result, at the beginning of the 1970s the average percentage of women among the professional staff in the UN System was only 12.9 per cent,33 which amounted to a clear quantitative under-representation: there was no female director of a D-2 grade in fourteen UN organizations and no female director of a D-1 grade in 16 organizations. In 1972, the new SG, Kurt Waldheim, appointed the first female Assistant Secretary-General (ASG): Helvi Sipila from Finland. 33  The situation with regard to non-discrimination against women improved slowly. The CSW adopted a ‘Programme of Concerted International Action for the Advancement of Women’,34 in which a substantial increase in the proportion of women at a national and international level was demanded. An ad hoc group was formed in the Secretariat to lobby for gender equality, led by Patricia Tsien, a staff member. 34  At the recommendation of the CSW, the 25th UNGA adopted in 1970 a resolution35 in which the hope was expressed that the UN, including its special bodies and all intergovernmental agencies in the UN System, would set an example with regard to the opportunities they afford for the employment of women at senior and other professional levels. The SG was requested to submit regular reports on the proportion of women in the Secretariat. (p. 423) 35  This ultimately led to an intense preoccupation with the status of women in the UN System, eg by the Joint Inspection Unit (JIU),36 the UNDP, and specialized agencies, such as the ILO, UNESCO, and the WHO, which have dealt to an increasing extent with the rights of women. The 27th UNGA in 1972 demanded ‘appropriate measures to ensure equal opportunities for the employment of qualified women’37 and called upon the SG to present a study on possible forms of discrimination in the Staff Regulations and Staff Rules.

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36  Until 1974 the UN Staff Rules discriminated with respect to two important aspects: home leave travel and repatriation grant. In both cases the special definition of the term ‘dependant’ and the traditional conception of the husband as ‘breadwinner’ resulted in interpreting wives as entitled under the Staff Rules whereas husbands had to prove their material dependency in the concrete case.38 37  Moreover, traditionally there was an unequal situation between men and women with regard to UN pension regulations: whereas a widow of a person deceased in the service of the UN or of a former UN staff member was entitled to a pension ipso iure, a widower was entitled when he could prove his neediness39—despite the fact that male and female staff paid the same amount (7 per cent of their gross salary) to the Pension Fund.40 In order to establish equal treatment of widows and widowers, in 1975 the UNGA took up a proposal of the UN Joint Staff Pension Board and amended Art. 35 UNJSPF Regulations.41 38  In order finally to take Art. 8 into consideration also in the UN staffing policy, the SG produced specific proposals in 1973 on amending the Staff Regulations and Staff Rules42 that could not be reconciled with the principles of family unity and equal pay and remuneration as laid down in the Declaration on the Elimination of Discrimination against Women of 1967.43 Ultimately, with Res 3353 (XXIX) (18 December 1974), the UNGA approved detailed proposals of the SG to end existing inequality between men and women in UN staff matters.

2.  The Period 1975 to 1985 39  The SG actively pursued the issue of equal treatment within the UN System. In 1977, he issued special guidelines on the subject of equal treatment,44 moreover he set up a panel with the task of examining complaints by employees regarding discrimination.45 40  In addition, numerous political activities aimed at realizing the principle of the equality of the sexes and enhancing women’s rights. The campaign for women’s rights gathered momentum with the proclamation of 1975 as the International Women’s Year46 and the convening of the World Conference of the International Women’s Year (p. 424) in Mexico City.47 In the same year the UNGA proclaimed the period from 1976 to 1985 the first United Nations Decade for Women48 and adopted an international plan of action seeking to implement the aims of the International Women’s Year.49 41  In 1979 a ‘landmark treaty in the struggle for women’s rights’,50 the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), was adopted.51 According to Art. 8 CEDAW, which itself has to be seen in the light of Art. 8 UN Charter, States parties were obliged to: take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations. 42  Also, some new institutions had been established in order to expedite gender aspects. A Standing Committee on the Employment of Women52 was established in 1975 with the aim of improving administrative practice. In 1983 the International Research and Training Institute for the Advancement of Women (INSTRAW), with its headquarters in Santo Domingo, was founded.53 Its mandate was to promote and undertake policy-oriented research and training programmes at the international level in order to contribute to the advancement of women worldwide.54 43  Furthermore, in 1984 the SG appointed Mercedes Pulido de Briceño from Venezuela High-level Co-ordinator for the Improvement of the Status of Women.55 In November 1985,

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she presented to the UNGA the first action programme to overcome obstacles to gender equality in the Secretariat; yet, the coordinator’s office was disbanded three years later. 44  The UN’s International Civil Service Commission (ICSC) has also dealt with special measures for the recruitment of women.56 In 1984, the Secretariat issued an Administrative Instruction that allowed for part-time work for longer-term appointed staff.57 It can be considered as one of the earliest measures in the Secretariat for a better life/work balance. Furthermore, the SG established a High-level Steering Committee for the Improvement of the Status of Women in the Secretariat. In its capacity as an advisory body to the SG the Steering Committee continues to provide support and (p. 425) guidance. Many of the Steering Committee’s recommendations have been incorporated into the SG’s human resources management strategy.58 45  Despite institutional progress in the years between 1970 and 1985 it was nevertheless not possible to achieve a substantial improvement in women’s chances of employment and promotion in the UN Secretariat and in the specialized agencies. Despite all the efforts in the recruitment sector, the 25 per cent target that was set for 1982 for the participation of women in the UN Secretariat59 had still not been reached by 1986.60 As far as the Secretariat posts were concerned, the SG was only able to state in his annual reports that there had been a slight increase in the proportion of women (1971: 15.2 per cent; 1976: 17.9 per cent; 1979: 18.6 per cent; 1985: 22.5 per cent). In 1985, no woman was to be found among the two most senior ranks in the Secretariat, the Under-Secretaries-General (USG) and the Assistant Secretaries-General (ASG).61

3.  The Period 1985 to 2000 46  The global UN conferences, in particular the World Conference to Review and Appraise the Achievements of the United Nations Decade of Women: Equality, Development and Peace (Nairobi, 15–26 July 1985) with the adoption of the Nairobi Forward-looking Strategies for the Advancement of Women to the Year 2000, the World Conference on Human Rights with its Vienna Declaration and Programme of Action (Vienna, 14–25 June 1993)62 and the Fourth World Conference on Women (Beijing, 4–15 September 1995)63 with the parallel NGO fora, have set out a comprehensive global agenda for achieving gender equality. 47  In the Nairobi Forward-looking Strategies the organizations in the UN System were recommended ‘to take all necessary measures to achieve an equitable balance between women and men staff members at managerial and professional levels in all substantive areas, as well as in field posts’.64 48  Among the actions to be taken by international organizations, the Beijing Platform for Action recommended ten years later a review of ‘the criteria for recruitment and appointment to advisory and decision-making bodies and promotion to senior positions to ensure that such criteria are relevant and do not discriminate against women’.65 The UN should ‘[i]mplement existing and adopt new employment policies and measures in order to achieve overall gender equality, particularly at the professional level and above by the year 2000’66 and ‘[d]evelop mechanisms to nominate women candidates for (p. 426) appointment to senior posts in the United Nations, the specialized agencies and other organizations and bodies of the United Nations system’.67 49  Thus, the implementation of the Nairobi Forward-looking Strategies and the Beijing Platform for Action became a main concern of the UNGA as well as of the SG, but also of other UN institutions.

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50  The UNGA and its bodies continued their primary role in all human resources issues,68 including reform and implementation of the Nairobi and Beijing documents. In 1994 the UNGA adopted the strategy of human resources management. In implementing UNGA mandates on the subject, the Office for Human Resources Management (OHRM) has a central role in areas such as planning, recruitment, placement, promotion, and mobility. The Beijing Platform for Action included in para 331 a request to OHRM to give key priority to issues relating to the advancement of women in the Secretariat. The OHRM with its Specialist Services Division (on executive search, networking, and identifying qualified women candidates); its Operational Services Division (on placement, promotion, recruitment, and career counselling); its Planning and Development Service (on succession planning and rotation) can be seen as the personnel arm of the UN Secretariat.69 51  The strategic plan of action for the improvement of the status of women in the Secretariat (1995–2000) by the SG,70 which was endorsed by the UNGA in its Res 49/167 (23 December 1994), established the ambitious goal of gender parity by the year 2000 in general terms and in positions at the policy-making level (D-1 and above). In 1997, the UNGA adopted Res 53/119, which confirmed the goal of 50/50 gender distribution by the year 2000 in all categories of posts within the UN System. 52  After a JIU report on the advancement of the status of women in the UN Secretariat in 1994,71 a report with regard to the follow-up of Beijing was prepared, entitled ‘The Advancement of Women through and in the Programmes of the United Nations System: What Happens after the Fourth World Conference on Women’.72 53  As part of the follow-up of the Beijing Conference, the CSW was reviewing the topic ‘The status of women in the Secretariat’ and ‘Mainstreaming a gender perspective in the UN system’. At its 43rd session it requested the UN to ensure that individual managers are held accountable for implementing the strategic plan of the SG. Heads of department and offices should also develop gender action plans, with concrete strategies to ensure that the appointment and promotion of women would be no less than 50 per cent until the goal of gender parity would be met.73 (p. 427) 54  In its UNGA Res 54/139 of 17 December 1999 on the improvement of the status of women in the Secretariat, the UNGA reaffirmed the goal of achieving 50/50 gender distribution in all categories of posts within the UN System, especially at the D-1 level and above, with full respect for the principle of equitable geographical distribution, and in conformity with Art. 101 (3) UN Charter. The Resolution also took into account the continuing lack of representation of women from certain countries, in particular developing countries and countries with economies in transition. Furthermore, the UNGA expressed its regret that the goal of gender balance would not be met by the year 2000. 55  A milestone in the UNGA’s efforts to promote equal rights was its decision to convene in the year 2000 a high-level Plenary review to appraise and assess the progress achieved in the implementation of the Nairobi and Beijing documents, and to consider further action and initiatives.74 At the 23rd special session of the UNGA, entitled ‘Women 2000: Gender Equality, Development and Peace for the Twenty-First Century’, 5–9 June 2000 in New York, the UN was asked to encourage the: implementation of measures designed to achieve the goal of 50/50 gender balance in all posts, including at the Professional level and above, in particular at the higher levels in their secretariats… and report thereon, as appropriate, and enhance management accountability mechanisms.75

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Thus, the Women’s Summit was clear in its statement that the UN should fulfil the 50/50 quota as soon as possible after the year 2000. 56  The SG showed a strong personal commitment to meeting the goal of gender equality. In various reports on the follow-up of Beijing76 he gave assurances that gender balance would be given the highest priority. His strategic plan77 included the goal of gender parity, ie 50 per cent women in posts subject to geographical distribution by the year 2000. In his report to the CSW on the follow-up of Beijing the SG emphasized efforts undertaken by the Secretariat in support of mainstreaming a gender perspective and follow-up activities.78 57  Pursuant to UNGA Res 52/12 A (12 November 1997) the SG submitted in 1998 a report in which he outlined a new management culture of empowerment, responsibility, and accountability. Among others, it was proposed to design a ‘system of recruitment and placement’ which ensures ‘that the mandates of the General Assembly, such as those on geographical and gender balance, are met’79 and ‘progress on geographical and gender representation’ is provided.80 Staff at the professional level and above and supervisors (p. 428) at the general service levels had been trained in the new performance appraisal system (PAS),81 including mandatory performance indicators to evaluate the extent to which managers and supervisors achieve gender balance. 58  Efforts of the SG to implement the principle of equal treatment of men and women included a series of administrative instructions containing special measures for the achievement of gender equality.82 Special measures would remain in effect until the SG was satisfied that substantial progress towards parity had been made. For example, mechanisms as to the use of accelerated promotions in particularly deserving cases were applied to increase the representation of women at senior and policy-making levels.83 The strict application of the special measures announced in Administrative Instruction ST/AI/382 yielded a promotion rate of 51.42 per cent for women in 1995;84 this was the first occasion that a rate of more than 50 per cent had been achieved. 59  To afford women the requisite seniority for promotion, the policy of cumulative seniority, ie a calculation of an average of the years of a female staff member in her present grade and the years accrued in her immediately preceding grade, was applied as a special measure.85 60  A Senior Review Group was established by the SG in late 1993 for the filling of posts at the Director (D-2) level. A Human Resources Management Task Force comprising experts from different regions of the world with a wide diversity of experience in human resources management focuses primarily on the need to align human resources management with the reform strategy of the UN. 61  Moreover, a roster of highly qualified women was compiled to provide the SG with a pool of women who could be chosen to become his special representatives and for other high-level missions.86 62  Another special measure has been particularly effective: it allowed women who had served in the Organization for one year under any type of appointment to be considered as internal candidates. For many years, the Secretariat had considered that, for placement and promotion of staff whose appointment was subject to the system of desirable ranges, vacancy posts circulated through an internal vacancy announcement were ‘internal vacancies’ and thus open to internal candidates only—ie staff members who had already been recruited under the system of desirable ranges through competitive examination or a review by the appointment and promotion bodies. As a consequence, under the old system vacancies at the P-5 level and above were circulated externally.

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63  UNAT, however, by its judgment of 25 November 1995 in Balogun v Secretary-General expanded the pool of applicants for internal vacancies.87 The SG was ordered (p. 429) to allow the applicant ‘to submit his candidacy for any internal vacancy for which he is qualified and for which he applies’.88 This judgment called into question the validity of the distinction between internal and external candidates.89 64  As a consequence, in 1996 the SG adopted special measures to increase the pool of women eligible for consideration in all decisions on appointment, particularly to higherlevel posts. Women who had been in the service of the Organization, including UN programmes, for at least one year, under any type of appointment or as consultants, became eligible to apply as internal candidates for vacancies at the professional levels and above, ie they could apply for UN internal vacancy announcements. In accordance with Staff Regulation 4.4, the same considerations applied from then on to women serving with specialized agencies and subsidiary organs with the common system. However, if found eligible to apply for an internal vacancy announcement under this provision, a woman candidate was expected to meet the qualifications and experience requirements for the post, due regard being paid also to the principle of equitable geographical distribution.90 65  Other special measures concerned competitive examinations for promotion from the general service staff (which is predominantly female) to the professional category, the socalled ‘G to P avenue’. As this promotion tool was for a long time for many women the only way to a professional post, general service staff members were allowed, for example, to take the P-3 national competitive examination.91 66  To improve information with respect to gender equality, WomenWatch, the UN’s gateway on women’s issues, was created as an inter-agency project, designed by UNIFEM and INSTRAW.92 INSTRAW itself established the Gender Awareness Networking and Information System (GAINS). Furthermore, a database on gender training materials was prepared by UNICEF; a web-compilation of ‘good practices’ in implementing the Beijing Platform for Action and gender mainstreaming was prepared by UNIFEM and UNDP together with a task force. ITU developed activities on ‘Gender and Information and Communication Technologies’. 67  Gradually, all UN agencies began to adopt a gender perspective in their work. For example, in 1998 UNDP elaborated a strategy for achieving gender balance in UNDP’s staff, especially in senior management, and set targets for recruitment, retention of female staff, human resources management, and accountability. The USG of the Office for the Coordination of Humanitarian Affairs (OCHA) instructed all senior managers to fill posts, particularly at senior level, with qualified women. Gender focal points across the UN System did excellent work in strengthening attention to gender equality issues and improved gender mainstreaming across all sectors.93 (p. 430) 68  Also, the executive heads of the organizations of the UN System expressed their commitment to the full implementation of the Beijing Declaration and Platform for Action and the achievement of gender equality. In June 2000, they declared their intention to ensure that gender equality implications would be addressed in all their sectorial and thematic work94 and that within their own organizations, they would take ‘positive measures to significantly increase the representation of women, including at the most senior level, towards the goal of 50/50 gender parity’.95 69  The coordination of System-wide efforts to implement the Beijing Platform for Action has been facilitated by both the United Nations Development Group’s (UNDG) Gender SubGroup, chaired by UNIFEM, and the establishment of the ACC’s Inter-Agency Committee on Women and Gender Equality (IACWGE), chaired by the Special Adviser to the SecretaryGeneral on Gender Issues and Advancement of Women and supported by the Division for the Advancement of Women (DAW). IACWGE undertook follow-up action to ensure implementation of the ECOSOC conclusions 1997/2 on gender mainstreaming.96 Inter alia, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the IACWGE worked on a review of women in development, a compilation of good practices on gender mainstreaming, methodologies for gender-sensitive budget codes, and the compilation of a database on gender training materials.97 70  As a result of all these activities, the status of women in the Secretariat largely improved during the 1990s. In 1998, SG Kofi Annan appointed Louise Fréchette of Canada as his Deputy Secretary-General, the first to hold this post since it was established by the UNGA in December 1997. In addition, the SG appointed a female ASG for Human Resources Management and a female Special Adviser on Gender Issues and the Advancement of Women. 71  Statistics in 1998 indicated an almost evenly balanced gender distribution throughout the Secretariat: 49.3 per cent women and 50.7 per cent men.98 The two most senior grades at the Secretariat (USG and ASG), however, still had low female representation—only 12 per cent. Female staff accounted for 36.1 per cent of professional category staff, primarily at or near entry levels. In 1998, they constituted 56.7 per cent of general service and related categories.99 72  On 1 January 2000, the ambitious goal of 50/50 gender parity in professional staff had only been met by UNFPA.100

(p. 431) 4.  The Period 2000 to date 73  In the decade from 2000 to 2010, improvements in the advancement of women and gender parity in the UN have not been achieved through world conferences as in the previous decades. Rather, the Beijing Declaration and Platform for Action and the outcome document of the 23rd special session of the UNGA of 2000101 still serve as guiding documents in this respect. 74  The goal of gender parity for all posts in the UN System had not been met by the year 2000, although numerous UNGA resolutions had been calling for it. From 2000 to 2005, the gender goal was reaffirmed, however, along the lines of a vague time frame: ‘in the very near future’.102 75  From 2006 onwards, the UNGA expressed serious concern that the urgent goal of 50/50 gender balance in the UN System was still unmet, but failed to formulate a new, more precise time frame.103 However, there was one exception: in the case of Special Representatives and Special Envoys of the SG the UNGA urged the SG to achieve gender parity by the year 2015.104 76  Between 2000 and 2010 the Secretariat issued several Administrative Instructions and Secretary-General’s Bulletins with the aim of improving women’s representation at all levels. These measures were targeting better appointment and selection procedures, improved promotion mechanisms, flexible working arrangements, and better complaints procedures. 77  Selection, appointment, and promotion of individuals are the critical stages that determine the composition of the UN’s staff, including the aspect of gender balance. With regard to the selection and promotion of women workers, in 2002 the Secretariat introduced a new staff selection system which addressed the recruitment, placement, promotion, and mobility of staff.105 This system was supposed to guarantee a more neutral selection process and to hold the heads of departments and offices accountable for achieving a more balanced gender distribution. 78  Several measures were taken to better promote women: Administrative Instruction ST/ AI/2002/4 allowed women at P-3 and P-4 levels, who have worked for a cumulative period of

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one year in the Organization, to apply as internal candidates for vacancies at the same level or one level higher (para 5.5 (b) (ii)).106 79  In order to ensure a stricter compliance with the gender targets set out in the departmental human resources action plans, a head of a department who fails to meet the gender targets is required to justify a decision to select a male candidate where an equally qualified female candidate exists. The decision has then to be approved by the OHRM.107 80  According to another new rule, female candidates remain on the roster for three years after the first day of the month following the selection decision, whereas male candidates (p. 432) remain for one year only.108 Another special measure was introduced in April 2010. It was decided that for job openings at the P-4 to D-2 levels the list of qualified and suitable candidates should include at least one qualified female.109 81  The Secretariat further demanded from departments and offices the preparation of annual training plans that aim ‘to provide training opportunities for all categories of staff and to achieve a gender balance.’110 The Learning, Leadership and Organizational Development Section of the OHRM is obliged to monitor the manner in which each annual training plan is implemented.111 82  As a better work/life balance was seen as key to having more women in the work force, the Secretariat introduced new options concerning flexible working arrangements in February 2003, including: staggered working hours; compressed work schedule; scheduled break for external learning activities; work away from the office.112 According to a survey conducted by OSAGI among 16,000 staff members of the Secretariat in July/August 2009, ‘only a minority of staff members have actually requested the use of flexible working arrangements’. The survey also revealed that those staff members who made use of one of the options were highly satisfied with it but that most supervisors reported having poor or very poor knowledge on existing policies.113 83  Equally with a view to achieving a better work/life balance, new instructions regarding family leave were issued. A mother working in the Secretariat is entitled to stay at home up to 16 weeks before and after delivery. A father is allowed to take paternity leave for a total period of four weeks; if he is working in a non-family duty station, this period can be doubled.114 84  Regarding the possibilities for UN staff, and especially female staff, to take action against discrimination at the work place, the Secretariat issued an Information Circular in 2004. It recognized the Office of the Focal Point for Women as one of eight established channels for informal conflict resolution.115 If the informal conflict resolution was not satisfactory, the staff member could choose the formal way by requesting an administrative review. The next steps would have been to appeal to the Joint Appeals Board and, ultimately, to the UN Administrative Tribunal. 85  This system of administration of justice, however, did not live up to the expectations either of the staff or the member States. A reform panel considered it outmoded, dysfunctional, ineffective, and lacking independence.116 As a consequence, a ‘new independent, transparent, professionalized, adequately resourced and decentralized system’ was established through UNGA Res 61/261 (4 April 2007). It came into force in July 2009. 86  The Focal Points for Women do not have an official role in this new system. Nevertheless, they give advice and counsel to female staff on issues affecting their career (p. 433) development or conditions of service as well as on methods to resolve and/or report situations involving harassment, including sexual harassment, discrimination, or abuse.117 Another Secretary-General’s Bulletin detailed the procedures for dealing with sexual

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harassment, and a joint harassment prevention board was established in New York, Geneva, Vienna, Nairobi, and in regional commissions in 2008.118 87  All these measures show that there is a growing awareness in the Secretariat, especially in the management and human resources management units, of the problems women are facing with regard to working conditions and career development. Nevertheless, most measures need to be better promoted so that women workers can make better use of them. One important channel for disseminating this information would be the quarterly newsletter Network: The UN Women’s Newsletter published by the Focal Point for Women in the Secretariat since December 1999. 88  Also, the SG committed himself to the advancement of women and acknowledged the importance of redoubled efforts to reach gender parity in the UN. In April 2008, he sent a letter to heads of departments and offices, instructing them (a) to use expected retirements at all levels to increase women’s representation; (b) to implement policies for flexible work arrangements; (c) to establish departmental focal points for women; and (d) that for senior level appointments at the D-2 level and above he ought to be provided with a list of at least three qualified candidates including qualified women.119 89  The representation of women in the professional staff of the Secretariat in the decade from 2000 to 2010 increased from 35.4 per cent in December 2000 to 39 per cent in December 2009, ie by 3.6 percentage points (see Table 1). This translates into an average increase of 0.36 percentage points annually.120 90  The comparison between the years 2000 and 2009 shows that by far the biggest progress was made on the two most senior levels, ASG and USG. Whereas in 2000 in the Secretariat only three women were USGs (compared to thirty-two men), the number of female USGs rose to twelve in the year 2010 (compared to forty-one men).121 Among these were in 2010, for example, the heads of OHCHR (Navi Pillay), the Department of Management (Angela Kane), the Department of Field Support (Susana Malcorra), and the Office of Legal Affairs (Patricia O’Brien). 91  In both categories the representation of women increased 14.6 percentage points over the decade, more than on any of the lower levels. Yet, with a representation of 24.7 per cent on both levels women still fall short of being equally represented at the policy and decisionmaking level. The SG’s interpretation of these two trends was that on the one hand much faster progress (than the usual 0.3–1.0 percentage points) would be possible but that on the other hand improvements on one level (even the highest) would not automatically lead to increased representation on the other levels.122(p. 434) Table 1  Women in the UN Secretariat in 2000 and 2009. Gender distribution by level and change in percentage

Dec 2000

Dec 2009

Change in Percentage

USG

3

08.6%

12

22.6%

14.0%

ASG

4

11.8%

17

26.6%

14.8%

D-2

20

18.4%

35

24.3%

5.9%

D-1

89

30.3%

131

26.7%

–3.6%

P-5

244

31.0%

431

29.7%

–1.3%

P-4

500

31.8%

1110

36.1%

4.3%

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Dec 2000

Dec 2009

Change in Percentage

P-3

613

39.6%

1394

41.5%

1.9%

P-2

305

48.0%

795

55.2%

7.2%

P-1

7

50.0%

26

63.4%

13.4%

Total

1785

35.4%

3951

39.0%

3.6%

Source: UNGA ‘Report of the Secretary-General: Improvement of the status of women in the United Nations system’ (9 September 2010) UN Doc A/65/334, 28, Table 18. 92  Addressing these still low levels of women in the Secretariat, the SG introduced, starting in 2011, human resources management scorecards ‘in order to monitor performance towards geographical and gender targets’, replacing the human resources action plans.123 93  In response to a System-wide survey of UN entities on achieving gender balance, the following challenges were identified: inadequate accountability, monitoring, and enforcement mechanisms; lack of special measures for gender equality; weak integration of focal point systems; weak implementation of flexible working arrangements; insufficient outreach; and low numbers of qualified women applicants. As recommendations to address these challenges, the entities emphasized the need for senior leadership sponsorship, enhanced monitoring and accountability, as well as more rigorous implementation of existing policies, including special measures for women and flexible working arrangements.124 94  Among the organizations of the UN System in 2010, the goal of 50/50 gender parity had been met by nine entities: the International Fund for Agricultural Development (IFAD) (70 per cent), UNFPA (57.5 per cent), UNDP (55.8 per cent), UNICEF (54.6 per cent), UNESCO (54.1 per cent), UNRWA (53.8), the International Court of Justice (53.1 per cent), UNAIDS (51.3 per cent), and the Pan American Health Organization (PAHO) (50.9 per cent).125 95  In one of the most important working fields of the Organization, peace and security, female representation has been and still is extremely low. Women as peacekeepers in (p. 435) UN missions is a phenomenon of the very recent past: in the thirty-two years between 1957 and 1989, a total of only twenty women served as civilian staff in UN peacekeeping missions. In 1993, women made up 1 per cent of deployed uniformed personnel126 and in 1999 two women headed UN peacekeeping missions.127 96  Therefore, on 31 October 2000, the UNSC adopted Res 1325 (2000) on Women and Peace and Security. This landmark resolution called, inter alia, for the increased participation and representation of women at all levels of decision-making and in all phases of peace processes. Accordingly, more women were expected to serve in peacekeeping missions and be part of peace-building efforts. 97  When in August 2002 the first Monthly Strength Report was released by the Department of Peacekeeping Operations (DPKO) and the Office of Military Affairs it contained no data about the participation of women. The first gender-disaggregated statistics were prepared for military personnel only as recently as 2005, and for police personnel not until 2009. According to these statistics, the percentage of women soldiers rose slightly from 1.6 per cent in 2005 to 2.4 per cent in 2010. Female police officers constituted 7.3 per cent in 2009 and 9.7 per cent in 2010.128

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98  UNSC Res 1325 (2000) prompted some member States to send more female police officers to take part in peace-building missions. In January 2007, the first all-female Formed Police Unit of 103 staff from India was deployed to Liberia. Nigeria announced in May 2010 its plans to send another all-female Formed Police Unit to Liberia, and Bangladesh sent a contingent of 150 female police officers to Haiti in June 2010.129 In August 2009, the SG launched a campaign to lift the percentage of female peacekeepers to 10 per cent in military contingents and to 20 per cent in police units by the year 2014.130 99  Already before the adoption of UNSC Res 1325 (2000), in June 2000, the UnderSecretary-General for Peacekeeping Operations announced the establishment of Focal Points for Women in all UN peacekeeping missions.131 As of October 2010, ten UN-led multidimensional peacekeeping missions featured full-time gender components (around 120 international and national personnel) and six traditional peacekeeping missions included Gender Focal Points.132 100  In May 2006, the UN created the Recruitment, Outreach and Career Development Section within the Department of Field Support (DFS). It reviews vacancy announcements to ensure that the UN is attracting candidates with the appropriate background (p. 436) and experience. Gender/women is the first filter for every position. Women candidates are thus prioritized in the DFS review and clearance process.133 101  In order to improve the recruitment of women in decision-making positions in peacekeeping, the Senior Leadership Appointments Section was established in October 2006. It serves both the DPKO and DSF. The section maintains a list of roughly 400 qualified persons. In the last round of an appointment process for a senior position, one of the three or four candidates has to be a woman.134 The section developed a candidate profile and template for the SG and the appointments panel to better evaluate all candidates, as well as standard operating procedures. 102  On 5 October 2009, on the occasion of the 9th anniversary of Res 1325 (2000), the UNSC adopted Res 1889. One of its key provisions is to increase the number of female Special Representatives and Special Envoys of the SG. In June 2011, the UN counted five women Special Representatives and Heads of Missions and five Deputy Special Representatives; thus ten out of fifty posts were occupied by women. With respect to the thematic Special Representatives, Advisors, and Envoys the equation is more balanced but still far away from parity: eight out of twenty-nine posts were filled by women (ie 38.1 per cent).135 103  A Ten-year Impact Study of UNSC Res 1325136 identified several impediments to a higher participation of women in peacekeeping missions, such as: the low number of females in the national forces of police- and troop-contributing countries; women not being aware of the option to serve on peacekeeping operations or not being selected; and women candidates failing necessary entry tests (eg physical, driving, shooting, or language). 104  Among the main reported challenges for the increase of the number of women in field missions is the non-family nature of most peacekeeping missions and the consequential long absences from family.137 In June 2010, twenty-one missions had non-family status and eleven were family missions. The Advisory Committee on Administrative and Budgetary Questions of the UNGA (ACABQ) recommended in its Human Resources Management Report of 22 October 2010,138 the transformation of sixteen of the twenty-one missions with non-family status into family duty stations, thus making these duty stations more attractive to women. 105  Another reason for the still low percentage of women in peacekeeping is the occasional lack of commitment of senior managers to gender mainstreaming in peacekeeping missions. Although the DPKO Gender Policy139 stipulates that the responsibility for gender mainstreaming lies with all staff members, male and female, this responsibility has not been embraced across the board. Respondents to the Ten-year Impact From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Study stressed that the integration of gender dimensions in the programming of functional areas depends on the commitment of the senior leadership to press their managers do so.140 (p. 437) 106  If the UN as employer has not lived up to its targets for the advancement of women, the member States did and still do even worse. For example, in July 2010, only twenty-six out of 192 Permanent Representatives at United Nations Headquarters in New York were women. The percentage is 13.5. The region with the highest representation rate is Latin America and the Caribbean with eight female heads of delegation out of thirtythree, ie 24.2 per cent. The lowest rate of female ambassadors can be found in Africa (three out of fifty).141 107  The most striking and promising development with respect to the empowerment of women in the UN in the last decade was the creation of a new women and gender organization. The new institution, United Nations Entity for Gender Equality and the Empowerment of Women—UN Women, was founded through UNGA Res 63/311 (14 September 2009), and took up its work on 1 January 2011. It merged the four former key UN women’s institutions: the Special Adviser to the Secretary-General on Gender Issues and Advancement of Women (OSAGI), the Division for the Advancement of Women (DAW), the United Nations Development Fund for Women (UNIFEM), and the International Research and Training Institute for the Advancement of Women (INSTRAW). 108  Whereas the former heads of OSAGI, DAW, UNIFEM, and INSTRAW had been ASGs, UN Women is headed by an Executive Director in the rank of a USG. The first person to hold this position was former Chilean foreign minister, Michelle Bachelet. The appointment of this strong and experienced politician and the fact that the head of UN Women is a member of the UN’s key management body, the CEB, both evince the commitment of the SG to institutionally strengthen women in the UN and worldwide. None of the heads of the four former women’s institutions had been members of the CEB. 109  According to UNGA Res 64/289 (2 July 2010) UN Women has two main tasks: standard and norm setting on the one hand and operational work in the field with the aim of universal coverage on the other hand.142 With regard to Art. 8 the Resolution stipulates that UN Women shall have ‘the additional role of leading, coordinating and promoting the accountability of the UN system in its work on gender equality and the empowerment of women’.143 110  As initial funding, the SG proposed an annual budget of $500 million.144 This would amount to more than double the budget of the former four women entities combined. On 30 June 2011 the Executive Board of UN Women endorsed the budget proposal of $1.2 billion from voluntary contributions for the years 2011 to 2013 (2011: $300 million; 2012: $400 million; 2013: $500 million).145 If the member States fulfil their (p. 438) obligations and support the entity with the amount proposed, UN Women has the best chances to strengthen women’s representation in the Organization and advance women’s issues.

D.  Problems of Application I.  Legal Protection 1.  Competence of Women to Invoke Article 8 111  It is disputed whether female UN employees can invoke provisions of the Charter, especially Art. 8, directly in their disputes with the Organization. However, new legal developments show improvements on the legal standing of women with regard to gender equality.

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2.  The CEDAW Optional Protocol 112  On 6 October 1999, the UNGA adopted Res 54/4 containing the Optional Protocol to CEDAW, which provides for a communication procedure. It allows women to submit claims of violations of rights under the Convention to the CEDAW Committee146 and an inquiry procedure,147 enabling the Committee to initiate inquiries into situations of grave or systematic violations of women’s rights. 113  That means, for example, that a woman (or a group of women on her behalf) who feels that her personal career may be hindered because the State did not take all appropriate measures to ensure participation in the work of a UN organization may claim to be a victim of a violation of her rights set forth in Art. 8 CEDAW.148 She may thus submit a communication to the Committee. The same woman will be protected against ill-treatment or intimidation as a consequence of her communication.149 Whenever the Committee receives reliable information indicating grave or systematic violations, eg of Art. 8 CEDAW by a State party, an inquiry may be conducted. 114  This procedure considerably strengthened the principle of non-discrimination between men and women, in particular with respect to female candidatures to posts in international organizations. 115  The Protocol entered into force on 22 December 2000. Between 2002, when the first communication was submitted, and June 2012, the Committee decided on twenty-three communications. None of them referred to Art. 8 CEDAW. In the same period of time one inquiry procedure was conducted.150 116  It has to be kept in mind that the complaints procedure is only open to women whose home State is a State party to the Optional Protocol. As of June 2012, 104 States had become States parties, and seventy-nine States had signed the protocol.151 Interpreting a signature as a willingness to abide by the rules set forth in the Protocol, 183 States potentially fall under the jurisdiction of that Protocol.

(p. 439) II.  Relationship between Article 8 and Article 101 (3) 1.  The SG’s Authority in Staff Matters 117  In the past some SGs have been criticized for having allowed nationality to take precedence over gender equality and merit.152 In exercising his authority in staff matters, the SG must take into consideration various matters. The SG is expected to achieve the goals defined by the UNGA in the field of staffing policies, but he is also bound by normative restrictions resulting from the Charter, in particular Art. 101 (3) and the Staff Regulations. 118  As a consequence, an inherent conflict may be seen between the UNGA’s normative competence aiming at full realization of Art. 8 and the SG’s authority in staff matters. There is a need to reconcile competing policy priorities, particularly equitable geographical distribution with gender aspects. That means that the recruitment policy of the SG must take into consideration the distribution of nationalities as well as increasing the proportion of women.153

2.  Relation of Gender and ‘Geographical Distribution’ 119  The principle of adequate geographical distribution requires that ‘[d]ue regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible’ (Art. 101 (3), cl 2). In his Report on Human Resources Management 1998,154 the SG explained that the system of ‘desirable ranges’ for geographical distribution of staff is determined by a formula involving three factors: membership, population and contribution.

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120  Traditionally, Eastern Europe, the Middle East, Asia, and Africa register the lowest representation of women in posts subject to geographical distribution; the highest percentages are still registered by North America and Western Europe.155 According to the formula of geographical representation, efforts have to be made to recruit from countries that are still underrepresented. 121  In order to reconcile the principle of geographical distribution (which is in the direct interest of States) with the need for establishing desirable ranges for the promotion of women (which is a more general interest) it is necessary to find a balance between Art. 8 and Art. 101 (3), cl 2. For that reason, the Beijing Platform for Action demanded that the UN should ‘adopt new employment policies and measures in order to achieve overall gender equality,… with due regard to the importance of recruiting staff on as wide a geographical basis as possible, in conformity with Art. 101, paragraph 3, of the Charter of the United Nations’.156 122  As a temporary special measure the SG decided in 1996 that ‘in limited cases’ and only in relation to posts for which the female candidates are the best qualified, could (p. 440) exceptions be made for the recruitment of female candidates over the normal maximum desirable range for a given country.157 123  The statistics on the status of women in the Secretariat show a slow but steady improvement. On 30 June 2006 the percentage of women on appointments subject to geographical distribution was 42.6. Four years later, on 30 June 2010, the proportion of women had risen to 45.1 per cent. Thus the growth rate per year is 0.625 per cent.158

3.  Relation of Gender and ‘Qualification’ 124  The principle of non-discrimination, and more specifically any targets set for the promotion of women according to Art. 8, must be reconciled with the recruitment principles of qualification and competence. It is the duty of the SG to appoint staff on the basis of the paramount principles, namely the highest qualifications and competence in the field (Art. 101 (3), cl 1 reads: ‘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 standard of efficiency, competence and integrity’). Any deviation from this principle—as was the case with seven women who were recruited to P-2 positions outside the context of the national competitive examination159—meets serious criticism of reverse discrimination.160 Thus, achievement of women’s representation should be in line with the principle of competence, integrity, and efficiency.

III.  Other Problems 1.  Political Resistance 125  While the advancement of women became a policy priority in the UN System, certain constraints were identified, such as the role of governments in submitting candidates.161 Moreover, for many years there was considerable resistance in the Secretariat and UNGA to giving women greater consideration when appointing staff. 126  A Report of the SG on the assessment of the implementation of the System-wide medium-term plan for the Division for the Advancement of Women 1996–2001 highlighted a number of obstacles to the implementation of the System-wide medium-term plan, among them social and traditional environments that might be hostile to notions of gender equality.162 Consequently, member States were asked to propose more women candidates from a broader array of occupations, for appointments to intergovernmental and expert bodies, and positions within the Secretariat. Member States should support the efforts of the UN and the specialized agencies to achieve the goal of 50/50 gender distribution, especially at the D-1 level and above, by identifying and regularly submitting more women

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candidates for appointment, including appointments in areas in which women are underrepresented, such as peacekeeping and peace-building.

(p. 441) 2.  The Problem of Reverse Discrimination 127  Gender targets set by the UN are part of an affirmative action giving temporary preferential treatment to women in order to reach higher levels and thus, equal opportunities. As UNAT ruled in 1994, as long as affirmative action is required to redress gender imbalance, ‘Article 8 of the Charter would permit, as a reasonable measure, preferential treatment to women candidates where their qualifications are substantially equal to the qualifications of competing male candidates’.163 128  In practice, concrete measures to reach the set targets risk being seen as reverse discrimination, ie discrimination against men. For example, in the early 1990s measures to earmark 50 per cent of the vacant jobs for women in order to fill a vacancy in all cases by female candidates, provided there was at least one female candidate whose qualifications match the requirements, were criticized by male staff members who wrote to the Personnel Office to complain about reverse discrimination.164 As was outlined by the UN, the objective, however, is to correct a long-existing imbalance. 129  In 1996 JIU Inspector Bouayad-Agha voiced the criticism that due to the SG’s attempts to reach gender parity by the year 2000, as mandated by the UNGA, a number of discriminatory measures were taken by introducing different criteria for recruitment, placement, and promotion with preferences based on gender; a drastic curtailment of the promotion of male staff was the result.165 The fundamental principle reflected in Art. 101 (3) UN Charter—on the criteria for the highest standard for staff and the geographical basis of recruitment—should not be diluted, she warned. Special measures giving automatic preference to women in a placement and promotion system were redundant, if the aim of the system was to recruit, place, and promote the best as required by the Charter, and if a woman’s qualifications were superior. 130  The Secretariat, in its defence, held that on the issue of promotion and placement of women discriminatory directions had never been given to the effect that lesser qualified women candidates should be given preference over male colleagues of superior qualifications. The measures set out in Administrative Instruction ST/AI/412, issued in early 1996, specified that a woman candidate should be given preference only when her qualifications met all the requirements for the vacant post and were substantially equal or superior to those of competing male candidates.166 The wording was formulated with the full benefit of two Administrative Tribunal’s judgments, Nos 671 and 765. Judgment No 671 (Grinblat v Secretary-General) involved the application of the Secretary-General’s Bulletin ST/SGB/237 by the Appointment and Promotions Board (APB) in compiling the short-list for a post prior to departmental consideration of the list to determine who should fill the post. The Tribunal concluded that it was inappropriate for the APB to exclude equally qualified male applicants from short-lists and that ST/SGB/237 should have been applied by the department concerned.167 (p. 442) 131  In the UNAT Decision No 765 (Bieler v Secretary-General), the Tribunal found that as the applicant was the only woman short-listed for the post, and she was equally, if not more, qualified for the post, she had a right to promotion, in the light of ST/SGB/237.168

3.  Attractiveness of a UN Career 132  When calling upon member States for female appointments, it should not be overlooked that the attractiveness of a UN career for women may be limited. Once recruited, women have to deal with corporate structures that, consciously or not, are male-

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oriented—ranging from working hours, networks, through achievement criteria and stereotyped expectations.169 133  Of the staff members who resigned in 1997 from the UN service, 70 per cent were under forty-five years of age, with 44 per cent younger than thirty-five.170 The fact that over a decade the number of resignations—most of which were from staff in the younger brackets—exceeded the number of retirements certainly hampered the replacement of higher-level staff with experienced younger (female) staff members.171 Career development counselling services as offered, for example, since 1996 by the Operational Services Division may be a useful tool to develop female careers systematically and to avoid resignations. 134  In addition, future efforts should aim at promoting a gender-sensitive work environment supportive of the needs of UN staff, both men and women, through, inter alia, improved mechanisms of flexible working time and working place arrangements, child and elderly care and, as was emphasized by the Inter-Agency Network on Women and Gender Equality in 2010, spouse employment.172

4.  Developing Countries 135  There is still an imbalance in the representation of women from different regions of the world. As early as 1990, the UNGA urged the SG in Res 45/239 to increase the number of women from developing countries. The recruitment of more female staff should accord priority to the underrepresented member States. 136  There have been improvements in the status of women in the UN System; however, the rate of progress in the representation of women from developing countries, particularly at the senior level, is rather slow. Statistics from the years 2000 and 2010 show that there is no improvement in the representation of women from developing countries. (p. 443) On the contrary, the numbers declined over the decade: whereas in 2000 41 per cent of female staff came from developing countries in 2010 it was only 38.9 per cent.173 137  Greater efforts are needed to recruit qualified women candidates from the developing world. As the Permanent Representative of India, Jayaprada Nahata, demanded, the Secretariat should move beyond those posts subject to geographical distribution, which were only a small portion of all the posts in the UN System, and expand the number of women from developing countries in other categories of posts.174 Also, a high number of vacant posts in regional commissions was seen as a serious concern, particularly for those commissions located in the developing world.175

E.  Perspectives 138  Full compliance with Art. 8 UN Charter and the full participation of women in all aspects of the UN are ‘imperative, not only for reasons of equity, but also to enhance Secretariat effectiveness and the credibility and the leadership of the United Nations in advancing the status of women worldwide’.176 UN activities to achieve gender equality are quite impressive, as improvements in recruitment, conditions of employment, assignments, training, and promotion show. Under-representation of women in qualified jobs, however, is still a problem, both within the UN as well as outside. 139  In order to avoid a top-down process, the UN’s mandate and existing commitment to advance women on the basis of Art. 8 UN Charter need more support from all member States. Their commitment to look for opportunities where women could advance their individual careers in the UN will be decisive for the success of the ambitious UN project of gender equality. The work of women’s groups, eg the Inter-Agency Network on Women and Gender Equality (IANWGE) or the Group on Equal Rights for Women in the United Nations

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(GERWUN),177 staff bodies like the Focal Points for Women, and NGOs, will be equally important to promote a reciprocal process with civil society and the stakeholders. 140  On the one hand there is no ‘acquis’, ie the advancement of women may at any time fall behind existing achievements.178 On the other hand the representation of women in the UN System is likely to slowly rise over the next decades. The major challenge is to increase female staff on policy and decision-making levels and in peacekeeping and peace-building activities. Heads of departments and offices in the UN still bear the greatest responsibility in that respect. It would be advisable to hold them more accountable for not reaching the gender targets, including sanctions. They need to be supported by member States that must submit more women candidates for appointment (p. 444) to positions in the UN System, especially in peacekeeping operations and peace-building activities. 141  The UN’s ambitious gender goals moved from providing equal chances for women and men to exactly equal representation179—a goal that most States and companies of the world do not even try to achieve.

Footnotes: 1

  The World’s Women 2000: Trends and Statistics (United Nations Publications 2000); The United Nations and The Advancement of Women 1945–1996 (United Nations Publications 1996). 2

  See MN 17.

3

  Some delegates stated that the Uruguayan amendment to the Dumbarton Oaks Proposals (UNCIO III, Doc 2, G/7 (a), 37) should only deal with the employment of women in the UN, not, however, with the representation of women on national delegations, see UNCIO VII, Doc 389, I/2/21 (18 May 1945) 49. 4

  UNCIO VII, Doc 464, I/2/28 (21 May 1945) 64.

5

  T Skard, ‘Getting Our History Right: How Were the Equal Rights of Women and Men Included in the Charter of the United Nations?’ (2008) 1 Forum for Development Studies 43. 6

  See MN 4.

7

  See MN 30.

8

  See Motion of the Social Democratic Party, Deutscher Bundestag, Drucksache13/7070 (26 February 1997) accessed 4 June 2012. 9

  Staff Reg 4.4 provides that ‘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’. 10

  UNAT Decision No 852 (Balogun v Secretary-General) (1997) UN Doc AT/DEC/852, 12.

11

  ECOSOC Res 154B (VII) (20 August 1948) UN Doc E/RES/154B(VII).

12

  UN Doc A/CONF.177/20 (17 October 1995) Platform for Action.

13

  ibid, para 190 (j).

14

  CP/Mpozagara, 223.

15

  See UNAT Decision No 162 (Mullan v Secretary-General) (1974) UN Doc AT/DEC/114– 66, 387, 392.

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16

  UNCIO III, Doc 2, G/25 (5 May 1945) 603; see also proposal of Canada, UNCIO III, Doc 2, G/14 (5 May 1945) 595 and of Uruguay (‘open to men and women’), UNCIO III, Doc 2, G/ 7 (a) (5 May 1945) 37. 17

  UNCIO VII, Doc 244, I/2/12 (12 May 1945) 31.

18

  UNCIO VII, Doc 464, I/2/28 (21 May 1945) 64.

19

  Vote of Sub-committee B of Committee I 72, UNCIO VII, Doc 437, I/2/B/2 (19 May 1945) 548; see also vote in Commission I, UNCIO VII, Doc 797, I/2/58 (6 June 1945) 188 with 34 in favour and two against. 20

  UNCIO XVIII, WD 316; CO/128 (14 June 1945) Art. 8.

21

  See MN 2.

22

  See ECOSOC ‘Report of the Secretary-General to the Commission on the Status of Women on the participation of women in the work of the United Nations’ (16 March 1950) UN Doc E/CN.6/132 para 8. 23

  UNGA Res 590 (VI) (2 February 1952) UN Doc A/RES/590(VI).

24

  PC/20 (23 December 1945), ch VIII, s 2, para 69.

25

  UNAT Decision No 162 (Mullan v Secretary-General) (1974) UN Doc AT/DEC/114–66, 387, 392. 26

  See MN 46.

27

  ECOSOC Res 154B (VII) (20 August 1948) UN Doc E/RES/154B(VII).

28

  See MN 13.

29

  ECOSOC Res 11 (II) (21 June 1946) UN Doc E/RES/11(II).

30

  ECOSOC ‘Report of the CSW on the participation of women in the work of the United Nations’ (1949) UN Doc E/1316, ch IV, para 20; see ECOSOC ‘Report of the SecretaryGeneral to the CSW on the participation of women in the work of the United Nations’ (16 March 1950) UN Doc E/CN.6/132. 31

  193 UNTS 135, preamb pt, al 1.

32

  In 1970, the UNGA called for the employment of qualified women in senior and other professional positions by the Secretariats of the organizations in the UN System, UNGA Res 2715 (XXV) (15 December 1970) UN Doc A/RES/2715(XXV); see also the UNGA resolution outlining a programme of concerted international action for the advancement of women, UNGA Res 2716 (XXV) (15 December 1970) UN Doc A/RES/2716(XXV). 33

  UN Doc A/8433 (1 November 1971) JIU/REP/71/7.

34

  ESCOR (XLVIII) Supp No 6, 63–67.

35

  UNGA Res 2715 (XXV) (15 December 1970) UN Doc A/RES/2715(XXV).

36

  See JIU/REP/71/7; JIU/REP/77/7; JIU/REP/80/4.

37

  UNGA Res 3009 (XXVII) (18 December 1972) UN Doc A/RES/3009(XXVII) para 3.

38

  See for details ‘Differential Treatment upon Sex in the Staff Regulations and Staff Rules’ (14 August 1973) UN Doc A/C.5/1519. 39

  Art. 35 UN Joint Staff Pension Fund (UNJPSF Regulations, old version).

40

  See P K Tsien, ‘The Struggle for Improvement of the Situation of Women in the UN Secretariat’ (1975) 7 UNITAR News 22–24.

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41

  UNGA Res 3526 (XXX) (16 December 1975) UN Doc A/RES/3526(XXX).

42

  UN Doc A/C.5/1603.

43

  UNGA Res 2263 (XXII) (7 November 1967) UN Doc A/RES/2263(XXII), Arts 6 and 10.

44

  UN Doc ST/SGB/154 (8 March 1977).

45

  UN Doc ST/AI/246 (28 July 1977).

46

  UNGA Res 3010 (XXVII) (18 December 1972) UN Doc A/RES/3010(XXVII).

47

  UNGA Res 3276 (XXIX) (10 December 1974) UN Doc A/RES/3276(XXIX); see ECOSOC ‘Report of the World Conference of the International Women’s Year, Mexico City, 19 June–2 July 1975’ (1976) UN Doc E/CONF.66/34. 48

  UNGA Res 3520 (XXX) (15 December 1975) UN Doc A/RES/3520(XXX).

49

  UNGA Res 3490 (XXX) (12 December 1975) UN Doc A/RES/3490(XXX).

50

  nn 1, 5.

51

  UNGA Res 34/180 (18 December 1979) UN Doc A/RES/180, 1249 UNTS 13; CEDAW entered into force on 3 September 1981. 52

  UN Doc A/10184 (1975) 12, para 36.

53

  See UNGA Res 3520 (XXX) (15 December 1975) UN Doc A/RES/3520(XXX) paras 9 and 10 which was based on a recommendation of the World Conference in Mexico 1975; ECOSOC Res 1998 (LX) (12 May 1976) UN Doc E/RES/1998(LX); the statute of the International Research and Training Institute for the Advancement of Women (INSTRAW) is in ECOSOC 1984/41 (28 March 1984). 54

  INSTRAW was dissolved in 2010 in the course of the establishment of a new composite entity on gender affairs, see ECOSOC Res 2010/7, ‘Strengthening the institutional arrangements for support of gender equality and the empowerment of women’ (20 July 2010), for more details see MN 109f. 55

  UNGA Res 39/245 (18 December 1984) UN Doc A/RES/39/245; see the extension of her mandate in UNGA Res 40/258 (18 December 1985) UN Doc A/RES/40/258. 56

  UN Doc ICSC/22/R.14/1985 and add 1.

57

  See Administrative Instruction 291 (18 July 1984) UN Doc ST/AI/291/Rev.1.

58

  eg recommendations toward the 50% representation target; eg means to permit qualified general service staff to participate in P-2/P-3 national competitive examinations, see MN 46. 59

  UNGA Res 33/143 (20 December 1978) UN Doc A/RES/33/143, pt III, para 1.

60

  24.7%, see UNGA ‘Report of the Secretary-General: Composition of the Secretariat’ (20 September 1986) UN Doc A/41/627, 14, Tables F and G. 61

  See S Lewis, Race Against Time (House of Anansi Press 2005) 109.

62

  The ‘Vienna Declaration and Programme of Action’ stressed the need for women to make effective use of existing procedures under international human rights instruments and emphasized the need for the adoption of new procedures and, in particular, a petition procedure for CEDAW, see UN Doc A/CONF.157/23 (12 July 1993) pt II, B.3., para 40. 63

  ECOSOC Res 1990/12 (24 May 1990) UN Doc E/RES/1990/12; UNGA Res 45/129 (14 December 1990) UN Doc A/RES/45/129.

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64

  UN Doc A/CONF.116/28/Rev.1 (1986) para 356; the UNGA endorsed the Nairobi Forward-looking Strategies by UNGA Res 40/108 (13 December 1985) UN Doc A/RES/ 40/108. 65

  UN Doc A/CONF.177/20 (17 October 1995), Platform for Action, para 192 (c).

66

  ibid, para 193 (a).

67

  ibid, para 193 (b).

68

  eg UNGA Res 45/239 C (21 December 1990) UN Doc A/RES/45/239 C; UNGA Res 46/98 (16 December 1991) UN Doc A/RES/46/98; UNGA Res 50/203 (22 December 1995) UN Doc A/RES/50/203. 69

  UNGA ‘Report of the Secretary-General: Human resources management reform’ (1 August 2000) UN Doc A/55/253 met criticisms because it did not mention either the Gender Action Plans that provide guidelines to set concrete goals for the departments in terms of identifying, recruiting, and promoting women or the Departmental Focal Points for Women, whose terms of reference were set out in Secretary-General’s Bulletin 1999/9 (19 December 1999) UN Doc ST/SGB/1999/19. 70

  UNGA ‘Report of the Secretary-General: Improvement of the status of women in the Secretariat’, UN Doc A/49/587 (1 November 1994) s IV. 71

  E I Daes, Advancement of the Status of Women in the UN Secretariat in an Era of ‘Human Resources Management’ and ‘Accountability’: A New Beginning? JIU/REP/94/3 (1994). 72

  See Note by the SG, UN Doc A/51/180 (26 June 1996).

73

  ECOSOC ‘CSW: Report on the forty-third session’, UN Doc E/1999/27-E/CN.6/1999/10 (1999), 31. 74

  UNGA Res 52/100 (12 December 1997) UN Doc A/RES/52/100 para 45.

75

  Report of the Ad Hoc Committee of the Whole of the 23rd special session of the General Assembly, UN Doc A/S-23/10/Rev.1, ch III, Annex, para 88. 76

  See ECOSOC ‘Report of the Secretary-General: Ways and means to enhance the capacity of the Organization and the United Nations system to support the ongoing follow-up to the Fourth World Conference on Women’ (10 July 1996) UN Doc E/1996/82; see also UNGA ‘Report of the Secretary-General: Follow-up to an implementation of the Beijing Declaration and Platform for Action’ (23 February 1996) UN Doc A/RES/50/203 and UNGA Res 53/120 (10 February 1999) UN Doc A/RES/53/120; UNGA ‘Report of the Secretary-General: Improvement of the status of women in the Secretariat’ (27 October 1995) UN Doc A/ 50/691. 77

  UN Doc A/49/587 (1 November 1994) (n 70).

78

  ECOSOC ‘Report of the Secretary-General: Follow-up to and implementation of the Beijing Declaration and Platform for Action’ (31 December 1999) UN Doc E/CN.6/2000/2. 79

  UNGA ‘Report of the Secretary-General: Human resources management reform’ (13 October 1998) UN Doc A/53/414 para 21 (a) (i). 80

  ibid, para 21 (a) (ii); see also para 23.

81

  For details see UNGA ‘Report of the Secretary-General: Improvement of the status of women in the Secretariat’ (27 October 1995) UN Doc A/50/691 para 27.

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82

  See Administrative Instruction 282 (3 March 1993) UN Doc ST/AI/382; Administrative Instruction 412 (5 January 1996) UN Doc ST/AI/412; Administrative Instruction 1999/9 (21 September 1999) UN Doc ST/AI/1999/9. 83

  As far as the problem of reverse discrimination is concerned, see MN 129f.

84

  UNGA ‘Report of the Secretary-General: Improvement of the status of women in the Secretariat’ (27 October 1995) UN Doc A/50/691 para 15. 85

  See Administrative Instruction 412 (5 January 1996) UN Doc ST/AI/412 para 13.

86

  Upgrading internal and external rosters of women is one of the main activities of the Specialist Services Division of OHRM, created on 1 September 1995, an activity which is facilitated by the Integrated Management Information System (IMIS). 87

  Balogun, a staff member of UNECA, filed an application requesting the Tribunal to find that the decision to place restrictions on his candidature for internal vacancies directly violated Art. 8 UN Charter. The applicant had been recruited under the 200 series of the Staff Rules, which govern project personnel. By interpretation of Staff Reg 4.4, the Tribunal’s interpretation made any staff member eligible to apply for any vacancy, regardless of the series of the Staff Rules under which he or she was appointed, see UNAT Decision No 852 (Balogun v Secretary-General) (1997) UN Doc AT/DEC/852. 88

  ibid, 15.

89

  See commentary on UNAT judgment, UNGA ‘Note by the Secretary-General: Internal vacancies in the Secretariat’ (2 September 1998) UN Doc A/53/327. 90

  Administrative Instruction 412 (5 January 1996) UN Doc ST/AI/412 para 7.

91

  ibid, para 12.

92

  See accessed 4 June 2012.

93

  UNFPA prepared a gender focal point study on the UN System based on the replies of 179 gender focal points and 109 supervisors to questionaires, see Administrative Committee on Coordination ‘Report of the Inter-Agency Committee on Women and Gender Equality at its fifth session’ (31 May 2000) UN Doc ACC/2000/3 para 78 with reference to the report IACWGE/V/6. 94

  Statement of the ACC to the UNGA at its 23rd special session entitled ‘Women 2000: Gender Equality, Development and Peace in the Twenty-first Century’ (7 June 2000) UN Doc A/S-23/8 para 5 (e). 95

  ibid, para 6; ECOSOC ‘Report of the Secretary-General: Assessment of the Implementation of the System-wide Medium Term Plan for the Division for the Advancement of Women, 1996–2001’ (19 January 2000) UN Doc E/CN.6/2000/3. 96

  ibid, para 48; for the work of the IACWGE see the Reports of the Inter-Agency Committee on Women and Gender Equality 1996f (UN Doc ACC/1996/22; ACC/1997/8; ACC/ 1998/3; ACC/1999/3 and ACC/2000/3). 97

  ECOSOC ‘Annual overview of the Administrative Committee on Coordination for 1998’ (11 May 1999) UN Doc E/1999/48 para 48c. The ACC was renamed in 2001 as United Nations System Chief Executives Board for Coordination (CEB); IACWGE in the same reform process was renamed the Inter-Agency Network on Women and Gender Equality (IANWGE). 98

  UNGA Fifth Committee, P.R. GA/AB/3263 (13 November 1998).

99

  UNGA Fifth Committee, P.R. GA/AB/3259 (9 November 1998).

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100

  UNGA ‘Report of the Secretary-General: Improvement of the status of women in the United Nations system’ (15 October 2001) UN Doc A/56/472, 22 Table 9. 101

  UNGA Res S-23/3 (10 June 2000) UN Doc A/RES/S-23/3, Annex; see also MN 55.

102

  eg UNGA Res 59/164 (20 December 2004) UN Doc A/RES/59/164.

103

  See UNGA Res 61/145 (19 December 2006) UN Doc A/RES/61/145; UNGA Res 62/137 (18 December 2007) UN Doc A/RES/62/137; UNGA Res 64/141 (18 December 2009) UN Doc A/RES/64/141; UNGA Res 65/191 (21 December 2010) UN Doc A/RES/65/191. 104

  UNGA Res 58/144 (22 December 2003) UN Doc A/RES/58/144.

105

  Administrative Instruction 2002/4 (23 April 2002) UN Doc ST/AI/2002/4.

106

  See also Administrative Instruction 2006/3 (15 November 2006) UN Doc ST/AI/2006/3, para 5.5 (b) (ii). 107

  Administrative Instruction 2006/3 (15 November 2006) UN Doc ST/AI/2006/3 para 9.2, and Administrative Instruction 2006/3/Rev.1 (11 January 2010) UN Doc ST/AI/2006/3/Rev. 1(2010) para 9.2. 108

  Administrative Instruction 2006/3 (15 November 2006) UN Doc ST/AI/2006/3 para 9.3.

109

  Administrative Instruction 2010/3 (21 April 2010) UN Doc ST/AI/2010/3 paras 7.7–7.9.

110

  Administrative Instruction 2010/10 (25 August 2010) UN Doc ST/AI/2010/10 para 3.1.

111

  ibid, para 5.1.

112

  Secretary-General’s bulletin 2003/4 (24 January 2003) UN Doc ST/SGB/2003/4.

113

  Office of the Special Adviser on Gender Issues and Advancement of Women (OSAGI), ‘Flexible Working Arrangements at the United Nations’ (United Nations 2009). 114

  Administrative Instruction 2005/2 (6 May 2005) UN Doc ST/AI/2005/2.

115

  Information Circular 2004/4 (23 January 2004) UN Doc ST/IC/2004/4 para 17.

116

  See UNGA ‘Report of the Redesign Panel on the United Nations system of administration of justice’ (28 July 2006) UN Doc A/61/205, Summary. 117

  Secretary-General’s bulletin 2008/12 (1 August 2008) UN Doc ST/SGB/2008/12 para 4.1. 118

  Secretary-General’s bulletin 2008/5 (11 February 2008) UN Doc ST/SGB/2008/5; Secretary-General’s bulletin (26 October 2008) UN Doc ST/SGB/2008/14. 119

  ‘Achieving gender balance in the United Nations Secretariat’, Letter by SecretaryGeneral Ban Ki-moon, 3 April 2008. 120

  UNGA ‘Report of the Secretary-General: Improvement of the status of women in the United Nations system’ (9 September 2010) UN Doc A/65/334, 28, Table 18. 121

  ibid.

122

  UNGA ‘Report of the Secretary-General: Improvement of the status of women in the United Nations system’ (9 September 2010) UN Doc A/65/334 para 47. 123

  UNGA ‘Report of the Secretary-General: Overview of human resources management reform’ (2 September 2010) UN Doc A/65/305, 48. 124

  ibid, summary.

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125

  UNGA ‘Report of the Secretary-General: Improvement of the status of women in the United Nations system’ (9 September 2010) UN Doc A/65/334, 10. In 1998 only UNFPA had reached gender parity, see also MN 72. 126

  See UN Department of Peacekeeping Operations (DPKO), ‘Women in Peacekeeping’ accessed 4 June 2012. 127

  UNGA ‘Report of the Secretary-General: Improvement of the Status of Women in the Secretariat’ (27 September 1999) UN Doc A/54/405 para 30. 128

  See DPKO/OMA ‘Statistical Report on Female Military and Police Personnel in UN Peacekeeping Operations Prepared for the 10th Anniversary of the SCR 1325’ accessed 4 June 2012; UN Police Magazine No 6 (January 2011) 25. 129

  See IRIN, ‘Women UN Peacekeepers: More Needed’ (New York 20 May 2010); DPKO, ‘UN Mission’s Contributions by Country’ (31 March 2011) accessed 4 June 2012. 130

  n 129.

131

  UNGA ‘Report of the Secretary-General: Improvement of the status of women in the United Nations system’ (19 September 2000) UN Doc A/55/399, 12. 132

  See DPKO/DFS ‘Ten-year Impact Study on Implementation of UN Security Council Resolution 1325 (2000) on Women, Peace and Security in Peacekeeping’: ‘Final Report to the United Nations Department of Peacekeeping Operations, Department of Field Support’ (United Nations 2010) 40; Ten-year Impact Study accessed 4 June 2012. 133

  See Conaway and Shoemaker, 45.

134

  ibid, 44.

135

  DPKO ‘Special and Personal Representatives and Envoys of the Secretary-General’ accessed 12 June 2012. 136

  Ten-year Impact Study (n 132).

137

  ibid, 38.

138

  UN Doc A/65/537, Annex I.

139

  UN Department of Peacekeeping Operations (DPKO), ‘DPKO Policy Directive, Gender Equality in UN Peacekeeping Operations’ (United Nations, November 2006). 140

  Ten-year Impact Study (n 132) 38.

141

  See UN Elections Monitor, Issue 148, 30 July 2010 accessed 4 June 2012. 142

  ‘Based on the principle of universality, the Entity shall provide, through its normative support functions and operational activities, guidance and technical support to all Member States, across all levels of development and in all regions, at their request, on gender equality, the empowerment and rights of women and gender mainstreaming’, see UNGA Res 64/289 (2 July 2010) UN Doc A/RES/64/289 para 51 (b). 143

  ibid, para 53.

144

  UNGA ‘Report of the Secretary-General: Comprehensive proposal for the composite entity for gender equality and the empowerment of women’ (2010) UN Doc A/64/588 para 47.

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145

  Executive Board of the United Nations Entity for Gender Equality and the Empowerment of Women ‘UN-Women strategic plan, 2011–2013’ (16 May 2011) UN Doc UNW/2011/9, Annex III, UN-Women Integrated Resources Framework, 1; Executive Board of the United Nations Entity for Gender Equality and the Empowerment of Women ‘Decision 2011/3, UN-Women strategic plan, 2011–2013’ (30 June 2011). 146

  Arts 1–7 Optional Protocol.

147

  Arts 8–10 Optional Protocol.

148

  As to Art. 8 CEDAW, see MN 41.

149

  Art. 11 Optional Protocol.

150

  See OHCHR, accessed 4 June 2012. 151

  See accessed 4 June 2012.

152

  Referring to T Lie and ‘many of his successors’: K Timothy, ‘Equality for Women in the United Nations Secretariat’, in A Winslow (ed), Women, Politics and the United Nations. Contribution in Women’s Studies No 151 (Praeger 1995) 119. 153

  See UNGA Res 3416 (XXX) (8 December 1975) UN Doc A/RES/3416(XXX) para 3.

154

  UN Doc A/53/342.

155

  ‘Western Europe (including North America) constituted more than a half of the population of professional women (55.8 per cent), while the proportion of professional women from Africa, Asia, Eastern Europe, Latin America and the Caribbean combined represented only 44.2 per cent overall’, see UNGA ‘Report of the International Civil Service Commission for the year 2010’ (2010) UN Doc A/65/30 para 147. 156

  Platform for Action, para 193 (a).

157

  Administrative Instruction 412 (5 January 1996) UN Doc ST/AI/412 para 10.

158

  See UNGA ‘Report of the Secretary-General: Composition of the Secretariat: staff demographics’ (8 September 2010) UN Doc A/65/350, 57, Table 26. 159

  UNGA Fifth Committee, P.R. GA/AB/3100 (25 October 1996).

160

  As to reverse discrimination see MN 127ff.

161

  ECOSOC ‘Annual Overview Report of the Administrative Committee on Coordination for 1995’ (28 May 1996) UN Doc E/1996/18, Add 1, para 103. 162

  ECOSOC ‘Report of the Secretary-General: Assessment of the Implementation of the System-wide Medium Term Plan for the Division for the Advancement of Women, 1996– 2001’ (19 January 2000) UN Doc E/CN.6/2000/3. 163

  UNAT Decision No 671 (Grinblat v Secretary-General) (1994) UN Doc AT/DEC/671, 14.

164

  For detail see Timothy, 127f.

165

  JIU Inspector Fatih Bouayad-Agha, UNGA Fifth Committee, P. R. GA/AB/3129 (29 November 1996); see also F Bouayad-Agha and H Hernandez, Inspection of the Application of United Nations Recruitment, Placement, and Promotion Policies, Pt II, Placement and Promotions JIU/REP/96/6 (1996). 166

  Dennis Halliday, Assistant Secretary-General for Human Resources Management, UNGA Fifth Committee, P.R. GA/AB/3120 (29 November 1996). 167

  UNAT Decision No 671 (Grinblat v Secretary-General) (1994) UN Doc AT/DEC/671.

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168

  UNAT Decision No 765 (Bieler v Secretary-General) (1996) UN Doc AT/DEC/765, 11.

169

  Z Tabatabai, Outgoing Focal Point for Women in the United Nations, in an interview: ‘Promotion to D-2 is extremely difficult for women. Women must perfectly fit the job, while men are measured by their “potential to perform” whether or not they have previously performed as managers’, Network ‘The UN Women’s Newsletter’ (2000) vol 4, no 3 (September 2000) accessed 4 June 2012. 170

  UNGA Fifth Committee, P.R. GA/AB/3202 (9 December 1997).

171

  ibid.

172

  When the Inter-Agency Network on Women and Gender Equality reviewed progress in meeting gender-equality goals at its session in February 2010, it stated that one of the major issues that needs to be addressed in order to increase the representation of women was spouse employment, see UNGA ‘Report of the Secretary-General: Improvement of the status of women in the United Nations system’ (2010) UN Doc A/65/344, para 98c); see also the Dual Career and Staff Mobility Programme accessed 4 June 2012. In 2004 the UN also joined accessed 4 June 2012, a self-financing non-profit-organization, launched in late 2000 by companies. 173

  UNGA ‘Report of the SG: Composition of the Secretariat (26 August 2004) UN Doc A/ 59/299, 14; UNGA ‘Report of the SG: Composition of the Secretariat: staff demographics’ (8 September 2010) UN Doc A/65/350, 53. 174

  Statement of the Representative of India, UNGA Fifth Committee, P.R. GA/AB/3263 (13 November 1998). 175

  See Representative of Guyana, speaking on behalf of the ‘Group of 77’ developing countries and China, UNGA Fifth Committee, P.R. GA/AB/3335 (8 November 1999). 176

  Secretary-General’s Bulletin 282 (5 January 1996) UN Doc ST/SGB/282 para 1.

177

  The purpose of GERWUN, whose membership is open to any member of the UN Secretariat or of other subsidiary organs of the UN in New York, is ‘to eliminate inequalities between men and women in the UN… and to promote mutual respect and understanding between men and women in accordance with the aims of the Charter of the UN’, Art. 1 GERWUN Statute (1986). 178

  eg the decline of women from developing countries in UN staff in the last ten years, see MN 136. 179

  See CPF/Ubeda-Saillard, 617.

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Ch.IV The General Assembly, Composition, Article 9 Siegfried Magiera From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter

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Article 9 (1) The General Assembly shall consist of all the Members of the United Nations. (2) Each Member shall have not more than five representatives in the General Assembly. A.  Significance of the General Assembly 1 B.  Composition of the General Assembly 2–6 I.  Member States 2 II.  Observers 3–6 1.  Basis 4 2.  Categories of Observers 5 3.  Participation of Observers 6 C.  Representation in the General Assembly 7–18 I.  Representatives and Delegations 7–9 1.  Representatives 7 2.  Delegations 8 3.  Permanent Representatives 9 II.  Size of Delegations 10–12 1.  Number of Representatives 10 2.  Additional Members 11 3.  Compatibility with United Nations Charter 12 III.  Composition of Delegations 13 IV.  Delegation of Representatives 14–16 1.  Right of Delegation 14 2.  Duty of Delegation 15 3.  Representation by other Member States 16 V.  Instruction of Delegations 17 VI.  Expenses 18 D.  Right of Representation in the General Assembly 19–39 I.  Credentials 19–20 1.  Form 19 2.  Scope 20

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II.  Examination of Credentials 21–22 1.  Credentials Committee 21 2.  Objections 22 III.  Scope of Examination 23–39 1.  Undisputed Governments 24 2.  Disputed Governments 25–39 (a)  In Cases of Rival Claimants 26–31 (b)  In Cases without Rival Claimants 32–39

(p. 446) Select Bibliography Abbot A, Augustini F, Brown P, and Rode E, ‘The Decredentialization of South Africa’ (1975) 16 Harv Intl LJ 576. Briggs H, ‘Chinese Representation in the United Nations’ (1952) 6 IO 192. Ciobanu D, ‘Credentials of Delegations and Representation of Member States at the United Nations’ (1976) 25 ICLQ 351. Danaher E, ‘The Representation of China in the United Nations’ (1972) 13 Harv Intl LJ 448. Dorfman M, Hasey M, Schmidt J, and Weil L, ‘Cambodian Representation’ (1974) 15 Harv Intl LJ 495. Erasmus G, ‘The Rejection of Credentials: A Proper Exercise of General Assembly Powers or Suspension by Stealth?’ (1981) 7 SAYIL 40. Flauss JF and Singer P, ‘La vérification des pouvoirs à l’Assemblée Générale des Nations Unies’ (1985) 23 AFDI 620. Griffin M, ‘Accrediting Democracies: Does the Credentials Committee of the United Nations Promote Democracy through its Accreditation Process, and should it?’ (1999– 2000) 32 NYU J Intl L & Pol 725. Halberstam M, ‘Excluding Israel from the General Assembly by a Rejection of its Credentials’ (1984) 78 AJIL 179. Higgins R, The Development of International Law through the Political Organs of the United Nations (OUP 1963). Jhabvala F, ‘The Credentials Approach to Representation Questions in the UN GA’ (1977) 7 Calif W Intl LJ 615. Klein E, ‘Zur Beschränkung von Mitgliedstaaten in den Vereinten Nationen’ (1975) 23 VN 51. Koschorreck W, ‘Die Vertretung Chinas in den Vereinten Nationen’ (1966) 23 EA 655. McWhinney E, ‘Credentials of State Delegations to the UN General Assembly: A New Approach to Effectuation of Self-Determination for South Africa’ (1976) 3 Hastings Const L Q 19. Ratliff S, ‘UN Representation Disputes: A Case Study of Cambodia and a New Accreditation Proposal for the Twenty-First Century’ (1999) 87 Calif L Rev 1207. Schermers H and N Blokker, International Institutional Law (4th edn, Nijhoff 2003). Shraga D, ‘La qualité de membre non représenté: Le cas du siège vacant’ (1999) XLV AFDI 649. Suttner R, ‘Has South Africa been Illegally Excluded from the United Nations General Assembly?’ (1984) 17 CILSA 279.

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Suy E, ‘The Status of Observers in International Organizations’ (1978-II) 160 Rec des Cours 75. Tabory M, ‘Universality at the United Nations: The Attempt to Reject Israel’s Credentials’ (1988) 18 IYBHR 189.

A.  Significance of the General Assembly 1  The GA is the only principal organ (Art. 7 (1)) of the UN in which all member States are represented. As the representatives of the member States in the GA are delegated by their governments and subject to their instructions (see MN 17), the GA is a conference of States, not a world parliament of independent representatives of the peoples. Owing to its composition of nearly all the States in the world as members and of other States as observers (see MN 3), and owing to its competence to discuss any questions or matters within the scope of the UN Charter (Art. 10), it can be described as the world’s most important political discussion forum.1 From a legal viewpoint as well, owing to (p. 447) its manifold functions, it holds an eminent position among the organs of the UN. In addition to the composition of the GA (Art. 9) Chapter IV of the Charter regulates in the following provisions: the functions and powers (Arts 10–17), the voting conditions (Arts 18–19), and the procedure (Arts 20–22) of the GA including the right to establish subsidiary organs necessary for performing its functions. In order to improve its role and authority, its organization and procedure as the ‘chief deliberative, policymaking and representative organ of the United Nations’,2 the GA has initiated a much needed and still continuing process of revitalization of its work since the early 1990s.3

B.  Composition of the General Assembly I.  Member States 2  The GA consists of all the members4 of the UN (Art. 9 (1)), ie all original members (Art. 3) and all members admitted later (Art. 4). Admission to the GA becomes effective on the date on which the GA approves the application of the State for membership (Art. 4 (2); Rule 138 of the Rules of Procedure of the GA) and ends on the date on which the membership of the State in the UN ends (by expulsion (Art. 6) or in any other way (eg by the extinction of the State)). In order to ensure that the new member may participate as soon as possible in the work of the GA, the decision on the application for membership is usually made at the beginning of a session immediately following the election of the President and prior to the adoption of the agenda.5 According to Art. 18 each member of the GA has one vote and decisions of the GA are made by a majority or—in specific cases—by a two-thirds majority of the individual members present and voting. This provision guarantees the formal equality of all member States in the proceedings of the GA. With the increase in the membership of the UN it became necessary to ensure the representative character of the world organization also in those organs and bodies which do not consist of all member States. The Charter requires expressly only an equitable geographical distribution for the election of the nonpermanent members of the SC (Art. 23 (1)) and a wide geographical basis for the staff of the Secretariat (Art. 101 (3)). In addition, the GA has developed a system of geographical or regional groups since the late 1950s in order to ensure the representative character for the election of members to organs and bodies on the basis of a balanced geographical distribution among its members, such as its President and Vice-President, the Chairmen of its six Main Committees, and the members of its General Committee as well as the nonpermanent members of the SC and the members of the ECOSOC.6 The present division into five (p. 448) groups distinguishes among African States, Asian States, Eastern European States, Latin American and Caribbean States, Western European and other States.7 The composition of each group is determined by consensus of its members and not strictly based on geographical or regional, but also on political factors.8 The clearest example is the

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group of Western European and ‘other’ States, including Australia, Canada, Israel, New Zealand, and the United States.

II.  Observers 3  In addition to the members of the UN, which alone make up the composition of the GA, so-called observers9 have been admitted to the GA.

1.  Basis 4  The text of the UN Charter provides for non-member States only that the UN shall ensure their observance of the principles of the Charter as far as is necessary for the maintenance of international peace and security (Art. 2 (6)) and that they may bring disputes to which they are a party to the attention of the SC or the GA (Art. 35 (2)) which the GA may discuss when they relate to the maintenance of international peace and security (Art. 11 (2)). In practice, a more comprehensive participation in the work of the GA has been granted to non-member States, as well as to intergovernmental and other organizations. After extending this privilege to ‘other entities’ of a non-governmental character in the early 1990s, the GA restricted its generous practice and decided in 1994 that the granting of observer status should be confined to non-member States and intergovernmental organizations with activities of interest to the GA.10 In addition, the GA decided in 1999 that requests for the granting of observer status in the GA would be considered in Plenary session after consideration by its Sixth (ie Legal) Committee and requested the SG to inform the members of these bodies about the relevant criteria and procedures laid down by the GA for their decision.11 Admission and participation of these observers have been founded on particular legal instruments. However, general principles on the status of observers have been developed only to a limited extent.

(p. 449) 2.  Categories of Observers 5  Several categories of observers can be distinguished: (1) non-member States which either do not want to join the UN as full members or have not (yet) been able to do so;12 (2) specialized agencies brought into a relationship with the UN according to Arts 57 and 63 of the UN Charter;13 (3) intergovernmental organizations for various—political, economic, social, cultural, regional, and other—purposes according to a specific resolution of the GA;14 (4) national liberation movements according to a specific resolution by the GA on the particular organization15 or as far as they were recognized by the (former) (p. 450) OAU;16 (5) certain ‘other entities’ of a non-governmental character with a special role and mandate whose number has been limited (see MN 4).17 Not included in this categorization are members of the UN, although they are sometimes called ‘observers’ when they participate in subsidiary organs of which they are not members.18

3.  Participation of Observers 6  Participation in the GA differs according to the category or individual position of the observer and the organizational structure of the GA. The agreements and resolutions granting observer status provide only very general guidelines on the scope of participation, which have been further developed in the procedural practice of the GA.19 (1) Access to the sessions of the GA, its committees and subsidiary organs depends on the purposes of the particular organ and the functions of the particular observer. Access to organs with limited membership does not go beyond the access granted to member States which are not members of the organ.20 (2) Notifications of the date and the provisional agenda of sessions they may attend are officially transmitted to the observers. (3) Seats are reserved for observers according to their right of presence. (4) Observers may have their written statements circulated by the Secretariat to all delegations and may receive the documents for the meeting and also other UN documents upon specific determination.21 (5) Observers are permitted to make oral statements, including the right to reply, although Rules 115 and 161 of the Rules of Procedure of the GA mention this right only in respect of ‘members’. The From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

permission to address Plenary meetings has been granted to representatives of observers in only a few instances.22 (6) Observers are not entitled to vote or to sponsor substantial proposals or procedural motions.23 (7) Certain observers from liberation movements received payments out of UN funds for their participation in the work of the GA.24

(p. 451) C.  Representation in the General Assembly I.  Representatives and Delegations 1.  Representatives 7  In the GA, which is composed of all the members of the UN, each member shall have not more than five representatives (Art. 9 (2); Rule 25 of the Rules of Procedure of the GA). These must be natural persons because the GA can only act through natural persons.

2.  Delegations 8  The five representatives of a member together with not more than five alternate representatives25 and as many advisers, technical advisers, experts, and persons of similar status as may be required, form the delegation of the member (Rule 25). An alternate representative may act as a representative upon designation by the chairman of the delegation (Rule 26). It must be ensured, however, that the maximum number of representatives of a member (see MN 10) is not exceeded.

3.  Permanent Representatives 9  Representatives and delegations of the members in the GA must be distinguished from their permanent missions to the UN which have been established in the practice of the UN.26 Members of these missions perform functions similar to those of diplomatic missions, in particular to keep the necessary liaison between members and the UN between sessions of the GA.27

II.  Size of Delegations 1.  Number of Representatives 10  The UN Charter limits the number of representatives of a member in the GA to not more than five (Art. 9 (2)). A similar limitation of not more than three representatives had already been imposed on the Assembly of the League of Nations (Art. 3 (4) of the Covenant). Its purpose is to enhance the efficiency of the GA and to prevent a disadvantage for members who cannot afford a larger delegation.28

2.  Additional Members 11  In practice, because of additional advisers, experts, and persons of similar status, several delegations are much larger, with some having more than fifty or even 100 members.29 Their large size enables them to cope better with the personnel requirements resulting from the organizational structure of the GA, which comprises numerous committees and (p. 452) subsidiary organs, often meeting simultaneously (Art. 22 and Rules 96ff, 161 of the Rules of Procedure of the GA). Upon designation by the chairman of the delegation, all members of the delegation, including advisers, experts, or persons of similar status, may act as members of these organs. Only the elections of Chairmen, ViceChairmen, or Rapporteurs of these organs, or for seats in the Plenary meetings, are restricted to the representatives of the delegations and their alternates (Rules 100 and 101 of the Rules of Procedure of the GA). The latter restriction is, however, not enforced in practice, even in the case of voting.30

3.  Compatibility with United Nations Charter

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12  The possibility of enlarging the delegations beyond the maximum number of five representatives laid down in the UN Charter brings about a factual inequality of the members in their participation in the GA. Despite some doubts,31 the practice, which was held admissible under similar provisions (see MN 10) in the Assembly of the League of Nations, appears to be compatible with the UN Charter.32 It does not touch upon the formal equality of the members, which is guaranteed in particular by the principle of equality of voting power (Art. 18 (1)) and, in addition, by the payment of the expenses of five representatives from the least developed member States for participation in the work of the GA out of UN funds (see MN 18). It is also justified by the actual differences among members whose workload varies according to their significance and responsibility in world politics, as can be seen by the fact that some members do not even send five representatives despite the reimbursement of expenses.33

III.  Composition of Delegations 13  The UN Charter and the Rules of Procedure of the GA do not determine which persons are to be included in the delegations, so that the designation of the representatives is left to the member States. At the opening of a session, it is often the Head of State or Government, or the minister of foreign affairs who, in addressing the GA, functions as the head of the delegation. Normally, delegations consist of members of the Foreign Service or other government departments, sometimes also of parliamentarians and eminent private individuals.34

IV.  Delegation of Representatives 1.  Right of Delegation 14  The delegation of representatives to the GA is a right of each member which may only be denied in accordance with the UN Charter. A specific provision for a suspension of this right can be found in Art. 5.35 In practice, however, it amounts to a denial of this right when the representatives of a member are excluded from the GA after a rejection of their credentials (see MN 38).

(p. 453) 2.  Duty of Delegation 15  The delegation of representatives to the GA is also a duty of each member because it is a prerequisite for the functioning of this principal organ, which consists of all the members of the UN. A violation of this duty can, however, only be assumed in the case of a systematic refusal to participate, as the work of the GA does not necessarily require the constant attendance of all members.36

3.  Representation by other Member States 16  From the duty to delegate representatives to the GA, it follows that members cannot be represented by other members. Exceptions are admissible only in technical organs and only for a combined representation of one member and one observer or of two observers.37

V.  Instruction of Delegations 17  In accordance with the right to determine the composition of their delegations (see MN 13), the members have the right to instruct their representatives as to their participation and voting in the GA.38

VI.  Expenses 18  Travel expenses for up to five representatives or alternate representatives attending sessions of the GA were originally paid out of UN funds for each member.39 Since 1986,

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however, payments have been limited to the least developed member States.40 Payments were also made to liberation movements, being observers at the UN (see MN 6).

D.  Right of Representation in the General Assembly I.  Credentials 1.  Form 19  The authority to represent a member (not an observer)41 in the GA must be established in due form according to the Rules of Procedure of the GA. The credentials of representatives shall be issued either by the Head of State or Government, or by the minister of foreign affairs (who need no credentials themselves).42 These credentials and the names of members of the delegation shall be submitted to the SG, if possible not less than one week before the opening of the session (Rule 27 of the Rules of Procedure of the GA).43 (p. 454) In practice, credentials are often submitted late. In such cases when the credentials do not fully meet the requirements of Rule 27, eg when they have been sent by cablegram, the persons named will be seated provisionally.44

2.  Scope 20  The credentials are valid for a particular session. They remain in effect when a session is merely divided into two parts.45 For example, the credentials of the first emergency special session were also recognized at the second emergency special session.46 The permanent representatives of members to the UN (see MN 9) also need formal credentials for the GA, which may be included in their general letter of accreditation.47

II.  Examination of Credentials 1.  Credentials Committee 21  The credentials of representatives are examined by a Credentials Committee, which consists of nine members who are appointed by the GA on the proposal of the President. The Committee must be appointed at the beginning of each session and report without delay (Rule 28). In practice, it normally meets in the second or third week after the opening of the session and, because of late submissions of credentials, also at the end of a session. Member States of the UN which are not members of the Credentials Committee may not participate as observers in the Committee’s work.48

2.  Objections 22  A representative to whose admission a member has raised an objection is seated provisionally with the same rights as other representatives until the Credentials Committee has reported and the GA has made its decision (Rule 29). Despite some early protests, the practice has been accepted that controversies about questions of representation may also be discussed and decided before or parallel to their being dealt with by the Credentials Committee, either by a special committee or directly by the Plenary.49 In order to prevent conflicting decisions on controversial credentials in the UN, the GA has recommended that the attitude adopted by it on any such question should be taken into account by other organs of the UN and in the specialized agencies.50 In their practice the organizations of the UN system have followed the decisions of the GA on representation.51

(p. 455) III.  Scope of Examination 23  The examination of the authority to represent a member in the GA is determined by the requirements laid down in Rule 27 of the Rules of Procedure of the GA (see MN 19).

1.  Undisputed Governments

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24  In cases of undisputed governments, the examination of the credentials is restricted to a clarification of the formal question whether the document submitted has been issued according to Rule 27 of the Rules of Procedure of the GA by the Head of State or Government, or by the minister of foreign affairs of the relevant member State, and whether it names the members of the delegation.52

2.  Disputed Governments 25  In cases of disputed governments, the GA has, however, extended the examination of the credentials.

(a)  In Cases of Rival Claimants 26  In cases of rival claimants who equally purport to be the government entitled to represent the same member State in the GA, a formal clarification that the credentials have been issued in due form by one of the officials designated in Rule 27 is not sufficient to determine beyond doubt the authority to represent the member State in the GA. Rather, the question of the authority of the official to issue the credentials, which is normally answered implicitly, becomes evident and at the same time problematic. 27  As each member State has up to five representatives (Art. 9 (2)) but only one vote (Art. 18 (1)) in the GA, only one delegation may be admitted for each member State. On the other hand, one delegation must be admitted for each member State, as each member State has a right to be represented in the GA (see MN 14). As a consequence, the GA has the right and the duty to decide between the credentials of the rival claimants and thus to clarify the substantive question as to which of the claimants possesses the competence to issue the credentials of the member State for the GA. As far as this decision touches upon the inherent right of the member State to determine its government, this clarification must be regarded as factually unavoidable and legally justified by the provision of Rule 27 of the Rules of Procedure of the GA, permitting and requiring the examination of the credentials issued for the GA.53 28  In practice, the GA has continuously availed itself of this competence54 so that it can now be considered legally established.55 A prominent early example was the controversy over the representation of China between 1949 and 1971.56 Further examples (p. 456) are the controversies over the representation of the Congo in 1960,57 Yemen in 1962,58 Cambodia (Kampuchea) from 1970 to 1990 and in 1997,59 Haiti in 1992,60 Zaire in 1993,61 Afghanistan from 1996 to 2000,62 and Côte d’Ivoire in 2010.63 29  In order to provide a general legal basis for this practice, the GA adopted Res 396 (V) on 14 December 1950, in which it recommended ‘that whenever more than one authority claims to be the government entitled to represent a member State in the United Nations and this question becomes the subject of controversy in the United Nations, the question should be considered in the light of the Purposes and Principles of the Charter and the circumstances of each case’ (para 1). It further declared that the attitude adopted by it ‘shall not of itself affect the direct relations of individual member States with the State concerned’ (para 4). The resolution was the result of a compromise between the opponents of a general regulation and its advocates, who were divided among themselves into those who—subsequent to a British proposal—preferred a more objective standard focusing on the effectiveness of government power, and those who—subsequent to a Cuban proposal— favoured a more subjective standard, which also includes the legitimacy of government power.64 30  Subsequent practice has shown that the resolution has neither been able to end the controversy about the standard applicable to rival claimants, nor to bring about a differentiation in the attitude of member States towards rival claimants inside and outside the UN, as had originally been intended by the SG.65 Accordingly, in controversial cases, when decisions on the representation of rival claimants in the GA have to be made, member

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States put forward arguments of effectiveness, as well as of legitimacy, similar to those they use in cases of recognition of governments in their bilateral relations.66 31  In the course of this practice, 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.67 According to the established practice of the GA, the once accredited representatives of a member State are recognized until the GA, upon the recommendation of the Credentials Committee, decides otherwise.68 Thus, a government will generally be regarded by the GA as being authorized to represent a member State as long as it has (p. 457) not been replaced by a rival claimant who has established effective control over the State independently of the support of a foreign power. This tendency can be derived from the changed attitude of the GA in the controversy over the representation of China in favour of the Beijing government in 1971. It can also be derived from the continued recognition of the Pol Pot government in the controversy over the representation of Kampuchea (Cambodia) in spite of its human rights record and its loss of power to the Heng Samrin government, which was considered to owe its position to foreign support, especially that of Vietnam (see MN 28). In the 1990s, after the end of the Cold War, the GA rejected the credentials of several governments that were in effective control but had come to power by force, eg in Afghanistan, Cambodia, and Haiti (see MN 28). Evidence, however, seems neither sufficient nor consistent enough to infer a change from the traditionally dominant principle of effectiveness to a new standard of (democratic) legitimacy.69

(b)  In Cases without Rival Claimants 32  In cases of disputed governments without rival claimants, it would be sufficient, as in cases of undisputed governments (see MN 24), to establish that the credentials have been issued by one of the officials designated in Rule 27 of the Rules of Procedure of the GA in order to answer the implicit question of authority to represent the member State in the GA. Nevertheless, the GA has—as did the Assembly of the League of Nations in the case of Abyssinia70—also in these cases, as in cases where there are rival claimants (see MN 26– 31), extended its examination further to the material question of whether the disputed government was authorized to issue the credentials, and thus to represent the member State in the GA. 33  Examples of the practice of the GA are the controversies over the representation of Hungary and South Africa, as well as Israel, Nigeria, Portugal, Chile, and Afghanistan.71 In some cases, only reservations were expressed by other member States; in other cases, however, formal proposals were submitted which were decided upon by the Credentials Committee (see MN 21) and the GA.72 In the case of Hungary, the Credentials Committee decided, with the subsequent approval of the GA, to take ‘no decision’ or ‘no action’ on the credentials submitted between 1956 and 1962.73 In the case of Portugal, the Credentials Committee approved the credentials submitted. In 1973, however, the GA approved them only for the European and not for the overseas territories.74 In the case of South Africa, the Credentials Committee approved the credentials submitted until 1973. In 1965, however, the GA decided to take ‘no decision’ on them,75 and between 1970 and 1973 to approve the report of the Credentials Committee ‘except with (p. 458) regard to the credentials of the representatives (of the Government) of South Africa’.76 Since 1974, the Credentials Committee itself, with the subsequent approval of the GA, has rejected the credentials submitted.77 In the case of Israel, the GA decided in 1982 and in later years not to act on proposals to add the words ‘except (for) the credentials of Israel’ to the report of the Credentials Committee which had approved the credentials submitted by the member States.78

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34  The GA has drawn different conclusions from its decisions on the credentials of disputed governments without rival claimants. Until 1973, the representatives of such governments could continue to participate in the sessions not only when their credentials had expressly been approved, but also when no action had been taken, as in the case of Hungary, or even when a negative decision had been reached, as in the case of South Africa. The conclusion to allow further participation in the case when no action has been taken by the GA may still appear to be in accordance with Rule 29 of the Rules of Procedure of the GA (see MN 22),79 but hardly in cases when the credentials have been rejected by the GA.80 Nevertheless, this conclusion was also accepted in the latter case between 1970 and 1973, on the basis of the so-called Hambro formula, an interpretation made by the President of the GA in 1970 and upheld by his successors until 1973. According to this understanding, rejection of credentials signified a very strong condemnation of the policies pursued by the government concerned, but not that its delegation could not continue to participate in the work of the GA.81 In 1974, however, the President of the GA, Bouteflika, changed this interpretation. After a draft resolution to expel South Africa from membership of the Organization according to Art. 6 of the Charter had failed to be adopted in the SC, he concluded that the rejection of credentials in the GA was tantamount to saying in explicit terms that the GA refused to allow the delegation of South Africa to participate in its work. The GA approved this new interpretation by ninety-one votes to twenty-two, with nineteen abstentions.82 It changed its policy with regard to the credentials of South Africa only in 1994 with the end of apartheid83 and has not extended its former course of action to other member States, despite proposals that it should do so (see MN 33). This was confirmed in the case of Madagascar in 2009. Although the GA—against the ruling of its President who had consulted the Legal Counsel—refused by twenty-three votes to four, with six abstentions, to give the floor in the Plenary to a representative of this member State,84 it later approved the recommendation of its Credentials Committee which decided that the (p. 459) representatives of this member State––and also of Guinea––had the right to participate provisionally, but with all the rights and privileges enjoyed by other member States, in the activities of the session until its final recommendation in the case of a formal objection to the credentials.85 35  The legality of this practice is disputed.86 The Special Committee on the Rationalization of the Procedures and Organization of the GA whose conclusions were approved by the GA87 did not consider itself to be in a position to make any proposal on the problems posed by the non-recognition by the GA of a delegation’s credentials.88 The prevailing reasons speak against a compatibility of this practice with the present law of the Charter and the Rules of Procedure of the GA. 36  A justification cannot be derived from a parallel to the practice of the GA regarding rival claimants (see MN 26–28).89 Unlike the situation of rival claimants who both claim to represent the same member State in the GA, the situation of a disputed government without a rival claimant does not require a decision by the GA on the authority of representation. Thus, the decisive reason which justifies the interference by the GA in the inherent right of the member State to determine its government (see MN 27) is lacking here. This fundamental difference between situations of disputed governments with and without rival claimants is clearly confirmed by para 1 of UNGA Res 396 (V) (see MN 29). 37  A justification cannot be derived from an allegedly established practice of the GA either.90 As a result of the completely different situations (see MN 36), the practice relating to rival claimants must be disregarded when assessing the practice relating to a disputed government without a rival claimant. The latter practice, however, at best reveals a tendency according to which the GA assumes the right to express its disapproval of the government by refusing to take a decision on the credentials. The further practice by which the GA has rejected the credentials and precluded the representatives of the government

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from taking part in its sessions has been limited to the unique and heavily disputed case of South Africa (see MN 33). 38  A justification also fails due to a lack of competence on the part of the GA.91 The Charter authorizes the GA only upon the recommendation of the SC, and only when certain requirements are met, to suspend a member State from exercising the rights and privileges of membership (Art. 5), including the delegation of representatives to the GA (see MN 14) or to expel the member State from the Organization (Art. 6). Furthermore, a member State forfeits its right to vote in the GA, if its arrears in the payment of its (p. 460) financial contributions to the Organization exceed a certain limit (Art. 19). A suspension of all or some rights and privileges by the GA without recommendation by the SC, however, is not provided for and appears not to be justifiable in view of the well-balanced rules contained in the Charter. 39  It is in line with this reasoning and thus justified under the Charter that the GA,92 upon recommendation of the SC,93 considered in 1992 that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot automatically continue the membership of the former Socialist Federal Republic of Yugoslavia in the UN. The GA decided, inter alia, that Yugoslavia should not participate in the work of the GA, thus suspending some of its rights and privileges.94 The controversy was resolved on 1 November 2000 when the GA,95 upon the recommendation of the SC96 and the application of the newly elected government, admitted the Federal Republic of Yugoslavia as a (new) member to the UN.97

Footnotes: 1

  C Tomuschat, ‘General Assembly’ in R Wolfrum and C Philipp (eds), United Nations: Law, Policies and Practice, vol 1 (CH Beck 1995) 548; M Peterson, The General Assembly in World Politics (Allen & Unwin 1986) 1–2; A Bennett and J Oliver, International Organizations—Principles and Issues (7th edn, Prentice Hall 2002) 65; for a discussion of a directly elected representative ‘UN Parliamentary Assembly’ see S Wheatley, The Democratic Legitimacy of International Law (Hart 2010) 67–71. 2

  UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1 para 149; see also Report of the Ad Hoc Working Group on the revitalization of the UNGA (8 September 2010) UN Doc A/64/903 para 12. 3

  UNGA Res 46/77 (12 December 1991) UN Doc A/RES/46/77; UNGA Res 65/315 (12 October 2011) UN Doc A/RES/65/315; see also C Much, ‘Revitalisierung der UNGeneralversammlung—die unendliche Geschichte’ in J Varwick and A Zimmermann (eds), Die Reform der Vereinten Nationen—Bilanz und Perspektiven (Duncker & Humblot 2006) 85–99. 4

  See UNCIO XVII, 39, 393.

5

  RP 2 II, paras 5–7; RP 3 I, para 7; RP 4 I, paras 6–7.

6

  UNGA Res 1192 (XII) (12 December 1957) UN Doc A/RES/1192(XII); UNGA Res 1990 (XVIII) (17 December 1963) UN Doc A/RES/1990(XVIII); UNGA Res 1991 (XVIII) (17 December 1963) UN Doc A/RES/1991(XVIII); UNGA Res 2847 (XXVI) (20 December 1971) UN Doc A/RES/2847(XXVI); UNGA Res 33/138 (19 December 1978) UN Doc A/RES/33/138; UNGA Res 48/264 (29 July 1994) UN Doc A/RES/48/264. 7

  For details see M Peterson, The UN General Assembly (Allen & Unwin 2006) 43–50.

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8

  See for details Legal Counsel to the UN (1996) UNJYB 442–43; (2003) UNJYB 528–29; R Kirn, ‘Regional groups within the UN post-EU enlargement’ in J Wouters and others (eds), The UN and the EU: An ever stronger partnership (TMC Asser Press 2006) 355–62. 9

  See in general Fastenrath Art. 4 MN 42–60 and Fitschen on Art. 21 MN 17–25; A Mower Jr, ‘Observer Countries: Quasi Members of the United Nations’ (1966) 20 IO 266–83; Suy, passim; RG Sybesma-Knol, The Status of Observers in the UN (Vrije Universiteit Brussel 1981); N Sybesma-Knol, ‘The Continuing Relevance of the Participation of Observers in the Work of the UN’ in K Wellens (ed), International Law: Theory and Practice: Essays in Honour of Eric Suy (Nijhoff 1998) 371–94. 10

  UNGA Decision 49/747 (2 December 1994) UN Doc A/49/747; for details see P Tavernier, ‘L’année des Nations Unies (1993/1994)’ (1994) XL AFDI 556–57. 11

  UNGA Res 54/195 (17 December 1999) UN Doc A/RES/54/195, paras 2 and 3.

12

  Especially neutral, smaller, or divided States, such as Switzerland (since 1948) before it became a member in 2002 (UNGA Res 57/1 (10 September 2002) UN Doc A/RES/57/1) or the Holy See (since 1964; see UNGA Res 58/314 (1 July 2004) UN Doc A/RES/58/314) and other entities; for further examples see CPF/Lewin, 633; Suy, 162; Fastenrath on Art. 4 MN 46–48; see also P Seger, ‘Die Stellung der Schweiz als Beobachter bei den Vereinten Nationen in New York’ (1995) 5 RSDIE/SZIER 479–514. 13

  Suy, 96–98; for a list which comprises, eg ILO, FAO, UNICEF, WHO, IMF, see Executive Office of the Secretary-General—Protocol and Liaison Office, Permanent Missions to the United Nations (No 301, March 2011) UN Doc ST/SG/SER.A/301, 341–56. 14

  eg OAS (UNGA Res 253 (III) (16 October 1948) UN Doc A/RES/253(III)); League of Arab States (UNGA Res 477 (V) (1 November 1950) UN Doc A/RES/477(V)); African Union, formerly OAU (UNGA Res 2011 (XX) (11 October 1965) UN Doc A/RES/2011(XX)); European Union, formerly European (Economic) Community (UNGA Res 3208 (XXIX) (11 October 1974) UN Doc A/RES/3208(XXIX); see also UNGA Res 65/276 on ‘Participation of the EU in the work of the UN’ (3 May 2011) UN Doc A/RES/65/276, and GAOR 65th Session (3 May 2011) UN Doc A/65/PV.88, 2–14; M Farrell, ‘EU Representation and Coordination within the UN’ in K Laatikainen and K Smith (eds), The EU at the UN—Intersecting Multilateralisms (University of Aarhus 2006) 27–46; E Paasivirta and D Porter, ‘EU Coordination at the UNGA and ECOSOC: A view from Brussels, a view from New York’ in J Wouters and others (eds), The UN and the EU: An ever stronger partnership (TMC Asser Press 2006) 35–48; J Scheffler, Die Europäische Union als rechtlich-institutioneller Akteur im System der Vereinten Nationen (Universität St Gallen 2009) 371–89); Islamic Conference (UNGA Res 3369 (XXX) (10 October 1975) UN Doc A/RES/3369(XXX)); Commonwealth Secretariat (UNGA Res 31/3 (18 October 1976) UN Doc A/RES/31/3); Agency for Cultural and Technical Cooperation (UNGA Res 33/18 (10 November 1978) UN Doc A/RES/33/18); Asian-African Legal Consultative Committee (UNGA Res 35/2 (13 September 1980) UN Doc A/RES/35/2); Latin American Economic System (UNGA Res 35/3 (13 October 1980) UN Doc A/35/3); African, Caribbean and Pacific Group of States (UNGA Res 36/4 (15 October 1981) UN Doc A/RES/36/4); African Development Bank (UNGA Res 42/10 (28 October 1987) UN Doc A/RES/42/10); Council of Europe (UNGA Res 44/6 (17 October 1989) UN Doc A/RES/ 44/6); Caribbean Community (UNGA Res 46/8 (16 October 1991) UN Doc A/RES/46/8); International Organization for Migration (UNGA Res 47/4 (16 October 1992) UN Doc A/ RES/47/4); Economic Cooperation Organization (UNGA Res 48/2 (13 October 1993) UN Doc A/RES/48/2); Permanent Court of Arbitration (UNGA Res 48/3 (13 October 1993) UN Doc A/ RES/48/3); Latin American Parliament (UNGA Res 48/4 (13 October 1993) UN Doc A/RES/ 48/4); Organization for (formerly Conference on) Security and Cooperation in Europe (UNGA Res 48/5 (13 October 1993) UN Doc A/RES/48/5); Commonwealth of Independent States (UNGA Res 48/237 (24 March 1994) UN Doc A/RES/48/237); South Pacific Forum (UNGA Res 49/1 (17 October 1994) UN Doc A/RES/49/1); Central American Integration From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

System (UNGA Res 50/2 (12 October 1995) UN Doc A/RES/50/2); International Criminal Police Organization/INTERPOL (UNGA Res 51/1 (15 October 1996) UN Doc A/RES/51/1); International Seabed Authority (UNGA Res 51/6 (24 October 1996) UN Doc A/RES/51/6); International Tribunal for the Law of the Sea (UNGA Res 51/204 (17 December 1996) UN Doc A/RES/51/204); Andean Community (UNGA Res 52/6 (22 October 1997) UN Doc A/RES/ 52/6); Association of Caribbean States (UNGA Res 53/5 (15 October 1998) UN Doc A/RES/ 53/5); Organization for Economic Cooperation and Development (UNGA Res 53/6 (15 October 1998) UN Doc A/RES/53/6); Inter-American Development Bank (UNGA Res 55/160 (12 December 2000) UN Doc A/RES/55/160); Economic Community of Central African States (UNGA Res 55/161 (12 December 2000) UN Doc A/RES/55/161); Asian Development Bank (UNGA Res 57/30 (19 November 2002) UN Doc A/RES/57/30); Association of Southeast Asian Nations (UNGA Res 61/44 (4 December 2006) UN Doc A/RES/61/44). 15

  Palestine Liberation Organization (UNGA Res 3237 (XXIX) (22 November 1974) UN Doc A/RES/3237(XXIX)); see UN Office of Legal Affairs (1982) UNJYB 156–59; designation changed to ‘Palestine’ (UNGA Res 43/177 (15 December 1988) UN Doc A/RES/43/177); additional rights to participate in work of UNGA granted (UNGA Res 52/250 (7 July 1998) UN Doc A/RES/52/250); South West African People’s Organization (UNGA Res 31/152 (20 December 1976) UN Doc A/RES/31/152); see also Legal Counsel to the UN (2000) UNJYB 359–61. 16

  UNGA Res 3280 (XXIX) (10 December 1974) UN Doc A/RES/3280(XXIX).

17

  International Committee of the Red Cross (UNGA Res 45/6 (16 October 1990) UN Doc A/ RES/45/6); Sovereign Military Order of Malta (UNGA Res 48/265 (24 August 1994) UN Doc A/RES/48/265); International Federation of Red Cross and Red Crescent Societies (UNGA Res 49/2 (19 October 1994) UN Doc A/RES/49/2); Inter-Parliamentary Union (UNGA Res 57/32 (19 November 2002) UN Doc A/RES/57/32; see also Legal Counsel to the UN (2000) UNJYB 363–64; International Olympic Committee (UNGA Res 64/3 (19 October 2009) UN Doc A/RES/64/3); for details see N Sybesma-Knol (n 9), 378–79; C Koenig, ‘Observer Status for the International Committee of the Red Cross at the UN’ (1991) 31 International Review of the Red Cross 37–48; W Remans, ‘The Granting of Observer Status by the GA of the UN to the International Federation of Red Cross and Red Crescent Societies’ in K Wellens (ed), International Law: Theory and Practice: Essays in Honour of Eric Suy (Nijhoff 1998) 347– 62. 18

  See Legal Counsel to the UN (1971) UNJYB 193–94, paras 7–10; 195–96.

19

  See for details RP I, Art. 21, paras 90–117; Legal Counsel to the UN (1962) UNJYB 246– 47; (1971) UNJYB 193–95; (1975) UNJYB 164–67; (1978) UNJYB 164–67; (1987) UNJYB 220–21; (1998) UNJYB 483–85; (1999) UNJYB 408–09; (2000) UNJYB 349–50; Mower (n 9); RG Sybesma-Knol (n 9) 30–44. 20

  See Legal Counsel to the UN (1980) UNJYB 188–89.

21

  For details see the table in Suy, 121.

22

  eg Pope Paul VI (1965), PLO leader Arafat (1974); see Suy, 131–33.

23

  See Legal Counsel to the UN (1995) UNJYB 437–38.

24

  eg the national liberation movements recognized by the OAU; see UNGA Res 3280 (XXIX) (10 December 1974) UN Doc A/RES/3280(XXIX), para 6. 25

  See UNCIO VIII, 531.

26

  UNGA Res 257 (III) (3 December 1948) UN Doc A/RES/257(III); see Legal Counsel to the UN (1962) UNJYB 236; (1977) UNJYB 191.

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27

  See for details A El-Erian, ‘Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character’ EPIL IV (2000) 1317f; E Hambro, ‘Permanent Representatives to International Organizations’ (1976) 30 YBWA 30– 41. 28

  See UNCIO III, 93, 98, 167; VIII, 295–96; also GHS, 108; RM, 358, 366, 425, 843.

29

  RP I, para 12; CPF/Lewin, 636–37; Schermers and Blokker, para 242; List of delegations to the 65th session of the UNGA, UN Doc ST/SG/SER.C/L.619 (16 December 2010). 30

  CPF/Lewin, 636.

31

  Kelsen, 155–56.

32

  J Kolasa, Rules of Procedure of the United Nations General Assembly (Zakław Narodowy im. Ossolińskich 1967) 82. 33

  See CPF/Lewin, 636–37.

34

  CPF/Lewin, 637; Schermers and Blokker, paras 243–54; R Pedersen, ‘National Representation in the United Nations’ (1961) 15 IO 256–57. 35

  See UNCIO XVII, 39; JM Lavieille, ‘La procédure de suspension des droits d’un Etat membre des Nations Unies’ (1977) 81 RGDIP 431, 456. 36

  See UNCIO XVII, 40; Schermers and Blokker, paras 156, 255.

37

  See Legal Counsel to the UN (1965) UNJYB 223; (1967) UNJYB 317–20; Schermers and Blokker, paras 264–66. 38

  For details see Schermers and Blokker, paras 240–241.

39

  UNGA Res 231 (III) (8 October 1948) UN Doc A/RES/231(III); upheld for regular sessions, while restricted to one person for special sessions by UNGA Res 1075 (XI) (7 December 1956) UN Doc A/RES/1075(XI). 40

  UNGA Res 41/213 (19 December 1986) UN Doc A/RES/41/213; see also Recommendation 6 in the Report of the group of high-level intergovernmental experts to review the efficiency of the administrative and financial functioning of the UN, (15 August 1986) UN Doc A/41/49, 6; Legal Counsel to the UN (1976) UNJYB 193–95; (1986) UNYB 1024, 1079–80. 41

  Legal Counsel to the UN (1975) UNJYB 164–66, para 9.

42

  Study prepared by the UN Secretariat, ‘The Practice of the UN Relating to the Status, Privileges and Immunities of the Representatives of Member States to the United Nations’ (1967-II) ILC Yearbook 166, para 19; Legal Counsel to the UN (2005) UNJYB 460– 61. 43

  See Legal Counsel to the UN (1964) UNJYB 225–26; (1970) UNJYB 169–71.

44

  RP I, paras 14–16, 44–45; RP 2 II, para 9; RP 6 II, para 66; see also MN 22.

45

  RP I, paras 37–38.

46

  RP II, para 10; RP 6 II, para 66.

47

  UNGA Res 257 (III) (3 December 1948) UN Doc A/RES/257(III), para 4; RP I, para 17; Legal Counsel to the UN (1977) UNJYB 191. 48

  Legal Counsel to the UN (1983) UNJYB 173–74; see also (1985) UNJYB 128 (selection among UN members).

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49

  RP I, paras 21–34; RP 1 I, paras 14–16; RP 2 II, para 16; Legal Counsel to the UN (1970) UNJYB 169–70, para 4; Dorfman and others, 501–04; for the recent case of Madagascar see MN 34. 50

  UNGA Res 396 (V) (14 December 1950) UN Doc A/RES/396(V), para 3; see RP I, paras 31–47; Legal Counsel to the UN (1985) UNJYB 129–30. 51

  Legal Counsel to the UN (2003) UNJYB 531–33, para 2.

52

  Legal Counsel to the UN (1970) UNJYB 169–70, para 4.

53

  Schermers and Blokker, para 260; Briggs, 195, 208; Dorfman and others, 499–501; Halberstam, 183–84; Suttner, 287–88; Griffin, 731, 773; contra Koschorreck, 660–61. 54

  RP 5 I, Art. 9, paras 20–81.

55

  Ciobanu, 368.

56

  See eg (1950) UNYB 421–29; (1971) UNYB 126–37; also Briggs, 192–209; Danaher, 448– 58; M McDougal and R Goodman, ‘Chinese Participation in the United Nations’ (1966) 60 AJIL 671–727; P Potter, ‘Membership and Representation in the United Nations’ (1955) 49 AJIL 234–35. The representation of China by the Beijing government since 1971 has raised a discussion as to the representation of Taiwan in the United Nations (separate membership, observer status etc); see for details P Chang and K Lim, ‘Taiwan’s Case for United Nations Membership’ (1996/97) 1 UCLA J Intl L & For Aff 393–430; JM Henckaerts (ed), The International Status of Taiwan in the New World Order: Legal and Political Considerations (Kluwer Law International 1996). 57

  UNGA Res 1498 (XV) (22 November 1960) UN Doc A/RES/1498(XV); see (1960) UNYB 66–71, 101; Higgins, 162–64. 58

  UNGA Res 1871 (XVII) (20 December 1962) UN Doc A/RES/1871(XVII); see (1960) UNYB 148–49; Higgins, 161–62. 59

  RP 5 I, paras 19–20, 23–38; RP 6 II, paras 20–39; RP 7 II, paras 16–17; RP 8 II, paras 17– 23; RP 9 II, paras 21–23; (1985) UNYB 228–29; (1997) UNYB 1482; D Rasy, La question de la représentation Khmère à l’ONU (Pedone 1974); Dorfman and others, 495–513; E Sciso, ‘La questione delle credenziali cambogiane all’Assemblea Generale delle Nazioni Unite’ (1981) 64 Riv Dir Internaz 83–95; C Warbrick, ‘Kampuchea: Representation and Recognition’ (1981) 30 ICLQ 234–46; C Umhoefer, ‘UNITED NATIONS: Towards a U.N.Sponsored Cambodian Solution’ (1991) 32 Harv Intl LJ 275–85; Ratliff, 1242–63; Griffin, 737–47. 60

  (1992) UNYB 238.

61

  (1993) UNYB 212; RP 8 II, paras 32–35.

62

  First Report of the Credentials Committee (23 October 1996) UN Doc A/51/548 (1996), paras 6–7; (1996) UNYB 1342; (1997) UNYB 1482; (1999) UNYB 1345; (2000) UNYB 1369; RP 9 II, paras 12–20; RP 10 II, paras 10–12. 63

  Report of the Credentials Committee (22 December 2010) UN Doc A/65/583/Rev.1; UNGA Res 65/237 (23 December 2010) UN Doc A/RES/65/237. 64

  RP I, Art. 10, paras 31–47; (1950) UNYB 429–35; GHS, 77–80.

65

  UNSC S/1466 (9 March 1950) UN Doc S/1466 (1950); see (1950) UNYB 424–25.

66

  For details see RP 5 I, Art. 9, paras 20–81; Legal Counsel to the UN (1997) UNJYB 465– 68, esp para 4. 67

  Higgins, 166; Danaher, 451–52; Dorfman and others, 504, 509.

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68

  See eg Legal Counsel to the UN (2003) UNJYB 531–33, para 4; (2009) UNJYB 407–10.

69

  For more details see Griffin, 727, 768–70, 781–85 and passim; see also Ratliff, 1231–42, who suggests the establishment of a combined ‘four-factor balancing test’ (effective control, consent of the population, meeting international obligations, respecting human rights) which, however, would lead to a denial of representation of any member State whose government does not meet all four requirements and regardless of whether there is a dispute between rival claimants or not. 70

  See H Lauterpacht, ‘The Credentials of the Abyssinian Delegation to the Seventeenth Assembly of the League of Nations’ (1937) 18 BYIL 184–86. 71

  See RP 5 I, Art. 9, paras 20–81; RP 6 II, paras 40–43, 49–64; RP 7 II, paras 13–15, 19–20; RP 8 II, paras 12–16, 24–29; RP 9 II, paras 24–25. 72

  Nigeria (RP 4 I, para 23); Afghanistan and Chile (RP 5 I, paras 77–78; RP 6 II, paras 40– 43); (1981) UNYB 351–52; UN Chronicle XIX (1982) No 12, 38; (1983) UNYB 393; (1985) UNYB 396–97. 73

  RP 2 II, paras 10–13, 18; RP 3 I, para 19; Higgins, 158–59.

74

  UNGA Res 3181 (XXVIII) (17 December 1973) UN Doc A/RES/3181(XXVIII); (1973) UNYB 747–48; RP 5 I, paras 73–76. 75

  UNGA Res 2113 B (XX) (21 December 1965) UN Doc A/RES/2113B(XX).

76

  UNGA Res 2636 A (XXV) (13 November 1970) UN Doc A/RES/2336A(XXV); UNGA Res 2862 (XXVI) (20 December 1971) UN Doc A/RES/2862(XXVI); UNGA Res 2948 (XXVII) (8 December 1972) UN Doc A/RES/2948(XXVII); (1973) UNYB 88, 96; RP 5 I, paras 39–57. 77

  RP 5 I, paras 61–72; RP 6 II, paras 45–48; (1981) UNYB 351; for details see Abbot and others, 576–88; Ciobanu, 351–81; Erasmus, 40–53; Klein, 51–56; McWhinney, 19–35; Suttner, 279–301. 78

  (1982) UNYB 394–96; (1983) UNYB 273–74; (1984) UNYB 268; (1985) UNYB 271; see also RP 5 I, paras 79–80; RP 7 II, paras 19–20; RP 8 II, paras 24–29; RP 9 II, paras 24–25; for details see Halberstam, 179–92; Tabory, 188–209. 79

  See Legal Counsel to the UN (1970) UNJYB 169–70, para 5; Schermers and Blokker, para 258; Erasmus, 43; Halberstam, 184; doubting: Jhabvala, 623. 80

  Jhabvala, 635; Suttner, 291.

81

  (1970) UNYB 145; (1973) UNYB 88; Legal Counsel to the UN (1973) UNJYB 139–40, paras 8–9; (1970) UNJYB 169–71. 82

  (1974) UNYB 106–18; see Legal Counsel to the UN (1975) UNJYB 167–68.

83

  UNGA Res 48/258 A (23 June 1994) UN Doc A/RES/48/258A para 7.

84

  GAOR 64th Session (25 September 2009) UN Doc A/64/PV.8, 18–21.

85

  UNGA Res 64/126 (16 December 2009) UN Doc A/RES/64/126; Report of the Credentials Committee (11 December 2009) UN Doc A/64/571*. 86

  See also Shraga, 661–64.

87

  UNGA Res 2837 (XXVI) (17 December 1971) UN Doc A/RES/2837(XXVI).

88

  Conclusions of the Special Committee, para 116, attached as Annex II to UNGA Res 2837 (XXVI) (17 December 1971) UN Doc A/RES/2837(XXVI), also attached as Annex IV to the Rules of Procedure of the UNGA (September 2007) UN Doc A/RES/520/Rev.17 (2008), cf also Annex I to this commentary.

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89

  Legal Counsel to the UN (1970) UNJYB 169–71; Erasmus, 48; Halberstam, 183, 187; contra Jhabvala, 630–31; McWhinney, 32; Suttner, 290. 90

  Erasmus, 50; Flauss and Singer, 643; Halberstam, 184–91; contra McWhinney, 31.

91

  Legal Counsel to the UN (1970) UNJYB 169–70, para 6; (1968) UNJYB 195–200; Erasmus, 50; Flauss and Singer, 650; K Ginther, ‘Mitgliedschaft in Internationalen Organisationen, Grundfragen’ (1975) 17 DGVR Berichte 7, 36; Halberstam, 185–86; Klein, 52–54; Schermers and Blokker, para 263; Griffin, 773–75; contra Abbot and others, 584; Jhabvala, 637; McWhinney, 33–35; Suttner, 284, 297; differentiating: Ciobanu, 380, who holds a rejection of the credentials, but not of the delegates of the disputed government, to be permissible. 92

  UNGA Res 47/1 (22 September 1992) UN Doc A/RES/47/1; see also Legal Counsel to the UN (1992) UNJYB 428–29 and Note by the SG (30 September 1992) UN Doc A/47/485. 93

  UNSC Res 777 (19 September 1992) UN Doc S/RES/777 (1992).

94

  For details see Tams on Art. 6 MN 25; K Partsch, ‘Belgrads leerer Stuhl im Glaspalast’ (1992) 40 VN 181–88; Schermers and Blokker, para 263; M Wood, ‘Participation of Former Yugoslav States in the United Nations and in Multilateral Treaties’ (1997) 1 Max Planck YB UN L 231–57, 249; contra Y Blum, ‘UN Membership of the ‘New’ Yugoslavia: Continuity or Break?’ (1992) 86 AJIL 830–33; V Jovanovic, ‘The Status of the Federal Republic of Yugoslavia in the United Nations’ (1998) 21 Fordham Intl LJ 1719–36, 1721. 95

  UNGA Res 55/12 (1 November 2000) UN Doc A/RES/55/12.

96

  UNSC Res 1326 (31 October 2000) UN Doc S/RES/1326 (2000).

97

  In 2006 the name of this new State was changed to ‘Serbia and Montenegro’; in 2006 ‘Montenegro’ declared its independence from this State and became a new State of its own as well as a new member of the UN (UNGA Res 60/264 (28 June 2006) UN Doc A/RES/ 60/264), while the remaining State changed its name to ‘Republic of Serbia’, but kept its legal personality and its membership in the UN.

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Ch.IV The General Assembly, Functions and Powers, Article 10 Eckart Klein, Stefanie Schmahl From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter

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Article 10 The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters. A.  The Systematic Position 1–3 B.  The Power of Discussion 4–20 I.  Definition and Scope 4–7 II.  Objects 8–19 III.  Limitations 20 C.  The Power to Make Recommendations 21–41 I.  Position 21 II.  Execution 22 III  Limitations 23–40 IV.  Addressees of Recommendations 41 D.  Form and Legal Nature of Recommendations 42–68 I.  Concept 42 II.  The Practical Use of Terms 43–46 III.  Legal Nature and Legal Effect 47–63 IV.  Other Significance, Especially Political Effect 64–68 E.  UN Reform 69 F.  Evaluation 70–74

Select Bibliography Andrassy J, ‘Uniting for Peace’ (1956) 50 AJIL 563. Arntz J, Der Begriff der Friedensbedrohung in Satzung und Praxis der Vereinten Nationen (Duncker & Humblot 1975). Asamoah OY, The Legal Significance of the Declarations of the General Assembly of the United Nations (Nijhoff 1966). Barberis JA, ‘Les résolutions des organisations internationales en tant que source du droit des gens’ in U Beyerlin, Recht zwischen Umbruch und Bewahrung—Festschrift für Rudolf Bernhardt (Springer 1995) 21. Bentwich N and Martin A, A Commentary on the Charter of the United Nations (2nd edn, Routledge & Kegan 1951). Castañeda J, Legal Effects of United Nations Resolutions (Columbia UP 1969).

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Cheng B, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’ (1965) 5 IJIL 23.(p. 462) Dahm G, Völkerrecht, vol 2 (de Gruyter 1961). Delbrück J, ‘Peacekeeping by the United Nations and the Rule of Law’ in RJ Akkermann and PJ Krieken and others (eds), Declaration on principles—Festschrift Röling (Sijthoff 1977) 73. Dicke DC and Rengeling HW, Die Sicherung des Weltfriedens durch die Vereinten Nationen. Ein Überblick über die Befugnisse der wichtigsten Organe (Nomos-Verl.Ges. 1975). Elias TO, The International Court of Justice and Some Contemporary Problems (Nijhoff 1983). Ellis ME, ‘The New International Economic Order and General Assembly Resolutions: The Debate over the Legal Effects of General Assembly Resolutions Revisited’ (1985) 15 Calif W Intl LJ 647. Frowein JA, ‘Collective Enforcement of International Obligations’ (1987) 47 ZaöRV 67. Goodrich LM and Hambro E, Charter of the United Nations, Commentary and Documents (2nd edn, Stevens 1949). Heidenstecker K, ‘Zur Rechtsverbindlichkeit von Willensakten der Generalversammlung’ (1979) 27 VN 205. Kelsen H, The Law of the United Nations (Praeger 1951). Marchisio S, ‘Le rôle de l’Assemblée générale dans le maintien de la paix et de la sécurité internationale’ in SFDI (ed), Les métamorphoses de la sécurité collective (Pedone 2005) 95. Morley F, The Charter of the United Nations (American Enterprise Association 1946). Peterson MJ, The UN General Assembly (Routledge 2006). Schaefer M, Die Funktionsfähigkeit des Sicherheitsmechanismus der Vereinten Nationen (Springer 1981). ——— ‘Notstandssondertagungen der Generalversammlung’ (1983) 31 VN 78. Simma B, ‘Zur völkerrechtlichen Bedeutung von Resolutionen der UNGeneralversammlung’ in R Bernhardt, J Delbrück, and others (eds), Fünftes deutschpolnisches Juristen-Kolloquium, vol 2 (Nomos 1981) 45. Skubiszewski K, ‘Resolutions of the U.N. General Assembly and Evidence of Custom’ in Università di Genova, Istituto di Diritto Internazionale e della Navigazione della Facoltà di Giurisprudenza (ed), International Law at the Time of its Codification. Essays in Honour of Roberto Ago (Giuffre 1987) 503. Sloan B, United Nations General Assembly Resolutions in Our Changing World (Transnational Publ 1991). Sohn LB, ‘Enhancing the Role of the General Assembly of the United Nations in Crystallizing International Law’ in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century (Kluwer Law International 1996) 549. Tomuschat C, ‘Die Rechtsverbindlichkeit von Beschlüssen der Vereinten Nationen’ (1975) 55 Wirtschaftsdienst 510. ——— ‘Die Charta der wirtschaftlichen Rechte und Pflichten der Staaten—zur Gestaltungskraft von Deklarationen der UN-Generalversammlung’ (1976) 36 ZaöRV 444. ———‘Die Krise der Vereinten Nationen’ (1987) 42 EA 97. Vallat FA, ‘The General Assembly and the Security Council of the United Nations’ (1952) 29 BYIL 63. Volger H (ed), A Concise Encyclopedia of the United Nations (2nd edn, Nijhoff 2010). Zieger G, Die Vereinten Nationen (Niedersächsische Landeszentrale für Politische Bildung 1976).

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A.  The Systematic Position* 1  Amongst the principal organs of the UN, the GA is given pride of place in Chapter IV of the UN Charter. In this Chapter, Art. 10 can be found at the beginning of the (p. 463) subsection ‘Functions and Powers’ (Arts 10–17). This section is not exhaustive, since many additional functions and powers are attributed to the GA in Chapters IX, X, XII, XIII, and XV. However, the very position of Art. 10 indicates the fundamental importance of the GA, in which every member State has a seat and a vote, as the central organ within the UN. 2  Article 10 vests the GA with a general power of discussion and recommendation regarding any questions which comes within the scope of the Charter (the ‘comprehensive jurisdiction’ of the GA). The GA represents the most prominent forum for the discussion of world politics and is therefore also described as the ‘town meeting of the world’1 and the ‘open conscience of humanity’.2 However, the GA is not a world parliament.3 Taking into account the wide-ranging goals and principles which are stipulated in the UN Charter, there are hardly any political questions of international importance not covered by the GA’s power of discussion contained in Art. 10.4 On the other hand, the breadth and vagueness of the formulation of the scope of its responsibility mirrors the lack of power to make binding decisions. So long as the GA may only make recommendations that are usually of a nonbinding nature (see MN 47–63), there is no real need in practice to lay down and define more precisely its area of responsibility. In addition, the GA’s power to discuss issues related to international peace and security is limited by the primary responsibility of the SC in such matters. 3  The GA fulfils its tasks through the work of various specialized committees. Most important, six main Committees deal with core issues of UN policy-making.5 All member States are represented in these Committees: (a)  First Committee: disarmament and international security; (b)  Second Committee: economic and financial matters; (c)  Third Committee: social, humanitarian, and cultural matters; (d)  Fourth Committee: special political and decolonization matters; (e)  Fifth Committee: administrative and budgetary matters; (f)  Sixth Committee: legal matters. Additionally, there are two procedural committees (Credential Committee, General Committee) and more than thirty standing committees, Ad hoc Committees, working groups, and boards.

(p. 464) B.  The Power of Discussion I.  Definition and Scope 4  According to Art. 10, it is in the discretion of the GA to discuss any questions or matters within the scope of the Charter.6 In contrast, Arts 13 (1), 15 (1) and (2), 16, and 17 (1) and (3) prescribe a duty of consideration and discussion. 5  The term ‘discuss’ is used in Art. 10 in the same way as in Art. 11 (2); while in Arts 11 (1), 15 (1) and (2), and 17 (1) and (3), the term ‘consider’ is to be found. This difference in terminology goes back to the Dumbarton Oaks Proposals,7 and indicates that the term ‘consider’ was to be broader than the term ‘discuss’ and was to lead to the making of a recommendation.8 This difference, however, has become irrelevant, since in Arts 10 and 11 (2) and in Art. 11 (1) of the final version of the Charter, the GA is explicitly given the right to make recommendations. At most, a difference can be recognized inasmuch as ‘consider’ refers to a general, regular review of basic principles, while ‘discuss’ concerns current

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topics. In the final analysis, however, such a distinction does not lead to a difference in meaning between the two terms.9 6  The express statutory right of the GA to discuss and recommend also encompasses a right to investigate. This right can be derived from the Charter, since in order to discuss any matter thoroughly, the GA must be in a position to carry out the necessary investigations.10 It includes the right to send observers, to set up investigating commissions and fact-finding missions,11 and to undertake any other investigations which are necessary.12 In addition, Art. 10 became the legal basis for the authority of the GA to supervise mandated territory, and to receive and examine reports from Mandatory Powers.13 However, Lauterpacht has correctly pointed out that in such cases Art. 10 is not the basis of an independent jurisdiction, but only provides the authority to exercise the competence given by the mandator.14 Consequently, Art. 10 gives no absolute authority to exercise control and supervisory functions in member States or to demand reports.15 7  The GA has in fact repeatedly set up investigating committees. In 1946, it set up a special committee (United Nations Special Committee on Palestine, UNSCOP) to investigate the conditions in Palestine.16 In 1956, a commission was formed to investigate (p. 465) the course of events in Hungary.17 The GA also decided to send observers to Lebanon in 1958 (United Nations Observation Group in Lebanon, UNOGIL), in order to apprise itself of the conditions there.18 In 1968, the GA re-addressed the conflict in the Middle East by establishing a further special committee to investigate Israeli practices affecting the human rights of the population in the occupied territories;19 this undertaking was lastly reiterated in December 2009.20 (On the authority of the GA to make statements see Klein and Schmahl on Art. 11 MN 34–35.)

II.  Objects 8  The formulation ‘any questions or any matters’ grants the GA a far-reaching competence. Since the two terms have the same meaning, this is simply a tautology employed to underline the broad jurisdiction of the GA.21 9  The meaning of ‘questions and matters’ is more precisely defined in Art. 11 (1), which speaks of ‘general principles’, while para 2 is concerned with specific ‘questions’. It includes the ‘disputes’ and ‘situations’ mentioned in Art. 12 (1), since reference is made in Art. 10 to the restriction of the GA’s power of recommendation provided for in Art. 12.22 Furthermore, the term ‘situation’, used in Art. 11 (3) to describe a potential threat to the peace, falls under ‘questions and matters’ in Art. 10, with ‘situation’ being a broader term than ‘disputes’, since it also includes the preliminaries to a conflict (see Klein and Schmahl on Art. 12 MN 7).23 10  The ‘scope’ of the UN Charter referred to in Art. 10 is specified in Arts 1 and 2 in which the goals and principles of the UN are laid down. These cover practically the whole field of international relations.24 The provisions of the Charter are even extended to the actions of non-member States, insofar as these are relevant for the preservation of world peace and international security (Art. 2 (6)). On the other hand, the broad scope of the Charter is restricted by Art. 2 (7), whereby matters essentially belonging to the domestic jurisdiction of a State are not covered by the provisions of the Charter. 11  Yet, Art. 2 (7) has itself always been narrowly interpreted. From the beginning, the GA, and later the SC as well, has concerned itself with the domestic situations of member States. It has considered the observance of the principles of the Charter, especially those relating to human rights, as not belonging to the domestic jurisdiction of the State concerned, based on the argument that, because human rights are embodied in

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international law, eg in Arts 1 and 2 as well as Art. 55 of the UN Charter, their enforcement has become an international matter.25 (p. 466) 12  Thus, following a disagreement within the SC in 1946, the GA recommended that Spain under Franco should remain barred from membership of the UN until a new, acceptable government was set up; if this failed to occur within a reasonable time, the SC was to discuss appropriate measures to remedy the situation.26 Furthermore, the member States of the UN were called upon to recall their accredited diplomats from Madrid. Despite the doubts that were expressed to the effect that the recommendations of the GA represented interference in the domestic affairs of Spain, the majority of the GA was of the opinion that an indefinite prolongation of the Franco regime would threaten world peace and violate basic human rights. Since the principles of the Charter were being disregarded, the matter was of international importance.27 Similarly, during its third and fourth sessions, the GA considered the observance of human rights and fundamental freedoms in Bulgaria, Hungary, and Romania.28 It referred to the broad applicability of Art. 10, which encompasses the goals of the UN as also laid down in Arts 55 and 56, encouraging international cooperation in the protection of human rights and fundamental freedoms.29 Moreover, on the Hungarian question (1956), the GA rejected the applicability of Art. 2 (7), since the threat and use of force by foreign troops in Hungary was contrary to the prohibition of force in Art. 2 (4) of the UN Charter, and furthermore represented a crime of genocide.30 13  The GA has taken an even clearer position regarding ‘decolonization’, racial discrimination, and apartheid; with regard to these subjects, it has for a long time refused to apply Art. 2 (7). The GA concerned itself with the problem of racial discrimination in South Africa as early as the 1950s, and it repeatedly urged the South African government to change its apartheid policy since it was incompatible with the goals of the Charter, and it prejudiced friendly relations between States.31 The majority of member States of the GA thus did not regard the policy of apartheid as an internal problem of South Africa; towards the end of the decade an increasing number of Western States also took this position.32 Following the entry of many new States into the UN, the GA hardened its attitude to this question. It stressed the connection between the maintenance of world peace and the observance of human rights by confirming in Res 1761 (XVII) that ‘the continuance of the apartheid policy seriously endangered peace’. This resolution, which was passed on 6 November 1962, against the votes of many West European countries, also called upon all member States, individually or collectively, to take measures ‘to bring about the cessation of apartheid’. Thereafter, the GA continually called the attention of the SC to the situation in South Africa and urged it to take (p. 467) compulsory measures according to Chapter VII.33 The GA has also concerned itself with the Cyprus question,34 the Algerian question,35 the Tibet problem,36 the situation in Angola,37 and, more recently, the situation in Kosovo38 with reference to the protection of human rights and to the right of peoples to selfdetermination,39 despite objections based on Art. 2 (7) (see Klein and Schmah on Art. 12 MN 11 on the parallel activities of the GA and SC). 14  The practice of the GA thus described is based on the view that a serious violation of human rights is to be regarded as a disturbance of world peace. The SC has also interpreted the provisions of the Charter in this way;40 in the case of Rhodesia, it assumed that there was a threat to world peace according to Chapter VII and thus imposed economic sanctions against that government.41 However, it is doubtful whether an interpretation of the Resolution (UNGA Res 3314 (XXIX) (14 December 1974)) on the ‘definition of aggression’ to the effect that the denial of the right to self-determination constitutes a prohibited use of force, justifying the use of force by liberation movements, is correct. Even if the boundaries of national sovereignty have contracted and the applicability of the principle of non-intervention has been reduced, there is a danger that by this interpretation the prohibition of the use of force in Art. 2 (4) will be weakened if not even annulled. This is From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

made all the more possible because there is still no consensus on the definition of selfdetermination and decisions are made by the individual States according to their respective views.42 15  It remains a matter of controversial debate whether the scope of Art. 2 (7), read in conjunction with Art. 2 (1), is further limited by the concept of ‘Responsibility to Protect’ (hereinafter ‘R2P’)—a concept which was elaborated by the International Commission on Intervention and State Sovereignty (ICISS) in 200143 and taken over by UNGA Res 60/1 in 2005 on the grounds of Art. 10.44 The concept mainly argues that the protection (p. 468) of its people is a decisive part of a State’s sovereignty and therefore each State has the primary responsibility to protect its own population from genocide, war crimes, ethnic cleansing, and crimes against humanity. If, however, the State concerned is unable or unwilling to carry out this responsibility, the international community has the right, if not the positive duty,45 to use appropriate diplomatic, humanitarian, and other (peaceful or, as a last resort, coercive) means to restore peace and security.46 This model of a (secondary) responsibility conferred on the international community could strongly limit the scope of the State’s sovereignty in favour of the protection of fundamental human rights, irrespective of their normative coequal nature in international law. Yet, although some provisions of ‘R2P’ already form part of general international law, the legal nature of the entire and multifaceted concept is far from being clear.47 While the High-level Panel on Threats, Callenges and Change as well as the Secretary-General consider ‘R2P’ as an emerging norm of customary law,48 and the SC constantly refers to this concept in recent resolutions,49 the GA has not yet taken a clear position regarding the legal character of ‘R2P’. On the contrary, the GA rather emphasizes the need for further consideration of the entire concept and its implications on the secondary responsibility of the international community.50 Against this background and with regard to the still lacking State practice, ‘R2P’ cannot be considered as already being a (binding) norm of international law.51 16  Finally, it is recognized that, according to existing practice, pending proceedings between two member States before the ICJ do not preclude discussion of the matter by the GA. First, the competence of the GA is only limited in favour of the SC by the reservation in Art. 12; and secondly, only domestic judicial proceedings constitute a (p. 469) ‘domestic matter’, whereas proceedings before the ICJ do not. If understood otherwise, it would be open to any member not fulfilling its obligations under the Charter to call upon the ICJ under a pretext, and thus to prevent the GA from performing its functions.52 On the other hand, in the Irian question (1957), in which Indonesia raised a claim to sovereignty over New Guinea, the GA, after heated discussion, declined to pass a resolution because it came to the conclusion that the problem was primarily a legal one, which the ICJ had to decide before the initiation of negotiations.53 17  The UN Charter does not assign the right of authoritative interpretation of the Charter to any organ of the UN and hence does not empower the GA to make a binding definition of its own area of competence. This does not negate its authority to apply the Charter and also to interpret the provisions of the Charter that define its own responsibilities. The ICJ reached a similar conclusion in its Advisory Opinion, Certain Expenses of the United Nations. The court had to determine whether the GA had the right to consider expenses incurred in taking measures to maintain peace and security in the Near East and in the Congo (peace-keeping operations UNEF and ONUC) as ‘expenses’ in the sense of Art. 17 (2) and to apportion these expenses also to member States that had voted against the measures.54 The ICJ pointed out that proposals made during the formulation of the Charter to the effect that the ICJ should be the final instance for its interpretation had been rejected; thus, advisory opinions of the ICJ are not legally binding. Accordingly, every organ is obliged in the first instance to specify its own areas of responsibility. Thus, an interpretation made by the GA is not of a binding nature; it does, however, carry effective weight. In practice, as suggested in the Advisory Opinion of the ICJ, decisions made by the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

GA on its areas of competence have been accepted, and the principles of the Charter tend to be broadly interpreted.55 18  Finally, the breadth of the authority of the GA is dependent on the current status of the Charter. 19  The reference to the ‘powers and functions of any organs provided for in the present Charter’ in Art. 10 has no independent significance. The ‘scope of this Charter’ is identical with the competence of the UN as set down in the Charter. The authority of the GA therefore also includes the power to discuss matters which are related to the function of any organ provided for in the Charter.56

III.  Limitations 20  The authority of the GA to hold discussions, as described above, is not subject to any further constraints. The reservation contained in Art. 10 and referring to Art. 12 relates only to the GA’s power of recommendation, but not to its power of discussion.57 Similarly, Art. 11 (2) cl 2 does not preclude discussion;58 on the contrary, this section even contains (p. 470) the statement ‘either before or after discussions’. Nor does Art. 11 (3) limit the power of discussion of the GA. Finally, according to Art. 10, the GA does not require a matter to be referred to it, as provided for in Art. 11 (2) cl 1, but rather possesses the right to initiate discussion concerning any matter whatsoever.

C.  The Power to Make Recommendations I.  Position 21  The GA’s power to make recommendations parallels its power of discussion (see MN 8– 20).59 The GA also has the right to initiate recommendations. It is thus not dependent on a referral from another party.

II.  Execution 22  Whether the GA makes use of its power of recommendation is also at its discretion (cf MN 4). However, when the conditions stated in Art. 12 (1) apply, the GA may only make recommendations at the request of the SC; and in the case of Art. 13 (1), the GA even has a duty to make recommendations.

III.  Limitations 23  The GA’s power of recommendation is subject to the reservation of Art. 12 as stated in Art. 10. Accordingly, the GA may not make any recommendations concerning a dispute or situation which endangers world peace as long as the SC is performing the duties assigned to it. This is a procedural restriction aimed at ensuring the performance of the functions of the SC in the maintenance of peace and international security, and at avoiding any overlap with recommendations of the GA. The restriction is to be understood as being purely temporal in nature (see Klein and Schmahl on Art. 12 MN 1, 2).60 Therefore, the GA is not prevented from exercising its power to make recommendations, as long as the SC is not dealing with that issue at the same time.61 24  On the other hand, the GA’s power of recommendation is not restricted by Art. 11 (3), which was added in San Francisco in order to strengthen the position of the GA (see Klein and Schmahl on Art. 11 MN 34).62 25  It is unclear whether a restriction of the GA’s power of recommendation results from Art. 11 (2) cl 2 and opinions differ on this point. According to one opinion, Art. 11 (2) cl 2 is understood merely as a procedural requirement which does not limit the competence of the GA, but only leads to a temporal limitation of its power to make recommendations as contained in Art. 12 (1). Under the other interpretation, a material restriction on (p. 471) the GA’s freedom of action is effected.63 The dispute centres on the question of whether Art.

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10 gives the GA the authority to recommend enforcement measures. This raises the problem of reconciling the Uniting for Peace Resolution (UNGA Res 377 (V) (3 November 1950), which was passed in connection with the Korean Crisis (see MN 37), with the UN Charter. The most important passage of this resolution reads as follows: [The General Assembly] 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 therefore.64 26  If one considers only the wording of Art. 10, the power of recommendation is only restricted by the reservation of Art. 12. Accordingly, the GA could simply recommend enforcement measures with the aim of protecting or restoring peace, since, based on Art. 1 (1), these recommendations fall within the scope of the Charter.65 27  However, such an interpretation is contradicted, above all, by the legislative history of the Charter. Article 3 (3) of the Covenant of the League of Nations empowered the Assembly to deliberate ‘over every question which falls within the area of activity of the confederation or which concerns world peace’. The same power was given to the Council according to Art. 4 (4) of the Covenant of the League of Nations. In order to avoid this sort of jurisdictional overlap in the UN Charter, the Dumbarton Oaks Proposals did not contain any general clauses of this type, but rather saw a clear distinction between the duties and powers of the GA and those of the SC, and above all a two-fold limitation of the powers of the GA. Thus, the powers of the GA were, first, to be limited to discussion, advice, and the making of recommendations, with the power to take action resting in the SC. Secondly, the GA’s powers of discussion and of recommendation were to concern, above all, economic and social matters, while being limited in political questions; in particular, the GA was to have no right of initiative, and was to be debarred from making recommendations in matters concerning the maintenance of peace and international security with which the SC was occupied.66 28  At the San Francisco Conference, there was a conflict of interests between the Great Powers, which supported a concentration of power in the SC, and the smaller States, which wanted to strengthen the position of the GA, especially as a forum for discussion and recommendation. It had, for example, already been proposed by Costa Rica at the Dumbarton Oaks Conference that the GA should have the power at least to suggest measures aimed at the maintenance of peace and the realization of those principles constituting the basis of the Organization.67 More far-reaching proposals by Guatemala and Egypt, namely that the decisions of the SC regarding enforcement measures should be presented to the GA for (p. 472) examination and approval,68 did not gain acceptance. The current text was finally agreed on as a compromise. In this way, the efforts of the smaller States to extend the competence of the GA at the San Francisco Conference were at least partially successful, in that the specifications of Art. 10 were included in the UN Charter,69 thus laying down the comprehensive jurisdiction of the GA. Nevertheless, the basic principle of the predominance of the Great Powers, which is expressed in the competences of the SC, had not been altered. Hence, according to the understanding of the founders, the

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GA was excluded from making recommendations in the area of collective security (Chapter VII).70 29  This result finds support in a consideration of the relationship between Art. 10 and Art. 11, especially Art. 11 (2). Article 10 is defined by Art. 11 (1) with regard to general principles, and through Art. 11 (2) with regard to specific questions concerning the maintenance of international peace and security. Article 11 (2) cl 2 specifies the GA’s duty of referral for questions which require ‘action’. For this reason, the scope of responsibility of the GA depends on the interpretation of the term ‘action’; the narrower the term, the broader the competence of the GA. There is agreement that ‘actions’ go beyond the discussion of matters and the making of recommendations—otherwise Art. 11 (2) cl 1 would be meaningless—and that the term refers to actions by the SC. What is controversial, however, is whether this is to be understood as including all the actions of the SC according to Chapters V–VIII of the Charter,71 or only its enforcement measures according to Chapter VII.72 The ICJ has adopted the following position on this question in its Advisory Opinion on Certain Expenses of the United Nations:73 The Court considers that the kind of action referred to in Article 11, paragraph 2, is coercive or enforcement action. This paragraph, which applies not merely to general questions relating to peace and security, but also to specific cases brought before the General Assembly by a State under Article 35, in its first sentence empowers the General Assembly, by means of recommendations to States or to the Security Council, or to both, to organize peace-keeping operations, at the request, or with the consent, of the States concerned. This power of the General Assembly is a special power which in no way derogates from its general powers under Article 10 or Article 14, except as limited by the last sentence of Article 11, paragraph 2. This last sentence says that when ‘action’ is necessary the General Assembly shall refer the question to the Security Council. 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 VII 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 sentence of Article 11, paragraph 2, has no application where the necessary action is not enforcement action. (p. 473) The Practice of the Organization throughout its history bears out the foregoing elucidation of the term ‘action’ in the last sentence of Article 11, paragraph 2. Whether the General Assembly proceeds under Article 11 or under Article 14, the implementation of its recommendations for setting up commissions or other bodies involves organizational activity—action—in connection with the maintenance of international peace and security. Such implementation is a normal feature of the functioning of the United Nations. Such committees, commissions or other bodies or individuals, constitute, in some cases, subsidiary organs established under the authority of Article 22 of the Charter. The functions of the General Assembly for which it may establish such subsidiary organs include, for example,

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investigation, observation and supervision, but the way in which such subsidiary organs are utilized depends on the consent of the State or States concerned. 30  From this formulation, however, it remains unclear whether recommendations of the GA can also include the adoption of enforcement measures. Consideration of the fundamental division of functions between the SC and the GA, and also the practice of the Organization, support the interpretation that the authority of the GA is only limited by Art. 11 (2) cl 2 when the GA is of the opinion that binding enforcement measures according to Chapter VII of the Charter, for which the SC alone is responsible, are to be decided upon. 31  There is a decisive difference between the recommendation of enforcement actions, and the actual taking of such measures. This is illustrated by the formal definition of the term ‘enforcement’, according to which the existence of an ‘enforcement action’ is not determined by the character of the action itself but by the binding nature of the measure taken. Therefore, a non-binding recommendation is not to be considered as ‘action’, so that the GA is not prevented by Art. 11 (2) cl 2 from recommending coercive measures. This norm only recalls the fact that the GA shall not take any enforcement measures binding on all member States.74 Kelsen75 makes a similar argument when he emphasizes that the necessity of an ‘action’ is decided upon by the GA, in most cases after discussions have been held. Referring a question to the SC would therefore also constitute a request to the SC to take enforcement action. In any case, the SC is not bound by decisions of the GA and is totally free in its further actions. 32  A glance at the practice up to the present time shows that the GA favours this opinion, since it has from the outset made recommendations on the question of safeguarding peace. On the Spanish question, it recommended, for example, in Res 39 (I) (12 December 1946) which was quoted earlier, that the member States of the UN recall their ambassadors from Madrid, a measure which came close to breaking off diplomatic relations with Spain, and which approached a coercive measure under Art. 41 of the Charter. In Res 181 (II) (29 November 1947) the GA directed the attention of the SC towards the Palestine question and recommended, among other things, the use of enforcement measures according to Arts 39 and 41 to the extent necessary to effect the partition plan recommended by the GA (see Klein and Schmahl on Art. 11 MN 35). Furthermore, the GA called upon Albania, Bulgaria, and Yugoslavia in Res 193 (III) (27 November 1948) concerning the Greek question, to discontinue their aid to insurgent groups in Northern Greece, and recommended that the member States of the UN (p. 474) forbid the export of raw materials to Greece’s neighbouring States. Finally, on the South African Question, the GA went so far as to consider the continuation of the apartheid policy as a danger to peace and recommended that the member States adopt diplomatic and economic sanctions according to Chapter VII (Art. 41); moreover, it called upon the SC to take ‘appropriate’ measures in order to ensure compliance with the resolution of the GA.76 Since that time, the GA has often repeated resolutions with a similar content (see MN 13). Even if GA practice has not always been unambiguous and has, on the whole, been rather restrained with respect to recommendations of enforcement measures, it has nevertheless achieved considerable importance for the interpretation of the UN Charter as a multilateral treaty.77 33  The opinion that recommendations of the GA may include coercive measures is confirmed by looking at the purpose of the Charter. The highest aspiration of the UN is the safeguarding of peace, which is best achieved by combined teleological and functional interpretation; this in turn calls for a comparison of the powers granted to the GA and the SC. According to Art. 24 (1), the SC has a primary but not exclusive responsibility for the maintenance of world peace and international security. On the basis of Arts 10, 11, and 14, the GA has a secondary and—relative to the SC—subsidiary responsibility in questions concerning the safeguarding of peace. This interpretation is confirmed by the statements of

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the ICJ in its Advisory Opinion on Certain Expenses (1962) in which it states, regarding Art. 24 of the Charter: The responsibility conferred is ‘primary’, not exclusive. This primary responsibility is conferred upon the Security Council, as stated in Article 24, ‘in order to ensure prompt and effective action’. To this end, it is the Security Council which is given a power to impose an explicit obligation of compliance if for example it issues an order or command to an aggressor under Chapter VII. It is only the Security Council which can require enforcement by coercive action against an aggressor. The Charter makes it abundantly clear, however, that the General Assembly is also to be concerned with international peace and security. Article 14 authorizes the General Assembly to ‘recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the purposes and principles of the United Nations’. The word ‘measures’ implies some kind of action, and the only limitation which Article 14 imposes on the General Assembly is the restriction found in Article 12, namely that the Assembly should not recommend measures while the Security Council is dealing with the same matter unless the Council requests it to do so. Thus while it is the Security Council which, exclusively, may order coercive action, the functions and powers conferred by the Charter on the General Assembly are not confined to discussion, consideration, the initiation of studies and the making of recommendations; they are not merely hortatory.78 The ICJ further upheld this crucial position regarding the GA’s responsibility and competences of engagement in its later Advisory Opinions on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004)79 and on Accordance (p. 475) with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (2010).80 34  From this it can be concluded that in the exercise of its secondary responsibility, the GA may take ‘effective collective measures’ as stated in Art. 1 (1), including the recommendation of coercive measures, in order to realize the safeguarding of world peace as the highest goal of the UN.81 This power was not first given to the GA through the Uniting for Peace Resolution, but rather can be said to belong to the GA by virtue of the spirit of the Charter itself.82 35  As a result, it can be established that a duty of referral on the part of the GA according to Art. 11 (2) cl 2 arises only when, in the opinion of the GA, binding enforcement measures should be taken by the SC according to Chapter VII of the Charter. The general power of the GA to recommend enforcement measures (including military measures) is not limited by Art. 11 (2). There is an exception to the GA’s duty of referral under Art. 11 (2) cl 2, according to the Uniting for Peace Resolution, in cases when the SC is unable to function. In such cases, the GA can recommend military measures even when, in its opinion, binding enforcement measures should be taken by the SC according to Chapter VII of the UN Charter. 36  Finally, the powers of the GA contained in Art. 10 are likewise not limited by Art. 106 which had the function of empowering France and the parties of the Moscow Four-Power Agreement of 1943, for a transitory period and after mutual consultation, to take necessary military measures to safeguard world peace in the name of the UN. This power was to remain until, on the basis of the conclusion of special agreements according to Art. 43, the SC was able to effect military sanctions under Art. 42. Since no special agreements were ever concluded, it is to be assumed that Art. 106 and—according to some authors—also Art. 42 are meaningless. For an action under Art. 42, the agreements necessary under Art. 43

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are lacking. Article 106, on the other hand, grants a purely transitional authority until the SC has the ability to act, and is likewise of no significance today. Even if one accepts that Art. 106 has not become completely obsolete, its scope of application is restricted to common action in the absence of a functioning SC that is able to act according to Art. 42. Other cases of inability to act as foreseen in the Uniting for Peace Resolution lie outside the scope of application of Art. 106. Competences of the GA can at most be affected by Art. 106 where a recommendation by the GA directing the SC to act according to Art. 42 could not be carried out for lack of authority to act. Recommendations of other forms of military action, such as a call to support a State in compliance with Art. 51 of the UN Charter, or to the formation of or participation in peacekeeping forces, are a priori unaffected by Art. 106. 37  During the Korean Crisis which had led to the adoption of the Uniting for Peace Resolution, the GA made use of the powers assigned to it by the Resolution. After a veto (p. 476) (following the return of the Soviet representative) rendered the SC unable to act, the GA stated in Res 498 (V) (1 February 1951) that the Chinese People’s Government had been guilty of an attack, and called upon the member States to aid the UN and to place their military forces under the UN Supreme Command. In Res 500 (V) (18 May 1951) the GA recommended the imposition of a weapons and war materials embargo over the area controlled by the Chinese People’s government and the North Korean authorities.83 38  Subsequent practice has shown, however, that the idea of collective security, as practised by the GA in the Korean Crisis, could not be applied in later conflict situations. It instead appears that the GA itself is well aware of the prohibition against the use of force as laid down in Art. 2 (4), including the danger of eroding this norm at a time when international tension is still prevalent on the one hand, and of the fundamental and primary function of the SC with regard to the settlement of disputes on the other.84 For this reason, the Uniting for Peace Resolution was never used thereafter as a legal basis for measures against aggression, and the GA has, in particular, made no decision on the gathering of troops against an aggressor State. This is true although there have been recently several occasions where a revitalization of the Uniting for Peace Resolution was seen as a possible way to restore peace and security. During the humanitarian crisis in Kosovo in 1999, the Western States could have invoked the Uniting for Peace Resolution in order to authorize their actions later taken by NATO troops.85 After the lack of unanimity of the permanent members in the SC on military actions in Iraq (2003), the US-controlled coalition relinquished discussing relevant measures within the GA. In both cases, the initiating coalitions were obviously afraid that they would not obtain the needed majority when asking the GA for support.86 39  Although the Uniting for Peace Resolution has not been used for taking measures since the Korean Crisis, a revivification might occur in connection with the concept of ‘R2P’ (MN 15). At least ICISS considers Res 377 (V) as a possible alternative to seeking support for military action if the SC fails to exercise its responsibility grounded in ‘R2P’.87 The GA itself has not dismissed its responsibility as outlined in Res 377 (V) in a recent description of its role and authority (UNGA Res 60/286, Annex I (8 September 2006)). Other UN organs, such as the ICJ88 and the GS,89 also continuously recall the GA’s (secondary) responsibility as laid down in the Charter and the Uniting for Peace Resolution. (p. 477) 40  However, Res 377 (V) has, in practice, merely served as an authorization for peacekeeping actions and for the convocation of emergency special sessions (see Klein and Schmahl on Art. 12 MN 29, 30),90 where the non-members of the SC are given the opportunity to comment on the proceedings and decisions of the SC.91 The first such session of the GA was called by the SC on the occasion of the Suez Crisis in November 1956, with the agreement of the Soviet Union, although the latter had earlier spoken out against the adoption of the Uniting for Peace Resolution. The GA passed recommendations calling for the immediate cessation of armed conflict and the withdrawal of foreign troops from the occupied areas. Furthermore, it gave the SG the task of forming UNEF (United From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Nations Emergency Forces in the Near East) and so decisively contributed to the containment of the conflict.92 The subsequent special emergency sessions on the Hungarian Crisis (1956), on the situation in Lebanon (1958), and on the Congo question (1960) largely corresponded to the aims of Res 377 (V) in terms of their convocation procedure, implementation, and results, and in none of these cases did the GA make use of its extended sphere of competence. In its decision No 303 (XXVI) (6 December 1971) on the IndiaPakistan dispute over Bangladesh (1971), the SC cited the Uniting for Peace Resolution and referred the matter to the GA, because a lack of unanimity among the permanent members prevented it from exercising its competence (cf Klein and Schmahl on Art. 12 MN 26). Thereupon, in Res 2793 (XXVI) (7 December 1971) the GA urged India and Pakistan to introduce a ceasefire, but did not recommend any compulsory measures. The tenth and, to date, last emergency special session was convened in 1997 following the rejection of two draft resolutions concerning Israeli settlements by the SC and deals with asserted ‘Illegal Israeli actions in occupied East Jerusalem and the rest of the Occupied Palestinian Territory’.93 The session has not come to its end yet94 and has not produced major input on the ongoing conflict in the Middle East. It rather contributes to the transformation of the Uniting for Peace Resolution from a once promising useful instrument into another forum for rhetorical debate.95 The only practical outcome was that the members of the session initiated the request for an Advisory Opinion (Art. 96 (1)) from the ICJ in the Israeli Wall Case.96 Finally, it can be concluded that the security system laid down in the Uniting for Peace Resolution has not asserted itself in (p. 478) practice. Nevertheless, the ability of the UN to act in crisis situations, in particular in the field of peacekeeping measures, has increased, as the example of the special emergency sessions has shown.

IV.  Addressees of Recommendations 41  According to the wording of Art. 10, the GA can direct recommendations to the members of the UN, to the SC, or to both. To that extent, Art. 10 is narrower than Art. 11 (2) cl 1, under which recommendations can also be addressed to non-members. In practice, the GA has directed its recommendations to numerous States and has not restricted itself to those named in Art. 10. Thus, recommendations have been made to ‘all member states’, to ‘member states’, to ‘certain member states’, to ‘specific member states’, to ‘all states’, to ‘designated states’, to ‘states’, to ‘all governments or countries’, to ‘certain governments’, to ‘nuclear powers’, to ‘non-nuclear powers’, to ‘governments or parties concerned’, to ‘colonial powers’, to ‘mandatory states’, to ‘occupying powers’, to ‘specific subsidiary organs’, to ‘people of a member state or a territory’, to ‘special authorities’, to ‘government institutions’, to ‘non-governmental organizations’, to ‘the private sector’, to ‘the media’, to ‘civil society’, to ‘petitioners’, and to ‘individual persons’. Recommendations have also been directed to the SC, its permanent members, to the SG, to the Secretariat, to the United Nations, to the specialized agencies, to the subsidiary organs of the GA, to ECOSOC, to the funds and programmes of the UN System, to specific international organizations, and to the ‘international community’.97

D.  Form and Legal Nature of Recommendations I.  Concept 42  The Charter of the UN uses the terms ‘recommendations’ and ‘decisions’ to describe acts of the GA. This terminology does not reflect any clear legal distinction; ‘decision’ is used in part as a collective term for all acts (as in Art. 18 (2), without consideration of their contents), but also, in part, to mean a legally binding internal decision (Art. 4 (2)).98

II.  The Practical Use of Terms

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43  In practice, acts of the GA are issued in the form of ‘resolutions’, ‘declarations’, or ‘decisions’. 44  The meaning of the term ‘resolution’, which does not appear in the Charter, is the most comprehensive and can most easily be regarded as the collective term for the mode of expression of the will of the GA. Through ‘resolutions’, the GA makes a specific recommendation, communicates a decision, makes an observation, or issues a reminder.99 45  The term ‘declaration’, likewise not contained in the Charter, is used by the GA for resolutions which claim to express political or legal principles of particular importance, which sometimes intend to embody general rules of public international law. The greater (p. 479) importance of a declaration can also be emphasized by its enactment in a particularly solemn way and, in some cases, also through its designation as a ‘Charter’. Where principles are solemnly declared, relevant charters frequently aim at making States aware of novel international public interests and at the eventual codification thereof.100 Examples of the most important declarations which have attained a quasi-legislative function are: the Universal Declaration of Human Rights of 10 December 1948, Res 217 (III); the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960, Res 1514 (XV); the Declaration on Permanent Sovereignty over Natural Resources of 14 December 1962, Res 1803 (XVII); the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space of 13 December 1963, Res 1962 (XVIII); the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations of 24 October 1970, Res 2625 (XXV); the Charter of Economic Rights and Duties of States, passed on 12 December 1974 as Res 3281 (XXIX); the Manila Declaration on the Peaceful Settlement of International Disputes of 15 November 1982, Res 37/10;101 and the United Nations Declaration on the Rights of Indigenous Peoples of 13 September 2007, Res 61/295.102 46  The Charter empowers the GA to decide specific matters in the form of a legally binding ‘ruling’. These specific matters are questions of a technical or organizational nature, such as the admission, suspension, and expulsion of members (Arts 4, 5, and 6), amendments to the Charter (Arts 108 and 109), the election of members to organs or committees (Arts 23, 61, 97), or budget questions (Art. 17). Most recently, the GA decided, for example, to admit the Republic of South Sudan to membership in the UN, after having received the respective recommendation of the SC (UNGA Res 65/308 (14 July 2011)). Furthermore, the GA suspended, for example, the rights of membership of Libyan Arab Jamahiriya in the Human Rights Council (UNGA Res 65/265 (1 March 2011)), and restored them after the new Libyan regime had made commitments to uphold its obligations under international human rights law (UNGA Res 66/11 (18 November 2011)). The authority of the GA to make legally binding decisions only covers the area relating to internal organization, ie to ‘housekeeping matters’.103 For all other matters, the Charter speaks of ‘recommendations’.

III.  Legal Nature and Legal Effect 47  It has recently been maintained, in keeping with the UN claim of universality, that resolutions passed with a particularly qualified majority attain a legally binding effect. Similar views are held regarding resolutions effecting a more concrete understanding of (p. 480) the provisions of the Charter, or aimed at the codification of rules of customary international law.104 Additionally, in the eighth preambular paragraph of Res 3232 (XXIX) (12 November 1974) the GA has recognized that:

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the development of international law may be reflected, inter alia, by declarations and resolutions of the General Assembly which may to that extent be taken into consideration by the International Court of Justice. Moreover, the ICJ has held, in the Nicaragua Case, in relation to the Friendly Relations Declaration, that: The effect of consent to the text of such resolution cannot be understood as merely that of a ‘reiteration or elucidation’ of the treaty commitment undertaken in the Charter. On the contrary it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves…It would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rule (or set of rules), to be henceforth treated separately from the provisions, especially those of institutional kind, to which it is subject on the treaty-law plane of the Charter.105 These formulae seem to indicate that the GA and the ICJ share the view that GA declarations alone can be seen as embodiments of rules of international law. However, this view does not seem to be an expression of the proper state of international law in force. For one, several governments have expressed their opposition to the GA’s formula, and have declared that they would not have supported it had there been a separate vote on it.106 In turn, the judgment in the Nicaragua Case is contradictory in itself because the ICJ has stressed, later in its judgment, that it ‘must satisfy itself that the existence of the rule in the opinio iuris of States is confirmed by practice’107—although it has not adhered to this test throughout the judgment.108 It is therefore a logical consequence that the ICJ in its Advisory Opinion of 8 July 1996 (Nuclear Weapons Case) expressly notes that GA resolutions may sometimes have a normative value, although they are not legally binding stricto sensu on member States.109 48  The Charter (Arts 10–14) gives the GA the power to make ‘recommendations’. According to the text, this means a non-binding exhortation. In general international usage, a recommendation describes a legal act which expresses a desire, but which is not binding on the addressees.110 49  The legislative history of the Charter also supports this interpretation. At the San Francisco Conference, a proposal presented by the Philippines expressly to vest the GA with the legislative competence to enact rules of international law was unequivocally (p. 481) rejected.111 On the other hand, the lack of a legislative function was precisely the precondition for the granting of an extensive power of discussion and recommendation. The lack of legislative competence of the GA was confirmed by the decision of the ICJ in the South-West Africa Case, which states: ‘Resolutions of the United Nations General Assembly…are not binding, but only recommendatory in character.’112 50  Of course, the resolutions of the GA could have a binding effect if the GA was entitled to make authentic and binding interpretations of the Charter.113 Such a power was, however, expressly denied the GA at the founding Conference in San Francisco. The Belgian proposal already made at the Dumbarton Oaks Conference, namely to incorporate a provision to that effect into the Charter, was unsuccessful.114 Judgments of the ICJ thus far have not contradicted this point. In the Advisory Opinion of 20 July 1962 mentioned above (Certain Expenses Case), the ICJ acknowledged that every organ itself must in the first instance interpret the specifications of its competence as laid down in the Charter; there is, however, no mention of a binding effect on the member States.115 It follows that the GA does not

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enjoy a privilege of interpretation; this would require an alteration of the Charter under Arts 108 and 109.116 51  The legal effect of resolutions of the GA has been a matter of heated debate.117 There seems to be general agreement that GA resolutions may in some instances constitute evidence of customary international law. They may help to crystallize emerging customary international law or contribute to the formation of new customary international law. But, as the Final ILA Report on Formation of Customary General International Law notes,118 GA resolutions do not ipso facto create new rules of customary international law. GA resolutions can at most be used as evidence of customary international law or a general principle of law.119 In that sense, they may be regarded as auxiliary sources of international law.120 (p. 482) 52  Further, the adoption of a resolution could be interpreted as the conclusion of an agreement under international law in the sense of Art. 38 (1) (a) of the Statute of the ICJ. This theory, however, would require that the consent expressed in the formal voting procedure expressed an intention to enter into treaty obligations.121 One problem with this is the fact that representatives of the member States can influence the wishes of the GA while being themselves led by political considerations. Moreover, abstention from voting and express opposition would not be compatible with the construction of a contractually binding effect. Finally, a difference in procedure should be pointed out; the conclusion of a treaty requires, in principle, according to general rules of public international law (cf Art. 11 of the Vienna Convention on the Law of Treaties), the express agreement of the States involved to be legally bound.122 A vote neither satisfies these procedural requirements nor expresses an intent of the States to assume contractual obligations vis-à-vis other States. Nevertheless, resolutions of the GA can make an important contribution to the further development of international treaty law, by developing principles which are later often incorporated into international agreements.123 The two Covenants of 1966, for example, concerning civil and political, as well as economic, social, and cultural rights, were developed from the principles of the Universal Declaration of Human Rights of 1948 (Res 217 (III) (10 December 1948)); additionally, the Outer Space Treaty of 1967 was based on a declaration of the GA dating from 1963 on the activities of States in the exploration and exploitation of outer space (Res 1962 (XVIII) (12 December 1963)).124 Furthermore, the extension, by Art. 1 (4) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I of 8 June 1977), on the scope of humanitarian law to wars of national liberation, has codified the substantive content of Res 3103 (XXVIII).125 Moreover, the GA has through its resolutions encouraged the conclusion of several agreements in the area of arms limitation (see Klein and Schmahl on Art. 11 MN 11). Finally, the GA adopts resolutions establishing negotiating bodies for the elaboration of treaties126 such as the Law of the Sea Convention127 or the UN Framework Convention on Climate Change.128 53  Obviously, GA declarations convey strong indications of elements of the international ordre public. They have been ascribed such ‘authority’129 so as to function as a starting point, frame, and scheme for discussing and establishing certain rules of customary international law.130 However, given their non-binding character it is necessary to examine further whether declarations contained in resolutions can acquire a binding legal status by way of customary international law (Art. 38 (1) (b) of the ICJ Statute). A prerequisite (p. 483) for the creation of customary international law is a uniform and consistent State practice, coupled with the conviction of the States that their actions satisfy a legal obligation.131 This subjective element in the development of customary international law can be seen in voting behaviour in the GA, in cases where the text of a resolution expressly points out that the States are expressing an opinio iuris with their vote, or where this is evident from the circumstances. There is an ongoing discussion as to whether the notion of State practice has come to entail expressions conveyed through the channels of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

contemporary international communication and interaction, ie to a certain extent statements rather than actions would qualify as evidence of opinio iuris. However, it seems that this proposition would only cover declarations made by individual States.132 But voting behaviour alone is not sufficient to establish ‘State practice’133 and would, therefore, remain outside the ambit of this extended understanding of the term.134 Rather, States must confirm their legal conviction through actual behaviour outside the Organization. This was demonstrated in the judgment of the ICJ in the Continental Shelf Cases. Accordingly, an indispensable prerequisite for the creation of new customary international law is that the practice of the States, especially of those whose interests are particularly affected, is exercised thoroughly and consistently—even if only for a short time—in keeping with the rule in question. Furthermore, the practice should evidence general recognition of a legal obligation.135 For this reason, the theory of ‘instant customary international law’136 must be rejected since the accepted definition of customary international law would then lose its elements of ‘State practice’. 54  Resolutions of the GA also play an important role in the development of customary international law by forming a basis for States to act appropriately, and can accelerate the generation of norms of customary international law by promptly articulating new problems (eg the accessibility of outer space and the ocean floor).137 Additionally, individual resolutions of the GA have significance for judgments of the ICJ in determining customary international law, inasmuch as the opinio iuris can, with due caution, be derived from the attitude of States with regard to the recommendations of the GA.138 One such judgment considered whether acceptance of the prohibition of the threat or use of force could be derived from the Declaration of Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (Res 2625 (XXV) (24 October 1970)).139 Furthermore, (p. 484) individual statements in resolutions of the GA reflect rules of customary international law.140 Finally, State practice knows examples where governments have relied on GA resolutions as embodying rules of international law. For instance in an answer to a parliamentary question the German government has invoked the Friendly Relations Declaration in favour of its view that raising funds for financing arms purchases by liberation movements be prohibited.141 55  On one occasion the GA has held, by way of adoption of a resolution, that a certain international agreement has acquired the character of customary international law. Thus, Res 2603 (XXIV) states that the Geneva Protocol of 17 June 1925 ‘embodies the generally recognized rules of international law prohibiting the use in international armed conflicts of all biological and chemical methods of warfare, regardless of any technical developments’. However, many UN member States doubted whether the adoption of a resolution was the appropriate procedure for ascribing the character of custom to the rules contained in a treaty.142 56  It is widely acknowledged that UNGA resolutions may under certain circumstances constitute evidence of existing customary law. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons the ICJ has noted that resolutions ‘can in certain circumstances, provide evidence important for establishing the existence of a rule or of emergence of an opinio juris’.143 The final report of the International Law Association at its London conference144 also recognizes that resolutions of the GA may expressly or impliedly ascertain that a customary rule exists and can constitute rebuttable evidence that such is the case.145 57  Finally, the adoption of resolutions by the GA may be seen as an acceptance of general principles of law in the sense of Art. 38 (1) (c) of the ICJ Statute.146 According to the legislative history of the Statute, these principles originate in concordant national laws, which by way of analogy and comparison become a component of international law. They also include concepts which have developed as principles of form and models of behaviour for new factual conditions in the international legal community. However, as far as relevant From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

in the present context, GA resolutions as such do not have any legislative character whatsoever: they can only form the basis for presuming the creation of a general principle. Yet general principles can only be regarded as legally binding if they are expressly recognized by those UN member States. This has not been the case to date.147 Consequently, it is not possible to classify the content of GA resolutions under one of the categories of Art. 38 (1) (c) of the ICJ Statute. 58  The majority view is that the list in Art. 38 of the ICJ Statute is not a complete enumeration of the sources of public international law. An extension of the authority of the GA could therefore occur—apart from a formal revision of the Charter in compliance (p. 485) with Arts 108 and 109—by way of development of the law through ‘formless, interstate consent’148 of member States, which is said to constitute the original source of public international law and to be superimposed on the sources of public international law contained in Art. 38 of the ICJ Statute. Because of the sovereignty principle contained in Art. 2 (1) of the Charter, such a change would require at least the same majority as a formal amendment of the Charter; ie a two-thirds majority of the members of the GA, including all permanent members of the SC, would have to consent to a declaration in order to give it legally binding effect. The unanimous acceptance of a resolution by the GA is, however, still not proof but merely an indication of the existence of such consent. Real consent only arises when ‘States recognise the content of a resolution as international law before, during or after voting on it by unilateral declarations, implicit acts, or by unopposed acceptance of the respective legal statements’.149 59  It is, however, doubtful whether under certain circumstances GA resolutions adopted unanimously or almost unanimously, and which evince a clear intention on the part of their supporters to lay down a rule of international law, are capable, exceptionally, of creating general customary law by the mere fact of their adoption, as indicated by the Final Report of the International Law Association, adopted at its London Conference 2000.150 It should be noted, however, that the Final ILA Report stresses that it will be extremely rare that there exists a clear intention of the parties to the resolution to lay down a rule of law. The intentions of governments may be hard to determine. Unanimity or a ‘consensus’ vote does not necessarily establish an intention to create a rule of law. Furthermore, the ILA Report concedes that even in the case of unanimous resolutions on outer space, which was largely ‘virgin territory’ before the adoption of those resolutions and therefore apparently a suitable candidate for the creation of new law, Cheng had concluded, after a careful analysis of the relevant resolutions, that there was not a sufficiently widespread or representative agreement that their content should be instant customary law.151 The assumption, however, by the ILA Report, that if governments choose to take their formal stands by means of a GA resolution and if it can be shown that States as a whole really did consent to the rules set out in the resolution, there is no reason why this should not count. It neglects the legal nature of GA resolutions. As Judge Lauterpacht argued in his Separate Opinion in Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa, ‘the absence of full legal binding force in the resolutions of the GA is a…fundamental and…rudimentary proposition’.152 Thus, even if one would subscribe in general to the assumption, stated in the ILA Final Report, the condition may only be met under very exceptional circumstances. A large majority of votes certainly does not meet the test. As the ICJ has stated in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the reiteration of a resolution asserting the illegality of the threat or use of nuclear weapons is not (p. 486) sufficient; in the light of the opposition of nuclear-weapon States to these resolutions, the ICJ felt unable to hold that they

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represented binding customary law.153 Therefore, even repetition of the same alleged rule in a series of resolutions does not of itself add to the legal obligation.154 60  According to another view, declarations of the GA are to be seen as new sources of public international law when they meet the following criteria:155 (a)  the necessary degree of agreement when the resolution is passed; (b)  a wording which confirms the legal nature of the resolution; (c)  sufficient conviction of the States as to the legally binding force of the resolution; (d)  a degree of enforcement based on subsequent practice of the members over a definite and limited period of time. 61  According to both views, the acceptance of ‘true consent’ or the necessary degree of agreement does not depend on a marked numerical majority alone; what matters is that States whose interests are particularly affected need to have agreed to the rule in question. The Charter of Economic Rights and Duties of States, which was passed by an overwhelming majority (Res 3281 (XXIX) (12 December 1974)) is one example. The Western industrialized States, which were mainly affected, did not agree with this resolution and, in order to dispel any doubt, documented their objections in formal reservations, which are normally only made in connection with international agreements.156 In practice, few declarations quoted in the literature as examples of a quasi-legislative function of the GA have been able to fulfil the abovementioned prerequisites for a legally binding effect. The unanimously accepted Outer Space Declaration of the GA (Res 1962 (XVIII) (13 December 1963)) probably comes closest, since the representatives of both the United States and the Soviet Union, the only air space powers at the time, expressed their intention to respect the legal principles laid down in the resolution.157 62  To sum up, ‘[t]he evidential value of [GA] resolutions varies from case to case and cannot be assessed once and for all’.158 It appears that generally resolutions of the GA are not legally binding but do help to form and shape new public international law and are thus an important material source of both treaty and customary international law.159 63  Finally, the significance of GA resolutions is emphasized by judgments of the ICJ attributing specific legal effect to them.160 In its Advisory Opinions on Namibia and on the Western Sahara, for example, the ICJ designated the Declaration on the Granting of Independence to Colonial Countries and Peoples (Res 1514 (XV) (14 December 1960)) as the basis for the process of decolonization, which since 1960 has led to the creation of many new States, now members of the UN.161 In its decision in the Nicaragua Case, the ICJ referred to UNGA Res 2625 (XXV) (24 October 1970)162 in order to distinguish (p. 487) between various types of force and to confirm the principle of non-intervention. In addition, constant practice of the UN (Res 380 (V) (17 November 1950), 2131 (XX) (21 December 1965), 2625 (XXV) (26 October 1970), and 3314 (XXIX) (14 December 1974)) was presented as evidence for the contention that protracted State involvement in the activities of armed insurgent troops constituted a prohibited use of force under Art. 2 (4).163

IV.  Other Significance, Especially Political Effect 64  Since the creation of the UN, the GA has been used as a forum for the articulation of the various political interests of the member States, but also as an instrument for advancing the individual interests of specific major powers or groups of States. For a long time in particular, the ‘Group of 77’, which has grown to almost 120 Third World States, has made political and social demands on the Western industrialized countries to redistribute wealth

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to benefit developing nations. Thus, declarations of the GA have frequently led to a reconsideration of development issues at the national level. 65  Even if a State has no legal consequences to fear from disregarding GA decisions supported by a large majority of the international community, it exposes itself to international disapproval via the GA. In the long run, no State can do this without being pushed into the position of an outsider. On the other hand, a large numerical majority is not in itself sufficient to establish a GA resolution as an emerging principle requiring at least moral acceptance. Occasionally, the Third World States have used their majority in an extremely unfair manner in the GA, thereby inflicting damage on the Organization,164 eg by passing Res 3379 (XXX) (10 November 1975) stating that Zionism was a type of racism and racial discrimination. This resolution, finally annulled in 1991, not only weakened the influence of the UN on Israel, but also tarnished its relationship with the United States, its major contributor. In the final analysis, only balanced compromises serve to establish a lawful order within the community of States and to realize the political goals of the Charter. 66  Furthermore, the question arises as to whether resolutions of the GA can legally justify conduct by member States which would otherwise be contrary to international law. Most, if not all, cases of voluntary agreement on the use of sanctions, eg against South Africa, have been such that the application of the sanctions did not conflict with public international law. Nevertheless, it cannot be assumed that a decision of the SC or a resolution of the GA can be used as a justification simply because the recommendations are made within the scope of the authority of the UN.165 It is not within the province of the GA nor of other organs of the UN to authorize the release of member States from their duties under public international law or to suspend the effect of law already in force. The claim that resolutions of the GA have a legally justifying effect is, therefore, to be rejected. On the other hand, one must recognize that legal interpretations expressed by a large majority of States representing the ‘world community’ can attain considerable political (p. 488) weight, making it very difficult for the affected State to maintain a diverging legal position; or to put it differently, GA resolutions may shift the burden of argument to this State. 67  According to the ICJ Advisory Opinion on Certain Expenses of the United Nations,166 recommendations of the GA gain special importance in the area of peacekeeping measures. In this particular case, the Soviet Union and France had refused to contribute to budget expenses for peacekeeping activities in the Near East (UNEF) and in the Congo (ONUC). In its Advisory Opinion, the ICJ found it permissible for the GA to demand reimbursement of costs incurred in these operations in the sense of Art. 17 (2) even from those members who had voted against the measures. Thus, the recommendations of the GA are indirectly binding on the member States for any costs which they themselves incur. However, the opinion of the ICJ did not have much practical effect, since the sanction of Art. 19 (disqualification from voting when payments are in arrears) against the defaulting member States was waived in the case in question. 68  Finally, according to the view of the ICJ in the Namibia Advisory Opinion,167 there exists a presumption that a resolution passed by a duly constituted organ of the UN in conformity with the rules of procedure of the organ, and confirmed as such by the President, is formally valid.

E.  UN Reform 69  Throughout the 1990s as well as during the last decade (2000–2010) there was—and still continues to be—an ongoing debate on UN reform. Relevant suggestions have included changes of GA discussion and decision-making processes.168 Not only scholars, but also several UN bodies, such as the GA and the GS, strive towards enhancing the GA’s role as chief deliberative, policy-making, and representative body of the United Nations.169 To that aim, the Ad Hoc Working Group on the Revitalization of the GA was established in UNGA Res 59/313 (12 September 2005) with the mandate to contribute to the debate and enhance From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the role, authority, effectiveness, and efficiency of the GA.170 Furthermore, the GA made amendments to its rules of procedure in order to improve its work.171 Notwithstanding the need for discussion of whether the sources of inefficiencies are diverging interests of member States and lack of financial resources rather than inappropriate structures,172 there can be no doubt that the GA would be in a position to effect (p. 489) changes considered necessary by changing its internal rules without amending Art. 10 of the Charter. Only the introduction of weighed voting would require such amendment.

F.  Evaluation 70  An evaluation of the function of Art. 10 must consider the practical application of this provision, especially in the context of the relationship between the GA and the SC. 71  Soon after the Charter came into force, it was seen that due to deep-seated disagreement between the major powers, which had led to active use of the veto right above all by the Soviet Union, the SC could not fulfil its primary responsibility to maintain peace, and that the system of collective security firmly established in the Charter was, therefore, not functioning. After the SC was unable to come to a decision on the merits of the Spanish question (1946) or the Greek conflict (1946/7), the Western majority on the SC referred the matter to the GA in the hope that it would achieve the necessary majority for an appropriate line of action. The GA dealt with the question and delivered its recommendations, which were frustrated by the Soviet veto in the SC.173 The inability of the SC to act led the GA to assume an auxiliary function with respect to Art. 10. Through the Uniting for Peace Resolution, conceived on the occasion of the Korean Crisis, the competing functions of the SC and GA were institutionalized and a formal process for the exercise of the ‘secondary’ authority of the GA was created. 72  With the decolonization phase of the 1960s and the related growth in the influence of States of the ‘Third World’, the main emphasis of GA operations shifted to the realization of the independence of numerous previously colonized States. The GA has developed into an indispensable forum for the peaceful airing of conflicts of interest and for the articulation of demands of the Third World for independence. In the area of maintenance of peace, however, the loss of the Western States’ majority has become regrettably apparent. The GA was struck by ineffectiveness that shifted emphasis back to the SC, facilitated by the incipient easing of East-West tensions. This development has continued to the present day, since the interests of the major powers often converge, at least partially, as seen in the SC’s resolutions on the South African problem, during and since the Gulf War,174 and more recently during the humanitarian crisis in Kosovo as well as in the preliminary stages before the invasion in Iraq.175 73  Since the beginning of the 1970s, the GA has increasingly dealt with the revision of the world economic system along with the South African question and has attempted, with the help of the large voting majority of the Group of 77, to enforce unilateral economic and social demands against the Western industrial nations. There have been no recognizable signs to date that the GA has succeeded, through Art. 10, in achieving major progress towards a new global economic system. (p. 490) 74  As a result, it may be concluded that in practice, Art. 10 has largely served to strengthen the role of the GA, with its interpretation heavily dependent on political elements. The dramatic political changes since the 1990s, particularly the dissolution of the Soviet Union into sovereign States and the enlargement of the European Union, have undoubtedly affected the distribution of powers between the GA and the SC. The primary role of the SC, based upon a particular historical situation, cannot be upheld for an

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indefinite period of time once the decisive factors for its special structure and powers have changed. In the long run, this finding will probably lead to an increase of powers of the GA.

Footnotes: *  The authors acknowledge that the following text contains elements of the respective comments on Art. 10 by Kay Hailbronner and Eckart Klein in the previous edition of this commentary. 1

  FA Vallat, ‘United Nations General Assembly’ EPIL IV (2000) 1120.

2

  Kelsen, 199.

3

  E Luard and others, The United Nations: How it Works and What it Does (MacMillan 1995) 38. Yet, the language applied by some commentators seems to point in the opposite direction. See for instance LB Sohn, ‘Enhancing the Role of the General Assembly of the United Nations in Crystallizing International Law’ in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century (Kluwer Law International 1996) 555: ‘[T]he Assembly became a more democratic institution in which practically all peoples of the world were directly represented…[T]he General Assembly became entitled to speak in the name of all States in the world, and its decisions became the decisions of the world community, of mankind as a whole.’ However, the pathos thus employed cannot ‘enhance’ the limited role of the GA as framed by the attribution of powers embodied in the Charter. 4

  RP I, 260; cf Luard (n 3) 39.

5

  UNGA Res 47/233 (17 August 1993) UN Doc A/RES/47/233. As to the work of the six main Committees and the formally established sub-committees see MJ Peterson, The UN General Assembly (Routledge 2006) 60f; N Weiß, Kompetenzlehre internationaler Organisationen (Springer 2009) 143ff. 6

  Weiß (n 5) 152ff. For an outline of a GA session see Peterson (n 5) 57f.

7

  Dumbarton Oaks Proposals, Chapter V. The General Assembly, s B, Functions and Powers, para 1, UNCIO III, 4f. 8

  LM Goodrich and E Hambro, Charter of the United Nations, Commentary and Documents (2nd edn, Stevens 1949) 164. 9

  N Bentwich and A Martin, A Commentary on the Charter of the United Nations (2nd edn Routledge & Kegan 1951) 37; Kelsen, 201. 10

  G Dahm, Völkerrecht, vol 2 (de Gruyter 1961) 195; cf also Art. 22.

11

  See UNGA Res 35/176 (15 December 1980) UN Doc A/RES/35/176; further see F Ermacora, ‘The Competence and Functions of Fact-finding Bodies’ in BG Ramcharan (ed), International Law and Fact-Finding in the Field of Human Rights (Nijhoff 1982) 83ff. 12

  Besides the GA, a few other UN bodies are entitled to set up investigating committees. Among those actors are the SC, the ECOSOC, and the GS. 13

  International Status of South-West Africa (Advisory Opinion) [1950] ICJ Rep 137.

14

  Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa (Advisory Opinion) [1950] ICJ Rep 122. 15

  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Resolution 276 (1970) (Advisory Opinion) (Dissenting Opinion Judge Fitzmaurice) [1970] ICJ Rep 236. 16

  (1946/1947) UNYB 294, 301.

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17

  RP 2 II, 32, 86f; (1956) UNJYB 73, 81f; (1957) UNJYB 60ff.

18

  (1958) UNYB 38.

19

  UNGA Res 2443 (XXIII) (19 December 1968) UN Doc A/RES/2443(XXIII).

20

  UNGA Res 64/91 (10 December 2009) UN Doc A/RES/64/91.

21

  Kelsen, 198; DC Dicke and HW Rengeling, Die Sicherung des Weltfriedens durch die Vereinten Nationen. Ein Überblick über die Befugnisse der wichtigsten Organe (Nomos 1975) 100. Similarly CPF/Doumbe-Bille, 644f. 22

  Kelsen, 202.

23

  ibid, 022041.

24

  cf Proposal of New Zealand in Dumbarton Oaks Proposals, UNCIO II, 487: ‘the General Assembly shall have the right to consider any matter within the sphere of international relations’. 25

  GHS, 113; Bentwich and Martin (n 9) 35f; C Tomuschat, ‘Generalversammlung’ in R Wolfrum (ed), Handbuch Vereinte Nationen (2nd edn, CH Beck 1991) 229; J Delbrück, ‘Peacekeeping by the United Nations and the Rule of Law’ in RJ Akkermann and others (eds), Festschrift Röling (Sijthoff 1977) 88. 26

  UNGA Res 39 (I) (12 December 1946) UN Doc A/RES/39(I); GHS, 128.

27

  RP I, 314ff.

28

  UNGA Res 272 (III) (30 April 1949) UN Doc A/RES/272(III); UNGA Res 294 (IV) (22 October 1949) UN Doc A/RES/294(IV); RP 1 I, 119. 29

  RP I, 261.

30

  RP 2 II, 44f, 79.

31

  UNGA Res 616 (VII) (5 December 1952) UN Doc A/RES/616(VII); UNGA Res 721 (VIII) (8 December 1953) UN Doc A/RES/721(VIII); RP I, 262f; UNGA Res 820 (IX) (14 December 1954) UN Doc A/RES/820(IX); UNGA Res 917 (X) (6 December 1955) UN Doc A/RES/ 917(X); RP 1 I, 117ff; UNGA Res 1016 (XI) (30 January 1957) UN Doc A/RES/1016(XI); UNGA Res 1178 (XII) (26 November 1957) UN Doc A/RES/1178(XII); UNGA Res 1248 (XIII) (30 October 1958) UN Doc A/RES/1248(XIII); RP 2 II, 15. 32

  Among others: United States, New Zealand, (1959) UNYB 58.

33

  UNGA Res 2054 (XX) (15 December 1965) UN Doc A/RES/2054(XX); UNGA Res 2671 (XXV) (8 December 1970) UN Doc A/RES/2671(XXV); UNGA Res 3151 (XXVIII) (14 December 1973) UN Doc A/RES/3151(XXVIII). 34

  RP 1 I, 119f.

35

  RP 1 I, 121f; RP 3 I, 218.

36

  RP 3 I, 220.

37

  RP 3 I, 220f.

38

  UNGA Res 54/183 (17 December 1999) UN Doc A/RES/54/183; UNGA Res 63/3 (8 October 2008) UN Doc A/RES/63/3. 39

  With the pro-democracy protests that have engulfed much of North Africa and the Middle East, the world is currently facing an important shift in global history. However, the GA has only taken two resolutions regarding this topic so far, see UNGA Res 66/176 (19 December 2011) UN Doc A/RES/66/176, and UNGA Res 66/253 (16 February 2012) UN Doc A/RES/66/253, both on the situation of human rights in the Syrian Arab Republic. The SC

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has not enacted a corresponding resolution against Syria because of Russia’s and China’s vetos of 4 February 2012, see Vashakmadze on Responsibility to Protect MN 47f. 40

  UNSC Res 181 (7 August 1963) UN Doc S/RES/181, on the situation in South Africa; (1963) UNYB 20. Further see eg UNSC Res 794 (3 December 1992) UN Doc S/RES/794, on the situation in Somalia, and recently UNSC Res 1973 (17 March 2011) UN Doc S/RES 1973, on the situation in Libya. 41

  UNSC Res 232 (16 December 1966) UN Doc S/RES/232; (1966) UNJYB 94, 109f.

42

  See Oeter on Self-Determination MN 23ff.; Delbrück (n 25) 89; E de Wet and M Wood, ‘Collective Security’ MPEPIL (online edn) MN 1f. The most recent developments regarding Kosovo and Palestine are analysed by R Falk, ‘The Kosovo Advisory Opinion: Conflict Resolution and Precedent’ (2011) 105 AJIL 50, 56–60. 43

  ICISS, The Responsibility to Protect (Report, December 2001) vii and xi, available at accessed 8 June 2012. 44

  UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1, paras 138, 139.

45

  As to this topic cf C Verlage, Responsibility to Protect (Mohr Siebeck Verlag 2009) 185f.

46

  UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1 para 139; ICISS Report (n 43). 47

  For a summary of critical remarks on ‘R2P’ see C Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ (2006) 101 AJIL 99, 102f; M Matthews, ‘Tracking the Emergence of a New International Norm: The Responsibility to Protect and the Crisis in Darfur’ (2008) 31 BC Intl & Comp L Rev 137, 146f. 48

  See Report of High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (2004) UN Doc A/59/565, paras 201ff and Report of the Secretary-General (Annan), In Larger Freedom: Towards Development, Security and Human Rights for All (2005) UN Doc A/59/2005 para 135. Secretary-General Ban Ki-moon further contributes to the acceptance of ‘R2P’ in a recent Report on ‘Implementing the responsibility to protect’ (2009) UN Doc A/63/677. 49

  UNSC Res 1674 (28 April 2006) UN Doc S/RES/1674 para 4; UNSC Res 1706 (31 August 2006) UN Doc S/RES/1706; UNSC Res 1755 (30 April 2007) UN Doc S/RES/1755; UNSC Res 1857 (22 December 2008) UN Doc S/RES/1857; UNSC Res 1894 (11 November 2009) UN Doc S/RES/1894. See also de Wet and Wood (n 42) MN 16. With regard to Libya, the SC does not mention the concept of ‘R2P’ explicity but it does, in substance, make reference to the prerequisites of this concept in order to authorize member States to take all necessary measures to protect civilians under threat of attack in the Libyan Arab Jamahiriya, see UNSC Res 1970 (26 February 2011) UN Doc S/Res/1970 and UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973 (in particular paras 3–4). On the contrary, Russia and China have recently (4 February 2012) vetoed a Draft SC Resolution on Syria, which was proposed by Western States backing up an Arab League plan to stop gross human rights violations in Syria, see MN 13 with n 39. 50

  UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1 paras 138, 139; UNGA Res 63/308 (14 September 2009) UN Doc A/RES/63/308. 51

  This is the nearly unanimous view of the legal doctrine, see A Bellamy, ‘The Responsibility to Protect—Five Years On’ (2010) 24 Ethics & International Affairs 143, 160f; E Luck, ‘Der verantwortliche Souverän und die Schutzverantwortung’ (2008) 1 VN 2008, 51f; Stahn (n 47), 110f; I Winkelmann, ‘Responsibility to Protect’ MPEPIL (online edn) MN 22; T Stoll, ‘Responsibility, Sovereignty and Cooperation—Reflections on the “Responsibility to Protect”’ in D König and others (eds), International Law Today: New Challenges and the

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Need for Reform? (Springer 2008) 1, 15; Vashakmadze on Responsibility to Protect MN 65– 68. For different approaches cf Verlage (n 45) 226f, 262f. 52

  RP 3 I, 217.

53

  RP 2 II, 16ff.

54

  Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, 168.

55

  cf FA Vallat, ‘The General Assembly and the Security Council of the United Nations’ (1952) 29 BYIL 63, 67. Similarly O Dörr, ‘Certain Expenses of the United Nations (Advisory Opinion)’ MPEPIL (online edn) MN 13–14. 56

  Kelsen, 198; Dicke and Rengeling (n 21) 100; see also Art. 7 (2).

57

  GHS, 130; Bentwich and Martin (n 9) 39. See also Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [22 July 2010] para 40, accessed 8 June 2012. 58

  UN Legal Counsel, (1964) UNJYB 229, 237.

59

  cf Status of South-West Africa [1950] ICJ Rep 137.

60

  M Schaefer, Die Funktionsfähigkeit des Sicherheitsmechanismus der Vereinten Nationen (Springer 1981) 41; Kelsen, 217; Dicke and Rengeling (n 21) 121; B Nolte, ‘Uniting for Peace’ in R Wolfrum and C Philipp (eds), United Nations: Law, Policies and Practice, vol 2 (CH Beck 1995) 1341, 1345. 61

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 148, paras 26f. See also M Cowling, ‘The relationship between the Security Council and the General Assembly with particular reference to the ICJ Advisory Opinion in the “Israeli Wall” case’ (2005) 30 SAYIL 50, 68f. Further see Klein and Schmahl on Art. 12 MN 23. 62

  Goodrich and Hambro (2nd edn 1949) (n 8) 171; Dicke and Rengeling (n 21) 119.

63

  cf RP I, 309f; Schaefer, Funktionsfähigkeit (n 60) 42.

64

  GAOR 5th Session Supp No 20, 10.

65

  RP I, 310; Vallat (n 55) 94.

66

  UNCIO III, 4f MN 4; Bentwich and Martin (n 9) 35; F Morley, The Charter of the United Nations (American Enterprise Association 1946) 14; Vallat (n 1) 323. 67

  UNCIO III, 278f; cf also the proposals by Brazil, Chile, and Greece, UNCIO III, 238, 285, 532; GHS, 111. 68

  UNCIO III, 258, 456; cf also GHS, 115.

69

  cf also the proposal of Australia in Decision II/2 of the GA of 20 June 1945, UNCIO IX, 230. 70

  CPF/Cassan, 674; GHS, 124f; Schaefer, Funktionsfähigkeit (n 60) 44; Vallat (n 1) 324.

71

  Thus stated in Goodrich and Hambro (2nd edn, 1949) (n 8) 169f, but later given up in GHS, 126f. 72

  Bentwich and Martin (n 9) 40.

73

  Certain Expenses [1962] ICJ Rep 151, 164–65; RP 3 I, 251; cf CPF/Cassan, 672; Kelsen, 964; Schaefer, Funktionsfähigkeit (n 60) 44; Vallat (n 55) 98.

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74

  RP I, 318; CPF/Cassan, 673f; G Zieger, Die Vereinten Nationen (Niedersächsische Landeszentrale für Politische Bildung 1976) 89; Dahm (n 10) 196, 401; also J Andrassy, ‘Uniting for Peace’ (1956) 50 AJIL 563–82, 567f. 75

  Kelsen, 205; also Dahm (n 10) 401; on the lack of a binding effect, see M Benzing, ‘International Organizations or Institutions, Secondary Law’ MPEPIL (online edn) MN 17. 76

  UNGA Res 1761 (XVII) (6 November 1962) UN Doc A/RES/1761(XVII); RP I, 240.

77

  cf M Herdegen, ‘Interpretation in International Law’ MPEPIL (online edn) MN 20 and MN 40f. 78

  Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, 163; RP I, 306. See also Dörr (n 55) MN 15f. 79

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 148, para 26. 80

  Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [22 July 2010] para 40, accessed 8 June 2012. 81

  Schaefer, Funktionsfähigkeit (n 60) 51; Dicke and Rengeling (n 21) 116. Tomuschat argues that the assumption of a secondary responsibility is not entirely unproblematic as it sets the GA in a position to control the actions taken by the SC, cf C Tomuschat, ‘Uniting for Peace—Ein Rückblick nach 50 Jahren’ (2001) 76 Friedenswarte 289, 294. 82

  RP I, 317ff; RP 2 II, 45; lastly: RP 10 II, Art. 10, para 23. Further see UNGA Res 59/313 (12 September 2005) UN Doc A/RES/59/313 para 1(b). 83

  RP I, 322ff.

84

  See also N Schrijver, ‘The Future of the Charter of the United Nations’ (2006) 10 Max Planck YB UN L 2, 15. 85

  For different opinions on using Res 377 (V) in the Kosovo crisis, see on the one hand: A Pellet, ‘Brief Remarks on the Unilateral Use of Force’ (2000) 11 EJIL 385, 390 (affirmatively), and on the other: V Gowlland-Debbas, ‘The Limits of Unilateral Enforcement of Community Objectives in the Framework of UN Peace Maintenance’ (2000) 11 EJIL 361, 374 (negatively). 86

  J Krasno and M Das, ‘The Uniting for Peace Resolution and Other Ways of Circumventing the Authority of the Security Council’ in B Cronin and others (eds), The UN Security Council and the Politics of International Authority (Routledge 2008) 173, 187f; Tomuschat (n 81) 289; C Binder, ‘Uniting for Peace Resolution (1950)’ MPEPIL (online edn) MN 34. 87

  ICISS Report (n 43) paras 6.30 and 6.31.

88

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 150, paras 30f; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [22 July 2010] para 42, 2010 accessed 8 June 2012. 89

  See Report, Implementing the responsibility to protect (n 48) para 63.

90

  Tomuschat (n 25) 232. As to the practice subsequent to the resolution see the comprehensive list by Binder (n 86) MN 9.

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91

  Peterson (n 5) 107; D Zaum, ‘The Security Council, the General Assembly and War: The Uniting for Peace Resolution’ in V Lowe and others (eds), The UN Security Council and War (OUP 2008) 154, 166. 92

  UNGA Res 997 (ES-I) (2 November 1956) UN Doc A/RES/997(ES-I); 998 (ES-I) (4 November 1956) UN Doc A/RES/998(ES-I) and 1001 (ES-I) (7 November 1956) UN Doc A/ RES/1001(ES-I); RP 2 II, 36, 92, 98. 93

  UNGA Res ES-10/2 (25 April 1997) UN Doc A/RES/ES-10/2; see also RP 9 II, 7ff; RP 10 II, Art. 11, paras 19f. 94

  Instead of opening a new session concerning current issues in the Middle East, the emergency special session was merely reopened under Res 377 (V) A. Lastly, the session was resumed in January 2009 in order to consider the current crisis in the Gaza strip; see UNGA Res ES-10/18, (16 January 2009) UN Doc A/RES/ES-10/18. As to the lawfulness of this practice of adjournment, reopening, and extending special emergency sessions cf A Zimmermann, ‘Uniting-for-Peace und Gutachtenfragen der Generalversammlung’ in K Dicke and others (eds), Weltinnenrecht, Liber amicorum Jost Delbrück (Duncker & Humblot 2005) 909, 912f. 95

  Krasno and Das (n 86) 186.

96

  UNGA Res ES-10/14, (8 December 2003) UN Doc A/RES/ES-10/14; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136, 148f. Further see Klein and Schmahl on Art. 12 MN 21. 97

  cf eg RP 3 I, 214f; RP 4 I, 115f; and lastly RP 10 II, Art. 10, paras 6f.

98

  A Verdross and B Simma, Universelles Völkerrecht (3rd edn, Duncker & Humblot 1984) 93f. 99

  K Heidenstecker, ‘Zur Rechtsverbindlichkeit von Willensakten der Generalversammlung’ (1979) 27 VN 205–10. 100

  cf H Miehsler, ‘Zur Autorität von Beschlüssen internationaler Institutionen’ in C Schreuer (ed), Autorität und Internationale Ordnung (Duncker & Humblot 1979) 35, 50f. 101

  Verdross and Simma (n 98) 407; TO Elias, The International Court of Justice and Some Contemporary Problems (Nijhoff 1983) 214. 102

  For an in-depth analysis of this declaration see M Barelli, ‘The Role of Soft Law in the International Legal System: the Case of the United Nations Declaration on the Rights of Indigenous Peoples’ (2009) 58 ICLQ 957, 966f. 103

  E Klein and S Schmahl, ‘Die Internationalen und die Supranationalen Organisationen’ in W Graf Vitzthum (ed), Völkerrecht (5th edn, de Gruyter 2010) 263, 327. For a detailed analysis see DM Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and the General Assembly in the Jurisprudence of the ICJ’ (2005) 16 EJIL 879, 883f. 104

  Elias (n 101) 214f; for further references, see Verdross and Simma (n 98) 405f.

105

  Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 14. 106

  See GAOR 20th Session, 6th Committee, 1492nd meeting (5 November 1974). See K Skubiszewski, ‘Resolutions of the U.N. General Assembly and Evidence of Custom’ in International Law at the Time of its Codification. Essays in Honour of Roberto Ago (Giuffre 1987) 503, 508f for a summary of relevant declarations voiced by governments. 107

  Military and Paramilitary Activities in and against Nicaragua, Judgment (Merits) [1986] ICJ Rep 97f.

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108

  See B Simma, ‘Die Erzeugung ungeschriebenen Völkerrechts’ in Festschrift für Karl Zemanek zum 65. Geburtstag (Duncker & Humblot 1994) 95, 101. 109

  Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 254, para 70. 110

  C Tomuschat, ‘Die Rechtsverbindlichkeit von Beschlüssen der Vereinten Nationen’ (1975) 55 Wirtschaftsdienst 511. 111

  UNCIO III, 536; IX, 70.

112

  South West Africa (Ethiopia v South Africa; Liberia v South Africa) (1960–1966), Second Phase (Judgment) [1966] ICJ Rep 50; similarly Continued Presence of South Africa in Namibia [1971] ICJ Rep 280. 113

  OY Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (Nijhoff 1966) 35; in agreement Castañeda, Effects of United Nations Resolutions (Columbia UP 1969), 123, according to whom an interpretation contained in a resolution is binding upon the member States if the resolution was adopted unanimously; likewise M Sahoviæ, ‘Codification des principes de droit international des relations amicales’ (1972-III) 137 Rec des Cours 243, 253; for a different opinion, see U Scheuner, ‘Zur Auslegung der Charta durch die Generalversammlung’ (1978) VN 112. 114

  UNCIO III, 339.

115

  Certain Expenses [1962] ICJ Rep 151, 168.

116

  R Lagoni, ‘Resolution, Erklärung, Beschluß’ in R Wolfrum (ed), Handbuch Vereinte Nationen (2nd edn, CH Beck 1991) 699. 117

  For a survey see R Mullerson, ‘Final Report of the Committee on Formation of Customary General International Law’ (International Law Association, London Conference 2000) 54f; K Skubiszewski, ‘Report to the Institute of International Law’ in Institute of International Law, Yearbook 61-I (1985) 29ff; Yearbook 62-II (1987) 65ff. For an overview of different approaches to the legal nature of resolutions see B Sloan, United Nations General Assembly Resolutions in Our Changing World (Transnational Publ 1991) 54f. 118

  Mullerson (n 117) 55.

119

  B Simma, ‘Zur völkerrechtlichen Bedeutung von Resolutionen der UNGeneralversammlung’ in R Bernhardt, J Delbrück, and others (eds), Fünftes deutschpolnisches Juristen-Kolloquium, vol 2 (Nomos 1981) 45, 50f; Benzing (n 75) MN 30f; Lagoni (n 116) 699; JA Barberis, ‘Les résolutions des organisations internationales en tant que source du droit des gens’ in Festschrift für Rudolf Bernhardt (Springer-Verlag 1995) 21, 22f; Skubiszewski (n 106) 503, passim; C Economidès, ‘Les actes institutionnels internationaux et les sources du droit international’ (1988) 34 AFDI 131f. 120

  Economidès (n 119) 131, 140.

121

  Thus Asamoah (n 113) 70.

122

  C Tomuschat, Die Rechtsverbindlichkeit (n 110) 512; P Sands and P Klein, Bowett’s Law of International Institutions (6th edn, Sweet & Maxwell 2009) 28. 123

  Vallat (n 1) 328.

124

  See E Klein, ‘Die Vereinten Nationen und die Entwicklung des Völkerrechts’ in H Volger (ed), Grundlagen und Strukturen der Vereinten Nationen (Oldenbourg 2007) 21, 41ff. 125

  Barberis (n 119) 21, 39.

126

  Sands and Klein (n 122) 28.

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127

  See eg UNGA Res 2750C (XXV) (1973) UN Doc A/RES/2750C(XXV) convening the third comprehensive conference on the law of the sea. 128

  UNGA Res 45/212 (21 December 1990) UN Doc A/RES/45/212.

129

  This term has been introduced by Miehsler (n 100) 35, 42.

130

  Simma (n 108) 108, 95, 99.

131

  North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (Judgment) [1969] ICJ Rep 44. 132

  cf Simma (n 108) 95, 102f referring to K Zemanek, ‘What is State Practice and Who Makes It?’ in U Beyerlin and others (eds), Recht zwischen Umbruch und Bewährung— Festschrift für Rudolf Bernhardt (Springer 1995) 289ff. 133

  But see Asamoah (n 113), who expresses the opinion that resolutions are constitutive of State practice, 46, 54, 57. 134

  Simma (n 108) 95, 103.

135

  North Sea Continental Shelf [1969] ICJ Rep 43.

136

  B Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’ (1965) 5 IJIL 23, 37; concurring R Bernhardt, ‘Ungeschriebenes Völkerrecht’ (1976) 36 ZaöRV 50, 73. 137

  Zieger (n 74) 128; Sloan (n 117) 69.

138

  For an analysis on how the ICJ deduced international opinio iuris from several UNGA resolutions see Öberg (n 103) 900f. 139

  Nicaragua [1986] ICJ Rep 99f.

140

  ibid, 103, 345, regarding the description of the term ‘armed attack’ in Art. 3, para (g) of the ‘Definition of Aggression’, annexed to UNGA Res 3314 (14 December 1974) UN Doc A/ RES/3314. See also, as to several provisions of the so-called ‘Friendly-RelationsDeclaration’, the Case Concerning Armed Activities on the Territory of the Congo [2005] ICJ Rep 168, 226f, para 162. 141

  cf (1984) 44 ZaöRV 507ff.

142

  See Skubiszewski (n 106) 503, 512ff.

143

  Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 254. 144

  ibid, 57.

145

  ibid, 57; Castañeda (n 113) 192; Skubiszewski (n 117) 109.

146

  cf Asamoah (n 113) 61f.

147

  Heidenstecker (n 99) 208.

148

  Simma (n 119) 59 (authors’ translation); cf C Tomuschat, ‘Die Charta der wirtschaftlichen Rechte und Pflichten der Staaten—zur Gestaltungskraft von Deklarationen der UN-Generalversammlung’ (1976) 36 ZaöRV 444, 485; on the meaning of ‘consensus’ in resolutions of the Geneva Conferences on the Law of the Sea of 1958 and 1960, see the judgments of the ICJ in the Icelandic Fisheries Cases (Judgment) [1974] ICJ Rep 23, 192. 149

  Simma (n 119) 59 (authors’ translation); similarly R Wolfrum and J Pichon, ‘Consensus’ MPEPIL (online edn) MN 23. See Sohn (n 3) 556 for the opposite view. 150

  Simma (n 119) 61.

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151

  Cheng (n 136) 23; cf International Law Association, Final Report, ibid 60.

152

  South-West Africa: Voting Procedure [1955] ICJ Rep 90, 92.

153

  Legality of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 254f.

154

  See Judges Klaested and Lauterbach in South-West Africa: Voting Procedure [1955] ICJ Rep 88, 118ff. 155

  MF Ellis, ‘The New International Economic Order and General Assembly Resolutions: The Debate over the Legal Effects of General Assembly Resolutions Revisited’ (1985) 15 Calif W Intl LJ 692ff. 156

  Tomuschat, Die Charta (n 148) 444, 483.

157

  Simma (n 108) 95, 109ff.

158

  Skubiszewski (n 106) 503, 507.

159

  Tomuschat, Die Charta (n 148) 444, 480.

160

  South-West Africa: Voting Procedure [1955] ICJ Rep 118, 122.

161

  Namibia [1971] ICJ Rep 31; Western Sahara [1975] ICJ Rep 32.

162

  Nicaragua [1986] ICJ Rep 101, 106f.

163

  ibid, 336ff.

164

  C Tomuschat, ‘Die Krise der Vereinten Nationen’ (1987) 42 EA 100; on the role of this group of States as ‘masters of the proceedings’ in the GA, see Tomuschat, Die Charta (n 148) 444, 488. 165

  But see JA Frowein, ‘Die Krise der Vereinten Nationen’ (1987) 42 EA 70f; I Brownlie, Principles of Public International Law (7th edn, OUP 2008) 691f. 166

  Certain Expenses [1962] ICJ Rep 151.

167

  Namibia [1971] ICJ Rep 22.

168

  See Luard (n 3) 58ff; S Marchisio, ‘Le rôle de l’Assemblée générale dans le maintien de la paix et de la sécurité internationale’ in SFDI (ed), Les métamorphoses de la sécurité collective (2005) 106ff. 169

  See eg UNGA Res 55/285 (7 September 2001) UN Doc A/RES/55/285; UNGA Res 59/313 (12 September 2005) UN Doc A/RES/59/313; UNGA Res 60/286 (8 September 2006) UN Doc A/RES/60/286; UNGA Res 61/292 (2 August 2007) UN Doc A/RES/61/292; UNGA Res 62/276 (15 September 2008) UN Doc A/RES/62/276; UNGA Res 63/309 (14 September 2009) UN Doc A/RES/63/309; UNGA Res 64/301 (13 September 2010) UN Doc A/RES/ 64/301; and most recently UNGA Res 65/315 (12 September 2011) UN Doc A/RES/65/315. Further cf RP 10 II, Art. 10, para 17. See also GS Report: In Larger Freedom (n 48) paras 158–164. 170

  As to the last results gained by the Working Group see UN Doc A/64/903, and UNGA Res 64/301 (13 September 2010) UN Doc A/RES/64/301 as well as UNGA Res 65/315 (12 September 2011) UN Doc A/RES/65/315. 171

  UNGA Res 56/509 (8 July 2002) UN Doc A/RES/56/509. See also R Wesel, ‘General Assembly’ in H Volger (ed), A Concise Encyclopedia of the United Nations (2nd edn, Nijhoff 2010) 189, 196f. 172

  H Volger, Die Vereinten Nationen (Oldenbourg 1994) 189ff.

173

  See MN 37.

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174

  UNSC Res 181 (7 August 1963) UN Doc S/RES/181; UNSC Res 282 (23 July 1970) UN Doc S/RES/282; and particularly the unanimously adopted UNSC Res 418 (4 November 1977) UN Doc S/RES/418, which set down compulsory measures according to Chapter VII, namely an arms embargo against South Africa. 175

  Marchisio (n 168) 104.

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Ch.IV The General Assembly, Functions and Powers, Article 11 Eckart Klein, Stefanie Schmahl From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): International peace and security — Disarmament

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(p. 491) Article 11 (1) The General Assembly may consider the general principles of cooperation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both. (2) The General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member of the United Nations in accordance with Article 35, paragraph 2, and, except as provided in Article 12, may make recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion. (3) The General Assembly may call the attention of the Security Council to situations which are likely to endanger international peace and security. (4) The powers of the General Assembly set forth in this Article shall not limit the general scope of Article 10. A.  Article 11 (1) 1–17 I.  General Meaning 1 II.  Powers of Consideration and Recommendation 2–5 1.  The Scope of the Power of Consideration 2 2.  The Scope of the Power of Recommendation 3–4 3.  Initiative 5 III.  Subjects of Consideration and Recommendation 6–17 1.  General Principles of Cooperation in the Maintenance of International Peace and Security 6–8 2.  The Principles Governing Disarmament and the Regulation of Armaments 9–17 B.  Article 11 (2) 18–33 I.  General Meaning 18 II.  The Power of Discussion 19–26 1.  Terms and Meaning 19 2.  Subject 20 3.  Limits 21 4.  Submission Requirement 22–25 5.  The Relationship between Article 11 (2) Clause 1 and Article 10 26

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III.  The Power of Recommendation 27–33 1.  Subject and Exercise of the Power 27 2.  Addressees of Recommendations 28–30 3.  Limits 31–32 4.  The Effect of Referral According to Article 11 (2) Clause 2 33 C.  Article 11 (3) 34–39 I.  General Meaning 34 II.  Scope and Definition 35–39 (p. 492) 1.  The Exercise of the Power 35 2.  The Power of Determination 36–37 3.  The Relationship between Article 11 (3) and Article 11 (2) Clause 2 38 4.  Reaction by the Security Council 39 D.  Article 11 (4) 40–46 I.  General Meaning 40 II.  Interpretation 41–46 E.  Evaluation 47

Select Bibliography See the select bibliography for Art. 10.

A.  Article 11 (1)* I.  General Meaning 1  Article 11 (1) defines in more detail the general authority of the GA laid down in Art. 10. Much of the provision had already appeared in the Dumbarton Oaks Proposals,1 and it was not very controversial in the drafting of the Charter. The move by Egypt and Mexico to give the GA special power to consider the continuing validity of international treaties was not taken up at Dumbarton Oaks.

II.  Powers of Consideration and Recommendation 1.  The Scope of the Power of Consideration 2  It lies within the discretion of the GA whether and how practically to deal with principles mentioned in this provision. In contrast, Art. 26, in determining the functions of the SC in the area of arms control, imposes an obligation on that organ to formulate concrete plans for arms regulation. There is no qualitative distinction between the terms ‘consider’ and ‘discuss’ as used in Art. 10 (cf Klein and Schmahl on Art. 10 MN 5).

2.  The Scope of the Power of Recommendation 3  The exercise of the power of recommendation is also within the discretion of the GA. It is important to note that the provision of Art. 12 (1) does not apply in this context (see Klein and Schmahl on Art. 12 MN 6); thus it does not matter whether the SC is dealing with the same issue. Article 11 (1) gives expression to the general notion of the Charter that the GA should consider the general principles of political cooperation, whereas the SC should deal

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mainly with the solution of specific disputes.2 So to this extent, no direct contradiction between resolutions by the two organs will arise. 4  The recommendations of the GA referred to in Art. 11 (1) are to be directed to the members of the UN, the SC, or both. In this respect, the provision corresponds to Art. 10. (p. 493) It is, however, narrower than Art. 11 (2) cl 1, which authorizes the GA to make recommendations to States which are not members of the UN as well. In contrast, Arts 13 and 14, while also granting the GA the power to make recommendations, do not specify to whom they may be directed. Nor did the Dumbarton Oaks Proposals contain any such restriction, whose function is actually quite doubtful. In practice, the GA, although it often varies the designation of the addressees, has remained largely within the range defined by Art. 11 (1). Thus, recommendations have been made to ‘all member states’, ‘member states’, ‘certain member states’, ‘states’, ‘certain states’, ‘governments’, the ‘Security Council’, ‘permanent members of the Security Council’, and occasionally also to ‘subsidiary organs’ or ‘all states’.3

3.  Initiative 5  The GA’s powers under Art. 11 (1) do not depend on the formal introduction of or reference to an issue by some other entity, any more than those under Art. 10. Rather the GA may exercise its powers under this provision at any time on its own initiative.

III.  Subjects of Consideration and Recommendation 1.  General Principles of Cooperation in the Maintenance of International Peace and Security 6  While Art. 11 (2) concerns concrete questions relating to the maintenance of international peace and security, Art. 11 (1) refers to the general principles of cooperation in the maintenance of international peace and security. These principles are all covered by the ‘questions’ and ‘matters’ within the meaning of Art. 10, since, according to Art. 1, they are all within the scope of the UN Charter.4 7  The powers granted to the GA by Art. 11 (1) are closely connected to its functions under Art. 13 (1) (a), to initiate studies and make recommendations to promote international cooperation in the political arena. By a resolution of 13 November 1947 (UNGA Res 111 (II)), the GA established an Interim Committee which was given the task of working out proposals based on the above two provisions, in order to help the GA to handle the increasing number of disputes brought before it. Above all, the Interim Committee was intended to ensure the permanent functioning of the GA even outside the regular sessions, for the maintenance of international peace. There are no legal objections to the establishment of this body, as its powers do not go any further than those of the GA and do not encroach upon the responsibilities of the SC. Yet in practice, the Interim Committee could not meet the expectations placed on it, because some States, primarily the Soviet Union, did not participate. It has never reconvened since 1951.5 8  Over time, the GA has passed a great number of resolutions containing recommendations for the maintenance of international peace and security. These resolutions concern, inter alia, measures for the strengthening of international security (eg UNGA Res 2734 (XXV) (16 December 1970)), the question of measures for peace maintenance (p. 494) in all its aspects (eg UNGA Res 2670 (XXV) (8 December 1970)), the principles of international law concerning friendly relations and cooperation among States under the Charter of the UN (UNGA Res 2625 (XXV) (24 October 1970)), the definition of aggression (UNGA Res 3314 (XXIX) (14 December 1973)), recommendations on the peaceful settlement of disputes (eg GA Res 37/10 (15 November 1982)), culture of peace (UNGA Res 52/13 (20 November 1997)),6 principles and guidelines for international negotiations (UNGA Res 53/101 (8 December 1998)), the UN Millennium Declaration (UNGA Res 55/2 (8 September 2000)),7 recommendations on the prevention of armed conflict (UNGA Res 57/337 (3 July 2003)), From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

and the declaration reaffirming the central role of the UN in the maintenance of international peace and security and the promotion of international cooperation (UNGA Res 58/317 (5 August 2004)). The GA passes new resolutions on such topics practically every year.8 After 11 September 2001, the GA unanimously adopted Res 56/1 (12 September 2001) condemning the terrorist attacks in New York,9 and later recommended several measures to eliminate international terrorism.10 However, although the GA was recognized by some delegations as the principal UN platform for initiating efforts to combat international terrorism, proposals for the establishment, under the auspices of the GA, of specialized organs that would support the actions of the SC, were not pursued.11

2.  The Principles Governing Disarmament and the Regulation of Armaments 9  The provisions of the UN Charter on disarmament and the regulation of armaments are considerably weaker than those in Art. 8 of the League of Nations Covenant, which declared that the maintenance of international peace required a reduction of armaments. The danger emanating from the private production of war materials and ammunition was also explicitly mentioned, and League members agreed to inform each other on the state of their armaments. The incorporation of similar provisions into the UN Charter was rejected. 10  The inclusion of the subjects ‘disarmament and regulation of armaments’ in Art. 11 (1) makes it clear that these issues, which are related to international peace and security, are also within the competence of the GA. They were expressly mentioned for reasons of explanation and not limitation, at the insistence of the Soviet Union, despite initial resistance from the United States and the United Kingdom.12 In accordance with the general distribution of functions (see MN 3), the GA was to deal with the general principles of disarmament and arms control, while the SC was assigned the task of formulating concrete plans on the subject for submission to the members of the UN (Art. 26).13 (p. 495) 11  In practice, Art. 11 (1) is interpreted broadly by the GA. It does not limit itself to dealing only with the ‘general principles’ of disarmament and arms control, but rather deals with all (general and specific) questions in this area. Since the late 1950s, the GA has assumed a sort of monopoly position within the UN on matters of disarmament, as the SC has increasingly neglected its function under Art. 26 of the Charter.14 The reason for this lay at first in the stubborn antagonism between the two superpowers, and later in the fact that these two powers were unwilling to involve other countries in discussion of those questions which affected their fundamental interests, so that any decisive negotiations have occurred at the bilateral level (see MN 16). This situation has de facto not changed since the collapse of the Soviet Union in the early 1990s, although SC Resolutions on Iraq (UNSC Res 687 (3 April 1991); UNSC Res 1441 (8 November 2002); as well as Res 1540 (28 April 2004) and 1887 (14 September 2009)), which tackle both with the non-proliferation of weapons of mass destruction and nuclear disarmament, can be seen as (positive) harbingers for further SC action in disarmament issues.15 Yet, progress in the area of disarmament is still mainly achieved on a bilateral16 or plurilateral (regional) basis.17 12  As early as 1946, the GA established an Atomic Energy Commission (AEC), which was assigned the task of dealing with the problems of the military use of atomic energy and other weapons of mass destruction.18 In December 1946, the GA passed a resolution containing recommendations on the adoption of practical measures, and assigned to the SC the responsibility for accomplishing its objectives.19 13  After a severe confrontation arose in the AEC between the United States and the Soviet Union, mainly with regard to the establishment of an international atomic energy agency to which the development and production of nuclear material was to be entrusted, the GA dissolved the AEC together with the Commission for Conventional Armaments (CCA), created in 1947, and formed a general disarmament commission (the Twelve Power Disarmament Commission).20 After several reorganizations, this body broke off its activities in 1960 because differences between its members, primarily concerning the sequence of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

stages in the disarmament process, could not be overcome. Disarmament talks resumed in 1962 in the new Eighteen-Nation Disarmament Committee (ENDC).21 This body was replaced by the Conference of the Committee on Disarmament (CCD). Since 1979, its work has been continued by the Conference on Disarmament (CD) in Geneva, which until 1983 was known as the Committee on Disarmament, consisting (p. 496) today of sixty-five States.22 Although not a subsidiary organ of the GA (cf Art. 22), it is closely connected with it, as one can see from its annual reports to the GA. The expenses of the Conference are paid by the UN. The Conference has agreed on a list of ten points (the ‘decalogue’), setting out the basic issues to be dealt with at its annual meetings, which last approximately six months. These issues are: (a)  nuclear weapons (all aspects); (b)  chemical weapons; (c)  other weapons of mass destruction; (d)  conventional weapons; (e)  reduction of military budgets; (f)  reduction of armed forces; (g)  disarmament and development; (h)  disarmament and international security; (i)  collateral measures: confidence-building measures, and effective verification methods in relation to appropriate disarmament measures acceptable to all States concerned; (j)  a comprehensive programme of disarmament leading to general and complete disarmament under effective international control. 23 The GA takes up these questions on the basis of the Conference’s reports and (after preparations by its First Main Committee) gives suggestions and support, but also adopts new approaches of its own, such as the proclamation of the Indian Ocean as a peace zone.24 The Disarmament Commission (UNDC), a subsidiary organ of the GA, was established in June 1978 (UNGA Res S-10/2). As a deliberative body, composed of all UN member States, its function is to consider the elements of a comprehensive programme for disarmament to be submitted as recommendations to the GA, and through it, to the CD. 14  Despite these organizational and substantive efforts, no major progress has been made towards general disarmament, although there has been success in some areas.25 The Treaty on the Non-Proliferation of Nuclear Weapons (Non-Proliferation Treaty) of 1 July 1968, deserves special attention. As early as 1961, the GA had called for such a treaty, and finally, in 1968, after the two superpowers reached agreement, it passed the definitive treaty text.26 Also important are the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, of 27 January 1967, which prohibits the deployment of nuclear weapons in outer space,27 and the Treaty on the Prohibition of the Emplacement of (p. 497) Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof, of 11 February 1971.28 Finally, the signing of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, of 10 April 1972, was also preceded by a GA resolution.29 In its Res 2603 (XXIV), 16 December 1969, the GA declared the use of chemical and bacteriological weapons to be a violation of the generally accepted principles of international law.30 On 29 April 1997, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction

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(1993) entered into force. Further, the Comprehensive Nuclear Test Ban Treaty (1996, not yet in force) has to be mentioned (A/50/1027). 15  Even though various resolutions of the GA have promoted success in specific areas of disarmament and arms control (on the role of GA resolutions in the development of international treaty law, see Klein and Schmahl on Art. 10 MN 52), these resolutions have several characteristics which are bound to reduce their efficiency. First of all, they are extremely numerous, especially those concerning nuclear weapons.31 Certain questions in particular, for instance the cessation of nuclear testing, are often the subject of several resolutions supported by different groups of States. This detracts from the clarity and distinctness of their message and does not promote unity. In addition, the fact that many resolutions are repeated every year without any substantial change does not necessarily add to their impact. They would probably be more effective if they focused on the essentials. Finally many resolutions announce a view held by the majority of the members of the GA which is unacceptable to the minority, and thus hinder the progress of negotiation and agreement among the States most affected.32 16  Apart from the UN’s own activities, the GA supported initiatives early on in the area of the regulation of armaments coming from outside the Organization.33 In terms of supporting resolutions, it has particularly encouraged the bilateral arms control negotiations between the United States and the Soviet Union aiming at the limitation and reduction of strategic offensive weapons (SALT, START, INF), as well as the multilateral talks on mutual and balanced force reductions in Europe (MBFR). The same holds true for the Conference on Security and Co-operation in Europe, which was concluded at Helsinki in 1975, and the follow-up meetings that have taken place since then.34 17  Overall, the results actually achieved by the UN in the area of disarmament have to be regarded as somewhat meagre, even considering the activities of the Conference on (p. 498) Disarmament and the three special sessions of the GA devoted to disarmament in 1978, 1982, and 1988.35 Earlier high expectations36 have not materialized. As in other spheres, the steady insistence of the GA and its subsidiary organs nevertheless has the force of a moral and political exhortation whose impact cannot, of course, be measured precisely.

B.  Article 11 (2) I.  General Meaning 18  The general clause in Art. 10 is also defined more precisely by Art. 11 (2). The latter provision deals with the GA’s powers with regard to specific questions of the maintenance of international peace and security. This area presents a relatively high risk of conflicts with the powers of the SC, which, according to Art. 24, has the primary responsibility for the maintenance of international peace and security. Articles 11 (1)–(3), 14, and 15 do, however, make it clear that the SC does not have exclusive competence regarding this purpose of the UN.37

II.  The Power of Discussion 1.  Terms and Meaning 19  The GA decides at its own discretion, as it does under Arts 10 and 11 (1), whether or not to enter into a discussion on questions brought before it. Thus there is no obligation to discuss them, although if a question is referred to it by the SC, the GA will have to consider the SC’s motives in good faith. The requirements imposed on the GA are not, however, as strict as those under Art. 12 (1) when the SC makes an express request upon it (see Klein

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and Schmahl on Art. 12 MN 27). (For the meaning of the term ‘discuss’, see Klein and Schmahl on Art. 10 MN 5.)

2.  Subject 20  In contrast to Art. 11 (1), which deals with general principles, Art. 11 (2) contemplates specific questions of international peace and security. While in principle no ‘dispute’ in the technical sense must be present in order to trigger it, all ‘disputes’ and ‘situations’ are plainly within the scope of this rule since Art. 11 (2) cl 1 refers to Art. 12 (1) (cf Klein and Schmahl on Art. 12 MN 6).38 This is also supported by Art. 35 (1), which gives the member States the right to draw the GA’s attention to ‘disputes’ or ‘situations’.39 If, however, States which are not members of the UN wish to bring a matter to the attention of the GA it must have the character of a ‘dispute’ (Art. 35 (2)).40 Article 11 (2) cl 1 furthermore presupposes that the question to be discussed by the GA should relate to the maintenance of international peace and security, although it does not require that a present or future threat to the peace be involved in it. This last requirement has to be met (p. 499) only if the GA, acting on its own initiative, calls the attention of the SC to a situation pursuant to Art. 11 (3).41

3.  Limits 21  Article 11 (2) cl 1 does not restrict the GA’s competence of discussion; the reservation of Art. 12 (1) refers only to the power of recommendation. In addition, Art. 11 (2) cl 2 states that a question on which action is necessary shall be referred to the SC ‘either before or after discussion’. This surely allows the conclusion that even where enforcement action under Chapter VII of the Charter is a possibility, the GA retains the power to discuss without any restriction resulting from the powers of the SC.42 This power finds its only legal limit in Art. 2 (7), which has little real impact. In most cases, the GA has interpreted its power of discussion broadly (cf Klein and Schmahl on Art. 10 MN 9–14).

4.  Submission Requirement 22  The competence of the GA under Art. 11 (2) cl 1 differs from its powers under Arts 10, 11 (1), 13, and 14 of the Charter, in that prior submission by a State or by the SC is required. 23  However, only members of the UN have thus far brought questions before the GA pursuant to Art. 11 (2). This has contributed to a transformation of submissions into a quasicomplaints procedure before the UN.43 Furthermore, according to the GA’s opinion, there is no limit on the right of any member to submit issues in the agenda of the GA under Art. 11 (2), even if GA discussion might politically undermine a parallel peace process and negotiations.44 24  According to Art. 11 (2), the SC will bring before the GA questions which it believes would be more effectively handled by the GA, such as cases in which a veto cast by a permanent member prevents the SC from taking any decision. The right of the SC to initiate discussion of a question in the GA must, however, be distinguished from its right to request a recommendation by that body under Art. 12 (1). In the former case, the matter is submitted to the GA generally, while in the latter the emphasis is on the recommendation. In fact, the SC has requested a special session of the GA once on the Palestine issue in 1948.45 It has also requested the calling of an emergency special session on several occasions (cf Klein and Schmahl on Art. 10 MN 35 and on Art. 12 MN 30).46 But those requests were based on the GA’s Uniting for Peace Resolution (UNGA Res 377 (V) (3 November 1950)), which empowers the SC, if it is prevented from taking action on the merits of a matter due to lack of unanimity among its permanent members, to have the GA convened by a majority of nine members for an emergency special session within twentyfour hours if it is not in regular session at the time.47 Even though the wording of Art. 11 (2) cl 1 does not expressly exclude such a submission of a question by the SC to the GA, this

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kind of procedure comes closer to the purpose of Art. 12 (1), (p. 500) since the Uniting for Peace Resolution not only authorizes the GA to discuss the issue but above all to make recommendations for collective enforcement action (cf Klein and Schmahl on Art. 10 MN 32–34). The calling of emergency special sessions at the request of the SC may not therefore be considered as falling under Art. 11 (2) cl 1 (see Klein and Schmahl on Art. 12 MN 29–30). 25  States which are not members of the UN have so far not attempted to bring a dispute before the GA so it has had no reason to deal with such disputes.48

5.  The Relationship between Article 11 (2) Clause 1 and Article 10 26  The question arises as to whether Art. 11 (2) allows the discussion of specific questions concerning the maintenance of international peace only if the conditions of cl 1, especially submission, are met, or whether the GA may also deal with those questions on its own initiative according to Art. 10. The ‘questions’ mentioned in Art. 11 (2) cl 1 are completely within the scope of the terms ‘questions’ and ‘matters’ used in Art. 10. The latter provision does not specify the way in which the GA deals with an issue. Thus, on the basis of Art. 10, the GA may discuss all questions referred to in Art. 11 (2) cl 1 on its own initiative. Article 11 (2) cl 1 only reflects the rights of member States and States which are not members of the UN under Art. 35 (1) and (2) from the angle of the GA. Finally, Art. 11 (4) confirms that the powers of the GA enumerated in Art. 11, including its powers of discussion and recommendation under Art. 11 (2) cl 1, shall not limit the general scope of Art. 10, so that the GA may proceed according to Art. 10 instead of Art. 11 (2) cl 1 (see MN 40–41).49

III.  The Power of Recommendation 1.  Subject and Exercise of the Power 27  Article 11 (2) cl 1 gives the GA discretionary power to make recommendations on the very subjects which it may consider under Art. 11 (1). The submission requirement (see MN 22) applies accordingly.

2.  Addressees of Recommendations 28  The GA may address its recommendations to the State or States concerned, or to the SC, or to both. Unlike other provisions such as Art. 14, the addressees of these recommendations are named expressly. In this respect, Art. 11 (2) is therefore narrower than Art. 14. On the other hand, the power of the GA under Art. 11 (2) extends further than under Art. 14, in that recommendations may also be made to States which are not members of the UN. The recipient of the recommendation need not be the same party that submitted the matter for consideration, so recommendations may be addressed to States involved in the dispute regardless of whether they initiated the discussion. 29  Making recommendations to the SC about a matter pursuant to Art. 11 (2) cl 1 goes beyond the referral of a question under Art. 11 (2) cl 2 and the recourse to the SC mentioned in Art. 11 (3). This is because recommendations usually already contain the detailed proposal of a specific method of action, whereas matters being dealt with by the SC under Art. 11 (2) cl 2 or Art. 11 (3) need only be dealt with generally. In the case of Art. 11 (2) cl 2, however, the GA, by referring an issue to the SC, also expresses its opinion that ‘action’ is necessary, and thus puts the matter in a somewhat more concrete form (see MN 38). (p. 501) 30  In practice, the GA has made its recommendations under Art. 11 (2) cl 1, like those under Art. 10, to a great number of addressees, without limiting itself to those mentioned in the provision. Recommendations have been directed to ‘member states’, ‘specific member states’, ‘all states’, ‘governments’, ‘the people of a specific member state’, ‘the parties concerned’, ‘subsidiary or special agencies’, or the ‘Security Council’. Some recommendations have also been addressed to the SG.50 Lately, GA resolutions have also

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addressed non-State actors, as ‘the Afghan parties, in particular the Taliban’ or ‘the Kosovar Serb and Albanian leaderships’ or ‘representatives’ and ‘all others concerned’.51

3.  Limits 31  The question as to whether the power of the GA to make recommendations is curtailed by Art. 11 (2) cl 2 has already been discussed extensively in the context of Art. 10 (see Klein and Schmahl on Art. 10 MN 25–35). As a rule, the GA is not prevented from recommending enforcement action under Chapter VII of the UN Charter itself; but Art. 11 (2) cl 2 does oblige the GA to direct a matter to the SC’s attention if it believes that binding coercive measures are necessary, since the SC alone may decide on those (Arts 25, 48). The importance of Art. 11 (2) cl 2 therefore lies in the fact that it assigns to the GA a share of the responsibility to counter breaches of the peace or imminent threats to the peace as quickly and effectively as possible by giving the SC a chance to act. This necessarily implies the GA’s power to assess the situation (MN 36). Article 11 (2) cl 2 thus does not effect a substantive limit to recommendations by the GA but rather one of a procedural nature. Ultimately, it is a provision meant to promote the cooperation between the two main organs in furthering the main purpose of the Organization, the maintenance of world peace, to the fullest extent possible. If, however, the SC is paralysed due to disagreement among its permanent members, there will be no need to refer a question to that organ again, even if the GA still takes the view that mandatory enforcement action is required. This position, apparent in the Uniting for Peace Resolution (UNGA Res 377 (V) (3 November 1950)), is compatible with the opinion expressed here, because in these circumstances the SC cannot be expected to ‘keep the ball rolling’, and so a procedural obligation on the part of the GA to pass it to the SC would not serve the task of effectively fighting a breach of the peace or a threat to the peace, but would rather constitute an empty formalism. 32  Article 12(1), on the other hand, sets up a temporary bar to the GA’s power of recommendation, which also takes effect in the case of a referral pursuant to Art. 11 (2) (see Klein and Schmahl on Art. 12 MN 4). The fact that in principle the GA is not prevented from recommending coercive measures gives the ban imposed by Art. 12 a special significance, even though this ban has in practice not proved to be very effective with regard to either its prerequisites or its legal consequences (see Klein and Schmahl on Art. 12 MN 10–16, 23–24). Against this background, the ICJ rightly considered the evolving practice of parallel actions as consistent with Art. 12 (1), insofar as the GA and the SC are not dealing with the same issue at the same time.52 The power of the GA to discuss matters is not affected in any case (see MN 21).

(p. 502) 4.  The Effect of Referral According to Article 11 (2) Clause 2 33  Referring a matter to the SC does not engender any obligation on the part of the latter to deal with the merits of the issue. For reasons of loyalty between the organs of the UN and in view of the common obligation to promote the purposes of the Organization, especially the maintenance of international peace and security, the SC will be bound to consider whether it shares the view of the GA, as expressed in the referral, that enforcement action is necessary. This is true in particular if the GA’s resolutions were passed by a large majority. If the SC does not take a decision or refers the matter back to the GA (Art. 12 (1)), the latter’s power of recommendation will be restored.53

C.  Article 11 (3) I.  General Meaning 34  The power of the GA to call the attention of the SC to situations likely to endanger international peace and security (see Klein and Schmahl on Art. 12 MN 6) is meant to strengthen its position vis-à-vis the SC.54 It functions as a compensation to the GA for the assignment to the SC of the primary responsibility for the maintenance of international peace and security by the Charter. One therefore also has to view Art. 11 (3) in the context From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

of Arts 35 (1) and 99 of the Charter, which give a similar power to the individual member State and the SG, respectively. The initiative granted to the GA is intended to lessen the chance that the SC, because of a special interest on the part of one of its permanent members, will not deal with a particular case.55

II.  Scope and Definition 1.  The Exercise of the Power 35  The GA may alert the SC at its discretion. It has made use of this power several times, even as early as 29 November 1947, in a resolution on the question of Palestine (UNSC Res 181 (II)). In it, the GA requested the SC, among other issues, to take the necessary action to enforce the plan for the future government of Palestine, as well as to consider whether the situation in Palestine constituted a threat to international peace and security, and, if warranted, to take enforcement action under Arts 39 and 41, without, however, expressly invoking Art. 11 (3).56 The GA resolutions on Namibia57 are also examples.

(p. 503) 2.  The Power of Determination 36  It is true that the power to determine the existence of a threat to the peace, breach of the peace, or act of aggression is expressly restricted to the SC by Art. 39. Nevertheless, the power of the GA explicitly or implicitly to establish that a situation poses a threat to the peace is not called into question, and this rightly so.58 This interpretation is supported by remarks made by the ICJ in its Advisory Opinion on the Status of Namibia, according to which the GA may in certain cases within its competence also pass resolutions containing a determination or having an ‘operative design’.59 37  At any rate in practice, the GA claims such a power. Thus, in its resolution of 1 February 1951 (UNGA Res 498 (V)), on the occasion of the Korean Crisis (1950), it determined that by supporting the North Korean attack on South Korea, the government of the People’s Republic of China was itself guilty of an armed attack.60 During the Hungarian Crisis (1956) it furthermore condemned the forcible suppression of the popular uprising by the Soviet Union in several resolutions and stated that the Soviet interference constituted intervention.61 Other examples can be found in resolutions concerning the situation in Algeria,62 the question of Cyprus,63 the military incursions of the Republic of South Africa into Namibia,64 the situation in Bosnia and Herzegovina,65 and the occupation of the Syrian Golan by Israel66 as well as Israeli activities in the occupied Palestinian territory.67

3.  The Relationship between Article 11 (3) and Article 11 (2) Clause 2 38  Whereas the GA must refer a question to the SC if it considers enforcement action necessary in the given situation, it may alert the SC pursuant to Art. 11 (3) even if it considers that coercive measures are not required. Article 11 (2) cl 2 therefore sets a stricter standard than Art. 11 (3) and accordingly constitutes the more special norm.68 Even though the wording of Art. 11 (3) seems to indicate that a situation must be brought before the SC without any recommendation as to the merits involved,69 this interpretation is not at all conclusive. After all, if the mere reference according to para 2 cl 2 implies the GA’s opinion that enforcement action is required, the GA can hardly be kept from communicating its view on the situation to which it calls the attention of the SC under Art. 11 (p. 504) (3). In those cases, it will usually exercise its power to submit recommendations to the SC pursuant to Art. 11 (2) cl 1 (see MN 29). Both provisions indicate that every time the SC considers a question, no matter whether it is dealing with it according to Art. 11 (2) cl 2 or Art. 11 (3), the GA loses its power to make recommendations (Art. 12 (1)).70

4.  Reaction by the Security Council

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39  In principle, the SC is not obliged to deal with a situation brought before it (see the comments at MN 19, which also apply in this context). If the SC does not react to a submission, the power of the GA pursuant to Art. 10 and Art. 11 (2) cl 1 to make recommendations in the matter will be restored.71

D.  Article 11 (4) I.  General Meaning 40  The Dumbarton Oaks Proposals did not contain any provision equivalent to Art. 11 (4). On the contrary, this paragraph was part of a compromise reached at San Francisco between the Great Powers and the smaller States on the question of the relationship between the SC and the GA. The most important component of the compromise was the attribution of a general power of discussion and recommendation to the GA (cf Art. 10). At first, a new paragraph was placed in front of the provision on the several specific functions and powers of the GA taken from the Dumbarton Oaks Proposals (Chapter V s B), stating the general power. A second paragraph, which already contained the substance of the present Arts 11 (1)–(3) and 12 of the UN Charter, began with the formulation ‘without limiting the generality of the preceding paragraph’.72 When the originally comprehensive provision was divided into three separate Articles (Arts 10–12), it became necessary for systematic reasons to incorporate a reformulated version of the clause quoted, adjusted to the new situation, into a separate (last) paragraph of the newly shaped Art. 11. The history of Art. 11 (4) thus shows its clear purpose of safeguarding the additional power which the political compromise had brought to the GA (and thus especially the smaller member States) against the attempt to derive arguments limiting the scope of the general competence from the more specifically worded competences of Art. 11, which had been drafted earlier.73

II.  Interpretation 41  Insofar as the GA is accorded powers by Art. 11 that extend further than those it has under Art. 10, Art. 11 (4) possesses no function. This applies to the GA’s competence under Art. 11 (2) cl 1 to make recommendations to States which are not members of the UN (MN 28).74 Paragraph 4, on the other hand, undoubtedly has the consequence that, according to Art. 10, the GA may discuss and make recommendations on questions concerning the maintenance of international peace and security without depending on a submission as required by Art. 11 (2) cl 1 (MN 26). (p. 505) 42  The actual problem involved in Art. 11 (4) is raised by Art. 11 (2) cl 2. The question is first whether the latter provision is covered by para 4 at all, which one might doubt since that refers to the ‘powers’ of the GA. It must be asked furthermore whether the UN Charter would be self-contradictory if it did not attach any importance to Art. 11 (2) cl 2 in the context of Art. 10. 43  An apparently clear solution would be to interpret Art. 11 (4) in such a way that all the preceding paragraphs of the Article could not limit the scope of Art. 10. Then Art. 11 (2) cl 2 would be included and thus suspended in favour of Art. 10.75 The text of Art. 11 (4) speaks against this construction though, as it refers to the preceding paragraphs in terms of the ‘powers’ of the GA. 44  From there the question arises whether Art. 11 (2) cl 2 establishes a ‘power’ of the GA. Some authors deny this, arguing that the headline introducing Arts 10 to 17 required a strict distinction between the terms ‘functions’ and ‘powers’ and that the obligation to refer a question was a function rather than a power.76 It follows from this view that Art. 11 (4) does not speak against interpreting Art. 11 (2) cl 2 as a substantive bar to the GA’s power of recommendation under Art. 10. This result is not convincing, however. If one considered Art. 11 (2) cl 2 as a limitation on a power caused by the assignment of a function, this

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provision would be in such close connection with the powers accorded to the GA by Art. 11 that Art. 11 (4) would necessarily have to extend to it.77 This would cast doubt on the function of Art. 11 (2) cl 2 if it could so easily be pushed aside in respect of Art. 10. 45  The solution must not proceed from Art. 11 (4), but must rather concentrate on the interpretation of Arts 10 and 11 (2) cl 2. In this respect the conclusion has, however, been that the latter provision does not substantively limit the power of the GA to make recommendations but is rather (only) a cooperation norm intended to ensure that the GA refers questions that, it believes, require compulsory enforcement action as quickly as possible to the only body competent to take those measures, namely the SC (see MN 31).78 If understood as a procedural norm in that sense, Art. 11 (2) cl 2 is indeed not affected by Art. 11 (4) but is in any case of no consequence for the scope of the GA’s power of recommendation. Thus in reality, there is no contradiction between Arts 10 and 11 (2) cl 2.79 For precisely this reason, however, since the procedural provision of Art. 11 (2) cl 2 regulates a special case, it is also binding on the GA when it is operating on the basis of its general power pursuant to Art. 10. For then, too, it has to refer the question or matter with which it is dealing to the SC if it considers compulsory enforcement action necessary. This does not exclude corresponding recommendations, within the limits laid down by Art. 12. It is therefore quite correct as a matter of substance that Art. 10 only refers to Art. 12 and not also to Art. 11 (2) cl 2. 46  Based on this interpretation, Art. 11 (4) is much less problematic than is often assumed.80 By some, on the other hand, it is considered an unnecessary provision, ie one (p. 506) without any legal consequence.81 Even in such a general form, the latter statement is not correct (MN 26, 41). From the present-day perspective, however, deletion of the provision would indeed appear to have little significant consequence. Still, one must not forget that the formulation came at the end of a political compromise and at the beginning of the activities of the SC and the GA and was written at a time when it was by no means clear in which direction practice would develop. Article 11 (4) at least offered a basis for the arguments of those who advocated an interpretation of Art. 10 not restricted by Art. 11 (2) cl 2,82 even if the real decision depended on the evolving understanding of Art. 11 (2) cl 2 itself.83

E.  Evaluation 47  Whereas the original goal pursued in Chapter V s B No 1 of the Dumbarton Oaks Proposals, which already largely corresponded to Arts 11 (1)–(3) and 12 (1), was to bring about a clear delimitation of the powers of the GA and the SC, this aim has not been achieved in practice. In this respect, Art. 10 has had a strong effect, as intended by the advocates of a general competence for the GA at San Francisco, and Art. 11 (4) has worked as a supporting agent. Thus Art. 11 performs a service function for Art. 10 by emphasizing, though without any restrictive effect, some especially important questions or matters already falling within the scope of the Charter, and thus covered by Art. 10. The GA has seized this opportunity to set priorities in its activities, for instance in the sphere of disarmament and arms control, and has in this way increased its weight within the Organization, without, however, achieving any major breakthrough in substance. Other parts of Art. 11 only take up other provisions of the Charter, repeating them from the angle of the GA (see para 2 cl 1 and Art. 35 (1) and (2)), or parallel analogous powers of other organs (see para 3 and Art. 99). Article 11 (2) cl 2 has not been able to develop into a substantive limit on the GA’s power to make recommendations. This result contradicts neither the text of Art. 11 (2) cl 2 nor the wording of Art. 10, but is rather a consequence of the decision to accord the GA a general power of discussion and recommendation, even though this development was not legally inevitable. At any rate, it was more likely than the evolutionary path which Art. 12 (1) has in fact taken, minimizing its role as a bar to the GA’s power of recommendation (see Klein and Schmahl on Art. 12 MN 33–34). The expansive use

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the GA has made of its powers is certainly less troubling than the SC’s inability to assert and enforce its leading role in the maintenance or restoration of international peace and security.

Footnotes: *  The authors acknowledge that the following text contains elements of the respective comments on Art. 11 by Kay Hailbronner and Eckart Klein in the previous edition of this commentary. 1

  UNCIO III. 4 (ch V s B (1) first pt); see also MN 4.

2

  LM Goodrich and E Hambro, Charter of the United Nations, Commentary and Documents (2nd edn, Stevens 1949) 164. 3

  RP 5 I, 112; lastly RP 10 II, Art. 11, para 7.

4

  Kelsen, 201; A broad view is taken also in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 233. 5

  RP I, 300; GHS, 121f; FA Vallat, ‘The General Assembly and the Security Council of the United Nations’ (1952) 29 BYIL 63, 93. 6

  See also UNGA Res 65/11 (23 November 2010) UN Doc A/RES/65/11, on ‘Implementation of the Declaration and Programme of Action on a Culture of Peace’. 7

  See also UNGA Res 65/1 (22 September 2010) UN Doc A/RES/65/1, on ‘Keeping the promise: united to achieve the Millennium Development Goals’. 8

  RP 5 I, 114f; RP 9 II, 4f; RP 10 II, Art. 11, paras 11ff.

9

  See also UNSC Res 1368 (12 September 2001) UN Doc S/RES/1368 and E Afsah, ‘Afghanistan Conflict’ MPEPIL (online edn) MN 16–19. 10

  See, in particular, UNGA Res 60/288 (8 September 2006) UN Doc A/RES/60/288; UNGA Res 65/34 (6 December 2010) UN Doc A/RES/65/34. 11

  RP 10 II, Art. 11, paras 13–15. The SC, however, acting under Chapter VII, established a legal framework for States to combat terrorists and States aiding them, see UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373. 12

  GHS, 118.

13

  GHS, 118.

14

  CPF/Thierry, 656; F Kalshoven, ‘Arms, Armaments and International Law’ (1985-II) 191 Rec des Cours 183, 310. 15

  See A Wagner, ‘Abrüstung’ in H Volger (ed), Grundlagen und Strukturen der Vereinten Nationen (Oldenbourg 2007) 101, 126ff. 16

  See eg Measures for the Further Reduction and Limitation of Strategic Offensive Arms (NEW START) Treaty between Russia and the United States, signed on 8 April 2010, and entered into force on 5 February 2011, accessed 20 July 2012. 17

  See eg the African Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba) signed in Cairo on 11 April 1996, and entered into force on 15 July 2009. 18

  UNGA Res 1 (I) (24 January 1946) UN Doc A/RES/1(I) (adopted unanimously); GHS, 119; O Kimminich, ‘Disarmament’ in R Wolfrum and C Philipp (eds), United Nations: Law, Policies and Practice (CH Beck 1995) 407.

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19

  UNGA Res 41 (I) (14 December 1946) UN Doc A/RES/41(I) (adopted unanimously); RP I, 289. 20

  UNGA Res 502 (VI) (11 January 1952) UN Doc A/RES/502(VI); RP I, 290; GHS, 120.

21

  UNGA Res 1722 (XVI) (20 December 1961) UN Doc A/RES/1722(XVI); GAOR 16th Session Supp No 17, 7. 22

  Final Document of the 10th special session of the GA, UNGA Res 10/2 (30 June 1978) UN Doc A/Res/10/2, No 120; last expansion of membership in 1999, Report of the CD, Doc CD/1586 (7 September 1999). 23

  UNDYB (1986) 10f. A survey of current topics dealt with is to be found in the annual reports of the CD to the GA. 24

  UNGA Res 2832 (XXVI) (16 December 1971) UN Doc A/RES/2832(XXVI).

25

  See JH Barton, ‘Disarmament’ EPIL I (1992) 1072ff on this shift of emphasis.

26

  UNTS 480, 43; UNGA Res 1665 (XVI) (4 December 1961) UN Doc A/RES/1665(XVI); GAOR 16th Session Supp No 17, 5; RP 3 I, 233; UNGA Res 2373 (XXII) (12 June 1968) UN Doc A/RES/2373(XXII); GAOR 22nd Session Supp No 16A, 5; RP 4 I, 122. 27

  UNTS 610, 205; UNGA Res 2222 (XXI) (19 December 1966) UN Doc A/RES/2222(XXI); GAOR 21st Session Supp No 16, 13. 28

  UNTS 955, 115; UNGA Res 2660 (XXV) (7 December 1970) UN Doc A/RES/2660(XXV); GAOR 25th Session Supp No 28, 11. 29

  UNTS 1015, 163; UNGA Res 2826 (XXVI) (16 December 1971) UN Doc A/RES/ 2826(XXVI); GAOR 26th Session Supp No 29, 30. See M Bothe, Das völkerrechtliche Verbot des Einsatzes chemischer und bakteriologischer Waffen (Heymanns 1973) 217ff. 30

  See G Zieger, Die Vereinten Nationen (Niedersächsische Landeszentrale für Politische Bildung 1976) 112ff; Bothe (n 29) 237ff; UNDYB (1986) 241ff. 31

  See eg RP 10 II, Art. 11, para 10. Further see UNGA Res 65/56 (8 December 2010) UN Doc A/RES/65/56, and UNGA Res 66/51 (2 December 2011) UN Doc A/RES/66/51. 32

  CPF/Thierry, 659; C Tomuschat, ‘Die Krise der Vereinten Nationen’(1987) 42 EA 97, 101.

33

  UNGA Res 1252 (XXIII) (4 November 1958) UN Doc A/RES/1252(XXII); RP 2 II, 30.

34

  For references, see the UN Disarmament Yearbooks (UNDYB), published annually since 1977, which give a comprehensive view of the activities of the UN in this field. 35

  A fourth special session of the GA devoted to disarmament has been planned since 1995 (cf UNDYB (1999) 158), including the establishment of two open-working groups (UNGA Res 61/60 (6 December 2006) UN Doc A/RES/61/60 para 1), but has not yet been convened. 36

  F Morley, The Charter of the United Nations (American Enterprise Association 1946) 13ff. 37

  CPF/Cassan, 661f.

38

  DC Dicke and HW Rengeling, Die Sicherung des Weltfriedens durch die Vereinten Nationen. Ein Überblick über die Befugnisse der wichtigsten Organe (Nomos 1975) 109. 39

  Kelsen, 202.

40

  ibid, 203.

41

  N Bentwich and A Martin, A Commentary on the Charter of the United Nations (2nd edn, Routledge & Kegan 1951) 39.

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42

  CPF/Cassan, 663f; MJ Peterson, The UN General Assembly (Routledge 2006) 67f.

43

  CP/Cassan (2nd edn, 1991) 280.

44

  RP 10 II, Art. 11, 27–29.

45

  UN Doc A/555 (GAOR 3rd Special Session, Supp No 1).

46

  M Schaefer, ‘Notstandssondertagungen der Generalversammlung’(1983) 31 VN 78, 78ff.

47

  See Klein and Schmahl on Art. 10 MN 25 for the text of the resolution.

48

  CPF/Cassan, 664; GHS, 125.

49

  Dicke and Rengeling (n 38) 110; Kelsen, 202.

50

  RP 3 I, 231. See also RP 10 II, Art. 11 MN 7.

51

  UNGA Res 53/165 (9 December 1998) UN Doc A/RES/53/165 and UNGA RES 54/183 (17 December 1999) UN Doc A/RES/54/183. Further cf Klein and Schmahl on Art. 10 MN 41. 52

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 149, paras 27ff; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) (ICJ) 22 July 2010, para 42, accessed 8 June 2012. Further see M Cowling, ‘The Relationship between the Security Council and the General Assembly with Particular Reference to the ICJ Advisory Opinion in the “Israeli Wall” Case’ (2005) 30 SAYIL 50, 69f and Klein and Schmahl on Art. 12 MN 23. 53

  RP I, 310; CPF/Cassan, 676; Vallat (n 5) 98.

54

  cf the proposal by France to grant the GA the power to initiate the examination of a situation in the sense of Art. 11 (3) by the SC (UNCIO III, 378). 55

  Goodrich and Hambro (n 2) 171.

56

  RP I, 286; SD Bailey and S Daws, The Procedure of the UN Security Council (3rd edn, Clarendon Press 1998) 292. 57

  UNGA Res 1596 (XV) (7 April 1961) UN Doc A/RES/1596(XV); UNGA Res 1899 (XVIII) (13 November 1963) UN Doc A/RES/1899(XVIII); UNGA Res 2074 (XX) (17 December 1965) UN Doc A/RES/2074(XX); UNGA Res 41/39 (20 November 1986) UN Doc A/RES/41/39. 58

  CPF/Cassan, 669; Vallat (n 5) 74; J Arntz, Der Begriff der Friedensbedrohung in Satzung und Praxis der Vereinten Nationen (Duncker & Humblot 1975) 119; M Schaefer, Die Funktionsfähigkeit des Sicherheitsmechanismus der Vereinten Nationen (Springer 1981) 135; S Marchisio, ‘Le rôle de l’Assemblée générale dans le maintien de la paix et de la sécurité internationale’ in SFDI (ed), Les métamorphoses de la sécurité collective (Pedone 2005) 95, 106. 59

  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 50. 60

  RP I, 373f; see also Klein and Schmahl on Art 10 MN 37.

61

  UNYB (1956) 69; UNYB (1957) 67.

62

  UNGA Res 1573 (XV) (19 December 1960) UN Doc A/RES/1573(XV).

63

  UNGA Res 3212 (XXIX) (1 Novmber 1974) UN Doc A/RES/3212(XXIX).

64

  eg UNGA Res 41/39 (20 November 1986) UN Doc A/RES/41/39 paras 7 and 17.

65

  UNGA Res 49/10 (3 November 1994) UN Doc A/RES/49/10.

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66

  UNGA Res 47/63 A (11 December 1992) UN Doc A/RES/47/63, A, para 7; most recently UNGA Res 66/80 (9 December 2011) UN Doc A/RES/66/80. 67

  UNGA Res ES-10/2 (25 April 1997); most recently UNGA Res 66/79 (9 December 2011) UN Doc A/RES/66/79. 68

  Kelsen, 206.

69

  Bentwich and Martin (n 41) 40.

70

  Kelsen, 207.

71

  Dicke and Rengeling (n 38) 119.

72

  UNCIO IX, 409, 240.

73

  Goodrich and Hambro (n 2) 171.

74

  cf Kelsen, 965; Dicke and Rengeling (n 38) 119.

75

  Kelsen, 207, 966 refers to this mode of interpretation without, however, approving of it.

76

  CPF/Montjoie, 680; G Dahm, Völkerrecht, vol 2 (Kohlhammer 1961) 402.

77

  cf Kelsen, 207.

78

  Similarly CP (2nd edn)/Pipart, 291ff; CPF/Montjoie, 682ff.

79

  But see Kelsen, 967.

80

  See ibid, 207.

81

  ibid, 207; CP (2nd edn)/Pipart, 292.

82

  See eg the reasoning of the United States in Certain Expenses of the United Nations (Pleadings, Oral Arguments, Documents) [1962] ICJ Rep 180, 206, 209. 83

  cf C Tomuschat, ‘General Assembly’ in R Wolfrum and C Philipp (eds), United Nations: Law, Policies and Practice, vol 1 (CH Beck 1995) 548, 552.

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Ch.IV The General Assembly, Functions and Powers, Article 12 Eckart Klein, Stefanie Schmahl From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — International peace and security

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(p. 507) Article 12 (1) 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. (2) 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. A.  General Meaning 1–3 B.  Article 12 (1): A Ban on Recommendations 4–24 I.  Its Relation to Article 11 (2) Clause 2 4 II.  Prerequisites of the Norm 5–16 III.  Legal Consequences 17–24 C.  The Removal of the Ban on Recommendations 25–32 I.  A Request by the Security Council 25–28 II.  The Convocation of an (Emergency) Special Session by the Security Council 29– 30 III.  The Removal of a Matter from the List of Items with which the Security Council is Dealing 31 IV.  Adjournment 32 D.  Evaluation 33–34 E.  Notification by the Secretary-General (Article 12 (2)) 35–46 I.  General Remarks 35–36 II.  Notification of the General Assembly 37–41 III.  Notification of the Member States 42 IV.  The Consent of the Security Council 43–44 V.  The Role of the Secretary-General 45 VI.  The Administrative Character of the Provision 46

Select Bibliography Bailey SD and Daws S, The Procedure of the UN Security Council (3rd edn, Clarendon Press 1998). Bentwich N and Martin A, A Commentary on the Charter of the United Nations (2nd edn, Routledge & Kegan 1951). Bowett DW, The Law of International Institutions (4th edn, Stevens 1982).

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Cot JP and Pellet A, La Charte des Nations Unies, Commentaire article par article (2nd edn, Economica 1991). Cot JP, Pellet A, and Forteau M, La Charte des Nations Unies (3rd edn, Economica 2005).(p. 508) Dahm G, Völkerrecht, vol 2 (de Gruyter 1961). Delbrück J, Die Entwicklung des Verhältnisses von Sicherheitsrat und Vollversammlung der Vereinten Nationen (Universität Kiel 1964). Dicke DC and Rengeling HW, Die Sicherung des Weltfriedens durch die Vereinten Nationen (Nomos 1975). Goodrich LM and Hambro E, Charter of the United Nations, Commentary and Documents (2nd edn, Stevens 1949). Goodrich LM, Hambro E, and Simons AP (eds), Charter of the United Nations (3rd edn, Columbia UP 1969). Marchisio S, ‘Le rôle de l’Assemblée générale dans le maintien de la paix et de la sécurité internationale’ in SFDI (ed), Les métamorphoses de la sécurité collective (Pedone 2005) 95. Morley F, The Charter of the United Nations (American Enterprise Association 1946). Pancarci V, De la Charte des Nations Unies à une meilleure organisation du monde (Pedone 1962). Peterson MJ, The UN General Assembly (Routledge 2006). Sands PQC and Klein P, Bowett’s Law of International Institutions (6th edn, Sweet & Maxwell 2009). Schaefer M, Die Funktionsfähigkeit des Sicherheitsmechanismus der Vereinten Nationen (Springer 1981). Tomuschat C, ‘General Assembly’ in R Wolfrum (ed), United Nations: Law, Policies and Practice (CH Beck 1995) 548. Vallat FA, ‘The General Assembly and the Security Council of the United Nations’ (1952) 29 BYIL 63. Virally M, L’Organisation mondiale (Colin 1972).

A.  General Meaning* 1  The wide-ranging authority of the GA also comprises questions relating to the maintenance of international peace and security. This is clarified by Arts 10, 11 (2), 14, and 35 (1). In this area, the SC has the primary (Art. 24) but by no means exclusive responsibility.1 Article 12 serves to safeguard this primacy. Due to the completely different structure and composition of the two organs, they might well evaluate situations differently and so draw conflicting conclusions. Recommendations by the GA that are incompatible with SC resolutions on the same matter could lead to mutual obstruction of the organs in the exercise of their functions and thus jeopardize the most important purpose of the UN, the maintenance of international peace and security (Art. 1 (1)). 2  Article 12 tries to resolve this problem by establishing a temporary ban on recommendations by the GA with regard to cases being dealt with by the SC. It thus regulates the relationship between the SC and the GA and touches on a complex of questions that were highly controversial at San Francisco. Changes in the wording of para 1 as (p. 509) compared to the Dumbarton Oaks Proposals (MN 6, 10) and the insertion of para 2 (MN 36) clearly reflect the compromise struck at San Francisco. 3  Article 12 has a special position insofar as it undertakes expressly to delimit the powers of the GA and the SC, even though this only applies with regard to disputes and other situations that threaten the peace. There are no corresponding provisions clarifying the relationship between the GA or the SC and other UN organs, nor the interrelations of those other organs. Thus, for instance, the fact that the SC is dealing with a dispute between member States does not prevent the ICJ from taking action on the same issue.2 The Charter From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

usually confines itself to defining the competences of the individual organs and leaves any further determination to them,3 at least temporarily. Shortcomings that may appear can thus only be overcome if the organs concerned are ready to cooperate in good faith in effectively accomplishing the purposes of the UN.4

B.  Article 12 (1): A Ban on Recommendations I.  Its Relation to Article 11 (2) Clause 2 4  While it is the function of Art. 12 (1) to ensure that considerations already under way in the SC can continue without any outside interference, Art. 11 (2) cl 2 provides a way to transfer a matter to the SC at the outset.5 The two provisions thus proceed from different bases. Nor is their scope identical, since Art. 11 (2) cl 2 obliges the GA to surrender a matter to the SC only in those rare cases in which, in its view, enforcement action by the SC is required (Klein and Schmahl on Art. 11 MN 31). Article 12 (1), however, immediately suspends the GA’s power to make recommendations when the SC is merely dealing with a matter, regardless of whether it is considering any enforcement action (MN 8). It is true that each transfer under Art. 11 (2) cl 2 entails a temporary loss of the GA’s power to make recommendations, if the conditions of Art. 12 (1) are met;6 but such a transfer is not the only road leading to the application of Art. 12 (1). Irrespective of the differences just outlined, both provisions are governed by the same basic idea: the SC, having primary responsibility for the maintenance of international peace and security and therefore being accorded a greater legal and political power, even over the GA, is meant to be able, without interference, to develop and realize its concepts of how to solve conflicts that threaten the peace.

II.  Prerequisites of the Norm 5  Article 12 (1) bars the GA from making any recommendation while the SC ‘is exercising… the functions assigned to it in the present Charter’ (b) in respect of any ‘dispute or situation’ (a). (p. 510) 6  (a) The terms ‘dispute’ and ‘situation’ imply a concrete issue that at least potentially threatens international peace and security.7 This is shown primarily by the contexts in which these terms are normally used in the UN Charter (eg Arts 1 (1), 2 (3), 33– 38 concerning a dispute, Arts 11 (3), 14, 34, 35 concerning a situation), but also follows from the functions described in Art. 12 (1) (MN 1). Another important indication comes from the origin and framing of the provision. The Dumbarton Oaks Proposals still intended to exclude the GA from making recommendations with regard to any matter relating to the maintenance of international peace and security with which the SC was dealing. Though that formulation entered into para 2 in similar form, it was replaced by the narrower terms ‘dispute’ and ‘situation’ in para 1. The recommendatory power of the GA in the area of Art. 13, for instance, is therefore unaffected by Art. 12 (1) in any case. Nor does Art. 12 (1) prevent the GA from making recommendations concerning, for example, general questions of cooperation in the maintenance of peace and security, including questions of disarmament, even if the SC is dealing with such problems at the time (cf Art. 26). Consequently, Art. 11 (1) does not contain any reference to Art. 12 (1), as Arts 10, 11 (2), 14, and 35 (3) do, because the competences of the GA mentioned in those Articles are defined so as to cover—either additionally, or even specifically—the treatment of disputes and situations. 7  Of the two terms, ‘situation’ is broader than ‘dispute’. Whereas in a ‘dispute’ at least two States are opposing one another as parties (cf Arts 37 (1), 38), ‘situation’ stands more generally for circumstances posing a threat to the peace without requiring the existence of

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the actual confrontation between States inherent in a ‘dispute’ (see Klein and Schmahl on Art. 10 MN 9). 8  (b) In the practical application of Art. 12 (1), the formulation ‘While the Security Council is exercising…the functions assigned to it in the present Charter’ has become significant, since it allows some room for interpretation, which the GA has used to its advantage. The wording itself is sufficient to show that the responsibilities of the SC mentioned above refer to disputes and other situations threatening the peace, and hence include only those assigned to it by Chapters VI and VII.8 It is much more difficult to interpret the expression ‘exercising the functions’. In this respect, a remarkable development has taken place. 9  At first, the prevalent view was that the mere inclusion of a dispute or situation in the list of matters with which the SC was dealing barred the GA from making recommendations on those affairs. Thus the SC resolved formally to remove the Spanish question (1946), the Greek Frontier Incidents Case (1947), and the Korean conflict (1951) from the list, so as to enable the GA to make recommendations.9 In the case of the complaint of aggression against the Republic of Korea, however, the GA had already taken the initiative on its own (MN 12). As late as 1954, the majority of the GA refused to accept a resolution concerning the question of West Irian, inter alia, because this problem belonged to the complex of the Indonesian question, which was on the SC’s agenda, in spite of the period of time that had elapsed since the SC had last discussed it.10 (p. 511) 10  The restraint shown in these cases was not unlimited, however. The view was taken even then that the SC’s ‘exercise of its functions’ had to be read as meaning simultaneous, actual, and active consideration.11 The mere fact that a matter was being kept on the agenda of the SC could not prevent the GA from making recommendations.12 This view is also supported by the wording of Art. 12 (1), which is narrower than the original Dumbarton Oaks Proposals. There, the recommendatory power of the GA was to be suspended if a matter relating to the maintenance of international peace and security was merely ‘being dealt with’ by the SC. In any event, the opinion more favourable to the GA has generally been accepted since the early 1960s, even though the scope of Art. 12 (1) has repeatedly been called into question in some debates.13 11  Moreover, the GA has adopted the practice of making recommendations on issues with which the SC was itself dealing quite actively. Examples include recommendations by the GA with regard to the racial policies of South Africa (apartheid), the situation in Angola, the territories under Portuguese administration, and in Southern Rhodesia, as well as the Tunisian case and the question of Cyprus.14 Although an opinion submitted by the Legal Counsel of the SG characterized this as a departure from the actual text of Art. 12, it also noted that the member States had not objected to the practice.15 Four years later the Legal Counsel expressed the more precise view that the GA had consistently interpreted the expression ‘is exercising’ to mean ‘is exercising at this moment’.16 There were therefore no obstacles to the GA recommending member States to sever diplomatic and economic relations with South Africa, Southern Rhodesia, and Portugal.17 Members of the GA have not hesitated to invoke this legal opinion.18 The examples enumerated could be supplemented by references to more recent recommendations, particularly those concerning the situations in the Middle East, Namibia, East Timor, the Western Sahara, Kosovo, Afghanistan, the occupied Palestinian territory, and measures to eliminate international terrorism.19 As the recommendations of the GA on Namibia showed, its ideas went far beyond those of the SC, thus offering a way out of the crisis (p. 512) which, as it stood, was not supported by the SC.20 No known protests by the SC against this course of action have been made.

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12  The GA had already lifted the prohibition in Art. 12 (1) in a previous special case. In Part A of the Uniting for Peace Resolution (UNGA Res 377 (V) (3 November 1950)), adopted in connection with the Korean Crisis, it had asserted its power to recommend collective measures if the SC, ‘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 GA thus determined that if a veto cast by a permanent member prevents the SC from taking a decision, the SC will not be exercising its functions within the meaning of Art. 12 (1), and consequently the GA will not be barred from making recommendations (see Klein and Schmahl on Art. 10 MN 25, 37). 13  The problem with this interpretation lies in the fact that the permanent members of the SC are expressly granted the veto power (Art. 27 (3)), 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 (Art. 39). 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 SC.21 So the decisive question concerns who has the power to assess the matter. To accord such a power to the GA would be in line with attempts to place the SC under the supervision of the GA, as undertaken by the small and medium-sized States in San Francisco.22 But those attempts failed, and hence the only procedure in accordance with the system of the Charter is to leave it to the SC itself, ie the qualified majority of its members, to judge whether it has exercised its functions, and whether it should, one way or another (MN 25–32), remove the obstacle to the Assembly’s competence. Accordingly, in the Suez, Hungarian, and Congo Crises (1956, 1956, 1960), in the India-Pakistan conflict (Bangladesh, 1971), and with regard to the occupied Arab territories (1982), the SC referred the disputes to the GA. It attached the explicit statement that, owing to the lack of unanimity of its permanent members, it could not exercise its primary responsibility for the maintenance of international peace and security.23 On the other hand, the SC has frequently rejected this course, for instance when the Soviet Union prevented the adoption of a resolution imposing sanctions against Iran in the hostage crisis.24 In this case the GA did not take action on its own either. 14  Read literally, the Uniting for Peace Resolution does not cover cases in which the SC cannot pass a resolution because all of its permanent members have voted against it or because the overall majority required for passage cannot be attained in any case, regardless of whether the permanent members cast different votes. In those cases, the lack of unanimity among the permanent members presupposed by the resolution is (p. 513) not the cause of the SC’s failure to exercise its primary responsibility for the maintenance of international peace and security.25 According to the philosophy behind the Uniting for Peace Resolution, one cannot, however, see why the alleged ‘better’ judgment of the GA should not prevail even over a majority in the SC, especially since in such cases the majority will not make use of its procedural power to refer the matter to the Assembly. The latter’s self-restraint in the operation of the Uniting for Peace Resolution is thus hardly consistent. It can probably be explained instead by a politically motivated reluctance to antagonize the majority of the SC or all its permanent members. 15  Thus, the question of whether the rejection of a resolution due to a veto is or is not to be considered an exercise of SC functions must in principle be answered according to the judgment of the majority of the SC members. Another assessment may be justified, however, if the SC refrains from any further debate on the procedural or substantive aspects of a certain issue, even though the existence of a dispute or situation threatening the peace is apparent to the GA. The GA may then regard this inactivity as evidence that the

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SC is no longer dealing with the matter,26 notwithstanding the fact that it remains formally on the list of items with which the SC is dealing (MN 10). 16  Interpreting the Uniting for Peace Resolution in conformity with Art. 12 will considerably reduce its scope. This will not, however, have much practical effect, because the general construction put on Art. 12 by the GA, quite apart from the Uniting for Peace Resolution and apparently accepted by the SC, has in any case overstepped or at least far extended the procedural limits of the provision (MN 11). The continuing importance of the resolution thus lies in the claim that the GA has the power to recommend coercive measures in favour of compatibility with Arts 10 and 11 (see Klein and Schmahl on Art. 10 MN 25f), and in the possibility offered, that is to have an emergency special session also convened by the SC itself under the procedure provided for in the resolution (MN 29, 30). It was this latter aspect that ensured the resolution’s explicit acceptance by the SC.27

III.  Legal Consequences 17  If the conditions of Art. 12 (1) are met, the GA will be barred from making recommendations concerning the particular dispute or situation. From this follow the results detailed below. 18  The GA does not lose its competence to discuss the dispute or situation while the SC is dealing with it, nor even to assess it, eg with regard to the threat it poses to peace.28 Accordingly, such an item may of course be included in the agenda of the GA.29 The powers of the Interim Committee established in 1947 (UNGA Res 111 (II) (13 November 1947)) are more restricted, because UNGA Res 295 (IV) (21 November 1949) forbids it (p. 514) to examine questions with which the SC is dealing and which it has not referred to the GA. The Committee has not, however, gained importance in any event. 19  In connection with the Indonesian question (1949), the Ad Hoc Political Committee of the GA discussed in detail whether the draft resolutions submitted were recommendations incompatible with Art. 12. This was found to be the case with one draft resolution calling for, among other things, withdrawal of the Dutch forces, release of Indonesian political prisoners by the Netherlands, and the establishment of a UN commission of inquiry. The opposite conclusion was reached regarding another resolution, however, which welcomed the agreement reached at The Hague and the forthcoming establishment of the Republic of Indonesia as an independent and sovereign State, and commended the parties involved for their contributions. The GA itself concurred with this evaluation.30 Later, the limits were pushed even further. In 1963, with Res 1913 (XVIII) (3 December 1963), the GA called upon the SC immediately to take the necessary measures to give effect to its own decisions, primarily Res 180 (1961), concerning the situation in the African territories under Portuguese administration. Violation of Art. 12 (1) was denied because, it was argued, the GA was only supporting the SC and facilitating its work.31 During the Congo Crisis, the GA —outside its emergency special session concerning the matter—had already used a similar argument when it adopted two resolutions on 4 April 1961 (UNGA Res 1599 and 1600 (XV)) calling on Belgium to abide by the relevant decisions of the SC and GA, prescribing that all Belgian troops be withdrawn, and urging the States to press for the realization of those decisions. In addition, the SC was called upon to take action to cut off the export of arms to the Congo, and the Congolese parliament was urged to convene and form a national government. During the discussion of the legality of these resolutions the view was taken by the apparent majority that Art. 12 did not prevent the GA from making recommendations insofar as the SC had not made specific decisions.32 The GA and the SC had complementary powers; cooperation could make it easier for the SC to accomplish its task and could in any

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case contribute to the more efficient performance of the functions of the Organization itself.33 20  Analysing this line of argument leads to the conclusion that the GA feels free to make recommendations in respect of disputes and situations so long as it avoids directly contradicting decisions of the SC. The GA does not consider it a contradiction in that sense to take a position which did not prevail in the SC if it was not expressly rejected by it either. One example of this latter practice is the assessment of the armed struggle for liberation in Namibia, its support by the member States, and the status of SWAPO.34 The SC did not take a very favourable view or make appeals, but neither did any of its resolutions clearly reject the GA’s opinion. There was therefore no specific decision by the SC which the GA could have viewed as a constraint. 21  In the Israeli Wall Case (2004)35 the question was raised whether the request of the GA for an advisory opinion of the ICJ (Art. 96 (1)) could be considered as constituting a (p. 515) recommendation within the meaning of Art. 12 (1) (see further MN 23). In its Advisory Opinion, the Court has not given a definite solution to this problem. On the one hand, it stated that ‘[a] request for an advisory opinion is not in itself a “recommendation” by the General Assembly “with regard to [a] dispute or situation”’.36 On the other hand, the Court argued that the GA, seeking an advisory opinion from the Court in this specific case, did not contravene the provisions of Art. 12 (1) and the GA, hence, did not exceed its competences.37 It is therefore permissible that a request for an advisory opinion is contained in a recommendation of the GA without legally anticipating any decision of the ICJ.38 In its later Advisory Opinion regarding the Unilateral Declaration of Independence in Respect of Kosovo (2010), the ICJ confirmed this view by expressly referring to its previous remarks in the Israeli Wall Case.39 Furthermore, the fact that the declaration of independence had been discussed only in the SC did not constitute a compelling reason for the Court to refuse to respond to the request from the GA.40 22  Article 12 (1) bars the GA only from making recommendations concerning the specific dispute or situation.41 This does not restrict its recommendatory power either with regard to general questions of the maintenance of international peace (MN 6) or with regard to aspects of the dispute or situation not directly connected with the maintenance of or threat to the peace. For example, the GA, having referred the Palestine question to the SC (UNGA Res 181 (II) (29 November 1947)), certainly did not stop dealing with the problem and making recommendations concerning it. It rather continued to consider the political, economic, and social aspects, while the SC dealt with the military and security aspects of the issue.42 23  In recent times, this legal development has been underlined by the jurisprudence of the ICJ. In its Advisory Opinion in the Israeli Wall Case,43 the ICJ, in order to sharply distinguish specific situations or disputes from general ones, has refused a holistic approach which only summarizes single aspects of a wide-ranging topic. What the Court rather does is to divide up certain aspects of a dispute or situation into separate categories and to assess the actions of the SC in respect of each category. Consequently, the mere fact that the SC is dealing with one category of aspects of a wide-ranging topic does not inhibit the GA from making recommendations concerning other particular items of this topic. This remains true, even if the topic as a whole is on the agenda of items which the SC is dealing with.44 For instance, in the Israeli Wall Case, the SC was officially dealing (p. 516) with the generic topic of ‘The situation in the Middle East, including the Palestine question’. One permanent member of the SC had vetoed a draft resolution of the SC that was intended to condemn the construction of the wall in the occupied Palestinian territories.45 As a result, at its tenth emergency special session46 on the much narrower item of ‘Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory’,47 the GA first adopted another resolution condemning the construction of the wall in the occupied Palestinian territories48 and thereafter adopted a resolution which included the request for From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

an advisory opinion of the ICJ.49 At that time, the SC was actually concerned with certain aspects of the conflict in the Middle East and even adopted resolutions with respect to it.50 But none of these SC resolutions dealt with aspects relating to the construction of a wall in concreto. Therefore, the Court held that the GA was not barred from making a recommendation on this very aspect, including the request for an advisory opinion of the ICJ.51 In accordance with this view, the GA later adopted another resolution on the specific topic of ‘Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory’.52 24  As a result, it appears that the GA is interpreting the legal consequence laid down in Art. 12 (1) extremely narrowly. The GA has proceeded methodically in the same way as in its interpretation of the rule itself (exercise of its functions by the SC (MN 10–16). In this way, the GA has managed to assume considerable powers of discretion, which are only marginally restricted by Art. 12 (1). This outcome is hardly compatible with the wording, purpose, and origin of Art. 12 (1), but it is sustained by State practice, and apparently more and more supported by the ICJ and the legal doctrine.53

C.  The Removal of the Ban on Recommendations I.  A Request by the Security Council 25  Even if the requirements of Art. 12 (1) are met, the prohibition on recommendations will not become operative if the SC requests the GA to make a recommendation (Art. 12 (1), last section). Although this request is related to the referral of a question by the SC to the GA under Art. 11 (2) cl 1, it differs in that it does not seek a general discussion, but (p. 517) rather concrete recommendations by the GA concerning the specific dispute (see Klein and Schmahl on Art. 11 MN 24). The SC may issue such a request, even if the GA has referred the matter to the SC under Art. 11 (2) cl 2.54 26  (a) It is left to the SC’s political discretion to decide whether it will request the GA to make a recommendation with regard to a dispute or situation. There is no legal obligation on its part.55 A permanent member of the SC can block the request by veto,56 and this has indeed happened twice57 without actually neutralizing the GA (MN 9, MN 31). UNSC Res 303 (1971), by which the SC decided to refer the conflict in the Indian subcontinent (Bangladesh) to the GA after a decision on the merits had been prevented by veto, can be considered an instance of a successful request. There was no veto concerning the request. The resolution did not, however, contain any reference to Art. 12, but rather referred to the Uniting for Peace Resolution (MN 12). The French representative criticized this formulation, as the GA was in session at the time and so there was no need to call an emergency special session.58 Apparently the invocation of this resolution only served to underline the fact that the SC, because of the lack of unanimity among its permanent members, had been unable to exercise its primary responsibility for the maintenance of world peace. In other words, it served as a political legitimation of the SC’s temporary withdrawal from the dispute. This does not prevent the application of Art. 12 (1), last section, to the event, however.59 The fact that requests in that sense do not occur more frequently is probably mainly due to the SC’s competence, unimpeded by a veto, to call emergency special sessions of the GA, and to the GA’s virtual neutralization of Art. 12 (1). 27  (b) If the SC issues the request, the power of the GA to make recommendations will be completely restored to its normal scope under Arts 10, 11, and 14 of the Charter; but there is a general consensus that the GA will not be obliged to pass a recommendation.60 This corresponds to the situation under Art. 11 (2) cl 2, where the SC is not bound to take action either (Klein and Schmahl on Art. 11 MN 33), and may be explained by the independence of the two organs. As they are, however, obliged to cooperate in good faith so as to achieve the purposes of the Organization, one assumes that they must attend to the matters referred by one to the other. Procedurally, this duty to cooperate is secured by rules requiring one

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principal organ (in this context the GA) to include automatically proposals by the other principal organ (eg the SC) in its provisional agenda or the supplementary list (Rules 13, 14, 16, 18, 40 of the Rules of Procedure of the GA). If the item is included in the final agenda (Rules 21 and 23) and if a substantive recommendation is put to the vote, as in the case of the India-Pakistan conflict (UNGA Res 2793 (XXVI) (7 December 1971)), a two-thirds majority will be required for passage according to Art. 18 (2) of the UN Charter and Rule 83 of the Rules of Procedure of the GA. (p. 518) 28  (c) Even after requesting a recommendation from the GA, the SC may continue to consider the same matter,61 unless it has at the same time deleted the item from the list of items with which it is dealing.62 This did not happen in the case concerning the IndiaPakistan conflict, however, and it is also uncommon in cases where the SC calls an (emergency) special session of the GA (MN 30). Article 12 (1), distinguishing the powers of the SC from those of the GA in a way that favours the SC, may not be turned around and used against the latter.63 The duty of loyal cooperation is, of course, also incumbent on the SC; but the SC is in no way prevented from making decisions on the merits at any time and thereby meeting the requirements of its primary responsibility for the maintenance of world peace, for instance if a previously unattainable consensus among its permanent members has been reached.

II.  The Convocation of an (Emergency) Special Session by the Security Council 29  Ultimately, the convocation of a special session according to Art. 20 or of an emergency special session under the Uniting for Peace Resolution (UNGA Res 377 (V) (3 November 1950)) also removes the prohibition on recommendations by the GA, but only if it comes from the SC.64 In those cases, the mere convocation can be equated with a request under Art. 12 (1), last section,65 even if it does not expressly refer to the making of recommendations by the GA.66 It is indeed curious, in view of the equal handling of both situations in substance, that the calling of (emergency) special sessions, unlike the issuance of a request under Art. 12 (1), is considered a procedural matter not subject to the veto power of the permanent members of the SC.67 However, this is how the SC proceeds in practice. Thus, the convocation of emergency special sessions could not be blocked by negative votes (Suez, 1956: France and the United Kingdom; Hungary, 1956: the Soviet Union; Afghanistan, 1980: the Soviet Union).68 Obviously this kind of procedure considerably reduces the importance of the veto power with regard to the request (Art. 12 (1), last section). 30  The SC has repeatedly made use of its power to call (emergency) special sessions of the GA: special session 1948 on Palestine; emergency special sessions 1956 on Suez, 1956 on Hungary, 1958 on the Lebanon, 1960 on the Congo, 1980 on Afghanistan, 1982 on the occupied Arab territories and the Golan Heights. In such cases, the SC retains the question on its agenda69 so that it can take action at any time. As Art. 12 may not be turned against the SC (MN 28), the latter is not prevented from adding to its agenda a matter that is closely connected with one also under debate at a GA emergency special session. This argument was nevertheless advanced when the Soviet Union moved for the (p. 519) SC, at its 5 November 1956 session, to consider the situation arising from the refusal of the United Kingdom, France, and Israel to adhere to the GA’s decision of 2 November 1956 (UNGA Res 997 (ES-I)). The Soviet Union rightly responded that its motion did not conflict with the UN Charter. The SC, on the other hand, was of course not obliged to grant the motion. In this respect, there was indeed good reason not to interfere with the efforts underway by the GA and the SG.70 This, however, is solely a question of political discretion.

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III.  The Removal of a Matter from the List of Items with which the Security Council is Dealing 31  The power of the GA to make recommendations will be fully restored if the SC, by deleting a matter from the list of items with which it is dealing, shows that it does not intend to consider it any further. In such a case, the SC is no longer exercising its functions. The SC acted in this way, for instance, with regard to the Spanish question (1946), the Greek Frontier Incidents Case (1947), the Korean conflict (1951), and the Lebanon Case (1958) (UN Doc A/4008 and MN 9). If a permanent member casts a negative vote on the question of whether an item should be removed from the list,71 as happened in the case of Greek Frontier Incidents, the decision may yet be implemented if it concerns a procedural matter.72 In all the cases mentioned, the procedure prescribed in para 2 was followed,73 but restoration of the full power of the GA to make recommendations does not depend on this notification (MN 46).

IV.  Adjournment 32  By adjourning, the SC also reveals that it intends to refrain from the present consideration of a dispute or situation. The SC acted in this way in 1950, when the Soviet Union accused the United States of an armed attack on China.74 The question of adjournment is also a procedural matter not subject to veto. In contrast to the deletion of a matter from the list of items with which the SC is dealing (MN 31), the decision to defer consideration does not mean that the SC renounces its right to pick up a matter again at any time and exercise its functions; but during the period of adjournment, the GA is free to make recommendations.

D.  Evaluation 33  In looking back over the development of Art. 12 (1), a change in meaning is clearly evident. The provision was intended to keep to the original idea (though with slightly different wording) of the Dumbarton Oaks Proposals, ie to prevent contradictory recommendations by the SC and the GA and thus procedurally to guarantee the precedence of the SC under Art. 24. Nevertheless, the narrow construction of the elements and the legal consequence of Art. 12 (1) as used in practice have given the GA more freedom of action and have confined the scope of the provision to avoiding recommendations that (p. 520) directly and formally conflict with each other. Even though Art. 12 has not become a complete dead letter,75 its scope has been considerably reduced.76 It is remarkable that the SC itself has done nothing to resist this dilution. Its inaction is not explained by the longlasting functional paralysis of the SC due to discord among its permanent members (veto power), for, as has been shown above (MN 25–32), there are sufficient opportunities not subject to a veto for the majority to clear the way for the GA, enabling it to make recommendations. The crucial point has rather been that in the search for political majorities it was felt, indeed especially by the permanent members of the SC, that institutional bonds were too much of an obstacle. Particularly those members who were struggling for political sympathies abstained from reminding the GA, whose self-confidence had been boosted by a considerable increase in its membership, of the limits of its powers. A clarification of the legal questions involved by means of an Advisory Opinion of the ICJ (Art. 96) has recently been attained, at least to a certain extent, by the Advisory Opinion of the ICJ in the Israeli Wall Case (MN 23). This opinion certainly does not solve all difficulties that may arise from the precarious relationship between the GA and the SC, but it has further enhanced the competence of the GA.77

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34  The development described is undoubtedly in line with the endeavours of the small and medium-sized States, which even at San Francisco already strove for the political primacy of the GA over the SC. A real shift in the balance has nonetheless not occurred, at least not in the long run. There is much disagreement over whether the GA’s gain in procedural independence for dealing with specific threats to world peace, which has gone hand in hand with the reduction in scope of Art. 12 (1), has furthered the overall ability of the UN to maintain international peace and security. This disagreement is apparent from the positions adopted in the debates on the questions of the ‘revision of the Charter’ and the ‘strengthening of the role of the United Nations with regard to the maintenance and consolidation of international peace and security’ in the GA and its competent committees.78

E.  Notification by the Secretary-General (Article 12 (2)) I.  General Remarks 35  The GA can only observe the restrictions of its power to make recommendations temporarily imposed on it by Art. 12 (1) if it is informed about the disputes and situations with regard to which the SC is exercising its functions. Article 12 (2) therefore obliges the SG to keep the GA or the member States of the Organization informed of the matters with which the SC is or is no longer dealing. Rule 49 of the Rules of Procedure of the GA repeats Art. 12 (2) verbatim. 36  The Dumbarton Oaks Proposals had not yet included a provision corresponding to Art. 12 (2). The Australian delegate proposed, with a view to extending the range of (p. 521) action of the GA, that the SG should be bound to inform the President of the GA immediately whenever the SC commenced or ceased exercising its functions in relation to any dispute or situation. The President of the GA should furthermore have the right to require the SG to report on the stage reached in the proceedings of the SC. If the GA found by a three-quarters majority that the SC had ceased to exercise its functions concerning the dispute or situation, it could proceed to make any recommendation it deemed appropriate.79 This proposal was unacceptable to the Great Powers, as it would almost have reversed the intended relationship between the SC and the GA.80 Thus the compromise eventually struck provided on the one hand that the SG should be obliged to report to the GA, but on the other hand subjected the contents of the report to the approval of the SC.81 A later amendment to Art. 12 (2) made provisions for the case where the GA is not in session at the time the report is due.

II.  Notification of the General Assembly 37  (a) The duty of the SG to inform the GA first of all refers to ‘any matters relative to the maintenance of international peace and security’ which are being dealt with by the SC or with which it had ceased to deal. The term ‘matters’ is also found in numerous other Articles of the Charter,82 and is further defined by the reference to peace and security. The notification accordingly does not include information on questions concerning the Rules of Procedure of the SC, applications for its membership, the Statute and Rules of Procedure of the Military Staff Committee (Art. 47), or the applicability of Arts 87 and 88 to strategic areas.83 The term does, however, undoubtedly include disputes or situations mentioned in para 1, to which alone the prohibition of recommendations refers84 and it even goes further.85 This inconsistency is probably due to the fact that the wider term ‘matters’, used in the predecessor of Art. 12 (1) in the Dumbarton Oaks Proposals (Chapter V s B. I), was then replaced by the narrower terms ‘disputes’ and ‘situations’, but without adjusting para

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2, a later addition. In practice at any rate, the application of Art. 12 (2) is based on the wider interpretation.86 38  (b) The notification of the GA of the matters being dealt with by the SC is effected on the basis of a summary statement which the SG has to communicate each week to the representatives on the SC, pursuant to Rule 11 of the Provisional Rules of Procedure of the SC. The statement, listing all the matters with which the SC is dealing, is actually drawn up once a year (in January and followed by a seizure statement in March) but is brought up to date every week. The notification then omits only those of the above items (MN 37) which are not related to the maintenance of international peace and security. Whereas the notification by the SG originally enumerated all the relevant items without any differentiation, it has been sub-divided into two sections since 1951, comprising (1) those matters which the SC was not only formally contemplating, but actually discussed, (p. 522) during the period since the preceding notification; and (2) those which it had remained seised of but had not actually considered during that time.87 The success rate of deleted items proved to be very low. Between 1946 and 1978 only twenty-three items were deleted, some only after a very long time (eg Trieste, thirty years).88 By a major effort and in order to improve the working methods in 1993–94, eighty items were deleted.89 39  A new approach was adopted in 1996. According to two notes of 30 July and 29 August 1996, issued by the President of the SC,90 it was decided that matters which had not been considered by the SC in the preceding five years would be deleted from the list of matters of which the SC is seised. However, no item was to be deleted from the list without the prior consent of the member States concerned in accordance with the following procedure: (a) the annual summary statement, issued in January of each year, was to identify the items to be deleted from the list in the absence of any notification by a member State by the end of February of the same year; (b) if a member State notified the SC that it wished an item to remain on the list, that item was to be retained; (c) the notification of the State remained in effect for one year and could be renewed.91 Accordingly, the notification by the SG under Art. 12 (2) since then contained first the list of matters which have been discussed by the SC since the preceding notification (eg thirty-six items in 1999–2000), followed by a list of those items which the SC had not considered in formal meetings during the preceding fiveyear period and which therefore could be deleted in principle, if member States do not object. Yet experience showed that most of the items remained in the list according to the wish of member States to retain them. Out of seventy-four items ready for deletion only nine items could actually be deleted, for instance, during the year 2000;92 however, the relevant figure was much higher in 1997 (thirty-four).93 In a third section of the notification under Art. 12 (2), those matters relative to the maintenance of international peace and security were listed which the SC had not discussed but of which it remained seised (eg sixty-five matters in 1999/2000). 40  Against this background, a further step was deemed necessary in order to improve the efficiency of the working methods. The procedures envisaged by the notes of 1996 have therefore been altered according to a note of 31 December 2008, issued by the President of the SC. The five-year period mentioned above (MN 39) was shortened to a three-year period.94 Furthermore, the statement of January is now presented in the format of two sections: (a) one section comprising items which have been considered by the SC at a meeting during the preceding three-year-period, and (b) another section comprising items which are, in principle, identified to be deleted from the list because they have not been considered by the SC during the preceding three calendar years.95 The seizure (p. 523) statement issued in March of each year then reflects the deletion of these items, unless a member State notifies the President of the SC by the end of February of that year that it requests an item to remain on the seizure statement, in which case such item will remain on the list for one more year.96 Accordingly, the notification by the SG under Art. 12 (2) now contains first the list of matters which have been considered by the SC at a formal meeting From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

during the preceding three-year period until notification. The list indicates the date on which each item was first taken up by the SC at a formal meeting, and the date of the most recent formal Council meeting held on that item (eg fifty-five items in 2007–09), followed by a list of those items which the SC had not considered in formal meetings during the preceding three-year period and which therefore could be deleted in principle, if member States do not object (eg twenty-nine items in 2007–09).97 Again, practice reveals that there are no new tendencies visible; most of the items still remain in the list according to the explicit wish of member States. Out of twenty-nine items ready for deletion only two items could actually be deleted during the year 2010,98 the relevant figures thus not being noticeably different compared to the last decade (see MN 39). Those matters relative to the maintenance of international peace and security of which the SC remains seised are now summed up in a separate notification under Art. 12 (2) (eg eighty-one matters in 2008/09, eighty-three matters in 2009/10, and eighty-six matters in 2010/11)99 41  (c) As soon as the SC ceases to deal with a matter relating to the maintenance of international peace and security, it is up to the SG to make a corresponding notification. The decision on whether the SC has ceased to consider an issue is, however, entrusted to the SC alone in accordance with the procedure described above (MN 39, 40).

III.  Notification of the Member States 42  If the SC ceases to deal with an issue while the GA is not in session, the notification shall be addressed to the member States, which may request the convocation of a special session (Art. 20) and thus bring about recommendations by the GA. This has never actually occurred, however, primarily because the regular sessions of the GA have been extended further and further. Nor has the Interim Committee (MN 18) gained any importance in this respect.

IV.  The Consent of the Security Council 43  The consent requirement is aimed at controlling the SG.100 He is to be prevented from misinterpreting a decision by the SC, which wishes to retain control over its own procedure, particularly as to the question of whether the SC has ceased to deal with a matter. The consent requirement is thus specifically intended for this case. The English and Spanish texts are unequivocal in this respect, while the French version, dividing the two parts of the sentence by a semicolon, seems to necessitate the consent of the SC only for (p. 524) the notification of those matters being dealt with by the SC. But the French wording of the second part of the sentence (‘de même’, ‘in the same way’) refers to the procedure set out in the first part and thus also to the consent of the SC.101 44  During the first two years of the UN’s existence (1946–47) consent was formally given by the SC at its sessions.102 Since then, the SG has sought the SC’s consent by circulating copies of draft notifications among its members.103 As it is a question of procedure, the permanent members have no veto power.104 If the deletion from the list itself has to be considered a procedural question (MN 31), a different view of the notification does not make sense, considering its minor importance (MN 46).

V.  The Role of the Secretary-General 45  The function of the SG is purely technical in nature. He transmits a message of the SC to guarantee the flow of information between the SC and the GA, without, however, having any discretion of his own.105

VI.  The Administrative Character of the Provision

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46  The notification as such is of no consequence for the substantive question of whether or not the ban on recommendations by the GA set up by para 1 has been removed. Accordingly, the refusal to grant consent does not have any influence either.106 The function of Art. 12 (2) is to facilitate the application of Art. 12 (1). But the question of whether the ban on recommendations (still) applies or not is determined solely by Art. 12 (1).

Footnotes: *  The authors acknowledge that the following text contains elements of the respective comments on Art. 12 by Kay Hailbronner and Eckart Klein in the previous edition of this commentary. 1

  Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, 163; Military and Paramilitary Activities in and against Nicaragua, Jurisdiction and Admissibility [1984] ICJ Rep 392, 434; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 36, 148, para 26; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [22 July 2010] para 40 accessed 8 June 2012; RP 3 I, 289, 292; DW Bowett, The Law of International Institutions (4th edn, Stevens 1982) 51f; PCQ Sands and P Klein, Bowett’s Law of International Institutions (6th edn, Sweet & Maxwell 2009) 32; but see V Pancarci, De la Charte des Nations Unies à une meilleure organisation du monde (Pedone 1962) 41. 2

  United States Diplomatic and Consular Staff in Tehran [1980] ICJ Rep 3, 22; Nicaragua, Jurisdiction and Admissibility [1984] ICJ Rep 392, 435; see also Aegean Sea Continental Shelf (Greece v Turkey) [1976] ICJ Rep 38 (Dissenting Opinion Judge Stassinopoulos), and Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (declaration Judge Ni) [1992] ICJ Rep 21. 3

  Certain Expenses [1962] ICJ Rep 151, 168.

4

  cf E Klein, ‘Paralleles Tätigwerden von Sicherheitsrat und Internationalem Gerichtshof bei friedensbedrohenden Streitigkeiten’ in R Bernhardt and others (eds), Festschrift Mosler (Springer 1983) 467ff, 467, 481. As to the relationship between the GA and ICJ see DM Öberg, ‘The Legal Effects of United Nations Resolutions in the Kosovo Advisory Opinion’ (2011) 105 AJIL 81, 83ff. 5

  CPF/Cassan, 671.

6

  CPF/Degni-Segui, 881.

7

  N Bentwich and A Martin, A Commentary on the Charter of the United Nations (2nd edn, Routledge & Kegan 1951) 40; H Kelsen, The Law of the United Nations (Praeger 1951) 216. 8

  Bentwich and Martin (n 7) 41.

9

  RP I, 386ff; RPSC (1946ff) 212ff, 217.

10

  RP 1 I, 141ff.

11

  RP 1 I, 143.

12

  RP I, 389. Further see MJ Peterson, The UN General Assembly (Routledge 2006) 68f.

13

  eg RP 4 I, 289ff; RP 5 I, 121f.

14

  RP 3 I, 283ff.

15

  (1964) UNJYB 228, 237.

16

  23rd General Assembly, Third Committee, 1637th meeting, A/C.3/SR.1637, para 9.

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17

  (1968) UNJYB 185.

18

  RP 5 I, 121.

19

  RP 5 I, 120f; lastly RP 10 II, Art. 12, para 3. It is interesting to note that between 1995 and 1999, the GA adopoted six resolutions addressing the human rights situation in Kosovo. The last of these, UNGA Res 54/183 (17 December 1999) UN Doc A/RES/54/183, was adopted some six months after UNSC Res 1244 (10 June 1999) UN Doc S/RES/1244. For Afghanistan see eg UNGA Res 55/174A (19 December 2000) UN Doc A/RES/55/174A; UNGA Res 65/1 (12 September 2001) UN Doc A/RES/65/1; UNGA Res 56/220A (21 December 2001) UN Doc A/RES56/220A; UNGA Res 57/113 (6 December 2002) UN Doc A/RES/ 57/113; UNGA Res 61/18 (28 November 2006) UN Doc A/RES/61/18; UNGA Res 64/11 (9 November 2009) UN Doc A/RES/64/11; UNGA Res 66/13 (21 November 2011) UN Doc A/ RES/66/13. For the occupied Palestinian territory see eg UNGA Res 64/93 (10 December 2009) UN Doc A/RES/64/93; UNGA Res 65/16 (30 November 2010) UN Doc A/RES/65/16; UNGA Res 65/104 (10 December 2010) UN Doc A/RES/65/104; UNGA Res 66/78 (9 December 2011) UN Doc A/RES/66/78. For the combat of international terrorism see especially UNGA Res 60/288 (8 September 2006) UN Doc A/RES/60/288; UNGA Res 65/34 (6 December 2010) UN Doc A/RES/65/34; UNGA Res 66/105 (9 December 2011) UN Doc A/ RES/66/105. 20

  cf eg UNSC Res 539 (28 October 1983) UN Doc S/RES/539 and UNGA Res 38/36 (1 December 1983) UN Doc A/RES/38/36. 21

  FA Vallat, ‘The General Assembly and the Security Council of the United Nations’ (1952) 29 BYIL 63, 82. 22

  cf the proposal by Australia, MN 36. Critical C Tomuschat, ‘Uniting for Peace—Ein Rückblick nach 50 Jahren’ (2001) 76 Friedens-Warte 289, 294. 23

  UNSC Res 119 (1956) UN Doc S/RES/119; UNSC Res 120 (1956) UN Doc S/RES/120; UNSC Res 157 (1960) UN Doc S/RES/157; UNSC Res 303 (1971) UN Doc S/RES/303; UNSC Res 500 (1982) UN Doc S/RES/500. 24

  UN Doc S/13735; UN Chronicle XVII (1980) No 2, 18.

25

  But see M Schaefer, Die Funktionsfähigkeit des Sicherheitsmechanismus der Vereinten Nationen (Springer 1981) 51. 26

  ibid, 52f; G Dahm, Völkerrecht, vol 2 (de Gruyter 1961) 405.

27

  E Stein and RC Morrissey, ‘Uniting for Peace Resolution’ EPIL IV (2000) 1232, 1234. See also C Binder, ‘Uniting for Peace Resolution (1950)’ MPEPIL (online edn) MN 12. 28

  cf the debate in the SC concerning Taiwan/Formosa (1950) RPSC (1946–51) 215f. There is a general consensus on this, see eg CPF/Nemer Caldeira Brant, 684; SD Bailey and S Daws, The Procedure of the UN Security Council (3rd edn, Clarendon Press 1998) 294. 29

  RP I, 384.

30

  RP I, 384f.

31

  RP 3 I, 290f.

32

  This view concurs with the argumentation of the ICJ in its Advisory Opinion to the Israeli Wall Case (cf MN 23). 33

  RP 3 I, 289f. The same is true with regard to the GA Kosovo Resolutions (n 19).

34

  cf UNSC Res 566 (1985) UN Doc S/RES/566 on the one hand, and UNGA Res 40/97 (13 December 1985) UN Doc A/RES/40/97, on the other hand.

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35

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136. 36

  ibid, 148, para 25.

37

  ibid, 150, para 28; see also UNGA Res ES-10/14, (8 December 2003) UN DOC A/RES/ ES-10/14. 38

  Similarly Öberg (n 4) 84. Differently A Zimmermann, ‘Uniting-for-Peace und Gutachtenfragen der Generalversammlung’ in K Dicke and others (eds), Weltinnenrecht, Liber amicorum Jost Delbrück (Duncker & Humblot 2005) 909, 919. 39

  Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [22 July 2010] paras 42, 44 accessed 8 June 2012. 40

  ibid, para 44.

41

  GHS, 130.

42

  cf (1964) UNJYB 228, 232; V Pancarci (n 1) 31f; Vallat (n 21) 87ff; for critical remarks on this differentiation see GHS, 132. 43

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, (Advisory Opinion) [2004] ICJ Rep 136, 148f. 44

  M Cowling, ‘The Relationship between the Security Council and the General Assembly with particular reference to the ICJ Advisory Opinion in the “Israeli Wall” Case’ (2005) 30 SAYIL 50, 72f. Similarly CPF/Nemer Caldeira Brant, 689f. 45

  cf UNSC Draft Res 2003/891 (16 September 2003) UN Doc S/2003/891.

46

  The tenth emergency special session was first convened in 1997 under the ‘Uniting for Peace’ formula as a result of negative votes by a permanent member of the SC of two Draft Resolutions concerning certain Israeli settlements in the Occupied Palestinian Territory, see UNGA Res ES-10/2 (25 April 1997) UN Doc A/RES/ES-10/2. It has since been reconvened fifteen times, the last session having taken place in 2009, see UNGA Res ES-10/18 (16 January 2009) UN Doc A/RES/ES-10/18. Further see Klein and Schmahl on Art. 10 MN 40. 47

  UNGA Res ES-10/242 (15 October 2003) UN Doc A/RES/ES-10/242.

48

  UNGA Res ES-10/13 (21 October 2003) UN Doc A/RES/ES-10/13.

49

  UNGA Res ES-10/14 (8 December 2003) UN Doc A/RES/ES-10/14.

50

  See UNSC Res 1515 (2003) UN Doc S/RES/1515, and the ‘Road Map for Peace’.

51

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 148. 52

  UNGA Res ES-10/16 (17 November 2006) UN Doc A/RES/ES-10/16.

53

  See MN 23. Further see Cowling (n 44) 80f; S Marchisio, ‘Le rôle de l’Assemblée générale dans le maintien de la paix et de la sécurité internationale’ in SFDI (ed), Les métamorphoses de la sécurité collective (Pedone 2005) 95ff, 104f, and, at least to a certain extent, C Schreuer and C Binder, ‘Das Verhältnis von Generalversammlung und Sicherheitsrat in Friedenssicherungsangelegenheiten’ in K Dicke and others (eds), Weltinnenrecht, Liber amicorum Jost Delbrück (Duncker & Humblot 2005) 639, 643f. 54

  J Delbrück, Die Entwicklung des Verhältnisses von Sicherheitsrat und Vollversammlung der Vereinten Nationen (Universität Kiel 1964) 94. 55

  Dahm (n 26) 381.

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56

  GHS, 131.

57

  The Spanish Question (1946) and Greek Frontier Incidents Case (1947); RP I, 389f; 394ff. 58

  RPSC Supp (1969–71) 68f.

59

  See also RP 5 I, 120.

60

  CP (2nd edn)/Manin, 297; DC Dicke and HW Rengeling, Die Sicherung des Weltfriedens durch die Vereinten Nationen (Nomos 1975) 122. 61

  Bailey and Daws (n 28) 293.

62

  This was rightly stated by the French representative in the case of the Greek Frontier Incidents, RPSC (1946–51) 215. As to the mode of deletion see MN 39, 40. 63

  Kelsen (n 7) 218.

64

  cf Rules 8, 10, and 11 of the Rules of Procedure of the GA.

65

  CP (2nd edn)/Manin, 298.

66

  See eg UNSC Res 500 (28 January 1982) UN Doc S/RES/500 (1982) concerning the occupied Arab territories; but see the earlier UNSC Res 157 (17 September 1960) UN Doc S/RES/157 (1960) concerning the Congo. 67

  Sands and Klein (n 1) 31f. See also CPF/Nemer Caldeira Brant, 687.

68

  UNSC Res 119 (31 October 1956) UN Doc S/RES/119 (1956); UNSC Res 120 (4 November 1956) UN Doc S/RES/120 (1956); UNSC Res 462 (9 January 1980) UN Doc S/ RES/462 (1980). 69

  See eg RP 2 II, 108; RP 3 I, 283.

70

  RPSC Supp (1956–58) 72f; GHS, 133.

71

  RPSC (1946–51) 215.

72

  Art. 27 (2); Bentwich and Martin (n 7) 41.

73

  RPSC (1946–51) 214, 215, 217; RPSC Supp (1956–58) 72.

74

  RPSC (1946–51) 215ff.

75

  But see GHS, 133.

76

  CP (2nd edn)/de Lacharrière, 1462; C Tomuschat, ‘General Assembly’ in R Wolfrum (ed), United Nations: Law, Policies and Practice (CH Beck 1995) 548, 555. See also MN 23–24. 77

  See also CPF/Nemer Caldeira Brant, 690.

78

  See eg RP 5 I, 121f; GAOR 41st Session Supp No 33. The UN Millennium Declaration (UNGA Res 55/2) (8 September 2000) UN Doc A/RES/55/2, underlines ‘the central position of the GA as the chief deliberative, policy-making and representative organ of the UN’. Further cf RP 10 II, Art 10, para 17. 79

  UNCIO VIII, 520.

80

  CPF/Slim, 692.

81

  UNCIO IX, 408.

82

  eg Art. 2 (7), 10, 13 (2), 74, 91.

83

  RPSC (1946–51) 212; RPSC Supp (1972ff) 64.

84

  GHS, 131.

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85

  Kelsen (n 7) 217; Bentwich and Martin (n 7) 40f.

86

  cf UN Doc A/45/501 (14 December 1990).

87

  RPSC (1946–51) 212; RP 5 I, 120f.

88

  UN Doc S/12520; for references see Bailey and Daws (n 28) 80f, and RP 5 I, 131f.

89

  cf UN Doc A/49/390 (15 September 1994); UN Doc A/48/411 (20 September 1993).

90

  UN Doc S/1996/603 (22 August 1996) S/1996/704; see also Bailey and Daws (n 28) 81.

91

  See UN Doc A/51/521 paras 3 and 4; (17 October 1996) UN Doc A/RES/51/521.

92

  UN Doc A/55/366 paras 3–5 (11 September 2000).

93

  UN Doc A/52/392 paras 3–5 (19 September 1997).

94

  See UN Doc S/2008/847 para 4 (31 December 2008). This method is upheld by UN Doc S/2010/507 para 56 (26 July 2010). 95

  See UN Doc S/2008/847 para 7 (31 December 2008), and UN Doc S/2010/507 para 53f. (26 July 2010). 96

  See UN Doc S/2008/847 para 5 (31 December 2008), and UN Doc S/2010/507 para 54 (26 July 2010). 97

  UN Doc S/2010/10 para 2 (21 January 2010).

98

  UN Doc S/2010/10/Add9 (8 March 2010).

99

  UN Doc A/64/300 para 2 (3 September 2009); UN Doc A/65/300 para 2 (2 September 2010); UN Doc A/66/300 para 2 (1 September 2011). 100

  UNCIO IX, 405.

101

  LM Goodrich and E Hambro, Charter of the United Nations, Commentary and Documents (2nd edn, Stevens 1949) 174. 102

  RPSC (1946ff) 212.

103

  RPSC Supp (1972ff) 64; CPF/Slim, 694.

104

  Dahm (n 26) 22; but see Bentwich and Martin (n 7) 41; Kelsen (n 7) 268 (undecided).

105

  CPF/Slim, 693; Dahm (n 26) 382.

106

  Bentwich and Martin (n 7) 40f; Kelsen (n 7) 268f; but see Dahm (n 26) 382.

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Ch.IV The General Assembly, Functions and Powers, Article 13 Carl-August Fleischhauer, Bruno Simma From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): Codification — UNCLOS (UN Convention on the Law of the Sea) — UN Charter

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(p. 525) Article 13 (1) The General Assembly shall initiate studies and make recommendations for the purpose of: (a) promoting international co-operation in the political field and encouraging the progressive development of international law and its codification; (b) promoting international co-operation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. (2) The further responsibilities, functions, and powers of the General Assembly with respect to matters mentioned in paragraph 1(b) above are set forth in Chapters IX and X. A.  Introductory Note 1–6 B.  The Legislative History 7–9 C.  Studies and Recommendations for the Purpose of Promoting International Co-operation in the Political Field (Article13 (1) (a), First Alternative) 10–11 D.  Studies and Recommendations for the Purpose of Encouraging the Progressive Development of International Law and its Codification (Article 13 (1) (a) Second Alternative) 12–94 I.  The International Law Commission (ILC) 12–31 II.  The United Nations Commission on International Trade Law (UNCITRAL) 32– 50 III.  The Sixth Committee and its Special Committees 51–58 IV.  The Legal Sub-Committee of the Outer Space Committee 59–71 V.  The Third United Nations Conference on the Law of the Sea (UNCLOS III) 72– 86 VI.  The Creation of an International Criminal Court (ICC) 87–90 VII.  Other Codification and Progressive Development of International Law Under the Auspices of the General Assembly 91–94 E.  Article 13 (1) (b) and Article 13 (2) 95–97

Select Bibliography Anderson MR and others (eds), The International Law Commission and the Future of International Law (British Institute of International and Comparative Law 1998). Bassiouni MC (ed), The Statute of the International Criminal Court and Related Instruments: Legislative History 1994–2000 (Transnational Publishers 2002). Böckstiegel KH, Benkö M, and Hobe S (eds), Space Law: Basic Legal Documents (Eleven International Publishing 2005). Briggs HW, The International Law Commission (Cornell UP 1965). ILC Website accessed 11 June 2012.

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Kaul HP, ‘International Criminal Court (ICC)’ MPEPIL (online edn). Lee RS, The International Criminal Court: The Making of the Rome Statute (Kluwer International Law 1999). (p. 526) Llewellyn H, ‘United Nations, Sixth Committee’ MPEPIL (online edn). Morton JS, The International Law Commission (University of South Carolina Press 2000). Nolte G (ed), Peace through International Law. The Role of the International Law Commission. A Colloquium at the Occasion of its Sixtieth Anniversary (Springer 2009). Rao PC, ‘International Tribunal for the Law of the Sea’ MPEPIL (online edn). Rao PS, ‘International Law Commission (ILC)’ MPEPIL (online edn). Rothwell DR and Stephens T, The International Law of the Sea (Hart 2010). Schabas WA, The International Criminal Court: A Commentary on the Rome Statute (OUP 2010). Sinclair J, The International Law Commission (Grotius Publications 1987). Tomuschat C, ‘The International Law Commission—An Outdated Institution?’ (2006) 49 GYIL 77. Treves T, ‘Law of the Sea’ MPEPIL (online edn). Triffterer O (ed), Commentary on the Rome Statute of the International Criminal Court (2nd edn, Beck 2008). United Nations, International Law on the Eve of the Twenty-First Century: Views from the International Law Commission (New York 1997). ——— Making Better International Law: The International Law Commission at 50. Proceedings of the United Nations Colloquium on Progressive Development and Codification of International Law (New York 1998). ——— Analytical Guide to the Work of the International Law Commission, online version accessed 11 June 2012. ——— The Work of the International Law Commission, vol 2 (7th edn, 2004). Vitzthum WG and Hafner G (eds), Handbuch des Seerechts (Beck 2006). Watts A (ed), The International Law Commission 1949–1998, vols 1–3 (OUP 1999– 2000). ——— ‘Codification and Progressive Development of International Law’ MPEPIL (online edn). Wood MM and Pronto AA (eds), The International Law Commission 1999–2009 (OUP 2011). Zumbansen P and Panezi M, ‘United Nations Commission on International Trade Law (UNCITRAL)’ MPEPIL (online edn).

A.  Introductory Note* 1  By expressly conferring upon the GA the task of encouraging the progressive development of international law and its codification, Art. 13 has become the starting point for the vast efforts deployed by the UN in this field. From the outset, the GA has given the second alternative of Art. 13 (1) (a) the broadest possible interpretation. There are several reasons for this. First, there was the desire, after the horrors of the World War II, to build a new international order based on international law. This was linked to a keen awareness of the importance of international law for the maintenance of peace and security. The enormous increase in State interaction brought about by the ease of modern communication and other technical, technological, and scientific progress dramatically intensified the interdependence of States and entailed additional incentives for the codification and progressive development of international law. In addition, State interaction extended to areas such as outer space and the subsoil of the seas, which had hitherto been closed to man, thus creating a demand for entirely new legal rules and regulations. Another,

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and no less determining factor was the emergence of a great number of new sovereign States, (p. 527) newly independent after release from their earlier colonial status. These newly independent States brought new aspirations regarding the international legal order into which they were suddenly placed. 2  Attempts at codification reach back to the times of the Vienna Congress of 1815. During most of the nineteenth and the early twentieth centuries, however, the efforts aimed at codification of international law were in large part carried out by independent scholars and expert bodies. Efforts at codification at the governmental level had a limited scope. The League of Nations established a programme of codification on the intergovernmental level but the one codification conference held under its auspices, the 1930 Hague Conference, did not yield satisfactory results. 3  Since 1945, under the auspices of the UN, the codification and progressive development of international law have become regular subjects of ongoing debate among States. The subject-matter of that debate was soon extended beyond public international law into all other areas of international law. Its fora have not remained limited to the special bodies created by the GA for the purpose of fulfilling the mandate given by Art. 13 (1) (a): the ILC and UNCITRAL, the Sixth Committee, and a variety of ad hoc committees created by it. Codification and progressive development of international rules for special purposes today take place in numerous other bodies, inter alia, the Legal Sub-Committee of the UN Committee on the Peaceful Uses of Outer Space. Quite naturally, the progressive development of international law and its codification figured prominently as one of the main purposes of the United Nations Decade of International Law (1990–99) solemnly declared by UNGA Res 44/23 of 17 November 1989. 4  Codification and progressive development under the auspices of the GA cater to the practical needs of the community of States and the products of these processes, as well as the processes themselves, therefore also have diplomatic features in their nature and content. Article 13 (1) (a) has not transformed the UN into a centre of academic research. The diplomatic aspect of the codification and progressive development of international law under the auspices of the GA is determinative of its purpose and direction. It also has to be noted that the community of States has not conferred upon the GA the power to legislate to the point of decreeing new rules, rights, and obligations for member States. The role of the GA is limited to deliberation, the drawing up of texts, and if such texts take the form of draft conventions, adopting and recommending them for signature, ratification, and accession. But it is the member States, each acting on its own, that will then make the decision, according to their own political will and constitutional provisions, whether to become bound by the terms of a particular convention or not. Of course, irrespective of the entry into force of individual conventions, much of the material produced by the GA and its subsidiary organs in this field will have an influence on the evolution of international law as a subsidiary means for determining rules of law, similar to those mentioned in Art. 38 (1) (d) of the ICJ Statute. Besides, an increasing part of this material is not designed to acquire treaty format at all but to impact upon State behaviour in more subtle, eg ‘soft law’, ways. 5  In the earlier years, the ILC and UNCITRAL concentrated upon and successfully concluded codification and development of large and relatively self-contained areas of law. More recently, codification and progressive development for special purposes in more limited areas, conducted by more specialized bodies, has been competing with the work of these two bodies, although the latter retain control of large and important substantive (p. 528) areas of law in which codification and progressive development becomes increasingly refined but also increasingly difficult.

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6  Apart from the progressive development of international law and its codification, Art. 13 does not add much to the tasks which other articles of the Charter confer upon the GA, and the practical importance of Art. 13 (1) (a) first alternative, Art. 13 (1) (b), and Art. 13 (2) has been minimal. Of the subjects mentioned in these parts of Art. 13, the activities of the UN have had a particular impact in the field of human rights. These activities, however, have not been initiated and carried out under Art. 13 of the Charter, but rather within the framework of Chapters IX and X and in particular Art. 55.

B.  The Legislative History 7  The Dumbarton Oaks Proposal for a UN Charter1 contained a provision in its Chapter V(B), para 6, which became the nucleus of Art. 13, but neither that provision nor any other article of the proposal contained any reference to the codification or development of international law. It was the Chinese proposal, ie the outcome of the phase of negotiations at Dumbarton Oaks to which China had been invited, which mentioned for the first time that ‘the Assembly should be responsible for initiating studies and making recommendations with respect to the development and revision of the rules and principles of international law’.2 Subsequently the amendments presented by other States also referred to international law. While Egypt proposed the inclusion of ‘determination, definition, codification and development of the rules of international law and international morality’ in the purposes of the Charter,3 the majority of these proposals sought to amend the abovementioned part of the Dumbarton Oaks Proposal. 8  Some of these proposals were general in nature, but others provided for the possibility that the GA could, under certain circumstances, determine the content of international law with binding force for member States.4 The terminology of these proposals varied greatly, some of them speaking simply of ‘codification’, others, like the Chinese proposal, speaking of ‘development and revision’ and again others of the need ‘to establish and progressively amend’ the rules of international law. Finally, the four sponsoring powers of the San Francisco Conference jointly proposed the following amendment to the original Dumbarton Oaks Proposal: ‘The General Assembly should initiate studies and make recommendations… also for the encouragement of the development of international law.’5 9  At the San Francisco Conference, all attempts to give the GA any power to establish the content of international law with binding force were rejected. As for the rest of the amendments, while there was general agreement that the GA should be empowered to initiate studies and make recommendations with respect to international law, it did not prove easy to find acceptable terms in which such power should be couched. Finally, the juxtaposition of ‘progressive development of international law’ and ‘its codification’ included in Art. 13 (1) (a) provided a suitable balance between stability and change, (p. 529) while it was feared that the use of the term ‘revision’ would suggest too much emphasis on change.6

C.  Studies and Recommendations for the Purpose of Promoting International Cooperation in the Political Field (Article 13 (1) (a), First Alternative) 10  The GA explicitly referred to its authority under that part of Art. 13 in the resolution establishing the so-called Interim Committee,7 which was meant to advise and assist the GA in the execution of its functions. One of the Committee’s tasks was to consider and make recommendations to the GA on how best to promote international cooperation in the political field. The Interim Committee in turn asked the Secretariat to prepare a study on Arts 11 (1) and 13 (1) (a) with a view to clarifying the significance of the two provisions. The Secretariat’s study is hardly illuminating in describing Art. 13 (1) as a ‘transition between the functions of the General Assembly dealing with the maintenance of peace and security

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and its functions, more legislative in character, dealing with constructive effort to secure co-operation between States in the field of peaceful change’, which is dealt with in Art. 14.8 11  On the other hand, the GA has, without specific reference to Art. 13 adopted numerous resolutions which are directly or indirectly designed to promote international cooperation in the political field. However, these resolutions do not refer to Art. 13 in their texts, nor was there any constitutional debate on the bearing of Art. 13 preceding the adoption of these resolutions. Only occasionally was the Article mentioned in such debates at all. Moreover, all of these resolutions seem to have as their primary legislative basis provisions other than Art. 13 (1) (a), first alternative, in particular Arts 11 and 14. Other resolutions aiming at the promotion of international cooperation in the political field seem instead to fall under Art. 13 (1) (a), second alternative, because of their large measure of legal connotation.

D.  Studies and Recommendations for the Purpose of Encouraging the Progressive Development of International Law and its Codification (Article 13 (1) (a), Second Alternative) I.  The International Law Commission (ILC) 12  With a view to considering the procedures that should be adopted in order to enable it to discharge the responsibilities conferred upon it by the second alternative of Art. 13 (1) (a) of the Charter, with respect to the codification and progressive development of international law, the GA, during the second part of its first session, established the Committee on the Progressive Development of International Law and its Codification, otherwise known as the Committee of Seventeen.9 The Committee thoroughly discussed (p. 530) organization, scope, features, and membership of an International Law Commission and unanimously adopted a report10 recommending the establishment of such a Commission and setting forth provisions designed to serve as the basis of the latter’s Statute. On the distinction between progressive development and codification, the report stated the following: The Committee recognized that the tasks entrusted by the General Assembly to the Commission might vary in their nature. Some of the tasks might involve the drafting of a convention on a subject which has not yet been regulated by international law or in regard to which the law has not yet been highly developed or formulated in the practice of States. Other tasks might, on the other hand, involve the more precise formulation and systematization of law in areas where there has been extensive State practice precedent and doctrine. For convenience of reference, the Committee has referred to the first type of task as ‘progressive development’ and to the second type of task as ‘codification’. The Committee recognizes that the terms employed are not mutually exclusive, as, for example, in cases where the formulation and systematization of the existing law may lead to the conclusion that some new rule should be suggested for adoption by States…For the codification of international law, the Committee recognized that no clear-cut distinction between the formulation of the law as it is and the law as it ought to be could be rigidly maintained in practice. It was pointed out that in any work of codification, the codifier inevitably has to fill in gaps and amend the law in the light of new developments.11 This observation has characterized the entire work of the future ILC: all texts adopted by the Commission contain, in varying degrees, elements of both the codification and the progressive development of international law, and it would be impossible to determine in which of the two categories any given provision falls.

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13  At its second session and based on the Report of the Committee of Seventeen, the GA established the ILC and approved its Statute.12 The GA has since amended the Statute, mostly with respect to the composition of the ILC. 14  According to Art. 1 (1) of the Statute, the ILC has as its object the promotion of the progressive development of international law and its codification. The ILC is required to concern itself primarily with public international law, but is not precluded from entering the field of private international law. The members of the ILC sit in their individual capacity and not as representatives of their governments, and they must be persons of recognized competence in international law. The ILC members are elected by the GA, which is to bear in mind that in the ILC as a whole, representation of the main forms of civilization and of the principal legal systems of the world should be assured. Originally, the number of ILC members was fifteen, but owing to the increased membership of the UN that number was increased to twenty-one in 195613 and, particularly in view of the significant number of African States which had attained independence and membership of the UN, to twenty-five in 1961.14 In 1981, again in view of the increased membership of the UN, the number of members of the ILC was increased to thirty-four.15 At the same time, a fixed pattern was introduced in order to ensure the equitable geographical distribution and representation of different legal systems; there are now eight seats for Africa, (p. 531) seven for Asia, six for Latin America, eight for Western European and other States, and three for the so-called ‘Eastern European’ States. In addition, one seat rotates between Eastern Europe and Africa and one seat does so between Asia and Latin America. The term of office of the members of the ILC is five years, re-election is permitted and occurs frequently in practice. Unlike at the ICJ, the membership of the ILC is not renewed through regular partial elections but is newly constituted in its entirety every five years. Casual vacancies are filled by the ILC itself as they arise. 15  Until 1998, the ILC met for about three consecutive months each year from May to July. That period was chosen because starting the sessions in May allows debates of the preceding GA to be taken fully into account, while terminating the sessions in July still makes it possible for the governments of member States to take note of the report on the session before the relevant debate in the Sixth (Legal) Committee of the next GA takes place. 16  In 1998, the ILC split its session into two parts, meeting for the first part in Geneva between April and June and for the second part of about three weeks in New York in July and August. At the same session, the ILC agreed that, ‘barring unforeseen circumstances, sessions subsequent to 1999 should be scheduled to take place in two rather evenly split parts, with a reasonable period in between, for a total of twelve weeks, in Geneva’.16 At its following session, the ILC reiterated its preference for split sessions, considering that ‘they would be more efficient and effective and facilitate the uninterrupted attendance of more members’.17 Since the year 2000, the ILC has held split sessions in Geneva, however, ‘without prejudice to any future decision’ on that matter.18 The sessions of the Commission are held at the UN Office in Geneva and, inasmuch as they take place in New York, at UN Headquarters. The Commission’s Secretariat is the Codification Division of the UN Secretariat’s Office of Legal Affairs. 17  The Statute of the ILC envisages two slightly different procedures for the progressive development of international law and its codification (Arts 16 and 17 and Arts 18f of the Statute, respectively). Also, in the field of progressive development, the ILC can become active only when the GA refers a proposal to it, while in respect of codification it has slightly more room for initiative of its own. In practice, the ILC has always acted in close contact with the GA and has always followed the same procedure. That procedure consists in the appointment of one of the ILC members to be Special Rapporteur for a topic, usually following some preparatory studies undertaken by a working group; the formulation of a plan of work; when appropriate, the circulation of a questionnaire to governments inviting From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

them to supply data and information relevant to the points figuring in the plan of work; the preparation of drafts by the Special Rapporteur and the consideration of such drafts in the Plenary of the ILC; followed by the referral of thus advanced drafts to a Drafting Committee of the ILC (established separately for each topic); the drafts then again being submitted to debate in the Plenary. With the establishment of a comprehensive draft regularly accompanied by a commentary, the first reading is completed. The draft is next presented to governments for comments. When States have had the opportunity to comment, the second reading of the draft takes place. (p. 532) When the ILC has successfully concluded this exercise, the draft is presented to the GA with a recommendation as to how it should be further dealt with. 18  It is important to note that every year the ILC submits to the GA (Sixth Committee) a detailed report on the work it has accomplished at the preceding session with respect to each topic on its agenda. These reports usually give rise to an extended debate which lasts about three weeks and leads to a resolution in which the GA takes cognizance of the report of the ILC and in which it may issue directions with respect to the Commission’s programme of work. While the GA has occasionally given broad policy guidelines when assigning a topic to the ILC, it has been cautious to leave it a substantial degree of autonomy and has refrained from issuing detailed instructions about the substance of its work. The content of the debate in the Sixth Committee is systematically analysed by the Secretariat of the ILC, and then filtered back to its members, and in particular to the Special Rapporteurs responsible for the individual topics. 19  At its first session in 1949, the ILC reviewed, on the basis of a Secretariat memorandum entitled ‘Survey of International Law in Relation to the Work of Codification of the ILC’,19 twenty-five topics for possible inclusion in a list of topics for study. Following consideration of the matter, the Commission drew up a provisional list of fourteen topics selected for codification on a provisional basis and with the proviso that further changes might be made after further study by the ILC or in compliance with the wishes of the GA. This list of topics became the first long-term basis of the Commission’s work. Subsequently, the GA has referred additional topics to the ILC, in most cases following initiatives from the Commission itself. The programme of work is reviewed from time to time by the ILC with a view to adjusting it to resolutions of the GA and to the needs of the international community. From 1977 onwards, a Planning Group of the ILC has been entrusted with the task of considering and further developing the Commission’s programme of work on a regular basis. 20  In 1998, the ILC agreed that the selection of topics for the long-term programme of work should be guided by the following criteria:20 the topic should reflect the needs of the States in respect of the progressive development and codification of international law; the topic should be sufficiently advanced in terms of State practice to permit progressive development and codification; and the topic should be concrete and feasible for progressive development and codification. The ILC further agreed that it 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. On the basis of these criteria, the ILC has periodically added new topics to its long-term programme of work. For instance, in 2011 it decided to include the topics of the formation and evidence of customary international law, protection of the atmosphere, provisional application of treaties, the fair and equitable treatment standard in international investment law, and the protection of the environment in relation to armed conflicts. 21  The record of the ILC is an impressive one, comprising seventeen international conven tions: the four Geneva Conventions on the Law of the Sea (1958); the Convention on the Reduction of Statelessness (1961); the Vienna Conventions on Diplomatic (1961) and Consular (1963) Relations; the Convention on Special Missions (1969); the Vienna Convention on the Law of Treaties (1969); the Convention on the Prevention and (p. 533) From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973); the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character (1975); the Vienna Convention on the Succession of States in Respect of Treaties (1978); the Vienna Convention on the Succession of States in Respect of State Property, Archives and Debts (1983); the Vienna Convention on the Law of Treaties concluded between States and International Organizations or between International Organizations (1986); the Convention on the Law of the Non-Navigational Uses of International Watercourses (1997); as well as most recently the Convention on Jurisdictional Immunities of States and their Property (2004). 22  In addition, in 1989 a set of Draft Articles on the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier, a draft optional protocol on the status of the courier and the bag of special missions, and a draft optional protocol on the status of the courier and the bag of international organizations of a universal character were submitted to the GA with the recommendation that an international conference of plenipotentiaries be convened to study the texts and to conclude a convention on the subject. The GA then referred the draft and the recommendation to its Sixth Committee, which held informal consultations on the question. In 1995, the GA decided to bring the Draft Articles prepared by the ILC to the attention of member States, together with the observations made by member States during the debates in the Sixth Committee, and to remind member States of the possibility that this field of international law and any further developments within it may be subject to codification at an appropriate time in the future.21 23  At its 1999 session, the ILC adopted on second reading the Draft Preamble and a set of Draft Articles on nationality of natural persons in relation to the succession of States and decided to recommend to the GA their adoption in the form of a declaration. At its 55th session (2000), the GA adopted the ILC’s Draft Articles without a vote as a declaration.22 24  With only a few exceptions, the Conventions mentioned above were adopted at codification conferences specifically convened by the GA. None of these conferences dealt with more than one set of Draft Articles. This is also true of the Geneva Conference on the Law of the Sea of 1958 (the first Law of the Sea Conference), although that conference produced the four Conventions on the Territorial Sea and the Contiguous Zone, the Continental Shelf, the High Seas, and on Fishing and the Conservation of the Living Resources of the High Seas. The GA had referred to the conference a single set of Draft Articles prepared by the ILC and it was the conference which decided to split the ILC Draft. 25  The 1969 Convention on Special Missions, the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses, as well as the 2004 Convention on Jurisdictional Immunities of States were finalized and adopted by the GA through its Sixth Committee on the basis of Drafts prepared by the ILC. (p. 534) 26  Apart from the Conventions mentioned above, the ILC has adopted and forwarded to the Sixth Committee several important legal texts, such as the 1950 formulation of the Principles of International Law recognized in the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal, the 1952–53 Draft on Arbitral Procedure, and the 1978 Draft Articles on the most-favoured-nation clause. 27  For almost forty years, the ILC had on its agenda the topic of State responsibility for internationally wrongful acts. In 2001, the Commission finalized and adopted a set of Draft Articles on this matter, together with commentaries, and referred the texts to the GA. The GA, in 2001 and in 2004, commended the Articles on the Responsibility of States for Internationally Wrongful Acts to the attention of States and in 2004 requested the Secretary-General to invite governments to submit their written comments on any future action regarding the Articles, as well as to prepare an initial compilation of decisions of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

international courts, tribunals, and other bodies referring to the Articles, and to invite governments to submit information on their practice in this regard. 28  In 2001, the Commission adopted the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities along with commentaries thereto. The GA has since invited governments to submit comments on any future action including in relation to the elaboration of a convention on the basis of the Draft Articles, as well as on the Draft Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities which the ILC had adopted in 2006 (UNGA Res 62/68 (6 December 2007)). 29  In 2006, the ILC completed its consideration of the issue of fragmentation of international law with a report on Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law. In the same year the Commission adopted Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations as well as a set of Draft Articles on diplomatic protection. Currently, the GA is still examining the question of a convention on this topic, or any other appropriate action, on the basis of the Articles. In 2008, the Commission adopted the Draft Articles on the law of transboundary aquifers, and referred the text to the GA. 30  In 2011, the Commission brought to fruition several projects: it adopted a comprehensive Guide to Practice on Reservations to Treaties, Draft Articles on the responsibility of international organizations, as well as Draft Articles on the effects of armed conflict on treaties. As to work currently under way, the ILC is dealing with the topics of immunity of State officials from foreign criminal jurisdiction, expulsion of aliens, protection of persons in the event of disasters, the obligation to extradite or prosecute (aut dedere aut iudicare), treaties over time, and the most-favoured-nation clause. 31  In recent years, the ILC’s work has undergone significant changes. While in the past its products took the form of Draft Articles designed to be finally adopted in treaty format, such transformation into conventions has become the exception rather than the rule; more and more frequently the final stage of the Commission’s projects deliberately remains that of ‘soft law’ instruments. In connection with this and apparent from the preceding paragraphs, work in areas of rather clear-cut ‘progressive development’ is increasing, with the classic topics of general international law now more or less exhausted. In regard to these very topics, however, the ILC has for the last twenty years (p. 535) explored new ground by returning to particular areas of the law which, while covered in earlier conventions, have turned out to still be in need of clarification and further elaboration. This development started with work on the Guide to Practice on reservations to treaties and is currently being continued on the topic of ‘treaties over time’. While the first-mentioned Guide still consists of provisions with commentaries, work on ‘treaties over time’ is being carried out in the format of a study, following the precedent of the report on the fragmentation of international law. The developments thus described demonstrate that the ILC is aware of, and capable of coping with, changing circumstances facing the codification movement.

II.  The United Nations Commission on International Trade Law (UNCITRAL) 32  Although the ILC has always had, under its Statute, the possibility of entering the field of private international law, by the time two decades had passed, it became evident that the ILC had not and probably would not be able to find the time to take action under this

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subsidiary part of its mandate. However, there existed a clear necessity for harmonization and unification in the field of international trade law. 33  Efforts towards harmonization and unification of international trade law go back well into the nineteenth and the first half of the twentieth centuries and were influenced to a great extent by expert bodies. There was also intergovernmental action as it became apparent primarily in the course of this century that such efforts were necessary. Prior to World War II, this led to the establishment of intergovernmental institutions and conferences dealing with international trade law, which resumed their activities after the War. However, it was soon realized that none of these agencies commanded worldwide acceptance, due to the lack of balanced representation of countries with different legal and economic systems. In particular, developing countries had only limited opportunities to participate actively in these organs in the formulation of new legal texts. 34  In 1966, in response to a Hungarian proposal, these issues led to the creation of UNCITRAL, the UN Commission on International Trade Law, with the mandate to further the progressive harmonization and unification of the law of international trade by: (a)  coordinating the work of organizations active in this field and encouraging cooperation among them; (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 legislation and modern legal developments, including case-law, in the field of the law of international trade; (p. 536) (f)  establishing and maintaining close collaboration with UNCTAD; (g)  maintaining liaison with other UN organs and specialized agencies concerned with international trade; (h)  taking any other action it may deem useful to fulfil its functions.

23

35  Unlike the ILC, which consists of independent experts, UNCITRAL is composed of member States, which are represented in the Commission by governmental experts. Originally, there were twenty-nine members, but in 1973 membership was increased to thirty-six, and in 2002 to sixty. The term of membership is six years, half the membership being renewed every three years. The composition of UNCITRAL is construed to be representative of the various geographical regions and the principal economic and legal systems of the world. Thus, fourteen members are African States, fourteen are Asian States, eight are Eastern European States, ten are Latin American and Caribbean States, and fourteen are Western European and other States. Countries which are not members of UNCITRAL are given the option of participating in its work as observers, and since the tendency is towards consensus rather than decision by vote, the difference in status is hardly of the essence.

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36  The International Trade Law Division, an integral part of the UN Secretariat’s Office of Legal Affairs, serves as the substantive as well as the administrative Secretariat of UNCITRAL. The UNCITRAL Secretariat carries out legal research on subjects within the programme of work of UNCITRAL and prepares reports, preliminary drafts, and commentaries on the drafts of legal texts. It thus performs functions for UNCITRAL which in the ILC are performed by Special Rapporteurs. Originally located in New York, the International Trade Law Division was transferred to Vienna in 1979. The annual meetings of UNCITRAL take place alternately in New York and Vienna. 37  UNCITRAL reports to the GA (Sixth Committee) on the work done at each of its annual sessions. These reports are also submitted to the Trade and Development Board of UNCTAD. 38  The substantive work on topics before UNCITRAL is usually assigned, on the basis of studies done by the Secretariat, to working groups, which in turn report to the UNCITRAL Plenary. The size of the working groups varies; they may be, but have not always been, composed of the entire membership of UNCITRAL. 39  UNCITRAL has adopted a flexible and functional approach with respect to the techniques that it uses to further the harmonization and unification of the law of international trade. To date, those techniques include the following: (a)  international conventions; (b)  model treaty provisions to be incorporated in future treaties or to be used in the revision of existing treaties; (c)  uniform legal rules designed to serve as models for legislation by States (model laws); (d)  sets of uniform rules to be incorporated by parties into their contracts or other agreements; (e)  legal guides, identifying legal issues arising in particular areas, discussing various approaches, and suggesting possible solutions, in order to establish a common (p. 537) international understanding in particular fields, or to promote healthier and more uniform practices in such fields; (f)  recommendations encouraging governments and international organizations that elaborate legal texts to eliminate specific types of legal hindrance to international trade. 40  In the case of draft conventions adopted by UNCITRAL, the procedure has usually been to recommend that the GA convene an international plenipotentiary conference in order to approve the text and open the convention for signature and ratification/accession. In certain cases, draft conventions were finalized and adopted by the GA through its Sixth Committee. There is no formal adoption by the GA of the Model Laws and Legislative Guides of UNCITRAL; the GA, however, takes note of their completion and adoption with satisfaction.24 41  In its hitherto more than forty annual sessions, UNCITRAL concentrated initially on what might be called the classic subjects of unification in the field of international trade law, such as the sale of goods, negotiable instruments, maritime transport, and commercial arbitration. Other topics were added later, ranging from clauses stabilizing liability limits in conventions and liquidated damages and penalty clauses in contracts, to such modern topics as electronic commerce or funds transfer and other aspects of automatic data processing. In the selection of topics, which is done by UNCITRAL itself within the broad

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terms of its mandate rather than by the GA, special attention is given to topics of particular importance to developing countries. 42  On the subject of the sale of goods, UNCITRAL’s preparatory work led to the 1974 Convention on the Limitation Period in the International Sale of Goods, and the 1980 UN Convention on Contracts for the International Sale of Goods. 43  In the field of international transport of goods, UNCITRAL’s work resulted in the UN Convention on the Carriage of Goods by Sea (1978), concluded at Hamburg and commonly referred to as the ‘Hamburg Rules’. Based on a draft prepared by UNIDROIT in 1983, a Draft UN Convention on the Liability of Operators of Transport Terminals in International Trade was completed by UNCITRAL and adopted in 1991 by a diplomatic conference convened by the GA. UNCITRAL’s efforts further gave rise to the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (2008), concluded at Rotterdam and commonly referred to as the ‘Rotterdam Rules’. 44  In the area of international payments, the GA adopted, on the basis of draft conventions submitted by UNCITRAL, a UN Convention on International Bills of Exchange and International Promissory Notes (1988) and a UN Convention on Independent Guarantees and Stand-by Letters of Credit (1995). UNCITRAL further adopted the UNCITRAL Legal Guide on Electronic Funds Transfers at its 1987 session and the UNCITRAL Model Law on International Credit Transfers as well as the UNCITRAL Legal Guide on International Counter-trade Transactions at its 1992 session. 45  The field of commercial arbitration and conciliation is one in which UNCITRAL has been especially productive and effective. In 1976 it adopted the UNCITRAL Arbitration Rules, which have become widely known and used and were subsequently (p. 538) revised in 2010. In 1980 it adopted the UNCITRAL Conciliation Rules, in 1985 the UNCITRAL Model Law on International Commercial Arbitration, in 1996 the UNCITRAL Notes on Organizing Arbitral Proceedings, and in 2002 a Model Law on International Commercial Conciliation. In 2006 UNCITRAL further adopted a Recommendation regarding the interpretation of Article II (2), and Article VII (1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), the ‘New York Convention’. 46  In the field of security interests, UNCITRAL’s work resulted in 2001 in the United Nations Convention on the Assignment of Receivables in International Trade. UNCITRAL further produced in 2007 the UNCITRAL Legislative Guide on Secured Transactions; and in 2010 a Supplement on Security Rights in Intellectual Property to the latter. 47  In the area of insolvency, UNCITRAL adopted a Model Law on Cross-Border Insolvency at its 1997 session. UNCITRAL produced in 2004 a Legislative Guide on Insolvency Law (to which a Part three: Treatment of enterprise groups in insolvency was added in 2010), in 2009 a Practice Guide on Cross-Border Insolvency Cooperation, as well as in 2011 a text entitled ‘the UNCITRAL Model Law on Cross-Border Insolvency: the judicial perspective’. 48  Under the heading of Electronic Commerce, UNCITRAL’s work resulted in the United Nations Convention on the Use of Electronic Communications in International Contracts (2005); in 2007, UNCITRAL further produced a publication entitled ‘Promoting confidence in electronic commerce: legal issues on international use of electronic authentication and signature methods’. 49  Another of the products of UNCITRAL’s work is the UNCITRAL Legal Guide on Drawing up International Contracts for the Construction of Industrial Works, which was prepared by the Working Group on the New International Economic Order and adopted in 1987.

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50  UNCITRAL also produced a Legislative Guide on Privately Financed Infrastructure Projects at its 2000 session, and developed the Model Legislative Provisions on the same subject in 2003. In 1994 UNCITRAL adopted a Draft Model Law on Procurement of Goods, Construction and Services, which has since been replaced by a new UNCITRAL Model Law on Public Procurement adopted in 2011.

III.  The Sixth Committee and its Special Committees 51  From the outset, the GA has not seen its role in the field of progressive development of international law and its codification as restricted to the creation of expert bodies like the ILC and later UNCITRAL and to commenting upon and dealing with the results of their work. While the ILC was still being established in 1948, the GA drew up through its Sixth Committee the Convention on the Prevention and Punishment of the Crime of Genocide, which it subsequently adopted and opened for signature. In later years, the Sixth Committee has, in spite of its constantly increasing workload, occasionally dealt article by article with other draft conventions before they were adopted and opened for signature. But no other convention has ever been drawn up by the Sixth Committee itself; the drafts of the Convention on Special Missions (1969) and of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomats (1973) were prepared by the ILC, and the draft of the International (p. 539) Convention against the Taking of Hostages (1979) was, upon an initiative of the Federal Republic of Germany, prepared by a Special Committee established in 1977. Likewise the draft of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989) was prepared by an ad hoc committee established in 1980, and the Draft Convention on the Safety of United Nations and Associated Personnel (1994)25 was prepared by an ad hoc committee established in 1993.26 52  In 1994, the GA, through its Sixth Committee, adopted a Declaration on Measures to Eliminate International Terrorism27 and, in 1996, a Declaration to supplement the 1994 Declaration.28 In the same year, it established an ad hoc Committee on International Terrorism,29 which elaborated the Draft International Convention for the Suppression of Terrorist Bombings, adopted at the GA’s 52nd session,30 a Draft International Convention for the suppression of financing of terrorism, adopted at the GA’s 54th session,31 and a Draft International Convention for the suppression of acts of nuclear terrorism, adopted at the GA’s 59th session (UNGA Res 59/290 (13 April 2005)). Since 1996, the Sixth Committee, through an ad hoc committee established by UNGA Res 51/21, has been working on a Comprehensive Convention on International Terrorism to complement the existing counterterrorism instruments.32 53  The method of establishing special committees for the preparation of important legal texts and instruments has been resorted to by the Sixth Committee with increasing regularity. The 1970 Friendly Relations Declaration33 and the Resolution on the Definition of Aggression34 resulted from the work of special committees created by the Sixth Committee, each of them having met in several yearly sessions. The Manila Declaration on the Peaceful Settlement of International Disputes35 is a product of the Special Committee on the Charter of the UN and on the Strengthening of the Role of the Organization, which is still functioning. Similarly, the Declaration on the Prevention and Removal of Disputes and Situations which May Threaten International Peace and Security and on the Role of the UN in this Field,36 the Declaration on Fact-Finding by the UN in the Field of Maintenance of International Peace and Security,37 and the United Nations Model Rules for the Conciliation of Disputes between States38 have also been elaborated by the aforementioned Special Committee. The Special Committee on Enhancing the Effectiveness of the Principle of the Non-Use of Force in International Relations completed its work in 1987 with the

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presentation to the Sixth Committee of a Draft Declaration, which was adopted by the GA at its 42nd session.39 (p. 540) 54  In 1986 the GA adopted a Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, following a recommendation by the Sixth Committee. The draft of that declaration had been prepared not by a Special Committee but by a working group, meeting concurrently with it. Another working group prepared the Draft Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the GA in 1988.40 A working group established by the Sixth Committee for the consideration of the United Nations Decade of International Law41 drafted a set of seven principles and seven guidelines for international negotiations, which were adopted by the GA in 1998.42 55  In 2001 an ad hoc committee for the purpose of considering the elaboration of an international convention against the reproductive cloning of human beings was established (UNGA Res 56/93 (12 December 2001)). The consideration of the topic by the ad hoc committee opened with an exchange of information and technical assessments provided by experts on genetics and bioethics. The GA further recommended that the work of the ad hoc committee continue within the framework of a working group of the Sixth Committee (UNGA Res 56/93), which met from 2002 to 2005. With the Sixth Committee being unable to achieve the necessary consensus for the negotiation of a convention on the subject, the GA adopted Res 59/280, containing the United Nations Declaration on Human Cloning by a recorded vote of eighty-four in favour, thirty-four against, and thirty-seven abstentions (UNGA Res 59/280 (8 March 2005)). 56  The Convention on Jurisdictional Immunities of States and Their Property was adopted by the GA in 2004 (UNGA Res 59/38 (2 December 2004)), based on the work of an ad hoc committee (UNGA Res 55/150 (12 December 2000)) which held three sessions between 2002 and 2004, and which, in turn, based itself on the 2004 draft of the ILC. 57  Upon the recommendation of the Sixth Committee, the GA adopted in 2005 the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel (UNGA Res 60/42 (8 December 2005)), which emanated from the work of the Ad Hoc Committee on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel first convened in 2002 (UNGA Res 57/28, 58/82, and 59/47). 58  The Codification Division of the Office of Legal Affairs of the UN Secretariat serves as the Secretariat of the Sixth Committee as well as of the Special Committees.

IV.  The Legal Sub-Committee of the Outer Space Committee 59  Since the beginning of the space age, the UN has become a focal point of international cooperation in the exploration and peaceful uses of outer space. From the outset, the role assumed by the Organization encompassed the formulation of legal rules governing the activities of States in the peaceful uses of outer space, a task which exclusively constitutes progressive development of international law, with hardly any element of codification of already existing rules. (p. 541) 60  To ensure the successful implementation of its responsibilities with respect to outer space, in 1958 the GA established an ad hoc committee on the Peaceful Uses of Outer Space43 and requested it to prepare a report on various problems, including legal ones, which might arise in the carrying out of programmes to explore outer space. The ad hoc committee was replaced a year later by the twenty-four-member, and now seventy-member standing Committee on the Peaceful Uses of Outer Space (COPUOS).44 However, the first

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meeting of COPUOS could only take place in November 1961, after it was agreed that it would take its decisions solely by consensus. 61  One of the tasks assigned to COPUOS by the GA was ‘to study the nature of legal problems which may arise from the exploration of outer space’.45 At its second session in 1962, COPUOS established two sub-committees of the whole, one on scientific and technical questions, and the other on legal questions.46 Since then the UN’s practical work on the development of international space law has been concentrated in the Legal Sub-Committee. 62  As a sub-committee of the whole, the Legal Sub-Committee is composed of fifty-four member States. The understanding on consensus as a decision-making procedure reached in COPUOS also applies here. 63  The Legal Sub-Committee’s programme of work is established by the GA, at times upon suggestions made by the Legal Sub-Committee itself through COPUOS. The General Legal Division of the UN Secretariat Office of Legal Affairs functions as the Secretariat of the Legal Sub-Committee. 64  The first legal instrument prepared by the Legal Sub-Committee and approved by COPUOS was the Declaration on Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, which was adopted by the GA at its 18th session in 1963.47 At the same session, the GA recommended that consideration be given to translating these legal principles into international agreement form, and also requested COPUOS to prepare Draft International Agreements on Liability for Damage Caused by Objects Launched into Outer Space, and on Assistance to and Return of Astronauts and the Return of Objects Launched into Outer Space. The Legal Sub-Committee thereafter prepared, on the basis of the 1963 Declaration, the Draft Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies, which the GA adopted in 1966. In 1967 the Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space followed, as did in 1971 the Convention on International Liability for Damage Caused by Space Objects. Unlike the drafts prepared by the ILC which regularly undergo a further Article-by-Article examination, either by a diplomatic conference or by the Sixth Committee, before a convention is adopted, the drafts prepared by the Legal SubCommittee and approved by COPUOS are not presented for review to the Sixth (Legal) Committee or diplomatic conferences. These drafts are presented to the Special Political Committee of the GA and have regularly been endorsed by the GA without a further detailed re-examination of individual Articles. (p. 542) 65  In 1968, the GA requested COPUOS to continue to study questions related to the definition of outer space, and the utilization of outer space and celestial bodies including the various implications of space communications. But it also approved the establishment by COPUOS of a working group to study, inter alia, implications of developments in the field of direct television broadcasting by satellite. In 1971 the GA requested COPUOS and its Legal Sub-Committee to consider the elaboration of a treaty concerning the moon in particular as a matter of priority. That same year, the GA also recommended that, in addition to the other items, the Legal Sub-Committee give its views on the legal implications of surveying earth resources by remote-sensing satellites. The question of geostationary orbits was added to the agenda of the Legal Sub-Committee in 1977, as was, in 1980, an item relating to the elaboration of draft principles relevant to the use of nuclear power sources in outer space. 66  In 1974 the GA, again on the basis of a draft prepared by the Legal Sub-Committee and approved by COPUOS, adopted the Convention on Registration of Objects Launched into Outer Space; in 1979 it adopted the Agreement Governing the Activities of States on the Moon and other Celestial Bodies; and in 1982 the Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting. In 1986 the GA From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

adopted the Principles Relating to the Remote Sensing of the Earth from Outer Space and requested the Legal Sub-Committee to consider the choice of a new item for its agenda. Thereupon, the Legal Sub-Committee recommended in 1988 that an item entitled ‘Consideration of the legal aspects related to the application of the principle that the exploration and utilization of outer space’ should be carried out for the benefit and in the interest of all States, taking into particular account the needs of developing countries, be included in its agenda. COPUOS endorsed the recommendation of the Legal Sub-Committee and the GA approved it in Res 43/56 (6 December 1988). In 1992, the GA adopted the Principles Relevant to the Use of Nuclear Power Sources in Outer Space and, at the same time, recommended that the Legal Sub-Committee should consider the question of early review and possible revision of those Principles. 67  In 1996, on the basis of a draft prepared by the Legal Sub-Committee and approved by COPUOS, the GA adopted the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries.48 The Declaration combines the principle of freedom of the exploration and utilization of outer space with a reminder to space powers to fulfil their obligation to conduct their activities for the benefit of all countries. 68  In 1999, the Third Space Conference on the Peaceful Uses of Outer Space (UNISPACE III) was held in Vienna as a special session of COPUOS open to all States members of the United Nations. Building on the 1996 Declaration, the Conference adopted the Vienna Declaration on Space and Human Development and a related Action Plan, which delineate a programme involving the protection of the Earth’s environment and the management of its resources; using space applications for human security, development, and welfare; protecting the outer space environment; increasing developing countries’ access to space science and its related benefits; raising public awareness, strengthening the United Nations space activities, and promoting international cooperation. (p. 543) 69  The Legal Sub-Committee took up in 1999 the question of early review and possible revision of the Principles Relevant to the Use of Nuclear Power Sources in Outer Space. It also established a working group to consider matters relating to the definition and delimitation of outer space and to the character and utilization of the geostationary orbit, including consideration of ways and means to ensure the rational and equitable use of the geostationary orbit without prejudice to the role of the International Telecommunication Unit. Another working group reviews the status of the five international conventions governing activities in outer space. In March 2000 the Legal Sub-Committee established a new working group on the review of the concept of the ‘launching State’. 70  In 2003, the Legal Sub-Committee established a new working group for the Examination of the preliminary Draft Protocol on matters specific to space assets to the Convention on International Interests in Mobile Equipment. 71  Subsequently, in 2005, the Legal Sub-Committee established a Working Group on Practice of States and international organizations in registering space objects, and, in 2009, a Working Group on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space.

V.  The Third United Nations Conference on the Law of the Sea (UNCLOS III) 72  The first two UN Conferences on the Law of the Sea were held in Geneva in 1958 and 1960, the first proceeding on the basis of Draft Articles prepared by the ILC aiming at the progressive development of the existing law of the sea and its codification, while the second dealt (unsuccessfully) with the question of the extension of territorial waters beyond the traditional three miles. It soon became clear, however, that the changes in the uses of the

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seas brought about in the post-war period by revolutionary progress in science and technology required a comprehensive new regulation of such uses. It also became clear that such a new regulation required substantive decisions of a political, economic, military, and financial nature before it could be couched in legal terms, and that many of these decisions transcended the scope of lawyers’ bodies, such as the ILC or the Sixth Committee. As early as 1967, following a proposal made by Malta, the following item was added to the agenda of the 22nd GA: Examination of the question of the reservation exclusively for peaceful purposes of the seabed and the ocean floor, the subsoil thereof, underlying the high seas beyond the limits of present national jurisdiction, and the use of their resources in the interest of mankind. As a result of the discussion of this item, in the same year the GA established an ‘ad hoc Committee to Study the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction’, composed of thirty-five member States.49 At its 23rd session, the GA established, on a permanent basis, the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction, which was composed of forty-two member States. The Committee, characteristically, reported to the First rather than the Sixth Committee of the GA. (p. 544) 73  At the 25th session, the GA decided to enlarge the Committee by forty-four, and requested it to assume additional functions in regard to the preparatory work for a new Conference on the Law of the Sea.50 The GA also decided in principle to convene a Conference on the Law of the Sea in 1973, and instructed the Committee to prepare the basic material for the Conference. The Committee, enlarged to ninety-one in 1971, held six sessions and a number of additional meetings between 1971 and 1973, and its work was discussed extensively at the intervening sessions of the GA. 74  In 1973 the GA decided51 that the mandate of the future Conference was the adoption of a convention dealing with all matters relating to the law of the sea, taking into account, inter alia, the list of subjects and issues relating to the law of the sea which had been formally approved by the Committee, and it convened the first (organizational) meeting of the Conference in December 1973. 75  After that meeting, the Conference met until April 1982 in ten more sessions, each of which lasted several weeks and some of which took up two meetings of several weeks each. The meetings took place in New York and Geneva (the second session from 20 June to 29 August 1974 was held in Caracas, Venezuela) and were convened from session to session by the GA. The extraordinary difficulty of the subject-matter and the participation of almost all members of the community of States made the Conference the longest and largest ever held on a worldwide basis. 76  When adopting its rules of procedure, the Conference appended to them a declaration, made by the President and endorsed by the Conference, to the effect that ‘the Conference should make every effort to reach agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted’.52 Throughout the following eight years, the Conference adhered to this agreement and resorted to votes only occasionally on procedural questions, appointment of officers, and on invitations to be extended to participate in the Conference as observers. 77  At the third session of the Conference (1975), the Chairmen of its main committees drew up the Informal Single Negotiating Text (ISNT) as the basis for the further negotiations. This text was transformed at the fourth session (1976) into the Revised Single Negotiating Text (RSNT). At the sixth session in 1977, the Conference entrusted ‘the Collegium’ to prepare an Informal Composite Negotiating Text (ICNT). At the seventh session, working groups were formally established for outstanding core issues and after two From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

revisions of the ICNT at the two following sessions the ‘Draft Convention on the Law of the Sea (Informal Text)’ was established at the resumed ninth session in 1980. It nevertheless took a tenth session, held in two stages in 1981, before the Conference decided at the 11th session in April 1982 that all efforts at reaching general agreement had been exhausted. On 30 April 1982, a recorded vote was taken at the Conference, upon the request of the United States, on the text of the United Nations Convention on the Law of the Sea thus established, together with four accompanying resolutions. The result of the vote was 130 in favour, four against, and seventeen abstentions. After more drafting and editorial work, the Convention was opened for signature from 10 December 1982 to 9 December 1984, and received 159 signatures during that time. (p. 545) Among those missing were the United States, the United Kingdom, and the Federal Republic of Germany, which were opposed to the economic principles underlying Part XI of the Convention, dealing with the exploration and exploitation of the sub-soil of the sea. 78  In the light of modern needs and possibilities, the Convention deals comprehensively with all uses of the sea. It endorses, inter alia, the modern trend to extend territorial waters up to 12 miles and to establish exclusive economic zones of up to 200 miles. The Convention also endorses the claims of coastal States to sovereign rights on the continental shelves adjacent to their coasts and establishes a system of resource-sharing with respect to the exploration and exploitation of the sea-bed beyond the continental shelf open to national claims. However, the Convention also establishes important limitations on the aspirations of coastal States, not endorsing, inter alia, claims to territorial waters beyond 12 miles and fixing limits for the claimable parts of continental shelves. It also provides for important checks and balances in the exercise of rights previously not existing or not well defined in the law of the sea, establishing, inter alia, the duty to grant free transit passage through formerly international waterways which fall under national jurisdiction after the extension of the territorial waters of the riparian States to 12 miles, and a specific regime for archipelagic waters. The most difficult and contentious part of the Convention is its Part XI, dealing with the exploration and exploitation of the ‘Area’, the sub-soil of the sea beyond the continental shelf open to national claims. The Convention provides for a two-track system under which exploration is carried out by an international enterprise and national entities, licensed by the sea-bed authority which is endowed with regulatory powers. National entities have to pay substantial fees and must set aside sizeable parts of their mining sites for the enterprise. 79  The Preparatory Commission provided for by Res I, which was adopted together with the Convention, for the preparation of its entry into force, met twice yearly from 1983 to 1993, in Jamaica and New York. The Preparatory Commission was entrusted with the task of elaborating rules of procedure for the organs of the International Sea-Bed Authority, implementing Res II of UNCLOS III which governs the registration of pioneer investors and pioneer sea-bed activities, studying problems that could be encountered by developing landbased producer States likely to be most seriously affected by sea-bed mineral production, preparing the enterprise’s early entry into effective operation, preparing the sea-bed mining code, and preparing recommendations regarding practical arrangements for the establishment of the International Tribunal for the Law of the Sea (ITLOS). At its meeting in Jamaica in March 1993, the Preparatory Commission, without solving the problems surrounding Part XI of the Convention, which prevented industrialized States from becoming parties to it, concluded its active work, but remained in existence and could be reconvened at any time until the entry into force of the Convention. In order to provide a forum at which interested parties could participate in seeking a solution to the difficulties arising from Part XI of the Convention, which could not be arranged within the framework of the Preparatory Commission, the SG conducted informal consultations from 1990, with a view to overcoming those difficulties. On 17 August 1987, the General Committee of the Commission registered India as the first pioneer investor under Res II of the Convention.

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Pioneer investors from the following certifying States were subsequently registered: France, Japan, the Soviet Union, China, and Korea. A pioneer investor for which an application had been jointly submitted by Bulgaria, Cuba, Czechoslovakia, Poland, and the Soviet Union was registered on 21 August 1991. (p. 546) 80  The consultations conducted under the auspices of the SG helped to pave the way for the adoption of the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982. The adoption of this agreement on 28 July 1994 led to the ratification of the Convention by a number of States sufficient to bring about its entry into force on 16 November 1994. On the same day, the Agreement entered into provisional application in accordance with its Art. 7 (1). It entered into force on 28 July 1996. Major industrialized countries, among them China, the Federal Republic of Germany, France, Japan, the Russian Federation, and the United Kingdom, have now become parties to the Convention, but the United States has not yet ratified. 81  Under Art. 287 of UNCLOS, State parties have the right to choose by means of written declaration one or more of the following means for the settlement of disputes concerning the interpretation or application of the Convention: (a) the ITLOS; (b) the ICJ; (c) an arbitral tribunal constituted in accordance with Annex VII of UNCLOS; (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. A State party, which is a party to a dispute not covered by a declaration in force, will be deemed to have accepted arbitration in accordance with Annex VII. Likewise, if the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties agree otherwise. 82  ITLOS has its seat in Hamburg, Germany; it is composed of twenty-one members elected by the State parties to UNCLOS. The jurisdiction of ITLOS comprises all disputes and all applications submitted to it in accordance with UNCLOS and all matters specifically provided for in any other agreement which confers jurisdiction on ITLOS.53 Through its Seabed Disputes Chamber, it has exclusive jurisdiction with respect to disputes relating to activities in the international sea-bed areas and may render advisory opinions at the request of the GA or the Council of the International Seabed Authority on legal questions arising within the scope of their activities. ITLOS was established in October 1996. Its early decisions concerned applications for prompt release of a vessel54 and requests for provisional measures,55 as well as, in one instance, the right to compensation for violation of rights under the Convention.56 In 2011, ITLOS issued its first Advisory Opinion, pursuant to a request submitted to the Seabed Disputes Chamber of ITLOS by the International Seabed Authority.57 83  The International Seabed Authority came into existence on the day of the entry into force of UNCLOS. That same day, its Assembly held its first session. During the initial stage, the secretarial functions of the Authority and the servicing of its meetings were undertaken by the Division for Ocean Affairs and the Law of the Sea, UN Secretariat Office of Legal Affairs. As of 1 June 1996, the Authority exercises its own Secretariat (p. 547) functions under the control of its Secretary-General. The Council of the Authority was established in March 1996 at the first part of the second session of the Assembly and met for the first time in August 1996 during the second part of the second session of the Assembly. 84  The Commission on the Limits of the Continental Shelf (CLCS) held its first session in 1997 in New York. It has since met twice a year, in spring and autumn. At the first session, a subsidiary body was established to deal with the question of providing advice to coastal

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States in accordance with Art. 3 (1) (b) of Annex II of the UN Convention on the Law of the Sea. 85  Agenda 21, which was adopted at the United Nations Conference on Environment and Development held in Rio de Janeiro in 1992, identified in its Chapter 17 as a particular problem in the area of conservation of marine living resources of the high seas that ‘management of high seas fisheries, including the adoption, monitoring and enforcement of effective conservation measures, is inadequate in many areas and some resources are overutilized’.58 It therefore called for the convening of a UN intergovernmental conference to promote ‘effective implementation of the provisions of the United Nations Convention on the Law of the Sea on straddling fish stocks and highly migratory fish stocks’. Pursuant to UNGA Res 47/192, the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks was convened on 19 April 1993. The Conference met in six sessions59 spanning two years and drafted an 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; that Agreement was adopted on 4 August 199560 and entered into force on 11 December 2001. The Resumed Review Conference on 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, convened pursuant to Art. 36 of the Agreement, was held at United Nations Headquarters in New York, from 24 to 28 May 2010, with a view to assessing the effectiveness of the Agreement in securing the conservation and management of straddling fish stocks and highly migratory fish stocks. 86  In 1989, the GA addressed for the first time the problem of large-scale pelagic driftnet fishing, noting that it could be a ‘highly indiscriminate and wasteful fishing method that is widely considered to threaten the effective conservation of living marine resources’ and recommended the imposition of moratoria on all large-scale pelagic driftnet fishing by 30 June 1992.61 In UNGA Res 46/215 (20 December 1991) adopted by consensus, the GA called upon all members of the international community, inter alia, to ‘ensure that a global moratorium on all large-scale pelagic drift-net fishing is fully implemented on the high seas of the world’s oceans and seas, including enclosed and semi-enclosed seas, by 31 December 1992’ and encouraged all members of the international community to take measures, individually and collectively, to implement this moratorium.62

(p. 548) VI.  The Creation of an International Criminal Court (ICC) 87  The first efforts in the codification of international criminal law date back to the early years of the United Nations. The GA, at its first session, affirmed unanimously the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal,63 and, in 1948, adopted the Convention on the Prevention and Punishment of the Crime of Genocide. It further requested the ILC to initiate studies on the formulation of the Nuremberg principles,64 on a Draft Code of Offences against the Peace and Security of Mankind,65 and on the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction would be conferred upon that organ by international conventions.66 In 1950, the ILC adopted seven Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal,67 and, in 1954, a Draft Code of Offences against the Peace and Security of Mankind, consisting of five Articles, in which it had, to a certain extent, incorporated the Nuremberg Principles.68 With regard to the creation of an international criminal court, the ILC concluded, in 1950, that the establishment of such a court was both desirable and possible.69 A Draft Statute for an international criminal court was then elaborated by two subsequent committees of the GA.70 Further consideration of

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the Draft Statute, as well as of the Draft Code of Offences, was, however, indefinitely postponed. 88  In 1981, the GA invited the ILC to resume its work with a view to elaborating the Draft Code of Offences against the Peace and Security of Mankind,71 taking into account the progressive developments of international law which had taken place in this field since the adoption of the first Draft Code on that subject. It was in the context of the ILC’s work on the Draft Code that the question of international criminal jurisdiction was raised anew. As a result, in 1989, the GA requested the ILC, within the framework of the Draft Code, to address the establishment of an international criminal court.72 In the meantime, the events in the Former Yugoslavia since 1991 led to the establishment of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (ICTY) by the SC in 1993. The Statute of this ad hoc Tribunal was prepared by the SG through the UN Secretariat Office of Legal Affairs and adopted by the SC under Chapter VII of the Charter on the basis of its competence for the restoration of international peace and security. The ILC, for its part, adopted in 1994 (p. 549) a Draft Statute for an international criminal court with a broader competence and recommended to the GA that it convene an international conference of plenipotentiaries to study the Draft Statute and to conclude a convention on the establishment of an international criminal court. In the same year, the GA established an ad hoc committee to review the major substantive and administrative issues arising out of the ILC’s Draft Statute.73 The Ad Hoc Committee was followed by a Preparatory Committee, which met in 1996, 1997, and early 1998 to examine in detail the text of the court’s Statute. 89  In the meantime, the ILC adopted in 1996 the final text of the Draft Code of Crimes against the Peace and Security of Mankind and recommended that the GA select the most appropriate form which would ensure the widest possible acceptance of the Code. The GA submitted the Draft Code for comments of States and drew the attention of the States participating in the Preparatory Committee to the relevance of the Draft Code to their work.74 90  The Preparatory Committee had completed by April 1998 a draft consolidated text of a Statute for an international criminal court which was considerably longer than the Draft Statute submitted by the ILC to the GA in 1994 and contained many different options submitted by States, but was still largely consistent with the basic structure of the ILC Draft Statute. A UN Conference on the Establishment of an International Criminal Court was convened in Rome from 15 June to 17 July 1998. The Conference adopted the Rome Statute of the International Criminal Court by a non-recorded vote of 120 in favour, seven against, and twenty-one abstentions. Under the Rome Statute, the jurisdiction of the International Criminal Court (ICC) is limited to the following crimes: the crime of genocide, crimes against humanity, war crimes and the crime of aggression.75 In the Final Act of the Rome Conference, a Preparatory Commission was established to prepare proposals for practical arrangements for the establishment and coming into operation of the ICC.76 As a first step, the Preparatory Commission was instructed to prepare before 30 June 2000 the draft texts of the Rules of Procedure and Evidence and of the Elements of Crimes. Both draft texts were adopted unanimously by the Preparatory Commission on 30 June 2000. As of 31 December 2000, the end date for signature of the Rome Statute, 139 States had signed the Statute. Among the signatories are Germany and all other members of the EU, the United States, Israel, Iran, and Kenya. On 1 July 2002, the Statute entered into force; at the time of writing well over 100 countries are parties to the Statute. However, the United States informed the SG, on 6 May 2002, that it did not intend to become a party to the

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treaty. The ICC has since its inception opened investigations into seven ‘situations’ which gave rise to more than a dozen cases.

VII.  Other Codification and Progressive Development of International Law Under the Auspices of the General Assembly 91  There are numerous other bodies in which provisions designed to become international law have been drawn up under the auspices of the GA. Such provisions would fall into the sphere of progressive development more often than of codification, and even without a specific reference to Art. 13, their elaboration is undertaken against the background (p. 550) of the broad mandate given by para (1) (a), second alternative of the Article. UNCTAD deserves special mention as a standing subsidiary body of the GA which, inter alia, sponsors new types of commodity agreements designed to stabilize North-South trade relations. In the field of shipping, UNCTAD produced the important 1974 Convention on a Code of Conduct for Liner Conferences. 92  Starting with the preparations for the 1972 UN Conference on the Human Environment in Stockholm and subsequently through UNEP, the UN has become responsible for the formulation and adoption of significant provisions on the protection of the environment. The UN Conference on Environment and Development held in 1992 adopted, inter alia, the Convention on Biological Diversity, the United Nations Framework Convention on Climate Change, and the Rio Declaration on Environment and Development. The Convention on Biological Diversity entered into force on 29 December 1993. The Conference also recommended that the GA establish an Intergovernmental Negotiating Committee to prepare a convention to combat desertification in those countries experiencing serious drought and/or desertification, particularly in Africa. The United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, was adopted in Paris on 17 June 1994 and entered into force on 25 December 1996. The Secretariat of the Convention is located in Bonn, Germany. On 11 September 2003, the Cartagena Protocol on Biosafety, which aims to ensure the safe handling, transport, and use of living modified organisms, entered into force. 93  The United Nations Framework Convention on Climate Change entered into force on 21 March 1994. On 11 December 1997, the Third Conference of the Parties to the UN Framework Convention adopted the Kyoto Protocol to the United Nations Framework Convention on Climate Change. The Kyoto Protocol, an international and legally binding agreement to reduce greenhouse gas emissions worldwide, entered into force on 16 February 2005. The Secretariat of the Convention also has its seat in Bonn, Germany. 94  In addition, we find a number of solemn declarations adopted by the GA on proposals by main committees other than the Sixth, but which all contain legal connotations. Examples of such declarations are the Universal Declaration on Human Rights,77 the Declaration on the Granting of Independence to Colonial Countries and Peoples,78 the Declaration on Permanent Sovereignty over Natural Resources,79 the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space,80 the Declaration on the Elimination of all Forms of Racial Discrimination,81 and the Declaration of Principles Governing the Sea-bed and the Ocean Floor, and the Subsoil thereof beyond the Limits of National Jurisdiction.82 Although these Declarations are sometimes regarded as ‘law-making’, they do not as such have binding force, since the GA does not have the power to make binding decisions of this kind. The texts of some of these declarations have subsequently been further developed into treaties. However, also the Declarations as such can, in whole or in part, be an expression of existing rules or principles of international law. Moreover, as evidence of emerging (p. 551) new convictions and of the practice of the

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States adopting these Declarations, they can influence the development of new norms and principles of international law.

E.  Article 13 (1) (b) and Article 13 (2) 95  The GA has initiated numerous studies designed to promote the subject-matters mentioned in Art. 13 (1) (b), namely international cooperation in the economic, social, cultural, educational, and health fields, and assistance in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. These studies were requested from ECOSOC and its subsidiary bodies, from the SG, from specialized agencies, from other bodies, and from member States. Likewise, the GA has adopted countless recommendations on the same subjects. A wide range of terms have been used to make such recommendations. They have been addressed to States, to all kinds of organs and agencies of the UN System, in particular, to subsidiary bodies of the GA, ECOSOC and its subsidiary bodies, but also to other international bodies and to NGOs. A great variety of actions have been proposed. However, the requests for the studies and the recommendations were not made under Art. 13 (1) (b) but rather under the Articles setting forth the further responsibilities, functions, and powers of the GA with respect to the subject areas mentioned in Art. 13 (1) (b); Art. 13 (2) specifically refers to those further responsibilities, functions, and powers of the GA. 96  The leading role of the GA in formulating instruments for the realization of human rights and fundamental freedoms must be particularly highlighted. As early as 10 December 1948, the GA adopted the Universal Declaration of Human Rights,83 which in turn was followed by such landmark instruments as the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights (1966), the Declaration,84 later followed by the Convention on the Elimination of All Forms of Racial Discrimination (1965), the Declaration,85 later followed by the Convention, on the Elimination of All Forms of Discrimination against Women (1979), the Declaration,86 followed by the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (1984), the International Convention against Apartheid in Sports (1985), the Declaration,87 followed by the Convention on the Rights of the Child (1989), the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990),88 the Convention on the Rights of Persons with Disabilities (2006), and the International Convention for the Protection of All Persons from Enforced Disappearance (2006). 97  A feature worthy of note is that some of these Conventions contain or are accompanied by provisions on machinery designed to supervise their implementation. But again, the legislative bases for the activities of the GA in the field of human rights are Chapters IX and X of the Charter rather than Art. 13 (1) (b).89

Footnotes: *  The authors are grateful to Carsten Hoppe for his valuable assistance during the preparation of the text of the 3rd edition. 1

  UNCIO III, 1.

2

  ibid, 24.

3 

ibid, 453.

4

  ibid, 339 (Belgium); ibid, 536 (Philippines).

5

  ibid, 623.

6

  UNCIO IX, 179.

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7

  UNGA Res 111 (II) (13 November 1947) UN Doc A/RES/111(II).

8

  UN Doc A/AC.18/33, 9.

9

  UNGA Res 94 (I) (11 December 1946) UN Doc A/RES/94(I).

10

  GAOR 2nd Session, 6th Committee, Annex I, 173.

11

  ibid, 175, 178.

12

  UNGA Res 174 (II) (21 November 1947) UN Doc A/RES/174(II).

13

  UNGA Res 1103 (XI) (18 December 1956) UN Doc A/RES/1103(XI).

14

  UNGA Res 1647 (XVI) (6 November 1961) UN Doc A/RES/1647(XVI).

15

  UNGA Res 36/39 (18 November 1981) UN Doc A/RES/36/39.

16

  UN Doc A/53/10, 221, para 562.

17

  UN Doc A/54/10, 351, para 635.

18

  See UNGA Res 54/111 (9 December 1999) UN Doc A/RES/54/111; see also UNGA Res 55/152 (12 December 2000) UN Doc A/RES/55/152. 19

  UN Doc A/CN.4/1.

20

  UN Doc A/53/10, 218, para 553.

21

  UNGA Decision 50/416 (11 December 1995) UN Doc A/50/416.

22

  UNGA Res 55/153 (12 December 2000) UN Doc A/RES/55/153.

23

  UNGA Res 2205 (XXI) (17 December 1966) UN Doc A/RES/2205(XXI).

24

  See eg UNGA Res 64/112 (16 December 2009) UN Doc A/RES/64/112; UNGA Res 65/22 (6 December 2010) UN Doc A/RES/65/22; UNGA Res 65/23 (6 December 2010) UN Doc A/ RES/65/23; UNGA Res 65/24 (6 December 2010) UN Doc A/RES/65/24. 25

  UNGA Res 49/59 (9 December 1994) UN Doc A/RES/49/59.

26

  UNGA Res 48/37 (9 December 1993) UN Doc A/RES/48/37.

27

  UNGA Res 49/60 (9 December 1994) UN Doc A/RES/49/60.

28

  UNGA Res 51/210 (17 December 1996) UN Doc A/RES/51/210.

29

  ibid.

30

  UNGA Res 52/164 (15 December 1997) UN Doc A/RES/52/164.

31

  UNGA Res 54/109 (9 December 1999) UN Doc A/RES/54/109.

32

  UNGA Res 53/108 (8 December 1998) UN Doc A/RES/53/108.

33

  UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625(XXV).

34

  UNGA Res 3314 (XXIX) (14 December 1974) UN Doc A/RES/3314(XXIX).

35

  UNGA Res 37/10 (15 November 1982) UN Doc A/RES/37/10.

36

  UNGA Res 43/51 (5 December 1988) UN Doc A/RES/43/51.

37

  UNGA Res 46/59 (9 December 1991) UN Doc A/RES/46/59.

38

  UNGA Res 50/50 (11 December 1995) UN Doc A/RES/50/50.

39

  UNGA Res 42/22 (18 November 1987) UN Doc A/RES/42/22.

40

  UNGA Res 43/173 (9 December 1988) UN Doc A/RES/43/173.

41

  See UNGA Res 45/40 (28 November 1990) UN Doc A/RES/45/40.

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42

  UNGA Res 53/101 (8 December 1998) UN Doc A/RES/53/101.

43

  UNGA Res 1348 (XIII) (13 December 1958) UN Doc A/RES/1348(XIII).

44

  UNGA Res 1427A (XIV) (12 December 1959) UN Doc A/RES/1427(XIV).

45

  ibid, para 1 (b).

46

  UN Doc A/5181, para 5.

47

  UNGA Res 1962 (XVIII) (13 December 1963) UN Doc A/RES/1962(XVIII).

48

  UNGA Res 51/122 (13 December 1996) UN Doc A/RES/51/122.

49

  UNGA Res 2340 (XXII) (18 December 1967) UN Doc A/RES/2340(XXII).

50

  UNGA Res 2750C (XXV) (17 December 1970) UN Doc A/RES/2750(XXV).

51

  UNGA Res 3067 (XXVIII) (16 November 1973) UN Doc A/RES/3067(XXVIII).

52

  UN Doc A/Conf. 62/30.

53

  See Art. 21 of the Statute of ITLOS.

54

  The M/V ‘Saiga’ Case (No 2) Saint Vincent and the Grenadines v Guinea (1999) 38 ILM 1323; the Camouco Case (No 5) (Panama v France) (7 February 2000); and the Monte Confurco Case (No 6) (Seychelles v France) (18 December 2000), see accessed 11 June 2012. 55

  The M/V ‘Saiga’ Case and the Southern Bluefin Tuna Cases (Nos 3 and 4) (New Zealand v. Japan, Australia v Japan) (1999) 38 ILM 1624. 56

  The M/V ‘Saiga’ Case (No 2) (Saint Vincent and the Grenadines v Guinea).

57

  Responsibility and obligations of States sponsoring persons and entities with respect to activities in the international seabed area (Advisory Opinion) List of cases No 17 (1 February 2011) 50 ILM 458 (2011), available at accessed 11 June 2012. 58

  UN Doc A/CONF.151/26/Rev. I, Agenda 21, ch 17, para 45.

59

  UNGA Res 47/192 (22 December 1992) UN Doc A/RES/47/192, UNGA Res 48/194 (21 December 1993) UN Doc A/RES/48/194 and UNGA Res 49/121 (19 December 1994) UN Doc A/RES/49/121. 60

  UN Doc A/CONF.164/137.

61

  UNGA Res 44/225 (22 December 1989) UN Doc A/RES/44/225.

62

  UNGA Res 46/215 (20 December 1991) UN Doc A/RES/46/215; see also UNGA Res 50/25 (5 December 1995) UN Doc A/RES/50/25; UNGA Res 51/36 (9 December 1996) UN Doc A/RES/51/36; UNGA Res 52/29 (26 November 1997) UN Doc A/RES/52/29; UNGA Res 53/33 (24 November 1998) UN Doc A/RES/53/33. 63

  UNGA Res 95 (I) (11 December 1946) UN Doc A/RES/95(I).

64

  UNGA Res 177 (II) (21 November 1947) UN Doc A/RES/177(II).

65

  ibid.

66

  UNGA Res 260B (II) (9 December 1948) UN Doc A/RES/260(II).

67

  (1950-II) ILC Yearbook.

68

  (1954-II) ILC Yearbook.

69

  GAOR 5th Session Supp No 12 (UN Doc A/1316).

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70

  Report of the Committee on International Criminal Jurisdiction, GAOR 7th Session Supp No 11 (UN Doc A/2136) and Report of the 1953 Committee on International Criminal Jurisdiction, GAOR 9th Session Supp No 12 (UN Doc A/2645). 71

  UNGA Res 36/106 (10 December 1981) UN Doc A/RES/36/106.

72

  UNGA Res 44/39 (4 December 1989) UN Doc A/RES/44/39; UNGA Res 45/41 (28 November 1990) UN Doc A/RES/45/41; UNGA Res 46/54 (9 December 1991) UN Doc A/ RES/46/54. 73

  UNGA Res 49/53 (9 December 1994) UN Doc A/RES/49/53.

74

  UNGA Res 51/160 (16 December 1996) UN Doc A/RES/51/160.

75

  See Art. 5, para 1, of the Rome Statute.

76

  Resolution F of the Final Act; UNGA Res 53/105 (8 December 1998) UN Doc A/RES/ 53/105. 77

  See Riedel and Arend on Art. 55(c) MN 25–34.

78

  UNGA Res 1514 (XV) (14 December 1960) UN Doc A/RES/1514(XV).

79

  UNGA Res 1803 (XVII) (14 December 1962) UN Doc A/RES/1803(XVII).

80

  UNGA Res 1962 (XVIII) (13 December 1963) UN Doc A/RES/1962(XVIII).

81

  See Riedel and Arend on Art. 55 (c) MN 53.

82

  UNGA Res 2749 (XXV) (17 December 1970) UN Doc A/RES/2749(XXV).

83

  UNGA Res 217 (III) (10 December 1948) UN Doc A/RES/217(III).

84

  UNGA Res 1904 (XVIII) (20 November 1963) UN Doc A/RES/1904(XVIII).

85

  UNGA Res 2263 (XXII) (7 November 1967) UN Doc A/RES/2263(XXII).

86

  UNGA Res 3452 (XXX) (9 December 1975) UN Doc A/RES/3452(XXX).

87

  UNGA Res 1386 (XIV) (20 November 1959) UN Doc A/RES/1386(XIV).

88

  UNGA Res 45/158 (18 December 1990) UN Doc A/RES/45/158.

89

  See Riedel and Arend on Art. 55 (c) MN 8f and Meng on Art. 60 MN 1.

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Ch.IV The General Assembly, Functions and Powers, Article 14 Donald Riznik, Markus Zöckler From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter

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(p. 552) Article 14 Subject to the provisions of Article 12, the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations. A.  Legislative History 1–2 B.  Controversial Role Model (Article 19 of the Covenant of the League of Nations) 3–5 C.  Article 14 within the Framework of the Charter 6–12 D.  Textual Interpretation 13–19 E.  Practice 20–26 F.  Conclusion 27–28

Select Bibliography Bloomfield LP, Evolution or Revolution? The United Nations and the Problem of Peaceful Territorial Change (Harvard UP 1957). Degan UD, ‘Peaceful Change’ (1981–82) 16 RBDI 536. Dunn FS, ‘Peaceful Change Today’ (1958–89) 11 World Politics 278. Kunz JL, ‘The Problem of Revision in International Law’ (1939) 33 AJIL 33. Kyozuka S, ‘Peaceful Change under the Charter of the United Nations’ in Bangkok World Conference on World Peace through Law (1969) 396. Owada H, ‘Peaceful Change’ MPEPIL, vol VIII (OUP 2012) 175 Randelzhofer A, ‘“Peaceful Change” als Problem de lege ferenda’ in W Fürst, R Herzog, and DC Umbach (eds), Festschrift für Wolfgang Zeidler (de Gruyter 1987) 1819. Schlüter HW, ‘Die Problematik des Peaceful Change’ (1964–65) 12 VN 86. Suy E, ‘The Role of the United Nations General Assembly’ in G Abi-Saab (ed), The Changing Constitution of the United Nations (British Institute of International and Comparative Law 1997) 55.

A.  Legislative History* 1  Discussion around Art. 14 UN Charter began at a relatively late stage. But when it started, it became one of the most hotly debated controversies of the whole San Francisco Conference.1 The Dumbarton Oaks Proposals authorized the GA to ‘initiate studies and make recommendations for the purpose…of adjusting situations likely to impair (p. 553) the general welfare’ (Chapter V s B para 6), but did not contain a provision comparable to Art. 14. ‘At Dumbarton Oaks, the problem of peaceful change did not unduly worry the three powers assembled there.’2 In the American delegation, Senator Arthur H Vandenberg fought for an ‘amendment intended to avoid freezing the status quo and permitting the new league to look backward as well as forward when correcting injustice and festering frictions’,3 which was accepted by the delegation on 16 April 1945. He wished ‘to make sure that the new organization did not become the “straitjacket” of an unjust peace settlement’.4 To give the UN a ‘soul’ he was determined to emphasize the idea of world justice in the Charter; of an organization that was flexible, changing and able to correct injustices that

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might arise as a result of the peace settlements or of future international agreements.5 Therefore, the projected amendment to Art. V B 6 of the Dumbarton Oaks Proposals enlarged the competence of the GA as to include situations ‘arising out of any treaties or international engagements’. At the San Francisco Conference the Soviet Union strongly opposed this idea.6 ‘The USSR-Delegate emphasized that a provision for treaty revision attacks the very basis of international law, peace and security.’7 He urged that the inclusion of a provision on treaty revision would contradict the principle of sovereignty of states, which forms the foundation of the Organization it was intended to establish.8 When disagreement threatened to hamper the deliberations, the amendment was split into two parts; the first part was integrated into Art. 13 of the UN Charter. The second part formed the nucleus of Art. 14. ‘The dispute over the word “treaties” was settled by an agreement that the Assembly could consider situations “regardless of origin”—a phrase that was put forth by the American delegation and was completely satisfactory to Vandenberg.’9 It was this part which came to be known as the ‘Vandenberg Amendment’. 2  While it was generally recognized that respect for the sanctity of treaties was essential for international law and peace, the necessity for a mechanism allowing peaceful change crystallized during the debates. The term ‘peaceful change’10 rests in the core of the discussions around the provision, which later became Art. 14 of the UN Charter. ‘Peaceful Change in its generic sense is a multifaced concept that refers to many diverse processes for bringing about change in international situations through peaceful means.’11 Despite (p. 554) that wide notion, the term was primarily used in the context of discussions on the revision of treaties.12 The debate in San Francisco concentrated on how to reconcile those two principles, the sanctity of treaties on the one hand and the possibility of change in a future dynamic environment on the other.13 One of the results of this debate was the inclusion of the former in the Preamble of the UN Charter. Conversely, this inclusion was the reason for not mentioning treaties in Art. 14, which in turn formed the basis of a compromise on the Vandenberg Amendment. This led then to the final wording of Art. 14.14 To reach this compromise Committee II/2 created a sub-committee to study the questions of treaty revision.15 A majority of the Committee ‘opposed any specific reference to treaty revision beyond the Preamble’.16 Nevertheless, the participant accepted that specific disputes and aggressive threats were not the only dangers to world peace, and that: the procedure should be broadened to cover more general situations or conditions, the continuance of which might also endanger peaceful relations. It was also agreed that measures to prevent the situation from becoming a threat to peace should not be postponed until conditions reached a critical stage.17 During the debates around the provisions concerning the functions and powers of the GA (which finally became Arts 10–17 of the UN Charter), the Soviet Union wished to limit the GA’s competence to discuss and make recommendations on certain matters by adding the phrase ‘within the sphere of international relations which affects the maintenance of international peace and security’18 to the more general wording in Art. 10. The limitation was designed to prevent the GA from making recommendations on the internal affairs of member States. Since the Soviet Union threatened not to sign the Charter if its wish was disregarded,19 the Executive Committee decided to form an additional sub-committee of only three members to find a compromise solution, which proved, however, to be impossible. The ensuing crisis threatened to block the whole conference. The Western powers considered the proposed limitation to be a restriction on the freedom of discussion in the GA, which was to become a ‘town meeting of the world’. After heated discussions and exchanges of communications between the governments of the big five powers—during which several alternative wordings were proposed and rejected—the basic formula, which

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ultimately became Art. 10 of the UN Charter, was worked out and accepted on 20 June 1945. This left the remainder of Art. 14 undisputed, but without a clear interpretation of whether its wording ruled out recommendations on treaty revision. At a later stage this unclear interpretation opened a heated debate between the delegates that supported the idea of treaty revision and their opponents. The crucial question was whether the wide (p. 555) wording of Art. 14 included the possibility to make recommendations about treaty revision or not.20 After the Columbian Delegate, Mr Zulete, declared that: ‘once and for all, here in San Francisco this problem of the revision of treaties is dead and buried’,21 the Mexican Delegate, Señor Nervo, being the last assigned speaker at the verbatim minutes of the fourth and last meeting of Commission II before the adoption of Art. 14, stated that: Paragraph 6 [which will become Art. 14 of the UN Charter] is the result of very hard work by the sponsoring powers. It has been discussed for two months by all the delegations. This Commission, at this stage, should not interpret or try to interpret it…The interpretation of those articles is the job of the Assembly itself, or of the appropriate organ of the Organization, not of this Commission.22 The French Delegate, Mr Aglionwas, being given the right to respond, closed his statement with the words: ‘In any case, whatever the situation, it is a fact that texts on revision were not adopted.’23 Taking the draft history seriously, one has to admitt that the opponents of the inclusion of a treaty revision in the Charter outweighed the supporters.24

B.  Controversial Role Model (Article 19 of the Covenant of the League of Nations) 3  In the course of the debate in San Francisco, nearly all speakers pointed to Art. 19 of the Covenant of the League of Nations. Some wished to use it as a model for the UN Charter, others were eager to avoid any similarity with it. Article 19 reads: The Assembly may from time to time advise the reconsideration by Members of the League of treaties which have become inapplicable and the consideration of international conditions whose continuance might endanger the peace of the world. This stipulation was universally considered to institutionalize the concept of peaceful change, although even its most fervent supporters admitted that it was ‘merely a declaration of principle’.25 Many authors affirmed that Art. 19 was in conformity with the fundamental notion of justice, with the principle of the sanctity of treaties, and especially with the new focus on international peace evident in the sphere of international law. Thus, an author pointed to Art. 19, ‘at the bottom of which I find a notion of justice which is not the narrow notion of legal rights, but rather of a sort of immanent justice, the tangible expression of which is the maintenance of peace’.26 Therefore, it was stressed, Art. 19 of the Covenant should not be confused with the traditional concept of treaty revision: Article XIX leads us into an undiscovered land of international law. Its historical importance, however imperfect it may be from a practical point of view, consists in the unrolling for the first (p. 556) time in full breadth of the problem of a dynamic law of nations and in the attempt to solve the antinomia between the necessary sanctity of treaties and the equally necessary peaceful procedure which makes possible the dynamic evolution.27

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The same author admitted that Art. 19 was ‘a very weak norm. It is only a rule of procedure and contains no substantive rules to determine the principles which should control such a revision’.28 Nevertheless, when looking at the drafting history of the Covenant of the League of Nations, two basic concepts about peaceful treaty revision, especially in its most crucial part, the revision of boundaries,29 can be detected. On the one side the revisionists, those in favour of peaceful treaty revision, with the argument that changes in the social and cultural environment through time would lead to tension, which can peacefully be solved with the concept of treaty revision. On the other hand, the champions of the status quo, who argued that filing the concept of peaceful change into a regulation within the Covenant would cause tension, which might lead to armed disputes, because permanent dissatisfaction with treaties that are in force will compel every Power to engage in propaganda to push a treaty revision in favour of its interests.30 These are precisely the same arguments that had been brought up again when discussing the advantages and disadvantages of a provision which would give the GA the power to initiate treaty revision. 4  The practical weakness of the provision is the point at which a critical appraisal of Art. 19 may find its justification. Without the guidance of substantial norms or principles, Art. 19 became ‘a mere piece of executive machinery’, which was difficult to handle. After ten years’ experience of the League, one observer noted: ‘The Assembly of the League is not a body which, without very careful guidance, is capable of the action which is here proposed for it.’31 The largest obstacle to putting Art. 19 of the Covenant to substantial use was the fear of the victors of World War I that its application might destroy the system established by the Paris Treaties of 1919. In 1939 John F Dulles complained that Art. 19 had been forgotten.32 Until 1934 it had been the object of discussion only three times: in 1921 concerning the dispute over peace treaties concluded in 1883 and 1904 between Bolivia and Chile; in 1925 concerning commercial treaties with China; and in 1929, when China asked the League to establish a committee to give more efficacy to Art. 19 of the Covenant.33 In response to the latter request, the Assembly referred the matter to its First Committee, which after thorough debate formed a special sub-committee. The subcommittee rejected the Chinese proposal and instead drafted a resolution essentially reiterating the contents of Art. 19. This resolution was adopted by the Commission and, on 25 September 1929, also by the Plenary of the Assembly.34 During the Sudeten Crisis of autumn 1938, the Soviet Union reminded the (p. 557) League that the problem might be solved by applying Art. 19 of the Covenant, but no action was taken. Instead, the Assembly applauded the peace efforts undertaken outside the League by the US President.35 As we will see later, this was the first step on a path, which will eventually become the main approach to peaceful treaty revision, without or with only minor involvement of the main organs of the UN. Such events help to explain why opinions on Art. 19 of the Covenant were less enthusiastic towards the end of the League era than at the beginning.36 Or as one commentator summed it up: ‘the problem of change was reduced to its classic simplicity in any system of power politics: revision could be obtained by agreement, fait accompli or war’.37 5  A comparison of Art. 19 of the Covenant of the League of Nations with Art. 14 of the UN Charter has proved difficult. While it is true that ‘the Charter does not contain a provision analogous to Article 19 of the Covenant’,38 it is equally true that Art. 14 of the UN Charter ‘has been interpreted to include the possibility of recommendations for the revision of treaties’.39 In its wording Art. 19 of the Covenant40 is weaker than Art. 14 of the UN Charter. The former entitled the League Assembly to ‘advise the reconsideration’ of treaties, the latter empowers the GA to ‘recommend measures’. For a decision of the Assembly according to Art. 19 in conjunction with Art. 5 (1) of the Covenant, unanimity was required, whereas Art. 18 (2) of the UN Charter establishes the principle of a majority vote. In substance, the text of Art. 14 of the UN Charter covers more ground. Article 19 of the Covenant of the League of Nations covered only treaties which had become inapplicable

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and international conditions whose continuance might endanger the peace of the world. Article 14 of the UN Charter covers any situation, whether its origin lies in treaties or not, and it is not limited to dangerous situations. In spite of these differences, especially the long-debated omission of treaty revision from Art. 14 of the UN Charter, it has been said that: ‘Article 14 of the Charter is the counterpart to Article 19 of the Covenant. Its chief value consists in enlarging the General Assembly’s scope of jurisdiction, if only for purposes of discussion and recommendation.’41 But one can also draw the opposite conclusion: ‘Compared with the corresponding jurisdiction of the League Assembly, the scope of Article 14 of the Charter is considerably narrower.’42 This judgment is based on a consideration of the limits placed on Art. 14 by other UN Charter provisions.43

(p. 558) C.  Article 14 within the Framework of the Charter 6  There is no doubt that the supporters of the Vandenberg Amendment44 intended Art. 14 of the UN Charter to be an even better vehicle for peaceful change than Art. 19 of the Covenant of the League of Nations had been. They were convinced that the ‘broad powers entrusted to the General Assembly will enable it to render effective aid in the difficult process of peaceful change’.45 Similar hopes were expressed in the US Senate.46 The first commentators cautiously stated that Art. 14 was a ‘modest approach to the problem of “peaceful change” in a dynamic world’.47 But academic interest clearly turned away from the topic, while in the interwar years it had been one of the most important topics in the academic literature48 and UN practice seemed so scant that a dozen years after the Charter had come into force a comprehensive study of the practical uses of Art. 14 reached the conclusion that only ‘a certain amount of lip service’ was paid to the principle of peaceful change, with verbal solutions becoming ‘progressively more vapid’.49 7  From the beginning, the great theoretical and practical problem of Art. 14 of the UN Charter was its place among the provisions concerning the realization of the purposes and principles of the Charter by the actions of the different organs of the UN. Ever since the debates at the San Francisco Conference, it had seemed clear that Art. 14, together with Art. 10, ‘provided the basis for the development of the role of the Assembly in the field of peace and security’.50 But it was equally clear that any effort by the GA to act on this basis must have due regard for the rights and duties of the SC, to whom the Charter gives primary responsibility for the maintenance of international peace and security (Art. 24). This problem surmounts the limitations placed upon the GA by the first words of Art. 14, which point to Art. 12.51 It involves the connections as well as the separation between the peaceful settlement of disputes and peaceful change, and the emphasis placed on each of them in practice. From the outset, Art. 14 apparently gave the GA ‘the counterpart of the primary function assigned to the Security Council’.52 According to this view, the SC has primary responsibility for peace and security, while the GA enjoys precedence concerning the ‘peaceful adjustment’ of the situations described in Art. 14. But the provisions concerning the pacific settlement of disputes (Arts 33–38 of (p. 559) the UN Charter) make it clear that this field of action is dominated by the SC, so that the opportunities for the GA to act on the basis of Art. 14 are considerably restricted. It is theoretically true that ‘the rank order of the two main organs in the settlement of disputes is only procedural and does not affect the contents of their activities’.53 8  But it has to be borne in mind that the procedural priority of the SC is not only stipulated by Art. 14 itself in conjunction with Art. 12 of the Charter, but stems from the essential functions of the SC as laid down in Chapters VI and VII of the Charter. It is equally true that the expressions used in Art. 14 ‘give to the Assembly a much broader range of activity than that conferred on the Council’.54 This enhancement refers especially to situations which are not covered by Chapter VI of the UN Charter, namely disputes that are of a less serious character, those which might endanger, but are not yet endangering, the maintenance of international peace and security. However, the area covered by Chapters VI and VII of the

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Charter has to be excluded when measuring the range of activity of the GA. In theory this leads to the conclusion that the GA is a ‘creative body’, the SC an ‘organ of action’. Neither of them ‘should trespass on the other’s peculiar sphere of activities’.55 Later developments have been interpreted as ‘the breaking down of this concept of specialization’. ‘Gradually and increasingly, the General Assembly has intruded into the Security Council’s peculiar sphere.’56 9  Within Chapter IV of the UN Charter, Art. 10 is the general norm, while Art. 14 sets forth specific applications of the general rule.57 Article 14 exceeds Art. 10 insofar as it does not specify to whom recommendations may be given, whereas Art. 10 expressly mentions the members of the UN and the SC. Therefore, the GA may address recommendations not only to members of the UN and to the SC, but also to non-members, other international organizations, non-governmental organizations, and even private groups or individuals. The specification contained in Art. 14 is unique in the Charter. 10  Some commentators share the opinion that Art. 14 is similar to Art. 11, because the latter also describes a specific field in which recommendations may be made. According to this view, Art. 14 broadens the powers of the GA created by Art. 11 to include ‘other types of situations which are not necessarily of the character covered by Article 11’.58 Still others make a distinction between Arts 11 (1), 13, and the second part of Art. 14 on the one hand and Art. 11 (2) and (3) and the first part of Art. 14 on the other. While the former corresponded to the original intention of the authors of the UN Charter to make the GA the organ for discussing general principles, the latter were the result of an extension of the GA’s competence into the field of maintenance of peace.59 The distinction seems to be artificial, since the maintenance of peace is the overriding aim of the whole Charter. The provisions concerning the powers of the GA in this field were not second (p. 560) thoughts on an area from which the GA was originally to be excluded, but specifications for certain activities. In whatever way the relations between Arts 10, 11, 13, and 14 are interpreted, it is clear that the subjects listed in Arts 11, 13, and 14 are included in the general norm of Art. 10. However, this does not mean that these articles exclude Art. 10 or that they are in effect superfluous. On the contrary, the areas of application overlap. With respect to matters open to discussion, Art. 10 goes beyond Art. 14; in the area of specification of powers to recommend, Art. 14 exceeds Art. 10.60 11  The application of Art. 14 is expressly limited by Art. 12, which takes due regard of the SC’s priority. In practice, however, a strict division between the two organs in respect to a given situation is hard to achieve.61 As past practice of the GA has shown, after the initially very strict adherence of the literal limits in Art. 12 in the early years, the GA broadened its competence more and more also into situations the SC was dealing with, hence narrowing the limitation-scope of Art. 12.62 Even the ICJ ascertained that the SC does not have an exclusive responsibility in this area. The primary responsibility of the SC does not prevent the GA making recommendations for a situation which is usurped by the SC. The ICJ states: However, the Court would emphasize that Article 24 refers to a primary, but not necessarily exclusive, competence. The General Assembly does have the power, inter alia, under Article 14 of the Charter, to ‘recommend measures for the peaceful adjustment’ of various situations…‘The only limitation which Article 14 imposes on the General Assembly is the restriction found in Article 12, namely, that the Assembly should not recommend measures while the Security Council is dealing with the same matter unless the Council requests it to do so.’63 Hence the interpretation of Art. 12 restrictions on the GA recommendations seems to be extremely narrow. In addition to the limited restriction of Art. 12, the recommendations made under Art. 14 have to respect the ban on intervention in matters which are essentially within the domestic jurisdiction of a State (Art. 2 (7)).64 A third, at least theoretical, limitation was imposed by Art. 107, exempting measures against former enemy States from From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the provisions of the Charter. One example in this regard was the motion of Argentina to to examine the peace treaty with Italy.65 However, today this limitation seems to be obsolete.66 (p. 561) 12  When the GA proceeds under Art. 14, the implementation of its recommendation may require organizational activity. ‘Such implementation is a normal feature of the functioning of the United Nations’, but the way in which the organizational instruments offered by the UN are utilized depends on the State or States concerned.67

D.  Textual Interpretation 13  The term ‘recommendation’ has the same meaning in Art. 14 as in Arts 10, 11, 36, 37, and 38 of the UN Charter: it describes an enunciation which is not legally binding.68 If addressed to an organ of the UN, it has no procedural effects comparable to those of the recommendations of the SC mentioned in Arts 4 (2), 5, 6, and 97 of the UN Charter. The opinion that ‘recommendations addressed to organs of the United Nations must be complied with’,69 can only be accepted if it is interpreted in the sense that the organ addressed is obliged to take up the matter. The power to make recommendations to an organ does not establish superiority over it. The wording of recommendations based on Art. 14 must reflect this situation. For example, Art. 14 would not cover a resolution in which the GA ‘requests’ a member State or the SC to take measures, or which expresses an ‘opinion’ on certain measures. 14  The term ‘measures’ includes any peaceful action consistent with international law. It does not include enforcement action by the SC. 15  ‘Peaceful adjustment’ includes all forms of non-violent settlement, either political or judicial.70 Enforcement action by the SC may therefore not be recommended by the GA. This follows not from the limitations placed upon the GA by Art. 12, but rather from the wording of Art. 14. ‘If action is necessary, Article 14 is not applicable.’71 Early commentators voiced the opinion ‘that the Security Council may consider non compliance with a recommendation of the General Assembly made under Article 14 as a “threat to the peace” and hence take enforcement action’.72 Such a decision by the SC would, however, be neither an interpretation nor an enforcement of Art. 14, but solely the exercise of the SC’s own rights based on Art. 39 of the UN Charter. The term ‘adjustment’ used in Art. 14 has the same meaning as ‘settlement of disputes’ when a dispute is at the heart of the situation to which Art. 14 is to be applied. 16  The term ‘situation’ escapes definition almost entirely. The history of Art. 14 shows that this wide and vague expression was chosen deliberately in order to include the problem of the revision of treaties without mentioning it expressly. Furthermore, ‘it is important to keep in mind that the term “situation” has been used quite loosely during discussions in the United Nations to refer to a variety of types of questions’.73 A meaning similar to that in Art. 14 is to be found in Art. 1 (1) of the UN Charter, which mentions the adjustment of international situations among the Purposes and Principles of the UN. There, as in Art. 14 and in other Charter provisions using the word ‘situation’, (p. 562) the provision itself describes its exact meaning. (In Art. 1 (1): ‘situations which might lead to a breach of the peace’; in Art. 34: ‘any situation which might lead to international friction or give rise to a dispute’; in Art. 40 the meaning of the word ‘situation’ is to be deduced from the preceding Articles.) Article 14 describes the situation with the words ‘… which it deems likely to impair the general welfare or friendly relations among nations including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations’.

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17  It is difficult to distinguish between the situation described in Art. 14 and the situations which the Charter empowers the SC to handle. It is a problem similar to the distinction between peaceful adjustment and peaceful settlement, which also pays attention to the distinction between ‘situations’ and ‘disputes’. But it is not correct to state that ‘situations are, in the last analysis, not disputes’.74 Of course, not all situations are disputes, but a dispute is undoubtedly a situation in the sense of Art. 14 of the UN Charter whenever it fits the description contained in that provision. It does not help to say that the term ‘situation’ generally ‘is used to describe a set of conditions slightly broader in implication than a “dispute”’.75 It is always the wording of the article itself which determines how broad the implication is. As far as Art. 14 is concerned, the dividing line is not one between the powers of the GA and the SC, but between the powers of the GA under Art. 14 and the powers of the GA under the other provisions of Chapter IV of the UN Charter. Situations involving the maintenance of international peace and security have to be dealt with by the GA in accordance with Art. 11 (provided that the GA is not precluded by Art. 12). Situations impairing the general welfare or friendly relations among nations have to be dealt with by the GA in accordance with Art. 14 (again provided that the GA is not precluded by Art. 12). At first sight, this regulation seems to be a paradox: since Art. 14 gives the GA more powers than Art. 11,76 the wider scope of application and the wider circle of addressees are available for the less dangerous situations. But a closer examination, taking into account the powers of the SC, reveals its inherent logic. Both articles empower the GA in the situations in which the SC does not yet feel the necessity to become active. But it appears to be logical that the SC should watch more closely those situations involving the maintenance of peace and security, ready to apply its instruments which are much stronger than those of the GA. The situations described in Art. 14 may very well develop into disputes and situations endangering the maintenance of international peace, but as long as this stage has not yet been reached it seems logical to give broader powers to the GA to quell such a development. 18  The final phrase of Art. 14 (‘including situations resulting from a violation…’) has been declared to be superfluous, because ‘such situations will always be likely to impair the friendly relations between nations’.77 Again, the purpose of this wording of Art. 14 is to stress that the wider powers of the SC in this matter do not preclude the GA from becoming active under Art. 14, as long as Art. 12 permits it. Another warning has resulted from the use of the term ‘Purposes and Principles of the United Nations’ in Art. 14. Some of these, it was said, ‘as, for instance, the principle of “equal rights (p. 563) and self-determination of peoples” and “respect for human rights and fundamental freedoms” cover so wide a field as, for all practical purposes, to cancel most of the domestic-jurisdiction exception’.78 19  The subject-matter of Art. 14 is not mentioned among the ‘important questions’ in Art. 18 (2) of the UN Charter that require a two-thirds majority for passage in the GA, nor is such a majority stipulated in other provisions of the Charter or the Rules of Procedure of the GA. Thus, if the list given in Art. 18 (2) is exhaustive, resolutions under Art. 14 may be adopted by a simple majority unless a prior decision under Art. 18 (3) has turned them into important questions. If, as has been argued,79 the list is not exhaustive, other questions, including those of Art. 14, might be declared important ones in the sense of Art. 18 (2). This, however, does not require an interpretation of Art. 14, but of Art. 18 (2).

E.  Practice 20  The practice of the GA under Art. 14 is difficult to assess, because, as a rule, the GA does not specify the Charter provisions on which its recommendations are based. Observers tend to attribute resolutions to the provisions of Arts 10, 11, or 13 rather than to the specific provision of Art. 14. A survey covering the first twelve years of the UN’s existence brought to light twenty-two cases ‘as being related to the process of peaceful change’,80 seventeen of which were discussed in the GA: Spain, South West Africa, Palestine, Korea,

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Indonesia, Jerusalem, Italian colonies, Morocco, Germany, Tunisia, Togoland, Austria, Cyprus, West Irian, Algeria, Suez, and Hungary. The authors of the survey admit that they refer to a much wider definition of peaceful change than most other observers, whose lists are considerably shorter. As late as 1949 it was said that the ‘only attempt to revise a treaty under the provisions of Article 14 was made at the second session of the General Assembly. Argentina proposed that the Assembly consider a revision of the peace treaty with Italy.’81 The attempt was blocked with reference to Art. 107 of the UN Charter. During the same session of the GA, Art. 14 together with Art. 11 (2) seem to be the legal basis for opening a discussion on the divided Korea. Without mentioning Art. 14, the GA appointed a commission82 which could not, however, enter North Korea and therefore quickly ended its activities without results. 21  Article 14 was referred to in connection with the question of Israel (Palestine). In some cases, Art. 14 was not mentioned expressly, but words identical to those of Art. 14 were used in the resolutions. Thus, in the Preamble of UNGA Res 181 (II) (23 September 1947) on the future government of Palestine, the GA declared that the situation in Palestine was ‘likely to impair the general welfare and friendly relations among nations’. These words were repeated in the Preamble of UNGA Res 181 (II) (29 November 1947). Exactly 32 years later, on 29 November 1979, the GA declared the Camp David Agreement (p. 564) null and void insofar as it purported to determine the future of the Palestinians (UNGA Res 34/65 B).83 22  Explicit reference to Art. 14 was made in resolutions concerning South Africa, beginning with UNGA Res 721 (VIII) (8 December 1953), requesting the UN Commission on the Racial Situation in the Union of South Africa to continue its studies. The language of Art. 14 was used earlier in UNGA Res 44 (I) (8 December 1946) to describe the treatment of Indians in South Africa, followed by several more resolutions on the same question: UNGA Res 265 (III), 395 (V), 511 (VI), 615 (VII), 719 (VIII), 816 (IX), 919 (X), 1015 (XI), 1179 (XII), 1302 (XIII), 1460 (XIV), 1597 (XV), 1662 (XVI). In UNGA Res 44 (I), the GA voiced an opinion on the treatment of Indians in South Africa and requested the two governments to report to the GA on the measures adopted. This has been criticized as exceeding the powers of the GA under Art. 14.84 The numerous resolutions condemning apartheid did not refer to Art. 14, but Art. 11 (3) to call the attention of the SC to a situation which was likely to endanger international peace and security.85 There were, however, attempts to have the GA recommend, ‘in accordance with Article 14 of the Charter’, that all member States take measures against South Africa, as in a draft amendment, later withdrawn, to UNGA Res 1761 (XVII). In the debate preceding the passage of this resolution, Art. 14 was once again weighed against Art. 41. UNGA Res 1761 (XVII) reaffirmed that apartheid ‘seriously endangers peace and security’, thus placing itself outside the range of Art. 14. 23  The language of Art. 14 was used on several occasions without specific reference to the provision itself. Examples are the Preamble to UNGA Res 427 (V) (14 December 1950), concerning the repatriation of prisoners of war from the Soviet Union; the Preamble of UNGA Res 509 (VI) (14 December 1951) concerning a Yugoslavian complaint about hostile activities by the Soviet Union and other States; the Preamble and Art. 3 of UNGA Res 1497 (XV) (31 October 1960) concerning South Tyrol; UNGA Res 2734 (XXV) (16 December 1970) on the strengthening of international security, in para 15 of which the GA reaffirmed its competence as described in Art. 14 of the Charter; UNGA Res 2793 (XXVI) (7 December 1971) concerning India and Pakistan; UNGA Res 2799 (XXVI) (13 December 1971) concerning the Middle East; UNGA Res 3212 (XXIX) (1 November 1974); and UNGA Res 3395 (XXX) (20 November 1975) concerning Cyprus.

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24  Reference to Art. 14 was made in the Preambles to UNGA Res 111 (II), 196 (III), and 295 (IV) concerning the establishment and re-establishment of the Interim Committee of the GA; in UNGA Res 1542 (XV) (15 December 1960) (‘mindful of its responsibilities under Article 14 of the Charter’), calling on Portugal to submit information on its non-selfgoverning territories. Incidental references to Art. 14 during debates in the GA have been frequent, but throw no light on the interpretation of Art. 14. The discussions around Art. 14 seem to confirm a judgment found earlier: ‘The record of interpretations (p. 565) placed on Article 14 in debates tends to confirm the predominance of political interest over issues of intrinsic legality.’86 25  The ‘Agenda for Peace’87 of the SG apparently reminded the GA of its dormant competences under Art. 14: in UNGA Res 47/120 B (20 September 1993) the GA ‘resolves to make full and effective use of the functions and powers set out in Articles 10 and 14 of the Charter’, a remarkable statement which has not been followed by determined actions. In the report on Prevention of Armed Conflict the SG explicitly mentioned Art. 14 and then suggested that ‘the General Assembly may wish to consider how to make more frequent use of its powers under the Charter for the consideration of prevention issues in the future’.88 But the following reports prove that instead of leaving these issues to the GA, as assigned to it by Art. 14, a more system-wide UN approach strengthening the prevention of armed conflicts was taken. In particular, encouraging the affected governments to make use of the peaceful procedures and methods for the settlement of disputes, and if needed, with the help of the good offices of the Secretary-General.89 26  Summarizing verdicts on UN practice concerning Art. 14 have emphasized that the political reality of the present world does not give much chance to peaceful change as envisaged by Art. 14.90 Others even see its importance waning. According to this view, Art. 14 has played a ‘not negligible historical role’ in fostering the extension of the GA’s competence in the field of the maintenance of peace, but now ‘it remains mostly in the background, being one of the bases of a competence taking multiple forms’.91

F.  Conclusion 27  Despite the lack of GA practice, especially in the area of peaceful change of treaties, it can be said that the idea behind it turned out to be superfluous in the practice of the UN General Assembly92 and the Assembly of the League of Nations.93 However, as can be seen from the literature, even science seemed to have given up this approach. Whereas there seemed to be an extensive need to discuss the concept between the two World Wars,94 after the UN was established, the interest steadily waned. Today, the literature on this topic is marginal, despite the overall inflation of scientific research in the area of public international law. Another indication, which leads to the conclusion that the concept of peaceful change, especially regarding treaties, is not going to be picked up in the foreseeable future, is the fact that it does not play a role (not even a minor one) in the discussion regarding the reform of the United Nations.95 (p. 566) Obviously this was not the intention of the authors of Art. 14, who wanted to make this provision a true vehicle of peaceful change. The first signs of a diminishing relevance of Art. 14 already loomed in Art. 19 of the Covenant of the League of Nations, whose practical balance sheet proved ineffectiveness.96 Reaching consensus to establish a provision which allows the initiation of peaceful change cannot override the lack of political will to use this comptetence. But this does not mean that the concept in its wider sense as such failed. Today the methods to initiate peaceful change have turned away from assigning it to one international organ, in this case the GA. Varied, more classical approaches, proved to be more feasible. Regional

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organizations, third parties, and key actors within the UN System, like the SG itself, claim the field of peaceful change. 28  The high hopes, held by the Delegates of the Countries, who were supporting the ambition of peaceful treaty revision, through an at least rudimentary institutionalized process97 within the UN System (Egypt, Chile, etc) did not come true. In retrospect it is fair to say that States which were against implementing the concept of ‘treaty revision’ into the UN Charter prevailed, when considering the practice in this respect. Hence, peaceful change not only with respect to treaty revision but also in its wider sense appears to be mostly controlled by political will, which again places the ‘drive’ of peaceful change into the hands of the powerful States of the world which are mostly governed by their individual interests.

Footnotes: *  The authors acknowledge that the following text contains elements of the respective comments on Art. 14 by Otto Kimminich† and Markus Zöckler in the previous edition of this commentary. 1

  RB Russel and JE Muther, A History of the United Nations Charter (Brookings Institution 1958) 759–60. 2

  G Schwarzenberger, Power Politics (3rd edn, Praeger 1964) 374.

3

  AH Vandenberg Jr (ed), The Private Papers of Senator Vandenberg (Gollancz 1952) 168.

4

  RM (n 1) 609.

5

  Vandenberg (n 3) 172; For the discussion of the concept of peaceful change being a problem of justice see A Randelzhofer, ‘“Peaceful Change” als Problem de lege ferenda’ in W Fürst, R Herzog, and DC Umbach (eds), Festschrift für Wolfgang Zeidler (de Gruyter 1987) 1829–31. 6

  ibid, 184.

7

  19th meeting of Commission II/Committee 2 on 4 June 1945, UNCIO IX 150.

8

  ibid, 138–39.

9

  Vandenberg (n 3) 184.

10

  The origin of the term in the terminology of international public law and political science is hardly ascertainable. Presumably, it descended from the ‘evolutionary pacifism’ literature, cf Grewe, Spiel der Kräfte in der Weltpolitik (Econ 1970) 594. 11

  See H Owada, ‘Peaceful Change’ MPEPIL, vol VIII (OUP 2012) 175, MN 1; peaceful change is not to be confused with the clausula rebus sic stantibus, cf JL Kunz, ‘The Problem of Revision in International Law’ (1939) 33 AJIL 33–55, 41: ‘The clausula involves a problem of the lex lata, revision is a problem de lege ferenda. The clausula is judicial, revision a legislative problem’; for a persuasive analysis of the limits of peaceful change in the present public international law concept see Randelzhofer (n 5) 1819ff. 12

  Because in the context of treaty revision, which in the discussion mainly focused on a peaceful territorial change, the term ‘peaceful change’ touches upon the very heart of national sovereignty, it is no surprise that a mutual consent was, and still is, hard to achieve. 13

  For an analysis with further references about the antagonism between change and stability in the international legal order see Kunz (n 11).

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14

  Vandenberg (n 3) 185.

15

  UNCIO IX 347.

16

  RM (n 1) 769.

17

  ibid, 755.

18

  UNCIO IX 221.

19

  This was the second major attempt to limit the powers of the UNGA. The first one, which obviously failed, aimed to limit all powers including the possibility to discuss matters, within the UNGA and the UNSC by a veto of one of the permanent UNSC members, cf Vandenberg (n 3) 201. 20

  Fourth Meeting of Commission II, 21 June 1945, UNCIO VIII 195–222.

21

  ibid, 210.

22

  ibid, 216–17.

23

  UNCIO VIII, 217.

24

  Especially if taking into account that every single attempt by the supporters to somehow integrate the idea into the UN Charter was rejected, cf the listing by the Chilenian Delegate, Mr Maza, UNCIO VIII 218–22. 25

  P Price, Power and the Law (Librairie E Droz 1954) 33.

26

  A Hammarskjöld, ‘The PCIJ and its Place in International Relations’ (1930) 9 Intl Aff 473.

27

  JL Kunz, ‘The Law of Nations, Static and Dynamic’ (1933) 27 AJIL 630–50, 642. The same views had been expressed earlier in his book Die Revision der Pariser Friedensverträge (Springer 1932) 300–01; see also JL Kunz, ‘Statisches und dynamisches Völkerrecht’ in A Verdroß (ed), Gesellschaft, Staat und Recht—Untersuchungen zur reinen Rechtslehre (Springer 1931) 217–51. 28

  ibid, 641.

29

  For an analytic case study about peaceful territorial changes see AM Kacowicz, Peaceful Territorial Change (University of South Carolina Press 1994). 30

  cf DH Miller, The Drafting of the Covenant, vol 2 (GP Putnam’s Sons 1928) 10.

31

  J Fischer Williams, ‘Treaty Revision and the Future of the League of Nations’ (1931) 10 Intl Aff 340. 32

  JF Dulles, War, Peace and Change (Harper 1939) 50.

33

  cf V Böhmert, Der Art. 19 der Völkerbundsatzung (1934) 232–37.

34

  Records of the Tenth Assembly (1929) Plenary Meetings 177.

35

  LNOJ Special Supp No 183, 94–95.

36

  cf LP Bloomfield, Evolution or Revolution (Harvard UP 1957) 25–31; M Bourquin, ‘Stabilité et mouvement dans l’ordre juridique international’ (1938-II) 64 Rec des Cours 347–477, 452–72; Q Wright, ‘Art. 19 of the League Covenant and the Doctrine “Rebus Sic Stantibus”’ (1936) ASIL Proc 55–73. 37

  Schwarzenberger (n 2) 374.

38

  H Kelsen, The Law of The United Nations—A Critical Analysis of Its Fundamental Problems (Praeger 1950) 211. 39

  ibid, 16.

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40

  Art. 19 of the Covenant of the League of Nations reads: ‘The Assembly may from time to time advise the reconsideration by Members of the League of treaties which have become inapplicable and the consideration of international conditions whose continuence might endanger the peace of the world.’ 41

  G Schwarzenberger and ED Brown, A Manual of International Law (6th edn, Professional Books 1976) 258. 42

  Schwarzenberger (n 2) 375.

43

  cf MN 6f.

44

  cf MN 1f.

45

  US Secretary of State ER Stettinius, Report to the President on the Results of the San Francisco Conference (US Dept St, Publication 2349, 1945) 58–59. 46

  Hearings before the Senate Committee on Foreign Relations on the Charter of the UN, 79th Cong 1st Session (1945) 218. 47

  LM Goodrich and E Hambro, Charter of the United Nations, Commentary and Documents (1st edn, Stevens 1946 and 2nd edn, 1949) 178. The statement is missing in the 3rd edn, cf GHS (n 58) 56, but it has been repeated by WG Grewe, ‘Peaceful Change’ EPIL III (1997) 965–71. 48

  As Kunz observed in 1939: ‘Perhaps no other problem of international law plays at the present time such an important rôle as the problem of revision, or, as it is now called with a new and rather ambiguous term, “peaceful change”’, see Kunz (n 11) 33. For the vast scientific literature on peaceful change during the interwar-period see, as an example only, the listing of 33 writings in Kunz (n 11) 36–37, fn 24. To date interest in this topic has been constantly decreasing. 49

  Bloomfield (n 36) 109.

50

  LM Goodrich and AP Simons, The UN and the Maintenance of International Peace and Security (Brookings Institution 1955) 599. 51

  ie the exclusion of the UNGA, as long as the UNSC is exercising its relevant functions.

52

  Pasvolsky in Hearings before the Senate Committee on Foreign Relations, 79th Cong. 1st Session (July 1945) 249. 53

  J Delbrück, Die Entwicklung des Verhältnisses von Sicherheitsrat und Vollversammlung der Vereinten Nationen (Universität Kiel 1964) 31. 54

  Goodrich and Simons (n 50) 266.

55

  V Andrade, Chairman of Committee 2 of Commission II, Verbatim Minutes of Fourth Meeting of Commission II (21 June 1945), UNCIO, Selected Documents (1946) 706. 56

  IL Claude, Swords into Plowshares (3rd edn, Random House 1964) 161; see MN 11.

57

  Goodrich and Simons (n 50) 227; A Ross, Constitutions of the UN (Rinehart 1950) 59.

58

  LM Goodrich, E Hambro, and AP Simons (eds), Charter of the United Nations— Commentary and Documents (3rd edn, Columbia UP 1969) 142. 59

  M Schaefer, Die Funktionsfähigkeit des Sicherheitsmechanismus der Vereinten Nationen (Springer 1981) 40. 60

  cf G Dahm, Völkerrecht, vol 2 (2nd edn, de Gruyter 1960) 193.

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61

  On the relation between Arts 12 and 14, see E Suy, ‘The Role of the United Nations General Assembly’ in G Abi-Saab (ed), The Changing Constitution of the United Nations (British Institute of International and Comparative Law 1997) 55–69, 67. 62

  For a detailed analysis of the changing practice of the UNGA in this regard see Klein and Schmahl on Art. 12 MN 9–11. 63

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136, 148, para 26 with explicit reference to Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, 163; The ICJ confirmed this view in the case Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] (ICJ) paras 40– 42. For a more detailed analysis of the Court’s reasoning with further references see Klein and Schmahl on Art. 12 MN 21–24. 64

  But this limitation is seen to be extremely narrow, too, cf B Conforti and C Focarelli, The Law and Practice of the United Nations (4th edn, Nijhoff 2010) 308; for a discussion of the scope of this limitation see Klein and Schmahl on Art. 10 MN 10–15. 65

  See Motion submitted by Argentina at the 2nd session: see RP V, 385; GAOR (II) 90th Plen mtg (23 September 1947) 280. For a more detailed discussion of the limitation of Art. 14 imposed by Art. 107 see Ress and Bröhmer on Art. 107 MN 17–19. 66

  See Ress and Bröhmer on Art. 107 MN 10.

67

  Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, 165.

68

  For an analysis of the form and legal nature of UNGA resolutions see Klein and Schmahl on Art. 10 MN 42–68. 69

  N Bentwich and A Martin, A Commentary on the Charter of the UN (2nd edn, Routledge & Kegan 1951) 46. 70

  RM (n 1) 276.

71

  Kelsen (n 38) 211.

72

  ibid, 214–15, fn 4.

73

  Goodrich and Simons (n 50) 226.

74

  R Escher, Friedliche Erledigung von Streitigkeiten nach dem System der Vereinten Nationen (Schulthess 1985) 50, 122. 75

  Goodrich and Simons (n 50) 230.

76

  cf MN 6f.

77

  DC Dicke and HW Rengeling, Die Sicherung des Weltfriedens durch die Vereinten Nationen (Nomos 1975) 123–24. 78

  G Schwarzenberger and ED Brown, A Manual of International Law (6th edn, Professional Books 1976) 233. 79

  cf GHS (n 58) 174.

80

  Bloomfield (n 36) 119.

81

  Goodrich and Hambro (n 46) 179. UN Docs A/P.V. 90 and A/500.

82

  UNGA Res 112 (II) (14 November 1947) UN Doc A/RES/112(II) 16–18.

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83

  The UNGA objected to the circumstances of the Camp David accords, in that they had been concluded outside of the framework of the UN and without the participation of the Palestine Liberation Organization. 84

  Kelsen (n 38) 455.

85

  cf Klein and Schmahl on Art. 10 MN 13; for a detailed politico-scientific assessment of the General Assembly’s Role concerning South Africa see AÖ Özdemir, Apartheid: The United Nations and Peaceful Change in South Africa (Transnational Publishers 1982). 86

  Bloomfield (n 36) 117, fn 16.

87

  Report of the SG: An Agenda for Peace, UN Doc A/47/277-S/24111 (17 June 1992).

88

  Report of the SG: Prevention of Armed Conflict, UN Doc A/55/985-S/2001/574 (7 June 2001) 10 MN 26. 89

  cf Interim report of the SG on the prevention of armed conflict, UN Doc A/58/365-S/ 2003/888 (12 September 2003) and the progress report of the SG on the prevention of armed conflict, UN Doc A/60/891 (18 July 2006) in particular MN 57–60 and 76–97. 90

  WG Grewe, ‘Peaceful Change’ in K Strupp and HJ Schlochauer (eds), Wörterbuch des Völkerrechts, vol 2 (de Gruyter 1961) 752–57, 757. 91

  CP (2dn edn)/Manin, 336 (author’s translation).

92

  About the pros and cons of the idea behind ‘peaceful change’ see MN 2.

93

  H Owada, ‘Peaceful Change’ MPEPIL, vol VIII (OUP 2012) 175, MN 9.

94

  ibid.

95

  cf J Müller (ed), Reforming the United Nations, four volumes (Brill 1997, 2001, 2006, 2010). 96

  See also Kunz (n 11) who concludes that the problem of revision is essentially political and legislative in character (p 44). Therefore, if war should be excluded as an instrument of revision, overriding supranational legislation alone remains as a suitable procedure (pp 51– 52) for effective peaceful change, which is not guided by the individual interest of States, but by the interest of the whole international community. 97

  cf Randelzhofer, (n 5) 1819; how a very wide interpretation of Art. 14 could provide effective possibilities of peaceful change including treaty revision; see ibid 1825–28.

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Ch.IV The General Assembly, Functions and Powers, Article 15 Philip Bittner, Reinhard Hilger, Helmut Tichy From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — International peace and security

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(p. 567) Article 15 (1) The General Assembly shall receive and consider annual and special reports from the Security Council; these reports shall include an account of the measures that the Security Council has decided upon or taken to maintain international peace and security. (2) The General Assembly shall receive and consider reports from other organs of the United Nations. A.  Reports of the Security Council 1–16 I.  Their Origin and History 1–4 II.  Annual Reports of the Security Council 5–10 III.  Special Reports of the Security Council 11–12 IV.  Conclusions regarding the Constitutional Relationship between the GA and the SC 13–16 B.  Reports of Other Organs 17–38 I.  Their Origin and History 17 II.  Reports of the Economic and Social Council 18–20 III.  Reports of the Trusteeship Council 21–24 IV.  Reports of the International Court of Justice 25–29 V.  Reports of the Secretary-General 30–35 VI.  Reports of Subsidiary Organs 36–38 C.  Final Remarks on Reports 39–40

A.  Reports of the Security Council I.  Their Origin and History 1  The Dumbarton Oaks Proposals contained the provision that the GA should receive and consider reports from the SC.1 The GA’s right to be informed was thus recognized from the outset.2 2  At the San Francisco Conference, the wording of Art. 15 of the Charter was a matter of much controversy between the Great Powers, which wanted to safeguard the independence of the SC, and the smaller States, which aimed at providing the GA with a comprehensive right to control all the activities of the Organization.3 The most far-reaching proposal of the smaller States would have given the GA a right to approve or disapprove the SC’s report, as a whole or in part, as well as the right to make specific recommendations on the exercise of the SC’s responsibilities.4 The Conference did not discuss in any detail possible conflicts between the two bodies that might have resulted (p. 568) from such a provision.5 The Great Powers vigorously opposed all proposals that might have given the GA a right of control. They pointed to the negative consequences for the functioning of the SC in maintaining peace and security.6 The Great Powers succeeded, as the proposal of the smaller States did not obtain the required two-thirds majority.7

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3  In the final stages the wording ‘receive, consider and discuss’ was before the Conference, but, in the end, the word ‘discuss’ was deleted.8 4  The wording therefore leaves open what the competences of the GA are once it has ‘received and considered’ the reports of the SC. However, with regard to this question, it was pointed out in Committee II/2 that the GA should retain its competence to consider and make recommendations,9 although no additional competence should be established.10 The GA’s right to evaluate and to make recommendations was to be limited to the rights extended under Arts 10–13 of the Charter,11 particularly with the reservation of Art. 12.

II.  Annual Reports of the Security Council 5  Under Art. 24 of the Charter, the SC submits annual reports to the GA ‘for its consideration’. 6  The annual report is issued regularly as Document No 2 before the GA12 and covers the period from 1 August of the preceding year to 31 July of the current year.13 The report contains a comprehensive index of all SC activities, in particular the resolutions adopted, statements made, meetings held, and reports and communications received. Part II of the report lists the individual activities related to each question dealt with by the SC (ie country situations as well as thematic and general issues). The report also covers the peacekeeping operations and the work of the subsidiary bodies of the SC. The more analytical introduction contains a brief summary of each question dealt with by the SC, which allows the reader to reconstruct the main activities relating to each question. 7  Following Rule 13 of the Rules of Procedure of the GA, the report of the SC is included in the GA’s provisional agenda.14 The report is not referred to a main committee. The Plenary of the GA takes note of the report, which is recorded in a short decision.15 8  In the early years of the UN, the Bureau of the GA decided that the report of the SC should provide a basis for the political debate in the GA. The report was discussed in the First Committee, later on in the Special Political Committee. Initially there was some criticism of the report, but it soon became recognized practice that the GA confines itself to taking note of the report.16 This practice changed only briefly in the early 1970s. In 1971 the GA, while dealing with the report, decided to ask member States to submit their (p. 569) views on enhancing the effectiveness of the SC.17 In 1973 the GA drew the attention of the SC to the answers received18 and in 1974 recalled the resolutions adopted at the preceding sessions.19 From 1975 to 1988 the reports were taken note of without debate.20 9  However, a regular debate has taken place since the end of the Cold War in 1989–90. While only three States (Colombia, Cuba, and Malaysia) addressed the GA in 1990,21 the number of participants has increased over the years.22 Since 2002 the GA regularly has held a joint debate on the report of the SC and SC reform.23 Speakers comment, criticize, or welcome the activities of the SC, highlight issues of their concern, and request the SC to act in certain situations. At the same time, they present their ideas on SC reform. The report of the SC is also part of the reform debate, as it is an element in improving transparency and accountability. Already before the joint debates member States criticized the purely descriptive and even statistical character of the report and called for a more analytical approach.24 This has resulted in the gradual expansion of an analytical introductory part during the last decade.25 In order to further improve transparency, the SC held an informal meeting with the GA for the first time in 2009 to give member States the opportunity to learn about the process of preparing the report and to comment on it in an informal setting.26 However, the report still does not contain any documentation of the motives for the activities and decisions of the SC or the position of individual members of the SC in the

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negotiation process. Although the improvements have been well received, the design of the report remains the subject of criticism.27 10  Aside from the debate on the report in the GA and regardless of Art. 12 of the Charter, members of the GA and other organs favouring or opposing a given policy continuously criticize the SC and the position of ‘certain members’ of the SC. The provision excluding recommendations of the GA on matters in respect of which the SC is exercising its functions has thus, in practice, lost much of its importance.28 Nowadays, criticism and approval of SC decisions are voiced in the GA and its Committees without hesitation. No one really waits for the individual decisions of the SC to be formally submitted to the GA in the annual report.

III.  Special Reports of the Security Council 11  According to the Charter, the special reports of the SC shall also include an account of the measures that the SC has decided upon or taken to maintain international peace and security. (p. 570) 12  In practice, however, the special reports deal only with the admission of new members.29 These reports are now of a routine character. In the early years of the Organization, negative decisions of the SC were a matter of debate in the GA and resulted in recommendations to the SC.30 That was especially the case during the blockade on the admission of new members that lasted until 1955.31 Later on, the admission of the two Vietnams, and then of the People’s Republic of Vietnam, were controversial issues for a long time. In this context, the GA expressed criticism of special reports of the SC and made recommendations as to the political course of action that the GA favoured.32

IV.  Conclusions regarding the Constitutional Relationship between the GA and the SC 13  The fact that the SC is under an obligation, pursuant to the Charter, to submit annual and, when necessary, special reports to the GA for its consideration, leads to the question of the basic constitutional relationship between the two organs. Does the GA have a right to control and does it have authority over the SC? 14  The simple wording of Arts 15 (1) and 24 (3) of the Charter seems to speak for the subordination of the SC to the GA, and a right of supervision and control for the latter. However, the origin of this provision has to be taken into account. As pointed out, the GA’s right to approve or disapprove the SC’s report was discussed at the San Francisco Conference but not accepted.33 15  Subsequent practice clearly shows that the GA exercised very little control in the first years of the Organization. For many years, such a right of control was neither claimed nor exercised. However, over the last twenty years, the GA has shown a tendency to assert a stronger position vis-à-vis the SC. 16  Yet, according to Art. 15 (1) of the Charter, the GA does not possess a right to control the activities that lie within the SC’s main responsibilities under the Charter. This indicates that the SC, when acting within its responsibilities to maintain international peace and security, has a sovereign freedom of decision, at least as far as the GA is concerned.34

B.  Reports of Other Organs I.  Their Origin and History

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17  The Dumbarton Oaks Proposals35 stated that the GA should receive and consider reports from other bodies of the Organization. At the San Francisco Conference, this did not raise any difficulties.36

(p. 571) II.  Reports of the Economic and Social Council 18  ECOSOC submits an annual report to the GA. This obligation is not spelled out in the Charter, but follows from Art. 60, which stipulates that ECOSOC shall function under the authority of the GA.37 19  The annual report is issued regularly as No 3 of the documents before the GA38 and covers the sessions of ECOSOC that precede the GA. The report contains the issues where ECOSOC requests a decision of the GA, a summary of the general debate on economic and social questions, and also of the individual questions debated in Plenary, and in the committees and working groups, the results of the elections, and, finally, organizational decisions. 20  In accordance with Rule 13 of the Rules of Procedure of the GA, the annual report is included in the GA’s provisional agenda under the item entitled ‘Report of the Economic and Social Council’.39 For a long time, individual chapters of the report, according to their subject-matter, were referred to the competent main committees, in particular the Second and Third Committees, and the remainder was dealt with in Plenary.40 In the 1990s, an increasing number of issues were discussed directly in Plenary and, accordingly, the number of issues referred to the main committees decreased.41 At its 58th session in 2003, the GA finally decided to consider the agenda item in its entirety in Plenary.42 However, the relevant parts of chapter I of the report concerning matters calling for action by or brought to the attention of the GA that are under agenda items already allocated to the main committees are considered by the committee concerned for final action by the GA.43

III.  Reports of the Trusteeship Council 21  The GA no longer receives reports from the TC, which suspended its operation on 1 November 1994. 22  Until 1975, the TC submitted annual reports on special questions.44 Although this obligation was not set forth in the Charter, it followed from the Articles of the Charter which established the TC as acting under the authority of the GA (Arts 85 (2), 87).45 23  The reports of the TC were dealt with in the Fourth Committee and formed the basis for many resolutions.46 24  While the reporting system existed, it proved that the GA not only had a right to information but also a right of control.

(p. 572) IV.  Reports of the International Court of Justice 25  The ICJ submits annual reports to the GA, although this is not required under the Charter or the Statute of the ICJ. 26  The annual report is issued regularly as No 4 of the documents before the GA.47 The report covers the period from 1 August of the preceding year to 31 July of the current year. It contains a short account of the cases pending before the ICJ, emphasizing the orders and judgments that have been made, as well as of organizational and budgetary matters. 27  In accordance with Rule 13 of the Rules of Procedure of the GA, the report is included in the provisional agenda of the GA.48 The report is not referred to a main committee, but in the past years the debate in Plenary was scheduled in the ‘International Law Week’, ie the first week of the discussion of the ILC report in the Sixth Committee, which is usually at the

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end of October and attended by many Foreign Ministry legal advisers. Since 1989, the Plenary has taken note of the report after a short debate, which is recorded in a decision.49 28  When the first annual report was submitted in 1968, the ICJ wished to contribute to a better understanding of its role and responsibilities within the UN System. In earlier years, no annual reports of the ICJ were submitted to the GA50 and the GA itself did not ask the ICJ to produce reports. 29  This, and the fact that the GA just takes note of the reports, is evidence that the ICJ functions independently of the GA. The short debate in the GA should not be considered as an interference with the work of the ICJ but rather a sign of support for its work.

V.  Reports of the Secretary-General 30  Under Art. 98 of the Charter, the SG must make an annual report to the GA on the work of the Organization. 31  This report is issued regularly as Document No 1 before the GA51 and is published shortly in advance of each session. In the report, the UNSG gives an overall assessment of the state of world politics and an account of the main activities of the UN System. 32  The report is included in the provisional agenda of the GA in accordance with Rule 13 of the Rules of Procedure of the GA.52 However, the report is not referred to a main committee. The Plenary simply takes note of the annual report, which is recorded in a short decision.53 While in former years there was no debate on the annual report of the SG, a change in practice occurred in 1992, when an extended and lively debate took place.54 Since then, a debate on the report has been the rule. 33  Since the 52nd session in 1997, this agenda item is briefly opened at the beginning of the regular session of the GA in order to allow the SG to present his (p. 573) report.55 After his presentation, the agenda item ‘General debate’ is opened under which foreign ministers and other high ranking representatives of member States have an opportunity to address themselves to the thoughts and suggestions which the SG has just submitted. 34  Until the 31st session of the GA in 1976, the annual report consisted of a main part, which gave a comprehensive account of all activities within the UN System. The views of the SG on major international issues were contained in the introduction. Since then, the main part has been abolished, as it was felt that the individual activities were already described in the reports of the various organs and sub-organs of the UN. In line with the general wish to rationalize reporting procedures within the Organization, costly and unnecessary duplication in the SG’s report could thus be avoided.56 35  Furthermore, the GA has before it, often at its own request, reports by the SG on a large variety of individual questions. These reports usually form the basis for the consideration of the respective agenda items and further action by the GA. Prominent examples are the SG’s reports on UN reform57 and the rule of law.58

VI.  Reports of Subsidiary Organs 36  In addition to the reports of the main organs of the UN, the GA deals with a multitude of reports from the subsidiary organs which it has established in accordance with Art. 22 of the Charter. These subsidiary organs either perform current tasks, and report regularly, or have been established ad hoc, and only report on a specific issue. Reports of conferences within the framework of the UN and reports submitted by institutions created by international treaties (‘treaty bodies’) also fall into this category. The main committees of the GA are part of the GA and therefore do not fall within the context of Art. 15 (2) of the Charter.59

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37  Among the subsidiary organs are those referred to as committees (eg Committee on the Rights of the Child, Advisory Committee on Administrative and Budgetary Questions, Special Committee on Peace-keeping Operations), commissions (eg ILC, Disarmament Commission, UNCITRAL), boards (eg Executive Board of UNICEF), councils (eg Human Rights Council, Governing Council of the UNEP), and working groups. All these bodies report to the GA, either directly or through the UNSG or ECOSOC. Also the Peacebuilding Commission, established by concurrent resolutions of the GA and the SC,60 is mandated to report to the GA. Furthermore, regular reports are received, eg from the Conference on Disarmament (CD), the Conference on Trade and Development (UNCTAD) or, as the case may be, from other relevant conferences. (p. 574) 38  As in the case of UNSG reports on specific issues, the reports of the subsidiary bodies serve as a basis for the debate of several agenda items and for further action by the GA.

C.  Final Remarks on Reports 39  Within the UN System, reports are an essential instrument of documentation, information, control, and decision-making. Reports, in particular those of the UNSG and the subsidiary bodies on a wide variety of topics, are the indispensable basis for many agenda items. They provide for the necessary input for the political discussion within the GA and the subsequent decision-making. Some reports already contain proposals to the GA on the action to take, which allows the GA to deal with an item more efficiently and in a more timesaving manner. Reports are vital for ensuring communication within the Organization and preparing political decisions. 40  However, the steady increase of reports in number and volume has put heavy burdens on the personnel and budget of the Organization as well as on delegates of member States dealing with these reports in the GA sessions. The UNSG identified duplication and fragmented impact as major deficits of the reports and warned that further proliferation increasingly impedes the Secretariat in providing focused and added-value analysis and impedes delegations in acting upon these reports.61 In the context of the revitalization of the work of the GA, the Secretariat thus proposed a reduction in the quantity, length, and frequency of the reports.62 Despite some improvements, the overall impact of the revitalization in this regard remains modest for the time being, in particular due to member States’ unwillingness to take more decisive steps.

Footnotes: 1

  UNCIO III, 7, ch V s B 8.

2

  GHS, 145.

3 

UNCIO IX, 86–88, 93–94, 182–86, 411–13, 427–29; GHS, 145; CPF/Cassan, 754; MM Whiteman, Digest of International Law, vol 13 (US Government Printing Office 1968) 552– 54. 4

  UNCIO IX, 182, 433–34.

5 

CPF/Cassan, 754, lists these problems in detail.

6

  UNCIO IX, 93–94, 183, 435.

7

  UNCIO IX, 182–83.

8

  UNCIO IX, 185.

9 

UNCIO IX, 185–86.

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10

  A Verdross and B Simma, Universelles Völkerrecht (3rd edn, Duncker & Humblot 1984) para 138. 11

  CPF/Cassan, 755.

12

  For 2011, therefore, UN Doc A/66/2, and accordingly for previous years.

13

  Before 2003 the period covered 16 June to 15 June.

14

  eg item 9 of the provisional agenda of the 64th UNGA, UN Doc A/64/150, and finally item 72 of the agenda, UN Doc A/64/251. 15

  eg Decision 63/515.

16

  RP I, 488–89; RP 2 II, 153; RP 3 I, 359; RP 4 I, 199.

17

  UNGA Res 2864 (XXVI) (20 December 1971) UN Doc A/RES/2864(XXVI); UNGA Res 2991 (XXVII) (15 December 1972) UN Doc A/RES/2991(XXVII). 18

  UNGA Res 3186 (XXVIII) (18 December 1973) UN Doc A/RES/3186(XXVIII).

19

  UNGA Res 3322 (XXIX) (16 December 1974) UN Doc A/RES/3322(XXIX).

20

  RP 5 II, 15; RP 6 II, 195; RP 7 II (advance version) para 1.

21

  UN Doc A/45/PV.63.

22

  See eg UN Docs A/53/PV.40, 41, 42 or A/64/PV.43, 44, 45, 46.

23

  The UNSC reform is dealt with under the agenda item ‘Question of equitable representation on and increase in the membership of the Security Council and related matters’. 24

  Such requests were also formulated in UNGA resolutions; see eg UNGA Res 51/193 (17 December 1996) UN Doc A/RES/51/193, and later UNGA Res 58/126 (19 December 2003) UN Doc A/RES/58/126. 25

  The introduction of report UN Doc A/64/2 has more than fifty pages compared to a few pages in report UN Doc A/55/2. 26

  See the statement of the President of the UNSC before the UNGA in 2009, UN Doc A/64/ PV.43, 3. 27

  See in particular the debate in 2009, UN Docs A/64/PV.43, 44, 45, 46.

28

  See Klein and Schmahl on Art. 10 MN 25–28, 37 and Art. 12 MN 12; C Tomuschat, ‘Generalversammlung’ in R Wolfrum (ed), Handbuch Vereinte Nationen (2nd edn, CH Beck 1991) 231f. 29

  RP II, 19; RP 2 II, 285; RP 3 II, 26; RP 4 I, 275; RP 5 II, 15.

30

  For details refer to RP I, 489.

31

  UNGA Res 113 A-H (II) (17 November 1947) UN Doc A/RES/113A-H(II); UNGA Res 197 A-I (III) (8 December 1948) UN Doc A/RES/197A-I(III); UNGA Res 296 A-K (IV) (22 November 1949) UN Doc A/RES/296A-K(IV); UNGA Res 620 A-G (VII) (21 December 1952) UN Doc A/RES/620A-G(VII); Verdross and Simma (n 10) para 111. 32

  eg UNGA Res 3366 (XXX) (19 September 1975) UN Doc A/RES/3366(XXX).

33

  See MN 2.

34

  Tomuschat (n 28) 231ff; CPF/Cassan, 756–58.

35

  UNCIO III, 7, ch V s B, para 8.

36

  CPF/Dutheil de la Rochère, 761.

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37

  RP I, 484.

38

  For 2010, therefore, UN Doc A/65/3, and accordingly for previous years. The report is usually final in its revised version, ie UN Doc A/65/3/Rev.1. 39

  eg, item 44 of the provisional agenda of the 64th UNGA, UN Doc A/64/150, finally item 42 of the agenda, UN Doc A/64/251. 40

  RP I, 484.

41

  RP 8 II (advance version) para 3; RP 9 II (advance version) para 3.

42

  UNGA Res 58/316 (1 July 2004) UN Doc A/RES/58/316, Annex, para 4(c).

43

  UN Doc A/59/250/Add.1.

44

  RP 5 I, 181–82.

45

  RP I, 484.

46

  RP I, 485, 487, 491.

47

  For 2010, therefore, UN Doc A/65/4, and accordingly for previous years.

48

  eg item 74 of the provisional agenda of the 64th UNGA, UN Doc A/64/150, finally item 72 of the agenda, UN Doc A/64/251. 49

  eg Decision 63/508.

50

  RP I, 485; RP 4 I, 199; GHS, 147.

51

  For 2010, therefore, UN Doc A/65/1 and accordingly for previous years.

52

  eg item 107 of the provisional agenda of the 64th UNGA, UN Doc A/64/150, and finally item 72 of the agenda, UN Doc A/64/251. 53

  eg Decision 63/504.

54

  UN Docs A/47/PV.31, 32, 37, 38, 46, 47.

55

  RP 9 II (advance version) para 14.

56

  RP 5 I, 181.

57

  See in particular ‘In larger freedom: towards development, security and human rights for all’, UN Doc A/59/2005, and ‘Strengthening of the United Nations: an agenda for further change’, UN Doc A/57/387. 58

  See in particular ‘Uniting our strengths: Enhancing United Nations support for the rule of law’, UN Doc A/61/636-S/2006/980, and ‘Annual report on strengthening and coordinating United Nations rule of law activities’, UN Doc A/64/298. 59

  RP I, 485, 487, 493.

60

  UNGA Res 60/180 (20 December 2005) UN Doc A/RES/60/180, and UNSC Res 1645 (20 December 2005) UN Doc S/RES/1645(2005). 61

  See report of the UNSG ‘Strengthening of the United Nations: an agenda for further change’, UN Doc A/57/387, 17–19. 62

  Note by the Secretariat ‘Control and limitation of documentation’, UN Doc A/58/CRP.7; for the respective resolutions, see in particular UNGA Res 57/300 (20 December 2002) UN Doc A/RES/57/300; UNGA Res 58/126 (19 December 2003) UN Doc A/RES/58/126; and UNGA Res 58/316 (1 July 2004) UN Doc A/RES/58/316.

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Ch.IV The General Assembly, Functions and Powers, Article 16 Rudolf Geiger From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter

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(p. 575) Article 16 The General Assembly shall perform such functions with respect to the international trusteeship system as are assigned to it under Chapters XII and XIII, including the approval of the trusteeship agreements for areas not designated as strategic. 1  Article 16 is the first Article of the Charter which mentions the international trusteeship system. The provision refers generally to the functions of the GA defined in the regulations of Chapter XII (International Trusteeship Council). But it also emphasizes that it is a function of the GA to approve trusteeship agreements for areas not designated as strategic. This special competence, however, already results from Art. 85 (1), contained in Chapter XII. 2  Kelsen1 finds Art. 16 to be superfluous since the provision does not add anything new to the regulations of Chapters XII and XIII. His conception of Art. 16 as a merely declaratory norm contrasts sharply with the view that Art. 16 spells out a delimitation of the tasks and competences of the GA.2 This opinion holds that Art. 16 aims at a restriction of the general functions and competences of the GA pursuant to Art. 10, as far as trusteeship areas designated as strategic are concerned (Art. 82). Thus, Art. 16 in connection with Art. 83 (1) is understood as excluding the GA’s power of discussion and recommendation concerning strategic zones, the competence of the SC also being exclusive in this respect. 3  Such a far-reaching conclusion, however, is not supported by the wording of Art. 16.3 It could only, if at all, be deduced from Art. 83 (1). 4  The aims of the trusteeship system have been fulfilled since all trust territories had—by 1 October 19944—attained self-government or independence, either as separate States or by joining neighbouring independent countries. The Trusteeship Council suspended its operation on 1 November 1994.5

Footnotes: 1

  Kelsen, 622.

2

  CPF/Luchaire, 769.

3

  CE Toussaint, The Trusteeship System of the United Nations (Stevens 1956) 147f.

4

  (1994) UNYB 215.

5

  See for more details Art. 86 MN 1f.

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Ch.IV The General Assembly, Functions and Powers, Article 17 Thomas Thomma, Peter Woeste From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): Peace keeping

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(p. 576) Article 17 (1) The General Assembly shall consider and approve the budget of the Organization. (2) The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly. (3) 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. A.  The Context and Origin of Article 17 1–5 B.  General Assembly Committees Involved in the Budgetary Process and their Working Procedures 6–68 I.  Committees 7–26 II.  The Programme Planning Cycle 27–45 III.  Budget Procedure 46–68 1.  Preparation of the Budget Estimates 47–49 2.  Consideration of the Budget Estimates 50 3.  Decisions on the Budget 51–64 4.  Implementation of the Budget 65–68 C.  The Budget of the Organization 69–86 I.  Scope of Different UN Budgets 70–73 II.  The Size and Nature of the Regular Budget 74–77 III.  Special Accounts for Peacekeeping Measures 78–86 D.  The Apportionment of Expenses of the Organization 87–129 I.  The Scale of Assessments for Apportioning the Expenses 89–91 II.  The Committee on Contributions 92–97 III.  The Measurement of the ‘Capacity to Pay’ 98–113 IV.  The Scale of Assessments for Peacekeeping Operations 114–124 V.  The Resulting Share of Assessed Contributions Among Member States 125– 127 VI.  The Notion of ‘Expenses of the Organization’ 128–129 E.  The Financial Situation of the United Nations 130–146 F.  Administrative and Budgetary Coordination Between the United Nations and the Specialized Agencies, Article 17 (3) 147–158 I.  The Scope and Extent of Arrangements in the Relationship Agreements 149– 150

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II.  The Development of Relations Between the United Nations and Specialized Agencies 151–157 1.  Budgetary and Financial Procedures 151–154 2.  Common Services 155 3.  Programme Coordination 156–157 III.  The Examination of the Budgets of Specialized Agencies 158 G.  Past Reforms and New Perspectives 159–179 I.  Budgetary Reform 1986 159–166 II.  Development since 1996 167–170 (p. 577) III.  Reforms in the Past Decade 171–175 IV.  International Public Sector Accounting Standards (IPSAS) 176–179

Select Bibliography Bertrand M, The UN in Profile: How its Resources are Distributed (United Nations 1986). Cardenas EJ, ‘Financing the United Nations’ Activities: A Matter of Commitment’ (1995) 1 U Ill L Rev 147. ——— ‘UN-Financing: Some Reflections’ (2000) 11 EJIL 67. Claude IL, ‘The Political Framework of the United Nations, Financial Problems’ (1963) 17 IO 831. Dicke K, ‘Deciding upon the Budget of the United Nations’ in R Wolfrum (ed), Law of the Sea at Crossroads (Duncker & Humblot 1991) 189. Döpp H, Die Finanzierung von Friedenssicherungsaktionen der Vereinten Nationen (Universität Düsseldorf 1976). Duke S, ‘The UN Finance Crisis: A History and Analysis’ (1992) 11 International Relations 127. Francioni F, ‘Multilateralism à la Carte: The Limits to Unilateral Withholdings of Assessed Contributions to the UN Budget’ (2000) 11 EJIL 43. Gerson A, ‘Multilateralism à la Carte: The Consequences of Unilateral “Pick and Pay” Approaches’ (2000) 11 EJIL 61. Hüfner K, ‘Finanzbeiträge an das UN-System—Anmerkungen zur Aussagekraft von Statistiken im Spannungsfeld von Transparenz, Kohärenz und Rechenschaftskontrolle’ Global Policy Forum Europe Working Paper 5/2011, 5. Koch L and Plaga A, ‘Interessenausgleich mit Hindernissen—Das reformierte Haushaltsaufstellungsverfahren der Vereinten Nationen’ (1992) 40 VN 16. Koschorreck W, ‘Programmziele und finanzielle Leistungsfähigkeit im Widerstreit’ (1983) 31 VN 51. Laurenti J, National Tax Payers, International Organisations. Sharing the Burden of Financing the United Nations (United Nations 1995). Mizutani T, Müller J, and Münch W, ‘Ergebnisorientiertes Haushalten, erste Erfahrungen mit einem neuen Budgetverfahren im Verbund der Vereinten Nationen’ (2000) 48 VN 59. Murphy SD, ‘Contemporary Practice of the United States Relating to International Law: Payment of US Arrears to the UN’ (2000) 94 AJIL 348.

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Ogata S and Volcker P, ‘Financing an Effective United Nations’ in J Müller (ed), Reforming the United Nations: New Initiatives and Past Efforts (Kluwer Law International 1997). Pellet A, ‘Budgets et programmes aux Nations-Unies—Quelques tendances récentes’ (1976) 22 AFDI 242. Pfäfflin J and Stosberg J, ‘Verwaltung und Haushalt’ (2010) 58 VN 82. Rauzières E, La Crise financière de l’ONU (Université Montpellier 1966). Renninger JP and others, Assessing the United Nations Scale (1982) UNITAR Policy and Efficiency Studies No 9. Russell RB, ‘United Nations Financing and “The Law of the Charter”’ (1966) 5 Colum J of Transntl L 68. Sar C, Le Financement des Activités de l’Organisation des Nations-Unies (Université Paris 1962). Singer JD, Financing International Organizations: The United Nations Budget Process (Martinus Nijhoff 1961). Stoessinger JG, Financing the United Nations System (The Brookings Institution 1964). Tesauro G, Il finanziamento delle organizzazioni internazionali (Pubblicazioni della Facoltà giuridica dell’Università di Napoli 1969). Thomma T, ‘Verwaltung und Haushalt’ (2008) 56 VN 132.(p. 578) Wolfrum R, ‘Budget’ in R Wolfrum (ed), United Nations: Law Policies and Practice, vol 1 (CH Beck 1995) 78. Zemanek K, ‘Die Finanzkrise der Vereinten Nationen’ (1973) 28 EA 555.

A.  The Context and Origin of Article 17* 1  The first two paragraphs of Art. 17 circumscribe the fiscal powers of the GA to approve the budget and to apportion the expenses of the Organization. Together with the requirement of a two-thirds majority present and voting on budgetary questions prescribed by Art. 18 (2) UNC, and the loss of voting rights according to Art. 19 UNC of a member whose contributions are in arrears for the two preceding years, they represent the foundation pillars of the fiscal constitution of the Organization. The vesting of the control over the finances of the Organization in the GA should be seen in conjunction with the designation in Art. 97 UNC of the SG as the Chief Administrative Officer of the Organization who, in this capacity, is responsible for the preparation and submission of the budget as well as for its implementation, and for the management of the Organization’s finances in general. 2  The third paragraph of Art. 17 defines the authority of the GA in administrative, financial, and budgetary matters with regard to specialized agencies. It can be seen as a special provision in relation to Arts 57 and 63 UNC, according to which the specialized agencies are to be brought into relationship with the UN through agreements with ECOSOC, subject to approval by the GA, and through a coordination of their activities by ECOSOC. 3  The League of Nations suffered from an initial lack of clarity about which body had the authority to approve the budget, and from a distribution of contributions originally tied to that of the Universal Postal Union. In addition, the budget had to be approved unanimously. In practice, however, that requirement was circumvented by recognizing a legally nonbinding recommendation with a simple majority. Arrears were common, and there were no penalties for defaulting States.1

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4  Against this background, the proposals prepared by the US government for the Dumbarton Oaks Conference attributed the fiscal powers clearly to the GA; in earlier drafts they had still been divided between the General Conference, which later became the GA, and the SC. Weighted voting in proportion to the expenses of the Organization was considered, as was a two-thirds majority for the adoption of administrative and budgetary decisions, but a simple majority was temporarily retained.2 The proposals emanating from Dumbarton Oaks confirmed the budgetary authority of the GA. Budgetary questions were included in the category of ‘important decisions’ requiring a two-thirds majority vote to pass in the GA.3 5  At the San Francisco Conference, Committee II/1 and the Coordination Committee paid more attention to detail, in particular to budgetary procedures, methods of (p. 579) apportioning expenses, voting requirements, and penalties for the non-payment of contributions. An Australian proposal, for example, tried to give the GA the right to direct the preparation of the budget.4 The question was raised, especially in connection with the ICJ, whether the GA was to approve a single budget or ‘budgets’.5 Finally, the Committee decided not to specify budgetary procedures or assessment methods in the Charter. It only clarified the member States’ obligation to bear the expenses of the Organization through the present formulation of Art. 17 (2).6 A compromise on sanctions for failure to pay was found in the formulation of Art. 19 UNC.7 The subsequent discussions in the Preparatory Commission and its Executive Committee laid the groundwork for the future financial mechanisms of the Organization.

B.  General Assembly Committees Involved in the Budgetary Process and their Working Procedures 6  The decision-making process in the UN is characterized by discussions and negotiations between delegates of each member State according to formal rules of procedure within different permanent committees based on the formal one State/one vote rule. All decisions related to the budget of the Organization are made by the GA according to complex rules and procedures involving different committees of the GA.8

I.  Committees 7  Decisions on the budget are taken by the GA based on a proposal of the Fifth Committee (C.5 Administrative and Budgetary). The GA also considers and approves financial and budgetary arrangements with specialized agencies and makes recommendations to the agencies concerned. 8  The Fifth Committee is one of six main committees of the GA, entrusted with responsibilities for administration and budgetary matters.9 All member States of the UN have the right to be represented by delegates on each of the main committees. Thus, the Fifth Committee is not a nucleus or concentrated group. It compares therefore to a parliamentary assembly on administrative and budgetary issues 9  The Committee meets during the main part of the GA session (September to December), and in resumed sessions in March and May of the following year.10 During the main part of the session of the GA, the Committee considers principally items that are time bound. Items that do not require immediate consideration often remain on the agenda and are postponed to the first part of the resumed session in March. The second resumed session in May deals with administrative and budgetary aspects of UN peacekeeping,11 but the Committee may consider urgent matters relating to the financing of a peacekeeping mission authorized by the SC at any of its sessions.

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(p. 580) 10  The Fifth Committee has a biennialized number of items for consideration in odd or even years.12 The Committee has tried hard to strictly adhere to the guidelines given by the GA on this matter, but, owing to the postponement of the consideration of certain reports from session to session, this has not always been possible. 11  Similar to all other main committees, it elects a bureau comprising a chair, three vicechairs, and a Rapporteur at least three months before the session over which they are to preside.13 The chairman is elected on the basis of geographical rotation by the GA. The Committee has maintained a rotation in the selection of its Rapporteur from the regional group that served as chairman the previous year, filling the positions of vice-chairmen from the remaining three regional groups. The practice of the Bureau has been, to the extent possible, to designate its members to perform functions as coordinators of informal consultations on given items or questions on the agenda of the Committee. This practice has greatly benefited the work of the Committee. 12  The working methods of the Fifth Committee give rise to permanent complaint, but member States have not been able to reach decisions on a reform. At the 49th session, the Bureau of the Fifth Committee held a number of informal meetings on its working methods. At the 52nd session, a further attempt was made and a proposal was prepared on improving the working methods of the Fifth Committee (UN Doc A/C.5/52/L.58), but no decision was taken.14 13  The practice of the Fifth Committee regarding the submission of draft resolutions on a given item or question is to hold informal consultations (with interpretation) under the chairmanship of a designated coordinator following the conclusion of the general discussion of the item. The first segment of the informal consultations consists of an extensive question-and-answer period with the senior officers of the relevant substantive Secretariat offices. Once those consultations are concluded, the coordinator, designated by the Bureau, requests member States to supply text contributions for the formulation of a first proposal. On some, and in particular less controversial, items this first draft may be prepared by the Secretariat on behalf of the coordinator. 14  In contrast to other committees, there is no group that traditionally tables the first draft. 15  In informal consultations, the Committee then considers the draft proposed by the coordinator, containing the inputs received. Some items require lengthy negotiations and, where extreme positions are taken and difficulties arise, the Committee resorts to informal ‘informals’ (without interpretation). When consensus emerges, the proposals are ‘adopted’ in an informal meeting and only then are issued in the ‘L’ series for action. This practice has been followed for the past ten years and is a cost-effective method of avoiding the issuance of draft resolutions in the six official languages, which are subject to further change. After draft resolutions or decisions are issued as ‘L’ documents, they are adopted at a formal meeting of the Committee. 16  Two standing committees have been established in support of the Fifth Committee to deal with continuing problems during and between regular sessions, the Advisory Committee on Administrative and Budgetary Questions (ACABQ) and the Committee on Contributions (CoC). (p. 581) 17  An Advisory Group of Experts assisted in establishing a provisional budget, the Working Capital Fund, and the financial regulations, and was set up at the first session of the GA in 1946.15 This group later developed into the ACABQ. A proposal to give the Advisory Committee a supervisory role over the SG’s financial management was not accepted, but its advisory function vis-à-vis the GA was maintained. The ACABQ’s membership has been expanded a number of times, most recently in 1977,16 and now stands at sixteen. Members are appointed in their personal capacity by the GA on recommendation of the Fifth Committee, on the basis of a broad geographical From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

representation following the regional groups. They serve for three years, retire by rotation, and are eligible for reappointment. Rules 155 and 156 of the rules of procedure specify details on their qualifications.17 The major functions of the ACABQ are: (a) to examine and report on the budget submitted by the SG to the GA; (b) to advise the GA concerning any administrative and budgetary matters referred to it; (c) to examine on behalf of the GA the administrative budgets of the specialized agencies and proposals for financial arrangements with such agencies; and (d) to consider and report to the GA on the auditors’ reports on the accounts of the UN and of the specialized agencies. 18  In 1946, the GA also decided to create an expert Committee on Contributions (CoC).18 Its mandate is to advise the GA on the apportionment, under Art. 17, of the expenses of the Organization among members, broadly according to capacity to pay.19 Membership has been expanded to eighteen, according to the regional groups.20 Members of the CoC are selected by the GA on the recommendation of the Fifth Committee in their personal capacity. They serve for three years, retire by rotation, and are eligible for reappointment. The CoC has an important, but not decisive, advisory role in the preparation of the scale of assessments for the financial contributions of member States. 19  The Committee on Programme and Coordination (CPC) is the main subsidiary organ of the Economic and Social Council and the GA for planning, programming, and coordination. It was established by ECOSOC in 1962.21 Its focus is the strategic framework as the principal policy directive of the UN, which serves as the basis for programme planning, budgeting, monitoring, and evaluation. The CPC reviews the programmes of the UN as defined in the strategic framework as the principal policy directive of the UN.22 Specifically it reviews the strategic framework in the off-budget years and the programme budget in budget years.23 The CPC is directed to cooperate with the ACABQ and to consult with the JIU24. Its membership, originally eleven, was increased (p. 582) to thirty-four in 1987.25 Member States are elected on the nomination of ECOSOC by the GA on the basis of equitable geographical representation for a three-year term. The CPC meets during June and July for six weeks in plan years and for four weeks in budget years. Within the budgetary reform of 1986, the CPC became a subsidiary body of the GA and assumed important tasks. With the refinement of planning and programming, the CPC was allotted the task of reporting on the programme aspects of the budget. 20  By Res 74 (I) (7 December 1946), the GA established the UN Board of Auditors (BoA) to audit the accounts of the UN Organization and its funds and programmes and to report its findings and recommendations to the Assembly through the ACABQ. For this, the GA appoints three members, each of whom must be the Auditor-General of a member State. The members of the Board have joint responsibility for the audits. In 2001, the GA approved a change in the term of office of members of the BoA to a non-consecutive term of six years’ duration commencing 1 July 2002. Previously, members were appointed for a three-year term which was renewable.26 Appointments are staggered in such a way that the term of office of one of the members expires every two years. The GA therefore appoints a new Board member every two years. The members of the Board are expected to be available for approximately two weeks each year for meetings of the Board. Each member provides audit staff from the respective national audit office to conduct audits at various UN locations. For the purpose of making a local or special examination or of effecting economies in the audit cost, the BoA may engage the services of any national Auditor-General or commercial public auditors of known repute or any other person or firm which, in the opinion of the Board, is technically qualified. The reports of the Board are submitted through the ACABQ to the GA.27

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21  The Office of Internal Oversight Services (OIOS) was established in 1994.28 It is operationally independent and assists the SG in fulfilling his internal oversight responsibilities in respect of the resources and staff of the Organization through five processes: monitoring, internal audit, inspection, evaluation, and investigation. It has the authority to initiate, carry out, and report on any action it considers necessary to fulfil its responsibilities with regard to its oversight functions. 22  The Office reports to the SG and makes its reports available to the GA. OIOS describes its strategy as follows: (a) propose measures to assist the Organization in responding rapidly to emerging risks and opportunities; (b) provide independent information and assessments to assist effective decision-making; (c) provide independent reviews of the effectiveness of the use of the Organization’s resources; and (d) promote a culture of change, including accountability, planning, integrity, results orientation, and risk awareness and management.29 23  Its work was complemented in 2007 by the creation of the Internal Audit Advisory Committee (IAAC).30 Contrary to OIOS, which serves—although with a lot of independence —the SG, the IAAC is a subsidiary body of the GA to act as an interface with OIOS in its expert advisory capacity assisting the GA in fulfilling its oversight responsibilities, and submitting annual reports to the GA. By introducing a new selection (p. 583) process, based on qualification and not just membership nominations, the GA set a remarkable precedent to serve as an example for future committees. 24  At the 2005 UN World Summit, Heads of State and Government called upon the SG to submit detailed proposals for the creation of an independent oversight advisory committee.31 On 29 June 2007, the GA established the IAAC by consensus.32 On 15 November 2007, the GA appointed the first members of the IAAC.33 25  The mandate of the IAAC provides its independence of the Board of Auditors, the Joint Inspection Unit, and the Secretariat, advising the Assembly on the scope, results, and effectiveness of audit and other oversight functions. It examines the work plan of OIOS in cooperation with the USG for Internal Oversight Services and to advise the Assembly thereon. A central element of the Committee’s function is the review of the office’s budget proposal before it goes through the Department of Management as part of the SG’s budget proposal to the ACABQ and finally the Fifth Committee. Thus, the IAAC is in a position to review OIOS’s budget draft before it undergoes later adjustments by the Department of Management and will report thereon to the ACABQ and the Assembly. This mechanism strengthens the IAAC and the independence of OIOS versus the Secretariat and provides member States with an unfiltered insight. Its relationship to OIOS and the GA limits its mandate at the same time: the IAAC serves to oversee the overseers, not to review management systems of accounting for performance results. The duplication of OIOS—only in the hands of the GA—was not intended when the IAAC was created. 26  Members of the IAAC are appointed in their personal capacity, are independent of the government that nominated them, and serve for three years.34 They meet up to four times a year. Differing from other committees and as a signal of reform of the UN System, the member States determined that the five members, equitably representing the regional groups, may only be re-elected for a second and final term. When the GA (Fifth Committee) determined the experience required for appointment, it pursued the intention to exclude former diplomats but to attract individuals with recent and relevant senior-level financial, audit, and/or other oversight-related experience. The balancing act to maintain the sovereignty of member States to nominate candidates according to their own choice and to evaluate their qualifications through a third party was solved as the last and most complex issue: member States are recommended to evaluate and attest their candidates through consultation with an international organization with relevant expertise in the functions

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performed by audit and oversight organizations and to make this information available to member States. Thus, member States remain in the driver’s seat.

II.  The Programme Planning Cycle 27  The budget process as determined by Res 41/213 (19 December 1986) and 42/211 (21 December 1987), which was established in 1986 and 1987 as the ‘outline procedure’, makes it possible for all member States to participate in the preparation of the budget from the early stages throughout the process. (p. 584) 28  As requested by the GA35 in 2003 and 2008, the planning cycle follows a twoyear pattern with the draft planning document referred to as the Proposed strategic framework, and the final document the Biennial programme plan and priorities.36 Further elements of the budget cycle are the Budget outline, the Proposed programme budget, the Programme Budget, the First and Second performance report, and finally the Programme Performance Report. 29  The planning document is prepared by the Secretariat and issued in multiple parts. After consideration by the CPC, ECOSOC, and the Fifth Committee, the Assembly adopts a resolution on the plan. 30  The Proposed Strategic Framework37 is issued in several parts: Part one, the plan outline, is issued in one document. Part two consists of many documents, one document for each programme. 31  The programmes are issued as follows: Prog.1: General Assembly and Economic and Social Council affairs and conference management Prog.2: Political affairs Prog.3: Disarmament Prog.4: Peacekeeping operations Prog.5: Peaceful uses of outer space Prog.6: Legal affairs Prog.7: Economic and social affairs Prog.8: Least developed countries, landlocked developing countries and small island developing States Prog.9: United Nations support for the New Partnership for Africa’s Development Prog.10: Trade and development Prog.11: Environment Prog.12: Human settlements Prog.13: International drug control, crime prevention and criminal justice Prog.14: Economic and social development in Africa Prog.15: Economic and social development in Asia and the Pacific Prog.16: Economic development in Europe Prog.17: Economic and social development in Latin America and the Caribbean Prog.18: Economic and social development in Western Asia Prog.19: Human rights

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Prog.20: International protection, durable solutions and assistance to refugees Prog.21: Palestine refugees Prog.22: Humanitarian assistance Prog.23: Public information Prog.24: Management and support services Prog.25: Internal oversight Prog.26: Jointly financed activities Prog.27: Safety and security (p. 585) 32  After GA approval, the Strategic Framework, the final version of the planning document, consolidates the proposals into one document.38 33  The Budget outline39 provides a preliminary estimate of needed resources, priority expenditures by sector, real growth compared to the previous budget, and the size of the contingency fund40 as a percentage of the overall budget. After consideration of the SG’s report by the ACABQ, Fifth Committee, the GA adopts a resolution on the Budget outline. 34  The Proposed programme budget for the biennium is issued in multiple parts section by section.41 After consideration by the ACABQ, Fifth Committee, the GA adopts one or more resolutions on the proposed programme budget. 35  According to the same structure the Programme Budget (‘Regular Budget’) is finally issued as Supplement 6 to the Official Records of the GA. 36  The budget cycle is concluded at the end of the biennium, when the SG submits a report on the programme performance for the biennium.42 The programme performance report should give clear indications whether or not the Secretariat has delivered the outputs that were programmed in the budget. The First performance report identifies adjustments needed to account for inflation and other variables.43 The Second performance report provides an estimate of the anticipated final level of expenditures and income for the biennium.44 37  The Financial Report and Audited Financial Statements for the Biennium and the Report of the Board of Auditors are issued in several volumes as Supplement 5 to the Official Records of the GA. Each volume addresses a particular area of expenditure and includes the financial report and audited statements, prepared by the SG as well as the report of the Board of Auditors. 38  The planning, programming, and budgeting of UN operations, especially the budgetary process and practices including the budget format and the methodology, as well as monitoring and evaluation, have been the subject of numerous reviews by intergovernmental bodies, the ACABQ, experts, technical seminars, the Joint Inspection Unit (JIU), the Administrative Committee on Coordination (ACC), and the Secretariat. Until 1973, the Organization used input budgeting in a format that recorded major objects of expenditure. 39  Beginning in 1974, the Organization switched to programme budgeting in a biennial budget cycle, and the budget sections have been defined in terms of programmes to be carried out by major organizational units. Those programmes were embedded in a mediumterm plan that described their components, legislative mandates, and objectives, as well as the activities and outputs. These arrangements were eventually formalized in 1987 in the

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Regulations and Rules Governing Programme Planning, Programme Aspects of the Budget, Monitoring of Implementation, and Methods of Evaluation.45 (p. 586) 40  Since then, various improvements have been made to programme planning, budgeting, monitoring, and evaluation. In the field of budgeting, these modifications related to presentational issues, such as groupings of objects of expenditures, outputs, categories of activities, and statistical questions, as well as to questions of methodology, such as computation of the resource base, measurement of growth, and calculation of recostings.46 41  With all those improvements, in the view of the SG as well as member States, the issue of whether or not results have been achieved has remained largely unresolved. The ability accurately and systematically to measure achievements in view of innovations in public administration at national level is, however, regarded as a key component of adapting to the present political and economic context of revenue and expenditure structures. These changes have been labelled results budgeting and are connected with modifications of control at the input level.47 42  In view of these developments and the continuing scarcity of resources to be expected also in the years ahead, the SG, in the context of his proposals on ‘Renewing the United Nations’,48 proposed a shift of the UN programme budget from a system of input accounting to results-based budgeting,49 which was endorsed in 2000. 43  Results-based budgeting elements have been introduced gradually and incrementally in the biennial programme budgets and in annual peacekeeping budgets since 2002–03 as a means to focus the effectiveness of the Organization’s programmes and as a management tool to enhance responsibility and accountability in the implementation of the programmes and budgets.50 The presentation of the logical frameworks has been developed and refined over the years, and the Advisory Committee has commented extensively on the application of the results-based budgeting approach to the proposals relating to the regular budget.51 44  However, the ‘Accountability-Resolution’52 gives an indication that theory and practice are not always congruent. In theory, results-based budgeting describes precisely the expected accomplishments as well as the concrete benefits to users, and designs the indicators of achievements on each sub-programme level. 45  Member States request the SG to take appropriate measures to accelerate the implementation of results-based management and expect the Organization to create a sustained focus on results, and in this regard request the SG to take concrete measures to achieve a cultural change throughout the Organization. However, member States do not take their share of responsibility in making results-based budgeting a success. Project goals are often described in a vague and politically balanced measure instead of outlining verifiable targets as requested in theory of results-based budgeting. Independent evaluations—if not coherent with what is expected to be politically correct—are often neglected though a waste of resources. Results-based budgeting has its limits in the public and political environment. An integral part of its success would be to place greater emphasis on additional flexibility to programme managers beyond the degree already (p. 587) accorded to the SG. But this flexibility has to be brought in line with adequate accountability and changing requirements in the field of supervision. Member States are hesitant to support the management in this direction.

III.  Budget Procedure 46  The budgetary procedure of the Organization is laid down in Rules 152 to 157 of the Rules of Procedure of the GA, the Financial Regulations and Rules of the UN, and in the Regulations and Rules Governing Programme Planning, Programme Aspects of the Budget, Monitoring of Implementation, and Methods of Evaluation53 which attempt to ensure the integration of the programme planning and budgeting process. While the programme and budget functions have been consolidated within the Secretariat, the repeated proposals to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

merge the ACABQ and the CPC under a unified mandate have failed, mainly because member States objected to diluting the ACABQ’s responsibilities, and did not want to go beyond a renewed confirmation of the need for close cooperation between the two organs.

1.  Preparation of the Budget Estimates 47  The office of Programme Planning, Budget and Accounts (PPBA) is the central service within the Secretariat that prepares and submits to the GA the proposed budget outlines, the biennial programme budgets, and the related performance reports; maintains the accounts of the Organization; and prepares financial reports and statements. The office is headed by the Controller who supervises three divisions and represents the SG in the main committees of the GA, the ACABQ, and the CPC in the presentation of the budget outline, the biennial programme budgets, peacekeeping budgets, and budget performance reports. 48  The responsibilities of the PPBA are detailed in the SG’s bulletin ST/SGB/1998/13, dated 1 June 1998. The work is guided by the Financial Rules and Regulations and by the Regulations and Rules governing Programme Planning. 49  The core functions for the programme planning and budget process lie with the Programme Planning and Budget Division (PPBD). It is responsible for coordinating and supporting the submission of budget proposals by programme managers for central review. Budget preparation is an interactive process which begins with submission of the proposals from each Department/Office to the PPBD for review. This review results in a recommendation to the SG regarding funding levels and staffing tables.

2.  Consideration of the Budget Estimates 50  Before the proposed programme budget is transmitted to all member States, the SG submits it to the ACABQ and the CPC. The ACABQ will report and make recommendations on all proposed estimates (Fin Reg 3.6).54 These recommendations are the benchmark for all further discussions, formal consultations, and the final decision of the GA. Established by the first GA,55 the ACABQ still exercises its original mandate in this regard, as set out in Rule 157 of the GA’s Rules of Procedure. The ‘Advisory Committee’ (p. 588) has thus acquired a unique status on all budgetary and administrative decisions of the GA, and in practice has a certain supervisory role over the Organization’s financial management.

3.  Decisions on the Budget 51  The authority of the GA to approve the expenditure of the Organization is paramount. No decision by any UN body involving a change in the approved programme budget or requiring additional expenditure can be taken without providing the GA with a report on its financial implications, nor can such expenditures be incurred without the GA making the necessary appropriations (Fin. Regs 13.1, 13.2). The corresponding Rule 15356 of the GA’s Rules of Procedure has its equivalents in the Rules of Procedure of ECOSOC and other subsidiary bodies, but not in those of the SC. Nevertheless, with regard to the latter, it is accepted that the budgetary power of the GA also comprises the financing of expenditures for the maintenance of peace and security.57 52  The budget proposals are considered by the GA’s Administrative and Budgetary Committee (Fifth Committee). For its adoption, the programme budget requires a two-thirds majority of members present and voting in the GA (Art. 18 (2) UNC). But in the aftermath of the Budget Reform Res 41/213, voting was discontinued. Since then, all substantial budgetrelated decisions have been adopted without a vote, ie by consensus. The budget resolution consists in Part A of the appropriations approved for the following biennium. These appropriations constitute an authorization to the SG to incur obligations and make payments for the purposes for which the appropriations were voted (Fin. Reg 4.1). The legally binding decision is confined to the amounts appropriated per section. Part B of the budget resolution contains the income estimates including the revenue from staff assessments which is credited to a Tax Equalization Fund (Fin. Rules 105.2, 105.3). The From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

financing of the appropriations is contained in Part C, which determines for each year of the biennium the amount to be assessed on member States in accordance with the scale of assessments in force.58 53  Some experts have maintained that the GA budget decision process, by one budget, is unfair and that other principles should replace one nation, one vote on budget issues.59 In 1985, the United States, referring to the so-called Kassebaum Amendment in Congress, began to demand greater influence in budgetary matters than the principle of one member, one vote allowed. It backed its insistence by partially withholding assessed contributions. The GA, to counter the threat of its authority under Art. 17 being eroded by late or nonpayments of large-scale contributions, compromised in Res 41/213 (19 December 1986). It agreed that the CPC should continue ‘its practice of deciding by consensus’, and considered ‘it desirable that the Fifth Committee, before submitting its recommendation on the budget outline to the plenary, should make all efforts with a view to establish the broadest possible agreement’. This phrase was the result of arduous (p. 589) negotiations, in which for the first time the consensus principle was given a certain role in budgetary matters at levels below the formal decision-making process in the GA Plenary. In order to balance this, the GA expressly reaffirmed the relevant provisions of the Charter and its Rules of Procedure, based on a legal opinion submitted by the UN Legal Counsel, annexed to the resolution, to the effect that the provisions of UNGA Res 41/213 (19 Dec 1986), ‘read separately or together do not in any way prejudice the provisions of Art. 18 of the Charter or of the relevant Rules of Procedure of the GA giving effect to that Article’.60 54  When this issue came up between 1985 and 1988, the Assembly decided that every effort would be made to adopt the UN regular budget by consensus. In this way, any member State, including the major contributors, might prevent consensus on a budget resolution. The intention was to give major contributing nations a stronger voice in budget matters. 55  The well-established process of finding a consensus came under stress in recent years. On 28 April 2006, however, this practice of consensus on UN budget matters was broken for the first time after twenty-one years when the Fifth Committee voted, 108 in favour, to fifty against, with three abstentions, on a resolution that would define how the SG would carry out the twenty-three proposals he had presented in his report, Investing in the United Nations: for a stronger organization worldwide. The resolution was sponsored by the Group of 77 and China. This vote in the Fifth Committee was followed by a vote in Plenary on the same resolution on 8 May 2006.61 56  In detail, during the discussions about the UN’s 2006–07 budget, the United States was successful in an effort to link approval of the UN’s budget authority to progress on the UN reform agenda. While the two-year budget was agreed in principle, a US $950 million ‘cap’ was placed on the spending authority of this budget, reducing it to an interim budget. This was an unprecedented move resented by many member States. On 28 April 2006 (confirmed on 8 May 2006 in the GA),62 member States broke over twenty years of precedent that protected the minority of major donors from being outvoted by voting on a resolution in the Fifth Committee. The vote concerned a package of reform proposals put forward by then SG Kofi Annan in the report ‘Investing in the United Nations: for a stronger Organization worldwide’, designed to make the Organization, and the budget process itself, more efficient. By a vote of 108 to 50 on a resolution put forward by the Group of 77, further consideration of many of these proposals was significantly delayed. The cap was later lifted as it proved to be inefficient. The United States was particularly concerned over the ‘piecemeal’ and ‘ad hoc’ approach.63 This approach was considered inconsistent with sound budgeting practices.64 Concern was expressed that no substantial cuts or offsets had

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been proposed by the Secretary-General or member States to this largest of all UN budget increases.65 (p. 590) 57  In December 2007, during GA consideration of the 2008–09 UN regular budget, the United States voted against a related resolution—UN Doc A/RES/62/236, Questions relating to the proposed programme budget for the biennium 2008–2009—but joined the consensus on the resolution that approved a biennial budget of US $4.17 billion.66 US representatives characterized the budget resolution as an initial budget, with items to be added to the original budget later in the 62nd session of the GA. 58  Once broken, the tendency to ask for or to threaten with a vote became more frequent, further complicating the process of finding solutions within the Fifth Committee.67 For the second time since the consensus principle has been established, the Fifth Committee skipped the same as Russia put its proposals to vote during the session on the scale of assessments in 2009; furthermore, the G77 threatened a vote in order to prevent the status quo of the assessments from changing.68 59  During negotiation periods of the Fifth Committee it became standard procedure to threaten those few member States (EU, US, Japan, etc) financing over 97 per cent of the Organization’s budget, but being permanently in a structural minority. But still, as of July 2011, there has been no majority voting to enforce a complete budget against the group of major contributors. Apart from the creation of blocs as such, this development tends not to add to the easing of relations between developed and developing countries.69 60  Major contributors formed in 1964 the Geneva Group, permanently co-chaired by the United States and the United Kingdom. The group consists of sixteen members that (a) contribute one per cent or more of the budgets of the UN and its largest affiliated agencies and (b) possess ‘like-mindedness’ on administrative and financial matters. Members of the group are the United States, Japan, Germany, the United Kingdom, France, Italy, Canada, Spain, Mexico, South Korea, Australia, the Netherlands, Russia, Switzerland, Belgium, and Sweden. Together these countries contribute about 80 per cent of the UN budgets. Local Geneva Groups exist at all UN cities. The question of the like-mindedness is the major obstacle to integrating major emerging powers into the group. The group serves as a platform to exchange positions and to meet with the Secretariat. However, it does not exist as a voting bloc within the UN. 61  Related to this issue, it is important to understand that the SG may submit proposals for additional expenditure in the process of the adoption of the budget, as well as during the budget period, though since 1987 only within the limits of UNGA Res 41/213 and 42/211. For unforeseen and extraordinary expenditures in each biennium, the SG is authorized to enter into commitments, usually with the prior concurrence of the ACABQ. 62  Finally, for every financial period a Working Capital Fund (WCF)70 is reconstituted from which the SG is authorized to finance appropriations pending the receipt of contributions from member States, and to finance unforeseen and extraordinary expenses (p. 591) pending appropriation action by the GA. The Fund is financed through advances from member States in relation to the scale of assessments in force.71 63  Should the provision of the WCF prove inadequate to meet its purposes, the SG is authorized to utilize, inter alia, the proceeds of loans authorized by the Assembly. This was initially authorized by A/RES/1341(XIII) in 1958, and has been extended from one financial period to another. In addition, the Assembly authorized by UN Doc A/RES/1448(XIV) the coverage of short-term loans from governments. The most recent resolution related to this authorization is Res 48/232 of 23 December 1993.72

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64  The SG was also authorized by the Assembly in 196173 to issue UN bonds with terms and conditions set forth therein. Of the US $200 million authorized, actual sales amounted only to US $170 million. The bonds were sold between 1963 and 1964 and fully repaid by inclusion of principal and 2 per cent interest rate per annum in the regular budget from 1963 through 1989.74

4.  Implementation of the Budget 65  The SG is responsible for ensuring that the Organization’s expenditure remains within the appropriations as voted, and is incurred only for purposes approved by the GA (Fin. Rule 110.1). The Controller reviews obligations and expenditures (Fin. Rule 110.2). Approval of transfers between sections is generally delegated by the GA to the ACABQ, while no limits are placed on the SG for the transfer of funds within a section. The allotment of funds and the authorization to commit funds or employ staff or consultants must be made in such a way as to give full effect to the budgetary decisions. The manning table underlying those decisions is not considered to be subject to change by the SG. 66  Detailed regulations and rules have been drawn up governing the monitoring of programme implementation and the evaluation of the Organization’s activities.75 New programmes must not be introduced in the programme budget, nor sub-programmes reformulated, without prior approval by the GA. A Programme Performance Report has to be submitted to the GA at the end of the biennium to which a programme budget applies. 67  A central internal audit control mechanism has been set up to ensure the compliance of financial transactions with GA resolutions, economy, efficiency, and effectiveness.76 68  The financial accounts and statements are submitted to a three-member Board of Auditors appointed for a three-year term by the GA from among Auditors-General of member States. The reports of the Board are submitted through the ACABQ to the GA.

C.  The Budget of the Organization 69  Although the drafters of the Charter had obviously envisaged that the Organization would have no other budget than the one which was to be approved by the GA and that the member States would have the entire control, the fact remains that the GA directly (p. 592) controls only the part of the Organization’s expenditures which are included in the regular and the peacekeeping budgets. For the other programmes and funds, the GA has, to a varying degree, delegated its authority of expenditure, approval, and administration to specially constituted governing bodies, the SG, or other executive heads of such programmes. On the other hand, the regular budget as it has historically evolved covers far more than administrative costs. From the fact that Art. 17 (3) limits the right to examination to ‘administrative budgets’, while the term ‘administrative’ is not used in para 1, it has been concluded that the budget of the Organization is not limited in any such way, and can also comprise so-called operational expenses. However, the majority of member States accepted that outside the area of peacekeeping there were political limits to the GA’s authority to determine financial obligations, depending on the position taken by the main contributors. Consequently, the member States acquiesced in the establishment of mechanisms relying on voluntary funding and consensus for larger economic and social operations.

I.  Scope of Different UN Budgets 70  In 2007, financial receipts of UN organizations amounted to US $29.8 billion. The following annual figures may give an idea of the structure of the total UN budget. Approved regular budgets added up to US $12.2 billion. This includes US $1.9 billion for the UN regular budget and US $ 5.2 billion for financing peacekeeping as well as US $5.1 billion of approved regular budgets for the specialized agencies and the IAEA. In addition, all organizations receive considerable funding through extra-budgetary resources, ie voluntary contributions that amounted to US $17.6 billion in 2007. These voluntary contributions are

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mainly directed to operational economic, social, and humanitarian funds and programmes, such as UNDP (3.7 billion), UNICEF (3 billion), WFP (2.4 billion), UNHCR (1.3 billion). Compared to the total UN budget of US $17.5 billion in 2002, there has been a significant increase of more than two-thirds within five years.77 71  Focusing on the UN regular budget in the last decade, a strong increase can be observed. In the biennium 2000–01, the regular budget amounted to US $2.5 billion while the 2010–11 budget increased to US $5.2 billion. The UN regular budget has thus doubled over the last ten years. This is partly due to the increase of funding needed for the Special Political Missions, where the budget for that item has grown from US $115 million in 2000– 01 to US $1 billion in 2010–11. Still, if Special Political Missions are not taken into account, the budget has grown by 72 per cent in the last ten years. This does not even take into account add-ons in the second year of the programme budget that have been for one year only. 72  The responsibility for this evolution is a shared one: the UN membership asks the UN to do more, member States have not been able to reduce the number of irrelevant mandates charging the SG with reports of limited relevance,78 members of the SC increased the number of peacekeeping missions, and complaints that the SG does not organize its workload according to modern working methods have some justification as well. (p. 593) 73  The steady increase of the UN budget is a major concern raised in particular by the main contributors periodically, requesting ‘zero nominal growth’. A number of UN crises in the history of the Organization have been fiscal crises.79 Since the early 1950s, the pattern was for the regular budget to double every seven years to more than US $5 billion in the biennium 2010–11.80 The annual peacekeeping budgets have realized a major increase since the 1990s due a rise in the number and size of missions. Their budgets developed at a greater speed than the regular budget and have tripled since 2000 to US $7.7 billion.

II.  The Size and Nature of the Regular Budget 74  The UN regular budget provides funding for the GA, the Secretariat, the SC, the Economic and Social Council, and the ICJ. Additionally, the regular budget provides partial funding for certain UN agencies, such as the United Nations High Commissioner for Refugees and the UN Environment Programme. They are calculated on a biannual basis, starting on 1 January. member States contribute according to their assessment. 75  The regular budget of the Organization in US dollars has (as of 1974–75) developed into a biennial programme budget starting on 1 January in an even year. The size of the first budget in 1946 was US $19 million; by 1956 the initial appropriated expenditure had reached US $49 million. In 1966, it amounted to US $122 million, and for 1976–77 the biennial appropriations came to US $746 million. Ten years later in 1986–87, the gross expenditure had reached a level of US $1,712 million, US $ 2,603 million in 1996–97 and in 2010–11 it had reached US $ 5,156 million. Almost two-thirds of the budget is accounted for by human resource costs.81 76  In 2010–11, the regular budget consisted of fourteen parts and thirty-six sections. The parts have become standard over the years with the exception of Part IX Internal oversight and Part XIII Development Account:

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Table 1  Parts and Sections of the Regular Budget

per cent Part I

Overall policy-making, direction and coordination

15

Section 1: Overall policy making, direction and coordination Section 2: GA and ECOSOC affairs and conference management Part II

Political affairs

24

Section 3: Political affairs Section 4: Disarmament Section 5: Peacekeeping operations Section 6: Peaceful uses of outer space Part III

International justice and law

2

Section 7: International Court of Justice Section 8: Legal affairs

Part IV

International cooperation for development

8.5

Section 9: Economic and social affairs Section 10: Least developed countries, landlocked developing countries and small island developing States Section 11: United Nations support for the New Partnership for Africa’s Development Section 12: Trade and development Section 13: International Trade Centre UNCTAD/WTO Section 14: Environment Section 15: Human settlements Section 16: International drug control, crime and terrorism prevention and criminal justice Part V

Regional cooperation for development

10.2

Section 17: Economic and social development in Africa Section 18: Economic and social development in Asia and the Pacific Section 19: Economic and social development in Europe Section 20: Economic and social development in Latin America and the Caribbean Section 21: Economic and social development in Western Asia Section 22: Regular programme of technical cooperation Part VI

Human rights and humanitarian affairs

6

Section 23: Human rights Section 24: International protection, durable solutions and assistance to refugees Section 25: Palestine refugees Section 26: Humanitarian assistance Part VII

Public information

Part VIII

Common support services

3.6

Section 27: Public information 11

Section 28: Management and support services

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per cent Section 28A: Office of the Under-Secretary-General for Management Section 28B: Office of Programme Planning, Budget and Accounts Section 28C: Office of Human Resources Management Section 28D: Office of Central Support Services Section 28E: Administration, Geneva Section 28F: Administration, Vienna Section 28G: Administration, Nairobi Section 29: Office of Information and Communications Technology Part IX

Internal oversight

0.8

Section 30: Internal oversight Part X

Jointly financed administrative activities and special expenses

2.4

Section 31: Jointly financed administrative activities Section 32: Special expenses Part XI

Capital expenditures

1

Section 33: Construction, alteration, improvement and major maintenance Part XII

Safety and security

Part XIII

Development Account

Part XIV

Staff assessment

5

Section 34: Safety and security 0.5

Section 35: Development Account 10

Section 36: Staff assessment

(p. 594) (p. 595) 77  Each section is designed to show the costs of executive direction, programme activities, and programme support. The purpose of the budget format is to allow a judgment on the most efficient use of resources in the implementation of legislative mandates. Since 2002–03 the rules of results-based budgeting (RBB), proposed by the SG in his programme for reform in 1997 and approved by the GA in 2000,82 have been applied.

III.  Special Accounts for Peacekeeping Measures 78  Measures undertaken by the UN in the interest of maintaining international peace and not involving armed forces—such as UNTSO in Palestine and UNMOGIP in Kashmir—have been financed through the regular budget. The establishment of large-scale peacekeeping operations since 1956 has made new funding mechanisms necessary. 79  After UNEF had been approved by the GA in 1956, a special account for each mission was set up outside the regular budget for the purpose of meeting the expenses of the emergency forces being considered as ‘expenses of the Organization’, which were to be apportioned among member States. Since that time, special accounts have been renewed, established, and abolished. At the end of 2010, the SG reported on fifteen peacekeeping and observer missions. Total costs for all missions between 1948 and 2010 are estimated at US $69 billion.83

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80  The UN peacekeeping budgets pay for military operations enacted by the SC. They are calculated on a yearly basis from July to June starting with the budget year on 1 July.84 81  The preparation and approval of estimates follow normal budgeting procedures. They are prepared and administered by the Peacekeeping Financing Division as part of the Department of Field Service in the Secretariat. 82  For the period from 1 July 2008 to 30 June 2009, total expenditure amounted to US $7.1 billion, against a total approved budget of US $7.3 billion. The expenditure comprises US $6.8 billion for the fifteen missions and support for AMISOM, US $44 million for the logistics base at Brindisi, and US $272 million for the support account. (p. 596) Financial resources for the period from 1 July 2009 to 30 June 2010 were approved at a level of US $7.9 billion, compared with estimates for the period from 1 July 2010 to 30 June 2011 of US $8.4 billion.85 83  To meet the headquarters backstopping requirements the GA established the support account for peacekeeping operations.86 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 peacekeeping operations that were financed at the time outside the scope of the regular budget. For the financial period from 1 July 2010 to 30 June 2011, the GA approved budget estimates for the support account requirements in the amount of US $356 million.87 84  The GA requested the SG to take further steps towards improving budget assumptions and forecasts and to report thereon. With the aim of further improving the transparency of the budget proposals submitted to the GA and of facilitating their review by the legislative bodies, additional refinements have been included in the 2010–11 budget presentation format.88 85  The Peacekeeping Reserve Fund was established in 1992 by UNGA Res 47/217 to serve as a cash-flow mechanism to ensure the rapid deployment of peacekeeping operations. The initial level of the Fund was set at US $150 million. The Assembly, in its Res 49/233 A, decided to limit the utilization of the Fund to the start-up phase of new peacekeeping operations, the expansion of existing ones, or for unforeseen and extraordinary expenditures related to peacekeeping. 86  The UN has no military forces of its own, and member States provide, on a voluntary basis, the military and police personnel required for each peacekeeping operation. Peacekeeping soldiers are paid by their own governments according to their own national rank and salary scale. Countries volunteering uniformed personnel to peacekeeping operations are reimbursed by the UN at a flat rate. Police and other civilian personnel are paid from the peacekeeping budgets established for each operation. The UN also reimburses member States for providing contingent owned equipment to military or police contingents. Standard rates of reimbursement for pay and allowances and a usage factor for clothing, gear, equipment, etc have been established since 1973 and are periodically reviewed under the agenda item.89

D.  The Apportionment of Expenses of the Organization 87  Article 17 (2) of the Charter of the UN provides that the expenses of the Organization shall be borne by member States as apportioned by the GA. Hence, in 1946 the Assembly established the principle that this apportionment should be based broadly on the capacity to pay.90 It is, however, difficult to measure such capacity merely by statistical means, and impossible to arrive at any definite formula. Comparative estimates of national income would appear, prima facie, to be the fairest guide. In this context, the (p. 597) GA established the Committee of Contributions and mandated it to recommend a scale of assessments for the apportionments of the expenses between member States and to review

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the methodology with the understanding that it needs to be carefully reviewed and updated to reflect changing economic circumstances.91 88  Assessment is the term used for the amount of money that the GA determines to finance the approved expenses. The share that each member State is charged is known as its assessed contribution. Assessments are made to member States for the following: Regular budget; Capital master plan; International tribunals; Peacekeeping operations. Payment of the assessed contribution is one of the legal obligations accepted by a country when joining the Organization. This way, the Organization has a regular source of income for staffing and implementation of authorized programmes.

I.  The Scale of Assessments for Apportioning the Expenses 89  The GA decides on one uniform scale of assessments for apportioning the expenses contained in the regular budget among member States. The scale of assessments sets out what percentage share of the UN budgets is charged to each member State. It is based on a complex formula which takes into account the population of the country and its gross national income (GNI) and political adjustments. 90  When once fixed by the GA, the scale of assessments shall not be 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. 91  The scale of assessments for the regular budget is negotiated every three years, while the peacekeeping scale, however, had not been negotiated since 2000. Both scales were on the agenda of the Fifth Committee in autumn 2009 resulting in the following resolutions. For a regular budget on 24 December 2009, the GA adopted the scale of assessments for the contributions of member States to the regular budget of the UN for 2010, 2011, and 2012.92 For peacekeeping operations, by its Res UN Doc A/RES/55/235, the GA decided that from July 2001, ‘the rates of assessment for peacekeeping operations should be based on the scale of assessments for the regular budget of the United Nations, with an appropriate and transparent system of adjustments based on levels of member States’. The composition of levels of contribution for peacekeeping operations was changed for the period 2010 to 2012 as contained in the addendum to the report of the Secretary-General A/64/220/Add.1 and adopted by the UNGA in its Res A/RES/64/249 (24 December 2009).

II.  The Committee on Contributions 92  The Committee on Contributions (CoC) is a standing committee of eighteen members elected ad personam by the Assembly on the basis of broad geographical representation, personal qualifications, and experience. The CoC advises the Assembly, inter alia, on the apportionment of the Organization’s expenses among members broadly according to capacity to pay.93 (p. 598) 93  The CoC advises the GA on the assessments to be fixed for new members and on appeals by members for a change of assessments. The CoC also provides advice on the action to be taken with regard to requests for exemption to the application of Art. 19 UNC. 94  The CoC meets annually for three to four weeks. Its report is considered by the GA through the Fifth Committee at the subsequent main session under the agenda item Scale of assessments for the apportionment of the expenses of the UN. Each third year, the Committee reviews the scale and, based on instructions from the Assembly, recommends revisions in the scale for the next three-year period. 95  In 2009, the GA had not provided the CoC with any specific guidance on the preparation of the scale of assessments for the period 2010–12. The CoC recalled that the same methodology used in preparing the scale of assessments for the past two scale periods had been used in preparing the scale of assessments for the period 2007–09 and reaffirmed its recommendation that the scale should be based on the most current, comprehensive, From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

and comparable data available for gross national income. One scale sample was prepared which applied the new data to the methodology used in preparing the previous scales. As the CoC depends on guidance and specific requests from the GA, it is difficult for the Committee to come up with new proposals in the absence of such requests.94 96  The initial latitude of the CoC in preparing a scale within the mandate given to it by the GA was gradually narrowed as the GA approved more detailed political guidelines for determining the scale of assessments over the years. 97  The reports of the CoC reflect the discussions among its members, including recommendations and conclusions. The reports of the CoC also reflect differing ideas and opinions of its members on specific issues as expressed during its sessions. After approval by its members, the reports of the CoC go to the GA for consideration.95

III.  The Measurement of the ‘Capacity to Pay’ 98  The original instruction to the Committee on Contributions to apportion the expenses of the Organization ‘broadly according to capacity to pay’ still stands (as Rule 160 of the GA’s Rules of Procedure) as the fundamental criterion for determining the scale of assessments. Obviously, the question of how to measure the capacity to pay as the base for the scale of assessments has occupied the CoC and the Fifth Committee ever since 1946. All later discussions and resolutions have aimed at determining various factors to be taken into account in evaluating such capacity. Alternative modes of assessment were investigated, but could not be retained as feasible.96 99  That so far no alternative modes of assessment have been adopted by member States is either due to their lack of feasibility or to the unwillingness of member States to accept new ways of an apportionment of the expenses of the Organization. 100  In the history of the Organization, the following elements have always been part of the methodology to measure the capacity to pay: an income measure, a base period, conversion to US dollars, a low per capita income adjustment, a floor and a ceiling. Since 1986, as an additional element, a debt burden adjustment is being applied. (p. 599) 101  National income data, measured in gross national product since 1998, are regarded as the fairest guide for measuring the comparative capacity to pay. It has therefore been the first step in the scale methodology since the beginning of the Organization, after the data had been compiled for quite some time. The Committee on Contributions recalled and reaffirmed in 1996 its recommendation to base future scales of assessments on estimates of gross national product (GNP).97 That approach has since been maintained by the Committee and accepted by the GA in the context of the adoption of the scales for the periods 1998–2000, 2001–03, 2004–06, 2007–09, and 2010–12. Since the adoption of the System of National Accounts 1993 (1993 SNA) as the international statistical standard, the term GNP has been replaced by the term gross national income (GNI). GNI is equal to GDP plus labour and investment income from abroad less labour and investment income paid abroad. 102  The debt burden adjustment is intended to reflect the impact on the capacity to pay off some member States from having to repay the principal of external debt. Interest on this debt is already reflected in the data for GNI. The debt burden adjustment is effected by deducting the external debt from the GNI of member States, expressed in US dollars. 103  The low per capita income adjustment is indispensable for any method that measures vertical equity as one aspect of capacity to pay. Vertical equity or progressivity embodies the principle that the countries with higher per capita income should contribute a larger share of their national income per capita to the UN than the citizens of a poor country.

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104  The concept of sovereign equality of member States during negotiation periods of the Fifth Committee, expressed in the principle of one member, one vote, and the principle of collective responsibility for the financing of the UN, led to the fixing of upper and lower limits of contributions. The floor and the ceiling do not measure capacity to pay. They set the minimum and maximum assessment rates between which the percentage share of any member State must fall. The floor is a compromise between a rate measuring capacity to pay and a rate that is the share of UN expenses associated with the participation in the activities of the Organization of the members with the smallest incomes. The ceiling is an attempt to decrease the financial dependence of the UN on a single member without seriously obscuring the relation between that member’s contribution and capacity to pay. Therefore, the values of the floor and the ceiling and even the need for one or the other are the result of political and not statistical considerations. 105  If there were no maximum and minimum assessment levels for the UN regular budget and assessments were based exclusively on a ratio of a country’s gross national income, the United States would be assessed at about 30 per cent and some very small and poor countries might be assessed at less than 0.001 per cent. Regardless of the size of assessment, each member has one vote on UN budget decisions, although budgets since 1988 have been adopted by consensus, which was meant to protect the large contributor by a veto power through the back door.98 (p. 600) 106  The current methodology to measure the capacity to pay has been applied since 2001 and is also valid for the scale of assessments approved for the period 2010–12.99 The method is characterized by the sequential application of the following steps: (1)  Gross National Income (GNI) data in national currency. (2)  Conversion to US dollars based on market exchange rates except where that would cause excessive fluctuations and distortions in the income. In such cases priceadjusted rates of exchange (PAREs) are used. (3)  GNI average over a designated base period of three years (2005–07) and six years (2002–07). (4)  Debt burden adjustment deducts an average of 12.5 per cent of the total debt stock for each year of the base period from the GNI of a member State. (5)  Low per capita income adjustment applies to countries whose average debtadjusted per capita GNI is below the threshold represented by the average per capita GNI for the membership as a whole. The GNI of this member State is reduced by 80 per cent of the percentage by which it is below the threshold. The total amount of rebate due to the low per capita income adjustment is reallocated pro rata to the countries above the threshold, except to those affected by the ceiling. The threshold determines which countries will benefit. The threshold for the average debt-adjusted per capita GNI for the three-year base period 2005–07 is US $7,530; that for the six-year base period 2002–07 is US $6,708. The technical term used to describe the rebate rate of 80 per cent is gradient. Thus, the greater the gap between the threshold and the country’s per capita debt-adjusted GNI, the greater the percentage reduction of its assessable income compared to its GNI. (6)  Floor is a minimum assessment rate of 0.001 per cent applied to those Member States whose rate at this stage of methodology is lower. Corresponding reductions are then applied pro rata to other member States, except to those affected by the ceiling.

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(7)  Least developed countries adjustment is applied to member States whose rate at this step exceeds the least developed countries ceiling of 0.01 per cent. Least developed countries concerned have their rates reduced accordingly. Corresponding increases are applied pro rata to other member States, except to those affected by the ceiling and the floor. (8)  Ceiling is the maximum assessment rate of 22 per cent. Corresponding increases are then applied pro rata to other member States, except to those to whom the floor and least developed countries adjustment are applicable. (9)  Average for two base periods. Final scale figures (as share in per cent) are calculated for two base periods, one of three and another of six years. The results are then added and divided by two. 107  The applied methodology leads to significant deviations in assessment rates as compared with member states’ percentages of world GNI. Since the shares of all member States have to add up to 100 per cent at the starting point as well as after the final step, there are losers and winners due to the adjustments. Significant redistribution is caused by the low per capita income adjustment (step 5) and the ceiling (step 8). In step 5, the rates of developing countries decrease profoundly by almost 10 percentage points while the rates of developed countries grow symmetrically. This decrease applies to Russia as (p. 601) well as to some new EU countries. The ceiling takes effect like a fiscal protective shield for the United States. It increases rates of all countries unless they are ‘protected’ by the floor or the low per capita income adjustment. Therefore, the ceiling leads to the largest distortion. Almost 12 percentage points are redistributed to the group of high-income OECD member States. The debt burden adjustment in step 4 has a small redistributive impact below 0.5 percentage points among all member States.100 108  With regard to the ceiling, its large impact is caused by the reduction from 25 to 22 per cent as the result of one of the main revisions to the scale that were determined in 2000.101 The new ceiling was then applied to the Organization’s main contributor—the United States. 109  In order to gain a consensus for the lowering of the ceiling in spite of these unprecedented increases, the United States was compelled to offer at least for the first year of the scale period an amount equalling its savings of 3 per cent of the total assessment for 2001 to help the UN to address the question of substantial increases by transitional measures in that year. The money was labelled a donation by the US government102 but— equally unprecedented—was sponsored by the private sector.103 110  To address the small share in the apportionment of the expenses of countries with a share of the global GNI larger than 1 per cent, the United States suggested in 2006 that the GA shall consider the use of different economic data, in forming the scale of assessments. It was proposed that the scale of assessments be based on purchasing power parity (PPP) rather than on the nominal market exchange rate for conversion of national income data into US dollars. As a consequence, member States with an undervalued national currency compared with the nominal exchange rate to the US dollar would have to take on the burden of a higher share in the apportionment of the expenses of the Organization, which were most applicable to China.104 The purchasing power parity proposal is also meant to address the low per capita income adjustment and its effect of accumulating relief in a handful of member States with a significant share of world GNI, ie China. 111  Although accepted as an important element designed to provide relief to developing countries, the low per capita income adjustment has produced results with the least developed countries scarcely benefiting from the adjustment. The European Union

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addressed this distortion to ensure the adjustment is consistent with the original intent and better targets those countries in real need.105 112  The calculations by the Committee on Contributions showed substantial deviations between the scales and gross national income shares after applying such adjustments as the low per capita income adjustment. Some member States with large gross national income shares, like China, were given rates of assessment much lower than their capacity to pay and their influence, while, on the other hand, for Japan and most EU members the scale was about 30 per cent above its gross national income share. The EU Member (p. 602) States’ assessed contribution of some 40 per cent of the Organization’s budget was significantly higher than their 30 per cent share of global GNI. That was clearly not in alignment with capacity to pay.106 113  This criticism can be countered, however, that in measuring a State’s capacity to pay, it was necessary to look not only at the size of its economy and gross national income, but per capita income as well. China, despite its rapid economic development and impressive gross national income, was the country with the largest population, which still faced enormous challenges at home. In 2008, China’s per capita gross national income stood at US $3,000—still ‘a far cry’ from the threshold of US $6,708.

IV.  The Scale of Assessments for Peacekeeping Operations 114  The first peace and security missions, which took place in Palestine and Kashmir in 1948, were financed as part of the UN regular budget. The first major military action under UN auspices was carried out from 1950 to 1963 in Korea and, as at that time there were no specific agreements or regulations to apportion the costs of UN military operations, member States contributed troops, money, and materials on a voluntary basis. 115  However, as a response to the Suez crisis in 1956, the GA—not the SC—established the UN Emergency Force (UNEF) and, for the first time, assessed the costs of a major peacekeeping operation on its entire membership.107 In November 1956, the SG recommended that a Special Account outside the regular budget be set up for UNEF and that the costs be shared by the member States on the basis of the scale of assessment for the regular budget.108 116  This assessment mode met with explicit reservations by the group of developing countries. They accepted the concept of collective financial responsibility for peacekeeping, but demanded at the same time an apportionment of the expenses different from that for the regular budget, because these expenses were of a particular nature and should therefore respect that economically less developed countries have a relatively limited capacity to contribute towards peacekeeping operations involving heavy expenditures. On the other hand, the special responsibilities of the permanent members of the SC for the maintenance of peace and security should be borne in mind in connection with their financial contributions. 117  Also concerning the evolving assessment mode for peacekeeping operations, the Soviet Union and other socialist countries, as well as France, had argued that the procedure laid down in Art. 17 (2) applied only to ‘administrative’ or ‘regular’ expenses of the Organization. The GA lacked the power to appropriate funds for peacekeeping operations since this was the express prerogative of the SC. As those member States refused to contribute to the costs of UNEF in 1956 and of ONUC, a serious financial crisis began to develop when the GA was not able to identify methods for covering the costs of peacekeeping operations that would be generally accepted.

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118  The ICJ was asked for legal guidance as to whether the expenses authorized for UNEF and ONUC constituted expenses of the Organization within the meaning of Art. 17 (2). In 1962, the ICJ answered the question in the affirmative109 and the GA accepted the (p. 603) opinion by a vote of seventy-six to seventeen with eight abstentions.110 The ICJ did not find any limitations on the GA’s power to apportion expenses relating to the maintenance of peace and security. 119  As the operations in the Middle East and the Congo were in line with the purposes of the Organization, the obligations were duly incurred and had to be borne by the member States. Each of these operations began to be assessed separately based on a special peacekeeping scale of assessment, which was introduced formally in 1973.111 The pertinent resolution recognized that ‘a different procedure is required from that applied to meet expenditures of the regular budget’, and proceeded to establish four categories (A–D) of member States for the purposes of contributing to peacekeeping operations: Category (A) permanent members of the SC; (B) specially named economically developed (so-called industrialized) member States that are not permanent members of the SC; (C) economically less-developed member States; and (D) economically least-developed member States that are specifically named, comprising the poorest countries. The composition of these groups has changed over time due to a number of transfers among the groups by various countries and the increase in the number of member States. 120  The criteria for the assessment of and within these four groups were as follows: the member States in group (D) paid only 10 per cent of their assessment rates established for the regular budget; those in group (C) paid 20 per cent; those in group (B) paid the same proportion as they do to the regular budget; and those in group (A) paid a residual premium roughly equal to an additional 25 per cent above their assessments for the regular UN budget. These were the key elements for drafting a concept for peacekeeping operations financing that acquired a model character from 1973 for subsequent peacekeeping operations on the basis of assessed contributions.112 121  Under political pressure from the United States to lower its assessment from over 30 to 25 per cent, alternative reform models were discussed. The final outcome—so-called ‘reform’ in UNGA Res 55/235 (23 December 2000), to be effective from July 2001—is in essence a cautious remodelling of the previous scheme. The general principles, as set out above, continued to underlie the financing of peacekeeping operations. The assessment rates remain based on the scale of the regular budget with a ceiling of 22 per cent. As a result of the remodelling in 2000, a 25 per cent rate was reached to cap the assessed contributions that should be paid by any one member State.113 122  For the purpose of apportioning the costs of peacekeeping operations, member States were now distributed among ten different levels (from level A to level J) according to their ability to pay and UN privileges.114 These ten levels have been valid since 2001. Level A: Five Permanent members of the SC pay assessments equivalent to their regular budget assessments plus a surcharge calculated on the reallocation of the remaining costs after discounts to poorer countries have been made. Their assessments cover 49 per cent of all contributions. Level B: 32 developed countries, which are not permanent members of the SC pay assessments equivalent to their regular budget assessments and receive no discount (all (p. 604) member States not included in level A and C–J). This group of member States bears 47 per cent peacekeeping costs. Level C: Five specified ‘high income developing countries’ (Brunei Darussalam, Kuwait, Qatar, Singapore, and United Arab Emirates) pay the same rate as regular

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dues minus a discount of 7.5 per cent which sums up to a 1 per cent share of assessments. Level D: Member States with per capita GNI less than twice the average (under US $13,416): 20 per cent discount. Level E: Member States with per capita GNI less than 1.8 times the average (under US $12,074): 40 per cent discount. Level F: Member States with per capita GNI less than 1.6 times the average (under US $10,733): 60 per cent discount. Level G: Member States with per capita GNI less than 1.4 times the average (under US $9,391): 70 per cent discount. Level H: Member States with per capita GNI less than 1.2 times the average (under US $8,050): 80 per cent discount or 70 per cent on a voluntary basis. Level I: Member States with per capita GNI less than the average for all member States (under US $6,708): 80 per cent discount. Level J: 49 least developed countries receive 90 per cent discount and thus pay only 10 per cent of their regular budget share. 123  Of the less developed countries (except level A, C, and J contributors), 101 receive different discounts from their regular budget rate of assessments, based on their average per capita GNI in relation to the average per capita GNI of all member States (US $6,708 based on the 2002–07 figures for assessments in 2010–12). 124  In strong contrast to their political role, the 150 member States allotted to levels D–J bear only 3 per cent of the financial contributions for peacekeeping operations.

V.  The Resulting Share of Assessed Contributions Among Member States 125  Article 17 (2) requires each member State to contribute to the expenses of the Organization, as assessed by the GA.115 On 22 December 2009, the GA approved without a vote a new scale of assessments for the period 2010–12 with the following results:116 The twenty-seven States of the European Union are responsible for 39 per cent of the UN regular budget and almost 41 per cent of the peacekeeping budget. The United States is the biggest single contributor with a maximum of 22 per cent of the regular budget and 27.2 per cent of peacekeeping budgets, while thirty-nine members pay the minimum, ie 0.001 per cent for the regular budget and twenty-five members pay the minimum, ie 0.0001 per cent of the peacekeeping expenses. 126  The ten member States with the highest assessments cover about 72 per cent of the regular budget: United States (22 per cent), Japan (12.5 per cent), Germany (8 per cent), United Kingdom (6.6 per cent), France (6.1 per cent), Italy (4.9 per cent), Canada (3.2 per cent), China (3.1 per cent), Spain (3.1 per cent), and Mexico (2.3 per cent).117 (p. 605) 127  In peacekeeping, the permanent members of the SC are large contributors: United States (27.2 per cent), United Kingdom (8.2 per cent), France (7.6 per cent), China (3.9 per cent), and Russia (2 per cent). Although not permanent members of the SC, the following member States are very significant contributors to the financing of peacekeeping: Japan (12.5 per cent), Germany (8 per cent), Italy (5 per cent), Canada (3.2 per cent), Spain (3.2 per cent), Republic of Korea (2.3 per cent).

VI.  The Notion of ‘Expenses of the Organization’

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128  The interpretation of the term ‘expenses of the Organization’ determines the scope of the fiscal authority under which the GA assesses financial contributions of member States in a legally binding manner. The extent of the GA’s powers became the subject of great debate when it started apportioning the costs of major peacekeeping operations among member States outside the regular budget. But even the practice of the regular budgetary appropriations does not help in providing a clear definition of such powers. By no means all of the Organization’s expenses, especially in the economic, social, and humanitarian fields, are financed through assessed contributions, which does not necessarily lead to the conclusion that expenses like these could not be subsumed under Art. 17 (2). The GA is free to decide how it wants to provide the necessary funds for meeting the obligations of the Organization.118 129  In the context of its Advisory Opinion, the ICJ commented on the nature of UN expenses in general, and agreed that the test of such expenses was ‘their relationship to the purposes of the UN’. If they are paid out to cover the costs of implementing its objectives, then it is of no legal significance whether for book-keeping or accounting purposes the item is included under one of the established standard sections of the regular budget or whether it is listed separately in some special account or fund. There exists a presumption that an action is appropriate for fulfilling one of the stated purposes of the UN if it warrants such an assertion. This broad interpretation given by the ICJ to the powers of the GA acquires an even wider scope through its opinion that even a decision taken by the wrong organ or with other procedural irregularities does not necessarily invalidate the expense as being the Organization’s. The ICJ sustained its interpretation by expressly referring ‘to the manner in which the organs concerned have constantly interpreted the texts in their practice’ in line with the principle that each organ is to decide on its own competences.119 This conclusion might be the legal answer. It would, however, if carried to the extreme, confer unlimited power on a two-thirds majority of member States. In political reality, member States have to decide how far they can push the principle of majority voting. Collective financial responsibility might be better ensured through political compromise rather than through legal measures.

E.  The Financial Situation of the United Nations 130  The regular budget of the UN has continuously been increased. For the biennium 2010–11, the budget appropriations adopted by the GA total about US $5.16 billion,120 an incredible figure for the unacquainted observer, just a fractional amount, in fact, (p. 606) compared to the budget of the European Union or national budgets of UN member States themselves. Nonetheless, the work of the Organization has been accompanied by financial crises and the permanent quest of member States for more value for money during most of its existence. The withholding of assessed contributions and the arrears from delayed payments entailed chronic financial problems which time and again took on crisis dimensions seriously endangering the implementation of the Organization’s functions and tasks. During the recent period of general growth, the negative effect of fluctuations in contributions has been limited, improving the Organization’s overall cash position, even allowing a positive perspective.121 131  Since the early years, member States have seen a host of reasons for withholding their dues to the regular budget and peacekeeping operations. Not only do arrears result from domestic budget problems, humanitarian emergencies, and natural disasters at home as well as global economic and financial crises; more often political motives are involved.122 From a legal point of view this has never been acceptable. Seen from a political angle,

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member States realize after weighing the pros and cons of such decisions that withholding dues weakens their position in the GA in the long run.123 132  The four main indicators for the financial situation of the UN comprise the assessments issued, unpaid assessed contributions, available cash resources, and the Organization’s outstanding debt to member States.124 Member States approach the payment of their assessed contributions differently, whether this is with regard to the regular budget, the peacekeeping budgets, or smaller accounts such as the tribunals or the capital master plan. The number of the 192 member States having paid all those assessed contributions only amounts to twenty-nine (twelve of them members of the EU) as at 10 May 2011.125 The number of member States paying in full their regular budget assessment at year end adds up to 140 on average.126 133  Thus it is not the number which is of importance, but the amount withheld or delayed. Although member States should pay their contributions by 1 January, payments are often made only later in the year or the following year. As at 31 October 2010, for instance, payments and credits of only 72.4 per cent (US $1.568 billion) against the 2010 assessment (US $2.166 billion) had been received for the regular budget.127 As at 10 May 2011, the amount outstanding for the 2010 overall assessment added up to US $938 million amounting to US $3.275 billion altogether.128 134  One important factor giving rise to such amounts is the insufficient effectiveness of the sanction the Charter provides to induce delinquent member States to pay. Article 19 (p. 607) UNC stipulates that a member State which is in arrears in the payment of its financial contributions to the Organization shall have no vote in the GA if the amount of its arrears equals or exceeds the amount of the contribution due for the two preceding years. Over the years, Art. 19 UNC has proven to be too lenient to be a deterrent. On the contrary, a number of member States see its function as giving them a permanent grace period of just under two years, and they pay up only as much as is needed to avoid the loss of their voting right. Attempts to reinforce Art. 19 UNC and/or introduce other more effective sanctions or to grant incentives have so far failed.129 135  As another palliative measure to cope with cash shortages, the Organization has, since 1972, repeatedly on occasions of imminent need authorized the SG to retain surpluses arising at the end of a biennium by suspending the respective financial regulations that foresee returning or crediting those surpluses to member States. A general suspension, proposed by the SG in his reform proposals of 1997, to the effect that any unspent balances under the regular budget at the end of the fiscal period would be retained in the future was, however, not endorsed because of the potential disadvantages for those member States that paid their assessments in full and on time, and for fear that such a concession could stimulate over-budgeting.130 136  Looking at the individual assessment rates of the membership as measured mainly by the estimates of gross national income,131 it can be seen that only the largest, or a group of larger contributors, or those of the middle category over a very long period of time, can bring the Organization into a financially precarious situation. 137  In 2000, the last year in the scale period 1998–2000 with the United States at a maximum rate of 25 per cent,132 only sixteen member States were assessed at 1 per cent and more, and in aggregate were held liable for a total of 87.782 per cent. UNGA Res 55/5B (2000) substantially revised the scale of assessments, lowering the maximum contribution by any member State to the regular budget to 22 per cent, but reaffirming the minimum contribution at 0.001 per cent and the maximum contribution from LLDCs at 0.01 per cent. The eighteen member States paying more than 1 per cent were assessed for the last year of the scale 2001–03 at 88.157 per cent, with the American share decreasing to 22 per cent and the Japanese, German, and French shares equally going down compared to the scale 1998–2000. In 2010, still only eighteen member States paying more than 1 per cent bear a From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

total of 84.733 per cent with a share of 22 per cent from the United States, 12.53 per cent from Japan, 8.018 per cent from Germany, 6.604 per cent from the United Kingdom, and 6.123 per cent from France.133 Compared to the scale period 2007–09, the shares of the latter—except for the United States whose share is already too low according to its gross national income134—have been reduced, whereas those of the economically rising BRIC countries (Brazil, Russia, India, and China) have increased, in the hope that they will assume further political responsibility. In the last decade, the accumulated financial burden of the three largest contributors (p. 608) (the United States, Japan, and Germany) has been reduced by 8.593 per cent, now totalling 42.548 per cent.135 138  Large-scale withholding endangered the Organization in the 1960s, when for reasons of principle the Eastern bloc and some Arab countries refused to accept obligations under Art. 17 to finance UNEF I and were joined by France in their refusal to support financially the large-scale peacekeeping operations in the Congo. It took years to reach an agreement on peacekeeping operations funding in the 1970s. The membership had agreed not to apply Art. 19 UNC, so that the financial calamity could be averted. 139  The arrears in payment of the contributions forced the UN to borrow internally from other accounts and to delay payments. In 2011, a few of the sixteen ongoing peacekeeping missions136 continue to be affected by cash shortages, making cross-borrowing from the accounts of closed peacekeeping missions a standard but not a legal procedure.137 For a number of main contributors this is a strong argument against attempts to unify the peacekeeping accounts as cross-financing and finally subsidizing by those who pay their arrears in full would become daily practice. 140  From 1985, the United States announced its intention to withhold and delay considerable portions of its due payments in order to achieve savings in its national budget (Gramm-Reidmann-Hollings Deficit Reduction Act), and enforce a change in budgetary and administrative procedures of the UN, and restructure the Organization (Kassebaum Amendment, Helms-Biden Legislation). As a result, a new dimension of the financial crisis and a crisis of confidence were created.138 141  There were glimmers of hope for sound UN finances since the SG, in April 2000, reported that 1999 had been a year of financial turnaround with higher year and cash balances, lower unpaid assessments, and a lower debt to member States for troop and contingent-owned equipment.139 After a high amount in payments in 2001, the SG concluded that the UN was now able to begin putting its financial house in order and bringing financial stability within reach. In order to help member States to track the status of their contributions, thus enhancing the overall payment attitude at last, an online portal was finally launched in 2010.140 142  Despite the overall improvement and encouraging signs of progress in the financial situation of the Organization at the end of 2010, unpaid assessed contributions continue to be heavily concentrated among a few member States.141 Unpaid assessments to the regular budget were US $220 million in 1999 compared to US $351 million in 2010, with the United States, Mexico, Venezuela, Iran, and Hungary owing nearly 99 per cent of the unpaid amounts for 2010.142 Yet debt to troop-contributing countries was drastically reduced from US $917 million on 1 January 2001, to US $748 million on 31 December (p. 609) 2001, and from US $787 million on 1 January 2010 to US $539 million on 31 December 2010, with Pakistan, Bangladesh, India, and Egypt being the largest debtees.143 The level of unpaid contributions for tribunal assessments was comparatively low, at US $27 million as of 31 December 2010, which is around 10 per cent of the assessment; the largest debtors in this area were the United States (12 per cent), Mexico (3 per cent), and Indonesia (2 per cent).144 Regarding peacekeeping operations, UNGA Res 55/235 (2000) reformed the methodologies for apportioning the expenses, replacing the ad hoc arrangements in place since UNGA Res 3101 (XXVIII) (11 December 1973) and creating a set of ten levels. The

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apportionments range from a premium payable by the five permanent member States of the Security Council with their special responsibilities concerning peace and security operations (Level A) to a 90 per cent discount for LLDCs (Level J).145 Even so, the outstanding assessments for peacekeeping operations grew broadly, amounting to US $2.461 billion by the end of 2010, with 44 per cent owed by Japan and the United States alone.146 It stands to reason that developing countries in particular express their discontent in that regard and consistently strain the special responsibility of permanent SC members as well as the need to ensure reimbursement of troop-contributing—many of them developing—countries.147 143  On the other hand, main contributors see the necessity for further reform of the scale of assessment for peacekeeping operations. Emerging powers, once they enjoy similar national incomes, cannot claim never to be assessed according to the scheme of industrialized countries. In this regard, the GA in December 2009 has not been able to reform the scale of assessments for peacekeeping operations and decided to review once again the agenda of the 67th GA.148 144  Nevertheless, the fact that total contributions for operational activities for development of the UN System outgrew the number of total ODA in the last fifteen years, illustrates the confidence in the UN System. The funding base for operational activities for development broadened significantly between 1994 and 2009 with the share of multilateral organizations (excluding the European Commission) and private sources of total contributions increasing from 7 to 19 per cent. Contributions from developing countries grew by some 75 per cent in real terms between 2005 and 2009 alone.149 145  The relative stability of available resources, however, seems to be more the result of coincidence than of a well-functioning funding system that is heavily dependent on annual voluntary contributions.150 Furthermore, the growing imbalance between unrestricted core and highly fragmented restricted non-core funding may distort overall programme priorities.151 What is problematic is the method of withholding payments to the regular budget, but making generous voluntary contributions carrying particular (p. 610) conditions and thereby exerting influence on mandates. Such fragmentation and deficient predictability of funding are contrary to the overall efforts towards coherence, efficiencies, and reduction of transaction costs.152 146  In 2009, only 27 per cent of total funding for operational activities for development was in the form of core resources. Those core resources, however, form the basis of the operational activities for development due to their untied nature.153 In that regard, the GA notes with concern that the share of core funding for development-related activities declined from 69 per cent in 1994 to only 34 per cent in 2009, whereas increases in funding by multilateral organizations (excluding the European Commission) and private sources were mostly in the form of non-core resources; funding in that field—more and more through pooled funding mechanisms such as thematic funds and multi-donor trust funds including the Millennium Development Goal Achievement Fund and One UN Funds at the country level—increased by four and half times in real terms between 1994 and 2009 against a 2 per cent increase in core contributions.154 This development is calling for new control mechanisms on both contents and budget as such funds and programmes may lose their multilateral nature and turn out to be mere executing bodies of bilateral development politics.155 The fact that only ten OECD/DAC countries accounted for 65 per cent of total core resources for development-related activities in 2009 indicates that the burden-sharing of core funding in this respect remains an issue and needs to be improved.156 The way towards a more equal burden-sharing by shifting non-core to core contributions is yet to be specified.157

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F.  Administrative and Budgetary Coordination Between the United Nations and the Specialized Agencies, Article 17 (3) 147  The Preparatory Commission considered the coordination between the UN and the specialized agencies with regard to administrative, financial, and budgetary matters to be the main objective of Art. 17 (3) in order to secure efficiency and economy within the UN System. It was not intended to confer on the GA any special financial power for controlling the specialized agencies. ‘Administrative and budgetary coordination’ is also the title of the agenda item during GA sessions dealing with agreements, arrangements, relationships, and common practices between the UN and the specialized agencies in the fields of budget, finance, and administration. The authority to examine and approve arrangements and to examine the administrative budgets of the agencies laid down in Art. 17 (3) provides a basis for the GA to take up all questions of common interest in the above areas. 148  Recommendations by ECOSOC and the GA have been part of the development of relations between the agencies since the first agreements were concluded according to Arts 57 and 63 UNC. In particular, the ACABQ was called upon to examine the agency relations ‘on behalf of the GA’ and to make proposals. Subsequently, the reviews and reports (p. 611) by the Committee for Programme and Coordination (CPC), the Joint Inspection Unit (JIU), or periodically established ad hoc committees also gained importance. The agencies for their part responded by harmonizing and coordinating procedures, regulations, and services within the framework of the Administrative Committee on Coordination (ACC) under the SG’s chairmanship and within such subsidiary bodies of the ACC as the Consultative Committee on Administrative Questions (CCAQ). The GA also set up statutory bodies such as the UN Joint Staff Pension Fund (UNJSPF), the International Civil Service Commission (ICSC), and the aforementioned JIU, which the agencies joined of their own accord, giving the rules and regulations and the decisions of these institutions System-wide effect.

I.  The Scope and Extent of Arrangements in the Relationship Agreements 149  The agreements concluded between the UN and the specialized agencies as well as IAEA according to Arts 57 and 63 provide a framework for the development of their relations, covering to a varying degree cooperation in administrative, personnel, budgetary, and financial questions. The agreement with UNIDO is particularly comprehensive, as UNIDO evolved from an organ of the GA into a specialized agency, and therefore has a tradition of administrative and budgetary management similar to that of the UN itself. The agreement stipulates an obligation to consult in all administrative matters of common concern, in particular with regard to the most efficient and harmonized use of facilities and staff through mutual support, common services, and close cooperation between regional and branch offices. Both parties confirm their acceptance of the statutes of the ICSC and UNJSPF. Close budgetary and financial relations are recognized as being important to ensure that the administrative operations are carried out in the most efficient and economical way. UNIDO accepts the statute of the JIU and undertakes to conform, as far as practicable, to standard practices and forms recommended by the UN. The agreements with IFAD and WIPO are less far-reaching. The former, for example, does not envisage consultations with the SG on the preparation of the budget and only provides for a transmission of the administrative budget, while the latter agreement makes no mention of the ICSC statute or participation in the UNJSPF.

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150  The earlier agreements, while covering similar ground to that of UNIDO, had still foreseen a much closer relationship between the UN and the agencies, especially with regard to their financial and budgetary policies. The agreements with UNESCO and the FAO go furthest in this respect and contain clauses referring to arrangements for including the budget of the agencies within a general budget of the UN, whereas the agreements with the ILO, ICAO, WHO, WMO, and IMCO (now IMO) still envisage consultations on the desirability of such arrangements. The agreements also provide for the UN to undertake the collection of contributions from members of the agencies who are also members of the UN. The IAEA agreement is similar but lacks the reference to the inclusion of the agency budgets in that of the UN and to the collection of contributions of the UN. The agreements with the UPU and ITU are simpler, providing only for the transmission of their budgets to the UN, apart from recognizing the general goal of achieving as much uniformity as possible. In contrast to these agreements, those with the IMF and the World Bank emphasize the full budgetary autonomy of the financial institutions.

(p. 612) II.  The Development of Relations Between the United Nations and Specialized Agencies 1.  Budgetary and Financial Procedures 151  The inclusion of agency budgets in a consolidated general budget of the UN, considered during the UN’s first years of existence, has not been seriously pursued. Yet, there is some inter-agency support for harmonizing financial rules and regulations. The initiative started in October 2006, involving the Comptrollers of the UN Secretariat, UNDP, UNFPA, WFP, and UNICEF. Given the differences in sizes and structures of the UN System organizations, in procedures of their governing bodies, and in the nature of their activities and mandates, however, harmonizing all areas of operations of all organizations without fundamental changes has its limits.158 Thus, a standard format for all budgets has been out of reach so far. Instead, the GA tried early on to coordinate essential elements of the budget presentation, which resulted in a certain synchronization of planning and budget periods, common definitions of the nature and scope of programme budget elements, the formulation of common budgeting principles and standards, and the establishment of methods for making cost estimates. Also, most agencies adopted financial regulations generally in line with those of the UN. 152  No practical steps were undertaken for the UN to collect contributions for specialized agencies, as envisaged in some of the relationship agreements. In the first years of the UN, the ACC and the GA kept under review the question of a common approach to the problem of arrears and the financing of budgets pending the receipt of contributions, as well as the harmonization of assessment methods. Nearly all specialized agencies base their contribution system on the elements of the UN scale for the regular budget. 153  A Joint Panel of Auditors for the UN and specialized agencies was introduced by UNGA Res 347 (IV) (24 November 1949). Its members were to audit the accounts of all organizations in rotation. In practice, however, every agency chooses its own auditors. The Joint Panel, consisting of all auditors of the UN and the agencies including the IAEA, meets annually in order to coordinate their work, exchange information, and pass recommendations for the harmonization of accounts and financial procedures. 154  The JIU was established in 1976 by UNGA Res 31/192 (12 December 1976). The eleven inspectors serving in their personal capacity have the broadest power of investigation in all matters bearing on the efficiency of the services and proper use of funds, with the aim of improving management methods and achieving greater coordination between organizations. Through its reports and recommendations, JIU had (and still has) a

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marked influence on the development of UN program planning, budgeting, and performance reporting.159

2.  Common Services 155  Considerable effort has been devoted by the UN and the agencies to avoiding competing or overlapping facilities and the duplication of activities, and to granting each other support services while at the same time regulating cost-sharing. Especially in Geneva, Vienna, and Nairobi, where (in addition to the UN) several specialized agencies or their regional offices, and some autonomous UN institutions are located, common services such as documentation, telecommunications, and building management were installed. (p. 613) The Secretariats of the UN and of the regional Economic Commissions, as well as the offices of the resident coordinators, grant assistance in staff administration, accounting, and procurement to smaller branches of other organizations. For operational activities within the UN System, the coordinated utilization of staff, experts, equipment, and services, as well as cooperation in procurement, are essential for greater efficiency and require continuous improvement. In practice, the development of common services has over time been seriously hampered by the system’s culture of ‘turf protection’ and the lack of faith that one organization will protect the interests of the others. The efforts have, however, gained fresh impetus since, in 1997, the expansion and strengthening of common services became one of eight strategies in the SG’s new vision for management set out in his programme for reform,160 which is geared towards delivering support services that are cost-effective, high quality, and timely. Current available indications seem to suggest that the benefits outweigh the costs of coordination of operational activities for development of the UN System.161 The resident coordinator system is the main mechanism of the UN development system for coordinating its support to national development, recovery, and transition in programme countries. Over the past few years, it has undergone several changes with a view to providing more effective and coordinated support. A major impulse to this reform has been given by the adoption of the management and accountability system for the UN development system by the United Nations Development Group in 2008.162

3.  Programme Coordination 156  With the concentration of available technical, administrative, and financial resources in mind, the GA started early on to request that ECOSOC review the programmes of the agencies and attempt a comprehensive financial appraisal of all activities in the UN System.163 The question of coordination and the setting of priorities have occupied the GA and ECOSOC ever since. With the objective of achieving greater productivity and efficiency through economies of scale and related advantages, programme coordination has continued to retain the attention of the CPC. Coordination and cooperation among the UN and the agencies is carried out under the supervision of ECOSOC through the machinery of the ACC, which meets annually with the CPC for a System-wide analysis of programmes.164 The review of all aspects of coordination in the UN has become a permanent task of the CPC, and it is explicitly or implicitly an agenda item at all GA sessions. 157  Strengthening the UN in the economic and social field encompasses both structural reforms and changes in the approaches to cooperation and administration. In recent years, simplification and harmonization of business practices has become more important and visible on the UN reform agenda; a number of innovations initiated at country level led to tangible efficiency gains and cost savings.165 It culminated in the 2007 (p. 614) Triennial Comprehensive Policy Review of UN operational activities for development (TCPR) calling upon UN organizations to harmonize and simplify their rules, and most recently in GA legislation on System-wide coherence.166

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III.  The Examination of the Budgets of Specialized Agencies 158  In practice, the examination of agency budgets by the GA is confined to a broad review by the ACABQ of their major characteristics and a consideration of the underlying financial policies. The ACABQ’s report contains short analyses of the agencies’ budgets— not only of their administrative budgets—with information on the main budgetary estimates, established posts, contributions by member States including voluntary payments, and working capital funds in the form of general comments and tables. With the adoption of biennial budgeting by many organizations, the ACABQ suggested and the GA agreed upon a system of biennial reports whereby a more detailed account of the agencies’ budgets would be submitted.167 Examples of such broader issues taken up by the ACABQ are problems of cash flow and liquidity; a comparison of arrangements for programme planning, budgeting, and evaluation; the administration of justice and procedures for the redress of staff grievances; and electronic data-processing and computer-based communications. No attempts have been made at an exhaustive examination of the agencies’ budgets, which remains the responsibility of the competent body of the agency concerned. Recently, the ACABQ’s controlling function may be questioned, given its cautious recommendations in 2009.168 Due to the heavy workload, the ACABQ as well as the GA lack the time for in-depth studies of this kind.

G.  Past Reforms and New Perspectives I.  Budgetary Reform 1986 159  The UNGA Res 41/213 (19 December 1986) addressed the budget process and aimed, in general terms, to intensify the participation of member States in the preparation of the programme budget throughout the process in search of the widest possible agreement. 160  The resolution thus produced a compromise solution to a long-lasting conflict between two different perceptions of the procedure to be followed when preparing a budget: namely, whether the member States should instruct the SG to propose a budget on the basis of an overall resource amount proposed by them because they knew best what would be sustained in terms of budget growth by their national administrations, or whether the SG should submit a proposal based on his view of what he would require to implement the mandates entrusted to him. 161  The resolution sets out the following framework: in off-budget years, the SG submits an outline of the programme budget for the following biennium which contains a preliminary estimate of resources to accommodate the proposed activities, priorities reflecting general trends of a broad sectoral nature, the rates of real growth, positive (p. 615) or negative, compared to the previous budget, and the size of a contingency fund. The CPC then considers the programmatic aspects of the outline proposal and submits its conclusions and recommendations to the GA. Simultaneously, the ACABQ deals with the outline in accordance with its terms of reference and also reports to the GA which then decides the outline. 162  In budget years, the SG submits, on the basis of the GA’s decision on the outline, his proposed programme budget to the CPC and ACABQ which in turn submit their conclusions and recommendations to the GA via the Fifth Committee for the final approval of the budget. 163  Another important innovation of UNGA Res 41/213 is the incorporation of estimates for activities of a perennial character. The reform resolution further expands on the Contingency Fund (CF), which accommodates additional expenditures during the biennium deriving from legislative mandates not provided for in the programme budget or from revised estimates. It is in this context that the resolution calls for a comprehensive solution to the problem of additional expenditures. Pending this comprehensive solution, revised

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estimates that are due to extraordinary expenses, including those relating to the maintenance of peace and security and fluctuations in rates of exchange and inflation, continue to be treated in accordance with established procedures. The member States expected, however, that the SG would be in a position to absorb some of these expenditures through savings. Finally, the GA also addressed the situation where more requests for additional expenditure were made than resources were available in the CF. In this case, such additional expenditures can only be included in the budget by redeploying resources from low-priority areas or by modifying existing activities. Otherwise, such additional activities have to be deferred until a later biennium. 164  In 1987, the GA established further details on the outline and the operation of the CF in its Res 42/211. It stipulates that the GA decides in off-budget years the size of the fund, the date for its presentation being 15 August, and that the size of the fund is given in percentage as well as in monetary terms so that utilization could commence in the year before the biennium. Thus a dollar amount was needed before the decision on the programme budget was taken. Those decisions would be taken on the basis of revised estimates or statements of programme budget implications (PBI) given, in accordance with the procedures established since UNGA Res 38/227 (2 December 1983). 165  Based on the legislative directives contained in UNGA Res 41/213 and 42/211, the SG has so far presented twelve budget outlines to the GA.169 166  A quick glance at the outlines and programme budgets adopted by consensus (which is more than UNGA Res 41/213 had requested) with negative or negligible growth suggests that after an initial phase of trial and error, this reform step helped to contain budget growth. The budget levels from 1994–95 to 2000–01 were the same or lower circling around the general goal of the United States and other major contributors of zero nominal growth (ZNG). After 2000–01, however, the budget has increased continuously from US $2,535 million for 2000–01 to US $5,456 million for 2012–13. The CF has been set at 0.75 per cent since the first outline.

(p. 616) II.  Development since 1996 167  Reform is a permanent process for the UN System, and comes in waves. In general, it puts strain on the financial system as adaptation to new challenges has a tendency to result in budgetary growth. As all reform steps have to be reflected in the budget, they dominate the deliberations of the Fifth Committee. 168  In 1996, Secretary-General-designate Kofi Annan outlined goals to make the United Nations leaner, more efficient and more effective, more responsive to the wishes and needs of its members, and more realistic in its goals and commitments. His report on ‘Renewing the United Nations: A Programme for Reform’170 underlining his commitments, was adopted by the GA one year later.171 In September 1996, the Geneva-based human rights programmes were merged into a single Office of the High Commissioner for Human Rights. In January 1997, the Department of Disarmament Affairs was established, followed by the creation of a position of Deputy Secretary-General in 1998. A Strategic Planning Unit was established within the Executive Office of the SG. In 2000, the Global Compact, the SG’s initiative to engage businesses, labour, and civil society organizations in promoting basic UN principles, was launched. The ‘Brahimi Report’ on United Nations Peace Operations recommended sweeping changes in peacekeeping strategy, doctrine, and operations.172 Reforms were also outlined in the area of Human Resources Management.173 The Millennium Summit was held at United Nations Headquarters from 6–8 September 2000, and 147 Heads of State and Government and 191 nations in total adopted the United Nations Millennium Declaration—a landmark document giving clear directions for adapting the Organization to the new century. The GA endorsed a watershed resolution on resultsbased budgeting.174 In 2001, an electronic Integrated Management and Information System (IMIS) was instituted and the Staff College in Turin was inaugurated as an independent From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

entity. In 2002, the SG’s second major package of reform ‘An agenda for further change’ was issued,175 but the reform process experienced a phase of exhaustion. It was the World Summit, a follow-up summit meeting to the United Nations’ 2000 Millennium Summit, which discussed management reform again and requested the SG ‘to submit proposals for implementing management reforms to the General Assembly for consideration and decision in the first quarter of 2006’.176 As a first reform element, the Peacebuilding Commission was established ‘to marshal resources at the disposal of the international community to advise and propose integrated strategies for post-conflict recovery, focusing attention on reconstruction, institution-building and sustainable development, in countries emerging from conflict’. The Ethics Office began its operation in 2006; the Human Rights Council was established in the same year, replacing the Human Rights Commission. The GA granted the SG limited budgetary discretion, approved the creation of a Chief Information Technology Officer, and endorsed the development of an Enterprise Resource Planning system for the Organization. The process to redesign the UN administration of justice (p. 617) system started,177 resulting in the establishment of new units chaired by professional judges for the first time in the history of the Organization—the UN Dispute Tribunal and Appeals Tribunal (UNDT, UNAT)—in 2009.178 In 2007, the Department for Field Support was created179 by a split from the peacekeeping department, DPKO, headed by a USG, to provide support in the areas of finance, logistics, information, communication and technology, human resources, and general administration to help missions. In 2010, the UN Entity for Gender Equality and the Empowerment of Women—known as UN Women—was established, merging the Division for the Advancement of Women (DAW, established in 1946), the International Research and Training Institute for the Advancement of Women (INSTRAW, established in 1976), the Office of the Special Adviser on Gender Issues and Advancement of Women (OSAGI, established in 1997), and the UN Development Fund for Women (UNIFEM, established in 1976).180 169  The 2005 summit also requested a review of mandates. In 2006, about 9,000 mandates of the GA, SC, and ECOSOC were counted.181 The process proved to be a remarkable failure. Member States were not able to agree on the abolishment of mandates and the process came to a standstill. 170  In considering the evolution of budgetary and administrative practice in the UN, the development of political relations between member States and their general attitude towards the Organization’s policies have to be kept in mind.182 Two tendencies influence the budgetary process: the major contributors are in a permanent structural minority and States organized themselves into caucus groups, the G77 and the EU in particular. Since 1986, the Fifth Committee has worked on the understanding that decisions on budgetary questions need to be taken by consensus183 as the UN’s major financiers see consensus as a way to prevent the majority, although contributing only to a small fraction of the budget, from allocating funds on the expenses and possibly against the will of major donors. As blocs were formed, the negotiation process became less flexible as the number of participants and of possible alternative solutions was reduced. With the further integration of the EU under the Treaty of Lisbon this process is still progressing.

III.  Reforms in the Past Decade 171  Recent reform debates in the GA and its committees drew attention to fundamental differences that exist among some member States, particularly developing countries (represented primarily by the Group of 77 and China), and developed countries (including the United States, Japan, and the Member States of the European Union). Developed countries, which account for the majority of assessed contributions to the UN regular budget, would like the SG to have greater flexibility and authority to implement reforms, specifically those related to oversight and human resources. Developing countries, however, generally object to policies that may enhance the power of the SG and decrease the power of the GA and its budget and administrative committees. Observers are concerned (p. 618) From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

that this difference in reform philosophy will create a deadlock in the GA and significantly delay the implementation of some key management and budget reforms. 172  The UN’s system of budgeting was transformed from focusing on a detailed description of inputs and resources to one that identified intended outcomes and measurable indicators of achievement. In 2003, the budget documents themselves were shortened and made more strategic. The long-range planning cycle was reduced from four years to two, and a duplicative intergovernmental review eliminated. In addition, the UN’s financial rules and regulations were updated and consolidated. In his latest reform report, the SG recognizes the need for a more comprehensive overhaul of the existing budget rules and processes. As the bulk of financial responsibility is still carried by the EU members and a few other States, and as some individual shares rest upon political compromise rather than pure mathematics, the GA decided to review all elements of the methodology of the scale of assessments for the 2013–15 scale period.184 173  Overall, the Organization has been able to do ‘more with less’ and live within three consecutive budget cycles of zero or very limited nominal growth in the Organization’s regular budget. 174  The issue of the SG’s budgetary discretion has been a matter of some debate. The SG made another push for greater discretion in his March 2006 reform report ‘Investing in the United Nations: for a stronger Organization worldwide’, in the light of the recent difficulties observed in responding effectively to crises and emerging priorities.185 The GA decided to approve a modest package of reforms granting the SG limited budgetary discretion, amounting to a spending authorization of US $20 million per biennium for the periods 2006–07 and 2008–09. 175  Stakeholders engaged in the UN reform debate have different perspectives on how UN reform should be implemented and how to prioritize specific UN reform issues. A significant challenge for advocates of UN reform is finding common ground among the disparate definitions of reform held by various stakeholders. The global community has no common definition of UN reform and, as a result, there is often debate among some over the scope, appropriateness, and effectiveness of past and current reform initiatives. One method for determining how a stakeholder defines ‘UN reform’ may be to identify policy priorities in the UN reform debate. In some cases, common objectives among stakeholders have translated into substantive reform policy, though shared goals do not always guarantee successful outcomes.186

IV.  International Public Sector Accounting Standards (IPSAS) 176  On 30 November 2005, the High-level Committee on Management (HLCM), which promotes harmonization of business practices across the UN System, made the landmark recommendation that UN System organizations move from the internally (p. 619) developed United Nations System Accounting Standards (UNSAS) to the International Public Sector Accounting Standards (IPSAS) for the presentation of their financial statements.187 IPSAS had become accepted as international best practice for accounting and reporting by governments and international governmental organizations, and was believed to improve the quality, comparability, and credibility of financial reporting within the UN System by setting a common measurement basis for evaluating financial results System-wide. The HLCM recommended that all UN System organizations adopt IPSAS effective no later than 2010. 177  The ACABQ, in its related report,188 recommended the adoption of IPSAS by the UN, but noted that IPSAS implementation activities would need to be synchronized with progress towards the introduction of a new information technology system for the Organization. Consequently, in its Res 60/283 in July 2006, the GA approved the adoption of IPSAS by the UN in tandem with a System-wide move to adopt the Standards. The same

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year, the HLCM established a jointly funded System-wide project to support the development of a harmonized framework of IPSAS-compliant policies and achieve economies in addressing common IPSAS implementation issues across UN System organizations. By the end of 2007, the System-wide project team had developed a portfolio of IPSAS-compliant policies and guidelines that has been accepted by UN System organizations. Noting that a common System-wide approach to training involving the three phases of assessment, the procurement of training packages, and the deployment of training was being pursued, the ACABQ stressed the importance of ensuring that staff are fully trained in IPSAS in advance of its implementation.189 In 2009, a suite of eighteen training courses on IPSAS was developed to further support harmonization of IPSAS implementation. Within the UN itself, IPSAS adoption is linked to the System-wide timetable and the UN enterprise resource planning project.190 According to the report of the ACABQ,191 the System-wide IPSAS adoption envisioned a ‘two-level’ approach and phased implementation. The two-level approach involved providing resources at both the Systemwide level and individual organizational level. At the System-wide level, harmonized IPSAS policies and guidance were developed through a consultative process; at the individual organization level, each entity was responsible for establishing its own project team and dedicating sufficient resources. 178  The Secretary-General submitted his first progress report on the adoption of IPSAS in April 2008,192 communicating a target date of 2011 for IPSAS adoption; that target date was adjusted to 2012. The SG reported that, since approval of the System-wide IPSAS project, progress had been most evident in the areas of project governance and organization, the development of IPSAS-compliant harmonized accounting policies and guidance, and communication and training. In his second progress report,193 the SG stated that the strategy and timeline of Umoja, the UN project to implement a new (p. 620) enterprise resource planning system, had been adjusted and as a result, the target date for the first full set of IPSAS-compliant financial statements for the Organization had been revised to 2014. Over the review period, the UN IPSAS Implementation Project made significant progress towards that goal in the areas of accounting policies and guidance, and change management activities. Further, the IPSAS Project Team partnered with the Umoja Project Team towards the goal of an IPSAS-compliant Umoja design. In his third progress report in August 2010,194 the SG points out that the implementation of IPSAS is far from being only an accounting project; as IPSAS-compliant accounting policies are put in place, there is a need to change procedures, detailed workflows, and instructions, as well as the control framework that underpins financial accounting and reporting. The result will be a major organizational change impacting the business process and general management. It has been recognized that the vigorous information requirements to produce IPSAScompliant financial statements for the Organization require a change to a robust, global information system. In view of a certain amount of flexibility in the interpretation of how IPSAS accounting standards should be applied, the ACABQ recently encouraged the Board of Auditors to provide, on request, advice and guidance on matters relating to the interpretation of IPSAS standards to ensure a consistent approach across the UN System.195 179  The WFP, which already adopted IPSAS in 2008, is the only UN System organization to have successfully implemented IPSAS so far. All other UN System organizations continue to make progress towards implementing IPSAS. As more experience was gained regarding the complexities involved in the implementation of IPSAS, concerns emerged in 2008 regarding the readiness of the other UN organizations with regard to the 2010 timeline. Recognizing this, the HLCM asked organizations to review and adjust their IPSAS target dates. As a result, many organizations revised their original IPSAS target dates as dictated by unfolding realities related to required changes to information systems and policies and

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procedures, as well as the scale of change management activities required. Half of the organizations are now aiming to implement IPSAS by 2012 or 2014 respectively.196

Footnotes: *  The original commentary on Art. 17, written by Rudolf Schmidt and continued by Wilfried Koschorrek, proved still to be a sound basis for the new edition. Very special thanks for their contributions to the revision of the commentary go to Movses Abelian, Eduardo Manuel da Fonseca Fernandes Ramos, Gönke Roscher, Nikolai K Wessendorf, and in particular Cecilia Michel. 1

  JG Stoessinger, Financing the United Nations System (The Brookings Institution 1964) 37f, further references on p 37 fn 4 and on p 39 fn 9. 2

  JD Singer, Financing International Organization. The United Nations Budget Process (Nijhoff 1961) 2f. 3

  UNCIO III, 5f.

4

  UNCIO III, 545; VIII, 354.

5

  UNCIO XVII, 40, 57.

6

  UNCIO VIII, 35, 193, 354, 418, 487.

7

  For details see Singer (n 2) 6f; RM, 862f.

8

  UN Doc A/520/Rev.17, Rules and Procedures of the General Assembly.

9

  UN Doc A/RES/45/248 B, UN Doc A/RES/48/248 B s VI, UN Doc A/RES/56/253.

10

  UN Doc A/RES/49/233 A.

11

  UN Doc A/RES/49/233 A.

12

  In accordance with UN Doc A/RES/46/220 (20 December 1991).

13

  UN DOC A/RES/58/126.

14

  This criticism applies not only to the Fifth Committee but also to other bodies and the related procedures. 15

  UN Doc A/RES/14(I)A (13 February 1946).

16

  UN Doc A/RES/32/103.

17

  United Nations Handbook 2010/11, 24.

18

  UN Doc A/RES/14(I)A.

19

  Report of the Preparatory Commission of the United Nations, PC/20, 104ff1; Singer (n 2) 9ff. 20

  UN Doc A/RES/31/96.

21

  ECOSOC Res 920 (XXXIV) (3 August 1962) E/RES/920(XXXIV); its present name was given by UN Doc E/RES/1171(XLI) in 1966. 22

  UN Doc A/RES/62/224.

23

  UN Doc A/RES/58/269 12, 13.

24

  JIU stands for Joint Inspection Unit. It is an independent external oversight body mandated to conduct evaluations, inspections, and investigations in the UN System. It was created on an experimental basis under UN Doc A/RES/2150(XXI) (4 November 1966) and extended thereafter under resolutions UN Doc A/RES/2735(XXV)A (17 December 1970) and UN Doc A/RES/2924(XXVII)B (24 November 1972). By UN Doc A/RES/31/192 (22 December 1976), the UNGA decided to establish the JIU as a standing subsidiary organ. The Unit is

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composed of not more than eleven Inspectors appointed by the UNGA. Inspectors serve in their personal capacity and are appointed for a term of five years, renewable once. 25

  UN Doc A/RES/42/318.

26

  UN Doc A/RES/55/248.

27

  UN Doc A/64/5/Add. 5 (10 July 2009) and UN Doc A/64/469 (10 October 2009).

28

  UN Doc A/RES/48/218B.

29

  For details visit accessed 18 June 2012.

30

  UN Doc A/RES/61/275.

31

  UN Doc A/RES/60/1 para 165(c).

32

  UN Doc A/RES/61/275.

33

  UN Doc A/RES/62/413.

34

  UN Doc A/62/413.

35

  UN Doc A/RES/58/269 and UN Doc A/RES/63/247.

36

  For the latest version of the current budget cycle consult the following website: accessed 18 June 2012. 37

  UN Doc A/RES/63/6/Rev.1.

38

  UN Doc A/RES/63/6/Rev.1.

39

  UN Doc A/63/600.

40

  The contingency fund is set at 0.75 per cent of the overall level of the outline which can be added to the budget to accommodate additional expenditures arising from programme budget implications of mandates or revised estimates of activities not foreseen in the proposed programme budget. 41

  UN Doc A/RES/64/6, intro.

42

  UN Doc A/65/70.

43

  UN Doc A/63/573.

44

  UN Doc A/64/545.

45

  UN Doc ST/SBG/PP BME Rules/1 (1987).

46

  UN Doc A/55/543 (Annex), A/54/6 pt 1 (i), UN Doc A/53/693.

47

  UN Doc A/53/500, UN Doc A/54/456.

48

  UN Doc A/51/950.

49

  UN Doc A/RES/55/231 (23 January 2001).

50

  See UN Doc A/54/456/Add.1-5, A/55/543; UN Doc A/RES/55/220 C and UN Doc A/RES/ 55/231. 51

  See UN Doc A/56/7/Add.5 paras 4–18; UN Doc A/58/7/Add.2 paras 6–29; UN Doc A/60/7/ Add.1 paras 6–34. 52

  For further reference see UN Doc A/RES/64/259.

53

  UN Doc A/520/Rev.17, Rules and Procedures of the UNGA; UN Doc ST/SGB/Financial Rules/2003/7; UN Doc ST/SGB/2000/8. 54

  UN Doc A/64/7/Add.19.

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55

  UN Doc A/RES/1/14.

56

  Rule 153 reads: ‘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.’ 57

  See D. IV.

58

  UN Doc A/54/250; UN Doc A/RES/55/239 A-C; UN Doc A/RES/56/254 A-C.

59

  Some have suggested weighted voting in the Assembly, based on population or other criteria. 60

  A/41/PV.102, 7ff; A/41/213 Annex.

61

  The vote in Plenary was 121 in favour, and fifty against, with two abstentions.

62

  UN Doc A/RES/60/260.

63

  MD Wallace, Explanation of vote in the Fifth Committee (22 December 2007) US Mission to the United Nations (USUN) Press Release 387 (07). 64

  See paras 9 and 35 of the Draft Res on the 2008/09 biennium budget.

65

  Statement by Ambassador MD Wallace, US Representative for UN Management and Reform, on the 2008/09 UN Budget in the Fifth Committee of the UNGA, 11 December 2007. 66

  UN Doc A/RES/62/237. The Fifth Committee acted on both draft resolutions on 21 December 2007 which were adopted by the UNGA the next day. See also UN Doc A/62/PV. 79. 67

  T Thomma, ‘Verwaltung und Haushalt’ (2008) 56 VN 132.

68

  UN Doc A/C.5/64/SR.22, 7.

69

  J Pfäfflin and J Stosberg, ‘Verwaltung und Haushalt’ (2010) 58 VN 82.

70

  The Working Capital Fund was established in 1946. In 1982, the level of the Fund was set at US $100 million, and in July 2006, the GA decided that the level should be increased to US $150 million effective 1 January 2007. 71

  UN Doc A/54/253; UN Doc A/RES/56/257.

72

  Chief Executives Board for Coordination, CEB/2003/HLCM/21 (3 November 2003).

73

  UN Doc A/RES/1739(XVI).

74

  Chief Executives Board for Coordination, CEB/2003/HLCM/21 (3 November 2003).

75

  Rules and Regulations Governing Programme Planning, Arts VI and VII in UN Doc ST/ SGB/2000/8 A/55/73: Programme Performance Report 1998/99. 76

  UN Doc ST/SGB/1997/5.

77

  UN Doc A/63/185, Budgetary and financial situation of the organizations of the United Nations system, Note by the Secretary-General, 30 July 2008, tables 1–3. 78

  The World Summit 2005 proposed a ‘Mandate Review’ to examine which of the over 7,000 mandates of the GA are no longer relevant. The lack of information on the resource

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implications of each mandate constituted sufficient justification for the General Assembly to discontinue the mandate review in September 2008. 79

  Two major crises were (a) in 1956 when the Soviet Union refused the financing of peacekeeping operations and (b) in 1986 when the United States reduced unilaterally their assessed contributions (following the Sen. Nancy Kasselbaum amendment to the Foreign Relations Act, which ruled that the US share should be reduced to no more than 20 per cent until the system was reformed). 80

  Final budgets (bienniums) in US $: 2.9 bn (2002/03); 3.6 bn (2004/05); 4.2 bn (2006/07); 4.8 bn (2008/09). 81

  Thomma (n 67) 131.

82

  UN Doc A/RES/55/231.

83

  For details visit accessed 18 June 2012.

84

  At its 49th session, in 1994, the General Assembly decided that the financial period for peacekeeping operations should be from 1 July to 30 June: UN Doc A/RES/49/233. 85

  UN Doc A/64/643.

86

  UN Doc A/RES/45/258.

87

  UN Doc A/RES/64/271.

88

  See UN Doc A/RES/61/276, s II, para 5.

89

  See agenda item rates of reimbursement to governments of troop-contributing countries in the session of the Fifth Committee. 90

  UN Doc A/RES/14(I)A, para 3 (13 February 1946).

91

  Rule 160 of the Rules of Procedure of the UNGA.

92

  UN Doc A/RES/64/248.

93

  Initially the CoC comprised ten members to be appointed by the UNGA (UNGA Res 14 (I) (13 February 1946) UN Doc A/RES/14(I)). Subsequently, membership increased to twelve (1968), then to thirteen (1972), and finally to eighteen members (UN Doc A/RES/31/95 (14 December 1976), also see Rule 158 of the Rules of Procedure of the UNGA). 94

  CoC Report A/64/11.

95

  ibid.

96

  CoC Report A/55/11 detailing evolution and elements of the current scale methodology.

97

  UN Doc A/50/11.

98

  Art. 18 (1) of the UN Charter reads ‘Each member of the General Assembly shall have one vote.’ Art. 18 (2) reads ‘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.’ 99

  UN Doc A/65/11.

100

  Committee on Contributions, Review of the methodology for the preparation of the scale of assessments for the period 2010–12, Note by the Secretariat, 16 March 2009. 101

  UN Doc A/RES/55/5 B.

102

  UN Doc A/RES/55/5 B-F, Annex I.

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103

  See Assessment of Member States’ Advances to the Working Capital Fund for the biennium 2008–09 and Contributions to the United Nations Regular Budget for 2008: UN Doc ST/ADM/SER.B/719, 8ff. 104

  US Ambassador to the UN John Bolton, Statement to House Appropriations Committee (5 April 2006). 105

  Statement on behalf of the European Union by HE Mr Anders Lidén, Ambassador and Permanent Representative of Sweden, at the General Assembly: Fifth Committee Item 136: Scale of assessments for the apportionment of the expenses of the UN (United Nations, New York, 5 October 2009). 106

  2nd meeting of the Fifth Committee, 5 October 2009, Press Release UN Doc GA/AB/ 3917. 107

  LM Goodrich and GE Rosner, ‘The United Nations Emergency Force’ (1957) 11 IO 413ff. 108

  UNGA Res 1000 (ES-1) (5 November 1956) UN Doc A/RES/1000 (ES-1).

109

  Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 179f.

110

  UN Doc A/RES/1854(XVII).

111

  The UNGA on the recommendation of the Fifth Committee (UN Doc A/9428) adopted the relevant resolution involving four levels (for UNEF) on 11 December 1973: UN Doc A/ RES/3101(XXVIII). 112

  (1992) UNYB 1023ff.

113

  UN Doc A/RES/55/235.

114

  UN Doc A/RES/64/249 and UN Doc A/64/220.

115

  The United Nations Charter was ratified by the United States on 8 August 1945 and entered into force 24 October 1945. There are currently (June 2012) 193 members of the United Nations. 116

  UN Doc A/RES/64/248.

117

  ibid.

118

  Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 169.

119

  ibid, 157.

120

  UN Doc A/RES/64/244, 1.

121

  UN Doc A/65/519; UN Doc A/65/519/Add.1.

122

  Fluctuations of exchange rates, however, might have a distortive effect on statistics as they might entail abrupt changes of contributions shown in US dollars without the respective member State having altered its political attitude: for details see K Hüfner, ‘Finanzbeiträge an das UN-System—Anmerkungen zur Aussagekraft von Statistiken im Spannungsfeld von Transparenz, Kohärenz und Rechenschaftskontrolle’ Global Policy Forum Europe Working Paper 5/2011, 5. 123

  Showing a new positive approach towards multilateralism, the US administration under President Barack Obama decided in 2009 to pay parts of its arrears owed to the UN which— given its tremendous amount outstanding—also eased the financial situation of the UN: for details see I Williams, ‘Obama, die USA und die UN’ (2010) 58 VN 64. 124

  UN Doc A/65/519/Add.1, 1.

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125

  UN Financial Situation as at 12 May 2011 by Under-SG for Management, 32.

126

  ibid, 3.

127

  UN Doc ST/ADM/SER.B/822, 4, 12.

128

  UN Financial Situation as at 12 May 2011 by Under-SG for Management, 33.

129

  UN Doc A/51/950; UN Doc A/54/7/Add.7.

130

  UN Doc A/54/7/Add. 7.

131

  For a list of all criteria see UN Doc A/RES/64/248, 2. The current gross national income of most UN member States can be found at (2011) 59 VN 46. 132

  When the United States was offered a reduction of its share from 25 to 15 % in 1985, the United States rejected this, as it would have meant a lessening of influence over the Organization: Williams (n 124) 65. 133

  UN Doc A/RES/64/248, 2ff; UN Doc ST/ADM/SER.B/822, 8ff.

134

  Pfäfflin and Stosberg (n 69) 82.

135

  (2010) 58 VN 79.

136

  For details on the financing of UN peacekeeping operations see the report of the SG: UN Doc A/65/715, table 1. 137

  UN Financial Situation as at 12 May 2011 by Under-SG for Management, 33.

138

  Murphy, 348ff.

139

  For details see UN Doc A/54/454 and Add.1, UN Doc A/56/464 and Add.1, UN Doc ST/ ADM/SER.B586, 27 February 2002. 140

  UN Financial Situation as at 12 May 2011 by Under-SG for Management, 33.

141

  UN Doc A/65/519/Add.1, 7.

142

  UN Financial Situation as at 12 May 2011 by Under-SG for Management, 5; UN Doc A/ 65/519/Add.1, 4. 143

  UN Financial Situation as at 12 May 2011 by Under-SG for Management, 19f; see also UN Doc A/65/519/Add.1, 6f. 144

  UN Financial Situation as at 12 May 2011 by Under-SG for Management, 1 and 23.

145

  UNGA Res 64/249 (2009) UN Doc A/RES/64/249 established the updated composition of levels of contribution for peacekeeping operations for the period 2010–12; see also UN Doc A/64/220/Add.1. 146

  UN Financial Situation as at 12 May 2011 by Under-SG for Management, 12.

147

  UN Doc A/C.5/65/SR.9.

148

  UN Doc A/64/249,19.

149

  See the recent report of the SG ‘Analysis of funding for operational activities for development of the United Nations system for 2009’, UN Doc A/66/79-E/2011/107, 2. 150

  UN Doc A/66/79-E/2011/107, 3.

151

  ibid, 5.

152

  ibid, 3; UN Doc A/RES/64/289, 6.

153

  UN Doc A/RES/64/289, 5.

154

  UN Doc A/66/79-E/2011/107, 2f; UN Doc A/RES/64/289, 5ff.

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155

  Hüfner (n 122) 12.

156

  UN Doc A/66/79-E/2011/107, 3.

157

  ibid, 5.

158

  UN Doc E/2011/88 paras 28 and 80.

159

  See n 24 and JIU/REP/99/3 and 2000/6.

160

  UN Doc A/51/950.

161

  See the recent report of the SG ‘Analysis of funding for operational activities for development of the United Nations system for 2009’, UN Doc A/66/79-E/2011/107, 4. 162

  For details see the report of the SG on ‘Functioning of the resident coordinator system, including costs and benefits’ as at 25 April 2011: UN Doc E/2011/86. 163

  A complete and comprehensive system-wide financial statistics database covering the years from 1996 to 2011 has been provided by the UN System Chief Executives Board for Coordination (CEB): A/65/187. 164

  UN Doc A/55/16; UN Doc A/55/706.

165

  For details see the report of the SG ‘Simplification and harmonization of the UN development system’ as at 25 April 2011: UN Doc E/2011/88. 166

  UN Doc A/RES/62/277; UN Doc A/RES/63/311; UN Doc A/RES/64/289.

167

  UN Doc A/53/7; UN Doc A/53/647 and Corr. 1; UN Doc A/53/713.

168

  cf Pfäfflin and Stosberg (n 69) 81.

169

  For the SG’s latest budget outline as at 5 November 2010 for 2012/13 see UN Doc A/ 65/560. 170

  UN Doc A/51/950.

171

  UN Doc A/RES/52/12.

172

  UN Doc A/55/305–S/2000/809.

173

  UN Doc A/55/253.

174

  UN Doc A/RES/55/231.

175

  UN Doc A/57/387.

176

  As requested, the SG published his report ‘Investing in the United Nations: for a stronger Organization worldwide’ containing twenty-two far-reaching reform proposals, in March 2006: for details see UN Doc A/60/692. 177

  UN Doc A/RES/59/283.

178

  UN Doc A/RES/63/253.

179

  UN Doc A/RES/61/279.

180

  UN Doc A/RES/64/289, 8.

181

  For details see UN Doc A/60/733.

182

  cf Claude, 831ff.

183

  UN Doc A/RES/41/213.

184

  UN Doc A/RES/64/248, 6.

185

  UN Doc A/60/692.

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186

  The groups’ member States discussed are only a few of many political and geographical alliances within the UN. Others include the Non-Aligned Movement, the Organization of the Islamic Conference, and the African Union. Israel is a temporary member of the Western European and Others Group (WEOG), but it is excluded from the system of regional groups outside of UN Headquarters in New York. The United States is not a member of any regional group but participates in WEOG as an observer and is ‘considered part of that group for the electoral purposes’. For details see Chapter 3 ‘Groups and Blocs’ in CB Smith (ed), Politics and Process at the United Nations: The Global Dance (Lynne Rienner Publishers 2006) 64. 187

  See document CEB/2005/HLCM/R.25.

188

  UN Doc A/60/870.

189

  UN Doc A/63/496.

190

  UN Doc A/62/510/Rev.1.

191

  UN Doc A/63/496.

192

  UN Doc A/62/806.

193

  UN Doc A/64/355.

194

  UN Doc A/65/308.

195

  UN Doc A/65/498 para 20.

196

  For a list of the twenty-two UN organizations to implement IPSAS according to the year targeted, see UN Doc A/65/308, 18. Additionally see documents UN Doc E/2011/104 para 60 and UN Doc E/2011/88 para 14.

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Ch.IV The General Assembly, Voting, Article 18 Rüdiger Wolfrum From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): International peace and security

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Article 18 (1) Each member of the General Assembly shall have one vote. (2) 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: 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, the election of members of the Trusteeship Council in accordance with paragraph 1 (c) of Article 86, the admission of new Members to the United Nations, 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. (3) Decisions on other questions, including the determination of additional categories of questions, to be decided by a two-thirds majority, shall be made by a majority of the members present and voting. A.  Introduction 1 B.  Legislative History 2–8 C.  Interpretation 9–19 I.  Equality of Votes 9 II.  Voting 10–19 D.  Practice 20–33 I.  Voting in General 20–29 II.  Non-Participation in the Vote 30 III.  Consensus 31–33 Annex: General Assembly Voting Records

Select Bibliography Bailey SD, The General Assembly of the United Nations, a Study of Procedure and Practice (Praeger 1964). Brinkmann M, Majoritätsprinzip und Einstimmigkeit in den Vereinten Nationen (Haag und Herchen 1978). Cassan H, ‘Le Consensus dans la pratique des Nations Unies’ (1974) 20 AFDI 456. Kaufmann J, United Nations Decision Making (3rd edn, Sijthoff & Noordhoff 1980). Kerley EL, ‘Voting on Important Questions in the United Nations General Assembly’ (1959) 53 AJIL 324. Lacharrière G de, ‘Consensus et Nations Unies’ (1968) 14 AFDI 9. Marín-Bosch M, Votes in the UN General Assembly (Kluwer Law International 1998). Newcombe H, Ross M, and A, ‘United Nations Voting Patterns’ (1970) 24 IO 100. ——— Wert J, and Newcombe A, ‘Comparison of Weighted Voting Formulas for the United Nations’ (1970/3) 23 World Politics 452. Peterson MJ, The General Assembly in World Politics (Allen & Unwin 1986).(p. 622)

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——— The UN General Assembly (Routledge 2006). Sands P and Klein P, Bowett’s Law of International Institutions (6th edn, Nomos 2009). Schermers HG and Blokker NM, ‘International Organizations or Institutions, Voting Rules and Procedures’ MPEPIL, vol VI (OUP 2012) 103–09. Sucharipa-Behrmann L, ‘United Nations General Assembly’ (1996) 7 YB Intl Env L 464. Suy E, ‘Consensus’ EPIL I (1992) 759. Tavernier P, ‘Année des Nations Unies’ (2005) 51 AFDI 319. Tomuschat C, ‘Tyrannei der Minderheit’ (1976) 19 GYIL 278. ——— ‘UN General Assembly’ MPEPIL, vol X (OUP 2012) 371–80. US Department of State, Postwar Foreign Policy Preparation 1939–1945 (Publication 3580, General Foreign Policy Ser 15, 1950). Weiss TG and Daws S, The Oxford Handbook on the United Nations (OUP 2008). Wolfrum R, ‘Voting and Decision-Making’ in R Wolfrum (ed), United Nations: Law, Politics and Practice, vol 2 (CH Beck 1995) 1400. Wolfrum R and Pichon J, ‘Consensus’ MPEPIL, vol II (OUP 2012) 673–78. Ziring L, Riggs RE, and Plano J, The United Nations: International Organization and World Politics (4th edn, Thomson Wadsworth 2005).

A.  Introduction* 1  Article 18 deals with two separate though closely related topics; the voting rights of each member State (para 1) and the majority required to adopt decisions in the GA (paras 2 and 3). Apart from Art. 18 (2) and (3), further rules on the required majority for decisions of the GA are contained in Arts 108 and 109—the former, on amendments to the UN Charter, being considered as derogation of and an exception to the general rule laid down in Art. 18 (2)—and also in the Rules of Procedure of the GA1 and the Statute of the ICJ.2 The Rules of Procedure contain the rules concerning the decision-making process to be followed by the GA.

B.  Legislative History 2  The preliminary discussion in the US administration3 which preceded the Dumbarton Oaks Conference (21 August–7 October 1944) mainly concentrated on the question of majorities, whereas all drafts but one4 were committed to the one State, one vote principle. Chapter V s C of the Dumbarton Oaks Proposals for the Establishment of a General International Organization already envisaged a provision on voting which contained most of the elements of the present Art. 18. In this respect the drafts followed a prevailing trend. Since the end of the nineteenth century it has been held, on the basis of State sovereignty, that all States are formally equal and thus should have the same rights in decision-making. The one State, one vote rule was combined with a requirement that (p. 623) decisions be made unanimously. The unanimity rule was formally maintained in the League of Nations, though weakened in practice. The International Labour Organization made the first formal shift away from unanimity in 1920 by specifying that most decisions of the General Conference could be made by a simple majority.5 3  At the San Francisco Conference, it was emphasized that equal voting rights in the GA were an expression of the sovereign equality of the member States of the UN.6 Only Norway7 indicated that one might argue that the authority of the Organization would be increased and the GA be brought closer to political realities if it proved possible to reach a system of voting based on the real differences between States with regard to their population, military and economic power, and general education. This statement was made, however, without proposing a respective amendment. The only exception suggested was that in the event that the GA dealt with controversies capable of disturbing the peace of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

certain States or of direct concern to them, the affected States should not be permitted to vote in such cases.8 4  The discussion concerning the majorities required was more difficult, although the general approach of Chapter V, s C, para 2 of the Dumbarton Oaks Proposals was not contested. The Dominican Republic proposed that the majority required to decide on important questions should be greater than two-thirds,9 Mexico suggested a three-quarters majority,10 and Chile unanimity.11 5  As to the enumeration of important questions, the following changes were suggested: it was proposed that the election of the members of the SC12 and ECOSOC,13 as well as decisions on the suspension of the exercise of rights and privileges14 and the expulsion of members,15 be excluded from the list requiring a two-thirds majority. 6  Some of the additional items suggested for inclusion in the list of important questions requiring a two-thirds majority were the consequence of unsuccessful attempts to strengthen the role of the GA as such and vis-à-vis the SC.16 In this category, for example, suggestions are to be found according to which the GA had the right to request extraordinary information from the SC,17 act in place of the SC in the event that its (p. 624) permanent members failed to reach unanimity,18 revise inapplicable treaties,19 readjust unjust situations,20 or to declare countries independent which were subject to a colonial system.21 The enumeration of important questions was only enlarged during the San Francisco Conference by inserting the election of the members of the TC and questions relating to the operation of the trusteeship system,22 whereas the majority rejected the inclusion of the election of the SG23 and of the Deputy SG.24 7  Article 18 (3) was adopted nearly verbatim from Chapter V, s C of the Dumbarton Oaks Proposals. 8  Governmental and in particular private commentaries have occasionally criticized the combination of the one State, one vote and majority rules as unrealistic. A change has been proposed but rejected.25 In practice, the system has been accepted since most decisions of the GA—apart from budgetary ones26—are of a recommendatory nature.

C.  Interpretation I.  Equality of Votes 9  According to Art. 18 (1) each member State of the GA has one vote.27 This distinguishes the GA from the institutions of the World Bank with its weighted voting system and from the SC where the permanent members have the right of ‘veto’, apart from the fact that its membership is limited. In the GA, all members have the same opportunity to participate in the taking of decisions and their votes count equally. This voting reflects the principle of sovereign equality proclaimed in Art. 2 (1)28 as well as in the second paragraph of the Preamble, which speaks of the equal rights of large and small nations. The main committees of the GA, composed of all its members, follow the same rule.29 A member State may, however, lose its right to vote as a result of suspension (Art. 5), expulsion (Art. 6), or being two years in arrears in the payment of financial contributions (Art. 19).30 No proposals have been made in the UN for changing the rule that each member State should have one vote, although a departure from this principle has occasionally been advocated by scholars and political leaders,31 pointing out that the (p. 625) inequalities of States in terms of area, population, and economic strength have become even more significant in recent years as a result of the large number of small States having been admitted to membership.

II.  Voting

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10  In general, decisions in the GA are made according to the majority principle. Depending on the substance of the issue in question, a simple or a two-thirds majority is required. In this respect Art. 18 distinguishes between ‘important questions’ (para 2) and ‘other questions’ (para 3). This differentiation is not meant to have any bearing on substance, but to enumerate the issues on which decisions must be made by a two-thirds majority.32 Instead of defining the notion ‘important questions’, para 2 draws up a list of questions deemed to be important. The list includes recommendations with respect to the maintenance of international peace and security; the election of non-permanent members to the SC, members to ECOSOC and members to the Trusteeship Council (Art. 86 para 1 (c) of the Charter); 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 trusteeship system; and budgetary questions. Decisions on these require a two-thirds majority of the members present and voting. Other questions, including the determination of additional categories of questions to be decided by a two-thirds majority, are made by a majority of the members present and voting. 11  The question has been raised whether or not the list in Art. 18 (2) is exhaustive, which is not the case. The list cannot be exhaustive since it does not even include a reference to newly created categories, although Art. 18 (3) provides for the creation of additional categories. The list is not illustrative since the questions listed do not seem to have common features justifying considering them as important.33 The function of the list is merely to establish the importance of, and thus the voting majority required for, the listed decisions, rather than to limit or guide the future determination of voting majorities. 12  Article 18 (3) sets forth the voting majority required for decisions on ‘other questions’, and provides for the creation of ‘additional categories of questions to be decided by a twothirds majority’. However, despite the fact that Art. 18 (3) permits the creation of new categories, the GA rather decides ‘ad hoc’ and case by case in its practice instead of introducing new categories. Sometimes even resolutions which cover the same agenda item are assigned to different categories.34 This nevertheless does not mean that members (p. 626) are in a position to decide that questions listed in para 2 may be decided by a simple majority. This would amount to an amendment of Art. 18 (2).35 13  Paragraphs 2 and 3 of Art. 18 do not specify what is meant by the term ‘decision’. In Articles dealing with actions that the GA may take, its power is defined as that of discussion and recommendation.36 In other Articles relating to specific actions, the words ‘approve’, ‘establish’, ‘adopt’, and ‘elect’ are used, suggesting final conclusive action.37 On the basis of the questions listed in para 2, which are to be decided by the GA, it is to be assumed that the term ‘decision’, as used in Art. 18, refers to all types of action which the GA takes by a vote while performing its functions under the Charter. Hence, such diverse acts as GA recommendations, decisions to admit a State to membership of the Organization under Art. 4, actions on reports from the councils, or the approval of the budget of the Organization under Art. 17 are covered by Art. 18. The text of the Charter, however, furnishes no specific answer to the question of whether these decisions are only the final decisions or whether the term applies to procedural decisions made prior to the adoption of final resolutions.38 14  Apart from the topics listed in Art. 18 (2), decisions on the following questions require a two-thirds majority according to the Rules of Procedure of the GA. During a special session, items on the supplementary list and additional items may be added to the agenda only by a two-thirds majority of the members present and voting. Likewise, additional items may be added to the agenda during an emergency special session only by a two-thirds majority of the members present and voting.39 Decisions to reconsider proposals which have been adopted or rejected require a two-thirds majority of the members present and voting.40 Finally Rule 84 of the Rules of Procedure of the GA provides that decisions on amendments

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to proposals relating to important questions, and on parts of such proposals put to the vote separately, shall be made by a two-thirds majority of the members present and voting.41 15  The Charter specifies the majorities by which decisions of the GA shall be made. The particular procedure to be followed for determining that the majority exists, however, is laid down in the Rules of Procedure of the GA. According to Rule 87, the GA ‘shall normally vote by show of hands or by standing’. Since this voting method does not reveal which delegations supported the proposal and which did not,42 any representative may request a roll-call. During the very time-consuming roll-call procedure the delegates of all member States entitled to participate in the voting are called up to reply with ‘yes’, ‘no’, or ‘abstention’. Since 1976, the possibility of voting by mechanical means has existed (a machine records and counts the votes). A non-recorded vote replaces a vote by show of (p. 627) hands or by standing and a recorded vote replaces a roll-call.43 The Rules of Procedure of the GA prescribe the manner in which voting is to be conducted44 and the manner of conducting elections.45 A secret ballot is in general required in elections.46 16  Efforts to modernize the voting and balloting system in the Assembly are the subject of heated discussion. Taking into account the ambition to ameliorate the voting and balloting technology (for instance by using optical scanners as a means of expediting the counting of votes cast through secret ballots during elections47), one has to ascertain the credibility, reliability, and confidentiality of the new technologies.48 17  The phrase ‘members present and voting’ is defined in the Rules of Procedure of the GA as ‘members casting an affirmative or negative vote. Members which abstain from voting are considered as not voting’.49 This provision permits decisions to be taken by less than a majority of the total membership. 18  The Rules of Procedure of the GA likewise contain a specification concerning the quorum. Since 1971 a meeting may be opened and the debate may proceed when at least one-third of the members of the GA are present; however, the presence of a majority of the members is required for any decision to be taken.50 19  The provisions of Art. 18 (2) and (3) do not apply to the decision-making of the committees of the GA. The rules of procedure governing the latter are quite different from those governing the Plenary.51 This is especially true with respect to the quorum and voting procedure. All decisions of committees are made by a majority of the members present and voting.52 Consequently, a Committee may recommend a proposal that is unable to obtain the two-thirds majority necessary for its adoption by the GA. In practice, the Main Committees have developed their own cultures in decision-making.53 Some of them prefer voting, others consensus, and some follow a mix of practices.

D.  Practice I.  Voting In General 20  As indicated in the table in the Annex below, the vast majority of the GA’s more recent decisions have been adopted without a vote,54 others have been adopted by an affirmative vote by two-thirds or more of its members. In very few cases a decision was approved (p. 628) unanimously.55 However, the number of cases where only a few delegates voted against a resolution is almost equally low.56 In the majority of cases, the application or interpretation of the provisions of Art. 18 has not raised much discussion. Most decisions do not indicate whether the members were aware that the voting procedure for ‘important questions’ applied. Only in a few cases was reference made to the application of the rule regarding ‘important questions’ during deliberations. This reference was made where there was a divergence of views regarding the majority required for the adoption of a resolution or when a two-thirds majority did not seem to be assured beforehand. Occasionally, a twothirds majority was requested (and even achieved) to render the adoption of a resolution (or parts of it) impossible. Sometimes a debate on the applicability of Art. 18 (2) developed if From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the President ruled before the vote that the two-thirds vote requirement applied or that a proposal had been adopted when it had received a majority but not a two-thirds majority; or conversely, that it had been rejected although it had received a majority, but not a twothirds majority. Although such a ruling by the President can be overruled, it has not even been debated in most cases. Only occasionally has the President of the GA stated the grounds upon which his ruling was based. Accordingly, only in a few instances has the GA decided that a particular draft resolution concerned an ‘important question’ or that a twothirds majority was necessary for its adoption. Even less often has the GA decided that a simple majority would suffice for taking a decision. In discussing this matter, a clear distinction has not always been made as to whether the question was an important one in the meaning of Art. 18 (2) or whether it required a two-thirds majority under Art. 18 (3).57 The considerations advanced were of a political rather than legal nature. 21  Discussion concerning the Security Council reform entailed the question whether this kind of discussion with ‘amendment implications’ would require a two-thirds majority as stated in Art. 18 (2), or whether they had to be adopted by a two-thirds majority as stated in Art. 108.58 22  An argument often used in favour of a question’s importance within the meaning of Art. 18 (2) is that one or more paragraphs of a draft resolution related to a question enumerated in Art. 18 (2). This argument was advanced with reference to the question of ‘admission of new members’ when the GA dealt with a draft resolution (p. 629) which recommended to the SC the consideration of Libya for membership of the UN.59 In other cases, this argument was based upon the notion of ‘budgetary questions’.60 In this context, the Legal Counsel gave an explanation of the meaning of the notion ‘budgetary questions’. According to him, three types of questions exist within the scope of ‘budgetary questions’: first, the budget itself; secondly, the apportionment of expenses; and thirdly, questions of principle basically affecting decisions on the first and second points. At the 39th session, when the GA discussed the situation in the Middle East, the United States argued that the two draft resolutions under consideration dealt with the maintenance of international peace and security.61 Another argument in the discussion on whether or not a question was important within the meaning of Art. 18 (2) was that the intrinsic importance of the draft resolution required decisions to be taken by a two-thirds majority, even though the question was not included in the enumeration of Art. 18 (2).62 23  In the following cases, the GA expressly determined by a majority vote or by assent to a ruling by the President that a question was important: consideration of new trusteeship agreements;63 information from non-self-governing territories;64 questions on the disposal of the former Italian colonies;65 the question of racial conflict in South Africa;66 the Tunisian question;67 the question of Morocco;68 the Draft Convention on the Political Rights of Women;69 the Conciliation Commission for Palestine;70 the question (p. 630) of South West Africa;71 the question of Algeria;72 the Cyprus question;73 the allocation to a main committee of an item deferred to a subsequent session;74 the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples;75 and the question of the representation of China.76 24  In the following cases, no objections were raised when the President declared before the vote that a two-thirds majority would be necessary, without expressly referring to the ‘importance’ of the proposals in question: the question of West Iran;77 awards of compensation made by the United Nations Administrative Tribunal;78 the question of Algeria;79 the question of French nuclear tests in the Sahara;80 the situation in the Republic of Congo;81 the question of racial conflict in South Africa;82 the report of the Director of UNRWA;83 the complaint by the government of Cuba against the United States;84 the

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implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples;85 the question of Oman;86 the situation in Angola.87 25  The term ‘category’ used in Art. 18 (3) led to uncertainties in the GA. The point was raised that the GA could not decide whether a two-thirds majority was required on an individual draft resolution.88 However, the term ‘categories’ should not be (p. 631) overemphasized, since the GA has the power to define the term. A category need not have a broad scope, nor need it be permanent. 26  Before a decision was taken on the following items, direct reference was made to Art. 18 (3) in the course of the procedural debate: report of the Special Committee on Review of Administrative Tribunal Judgments,89 United Nations Relief and Works Agency for Palestine Refugees in the Near East,90 apartheid,91 and revocation of UNGA Res 3379 (XXX).92 27  Resolutions under the following titles, among others, were adopted by a simple majority vote in the GA: the representation of China in the United Nations;93 the question of defining aggression;94 verbatim records of the debate on the report of the Good Offices Committee on South West Africa;95 the question of Mwami;96 the question of Tibet;97 and the question of apartheid.98 28  In evaluating the practice of the GA as far as voting is concerned, it becomes evident that the borderline between questions falling under Art. 18 (2) and additional categories of questions for which decision-making may require a two-thirds majority of the GA has become blurred. This has occurred because the GA has two ways of establishing that a twothirds majority is necessary for a decision: either by a declaration that the question falls under one of the items listed in Art. 18 (2), or through a decision in accordance with Art.18 (3). The first option is used more frequently. The GA has not always been consistent in deciding which kind of majority was necessary for a given question; however, all procedural decisions are taken individually by the GA at each session on an ad hoc basis and are not binding on the GA at subsequent sessions.99 29  Voting strategies in the form of voting blocs ensure the broadest support possible for any resolution.100 The formation of such groups sharing a similar view depends on different aspects such as geography, economy, or a special issue. The UN member States form (p. 632) five regional groups reflecting their geographic location: the African group, the Asian group, the Latin American and Caribbean group, the Eastern European group, the Western European and Others group (WEOG), which includes Australia, Canada, and New Zealand.101 Their purpose is mainly the facilitation of elections and the exchange of information. Other groups were formed for political reasons, like the Non-aligned Countries (NAM), or for economic reasons, such as the European Union Group102 or the Group of 77 (G77).

II.  Non-Participation in the Vote 30  Occasionally, statements have been made by a group of members or by one member alone, announcing non-participation in a vote. A reason for such a move has not always been given. Such non-participation was first practised during the second part of the first session,103 when several representatives stated that the trusteeship agreements which had been approved earlier by the GA could not serve as a basis for the establishment of the TC, and that for this reason they were unable to participate in the election of two members to the TC.104 When on such an occasion the question arose regarding the quorum in connection with a vote,105 one representative stated that his delegation had been present but had not participated.

III.  Consensus

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31  In practice, proposals representing a decision of the GA have frequently been considered as adopted without a formal vote being taken in Plenary meetings.106 For example, applicant States have been admitted to the UN by ‘acclamation’, and draft resolutions recommended by committees have been declared by the President to have been adopted in the absence of objections (consensus). Decision-making by consensus governed the 19th session of the GA. The GA had been faced with the problem of how to avoid decision-making by vote, as several member States were in substantial arrears with their contributions to the regular budget.107 In order to carry out the essential and some other non-controversial (p. 633) business during its 19th session, the GA decided to operate under a ‘non-objection procedure’, whereby decisions are not rejected by any member and are taken without voting. This technique has since then played a significant role in the practice of the GA. The consensus procedure is not envisaged in the UN Charter and even if it is mentioned in the Rules of Procedure of the GA (Annex IV para 104) it is neither explained nor regulated there. Its application meets no objection since, by definition, any participant having objections can prevent its use. The consensus procedure is not merely a technique but has an impact on the way negotiations are conducted and the results achieved. The agreed text will almost certainly be the lowest common denominator of the interests of those who have participated in the negotiations;108 it is—even in the absence of explicit formal objections—not necessarily fully accepted by all members (passive acquiescence). 32  Decisions under the consensus procedure are adopted without a vote—not to be mistaken for decisions adopted under the without-a-vote procedure. In the case where a resolution is adopted under consensus, consultations take place and, assuming there are no objections, the chairman of the GA will declare that ‘it was so decided’.109 In contrast, in the without-a-vote procedure no negotiations take place and compared to decisions taken with unanimity the consensus does not require a positive cast vote of all delegates present and voting.110 33  Adopting a resolution by consensus instead of by majority vote does not change its legal nature per se. If, however, a resolution contains a set of legal rules or principles, its adoption by consensus suggests a comparatively higher degree of general acceptability of its substance. Hence it can embody a consensus of opinion about what the law is so that, indirectly, it becomes evidence of international law.111

Annex General Assembly Voting Records112 Resolutions adopted Unanimous or without a vote

Resolutions not adopted

By a twothirds majority

By a simple majority

Total

Failing a two-thirds majority

Failing a simple majority

Total

Regular Sessions First

92

28

2

122

—

3

3

Second

52

37

1

90

1

9

10

Third

55

63

2

120

1

12

13

Fourth

22

74

—

96

—

5

5

Fifth

39

93

2

134

1

23

24

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Resolutions adopted

Resolutions not adopted

Unanimous or without a vote

By a twothirds majority

By a simple majority

Total

Failing a two-thirds majority

Failing a simple majority

Total

Sixth

25

92

2

119

2

9

11

Seventh

30

92

1

123

3

7

10

Eighth

29

74

2

105

2

2

4

Ninth

26

83

—

109

—

4

4

Tenth

38

54

1

93

—

1

1

11th

42

88

1

131

1

1

2

12th

44

62

2

108

3

1

4

13th

56

68

2

126

—

1

1

14th

53

69

1

123

1

4

5

15th

80

63

2

145

1

1

2

16th

71

53

1

125

4

3

7

17th

66

47

—

113

—

1

1

18th

70

54

—

124

1

1

2

19th

14

—

—

14

—

—

—

20th

62

61

2

125

—

1

1

21st

62

74

2

138

—

3

3

22nd

57

75

1

133

—

2

2

23rd

60

81

1

142

2

3

5

24th

68

88

2

158

1

1

25th

57

102

2

161

—

2

2

26th

52

129

—

181

—

2

2

27th

59

121

—

180

—

—

—

28th

73

107

—

180

—

—

—

29th

96

89

2

187

—

—

—

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Resolutions adopted

Resolutions not adopted

Unanimous or without a vote

By a twothirds majority

By a simple majority

Total

Failing a two-thirds majority

Failing a simple majority

Total

30th

116

98

3

217

—

—

—

31st

158

89

4

251

—

—

—

32nd

158

101

3

262

—

—

—

33rd

155

109

10

274

—

—

—

34th

186

123

—

309

—

1

1

35th

213

128

2

343

—

—

—

36th

192

138

1

331

—

—

—

37th

193

152

2

347

—

—

—

38th

183

145

—

328

—

—

—

39th

192

144

—

336

—

—

—

40th

200

148

1

349

—

—

—

41st

161

155

1

317

—

—

—

42nd

145

45

8

228

—

—

—

43rd

149

83

—

232

—

—

—

44th

175

70

—

245

—

—

—

45th

220

51

—

271

—

—

—

46th

164

78

—

242

—

—

—

47th

158

78

—

236

—

—

—

48th

209

62

2

273

—

1

1

49th

268

63

4

335

—

—

—

50th

257

80

1

338

—

1

1

51st

245

75

1

321

—

2

2

52nd

247

67

2

316

—

2

2

53rd

261

58

3

322

—

—

—

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Resolutions adopted

Resolutions not adopted

Unanimous or without a vote

By a twothirds majority

By a simple majority

Total

Failing a two-thirds majority

Failing a simple majority

Total

54th

278

65

4

347

—

—

—

55th

268

66

1

335

—

—

—

56th

293

65

2

360

1

—

1

57th

283

70

2

355

—

—

—

58th

254

72

4

330

—

—

—

59th

260

68

2

330

—

—

—

60th

225

72

4

301

—

—

—

61st

222

85

2

309

—

—

—

62nd

206

76

4

286

—

—

—

63rd

246

73

2

321

—

—

—

64th

239

64

2

305

—

—

—

65th

197

65

3

265

—

—

—

Special Sessions First

8

—

—

8

—

—

—

Second

2

3

—

5

—

—

—

Third

1

1

—

2

—

—

—

Fourth

1

8

—

9

—

—

—

Fifth

1

3

—

4

—

—

—

Sixth

2

1

—

3

—

—

—

Seventh

2

—

—

2

—

—

—

Eighth

1

1

—

2

—

—

—

Ninth

1

1

—

2

—

—

—

Tenth

2

—

—

2

—

—

—

11th

4

—

—

4

—

—

—

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Resolutions adopted

Resolutions not adopted

Unanimous or without a vote

By a twothirds majority

By a simple majority

Total

Failing a two-thirds majority

Failing a simple majority

Total

12th

1

—

—

1

—

—

—

13th

2

—

—

2

—

—

—

14th

—

1

—

1

—

—

—

15th

2

—

—

2

—

—

—

16th

1

—

—

1

—

—

—

17th

2

—

—

2

—

—

—

18th

3

—

—

3

—

—

—

19th

2

—

—

2

—

—

—

20th

4

—

—

4

—

—

—

21st

2

—

—

2

—

—

—

22nd

2

—

—

2

—

—

—

23rd

3

—

—

3

—

—

—

24th

2

—

—

2

—

—

—

25th

2

—

—

2

—

—

—

26th

2

—

—

2

—

—

—

27th

2

—

—

2

—

—

—

28th

—

—

—

—

—

—

—

Emergency special sessions First

—

8

—

8

—

—

—

Second

—

5

—

5

—

—

—

Third

1

1

—

2

—

—

—

Fourth

—

2

—

2

—

—

—

Fifth

—

6

—

6

2

—

2

Sixth

1

1

—

2

—

—

—

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Resolutions adopted

Resolutions not adopted

Unanimous or without a vote

By a twothirds majority

By a simple majority

Total

Failing a two-thirds majority

Failing a simple majority

Total

Seventh

1

2

—

3

—

—

—

Eighth

1

2

—

3

—

—

—

Ninth

1

1

—

2

—

—

—

Tenth

5

1

—

6

—

—

—

(p. 634) (p. 635) (p. 636)

Footnotes: *  Ms Barbara Schwaiger provided valuable information to this entry and contributed very helpful advice. 1

  UN Doc A/520/Rev.17 (printed in Annex I to this commentary); Annex VIII of the Rules of Procedure of the UNGA, UNGA Res 48/264 (17 August 1994) UN Doc A/RES/48/264; see Rules 19, 81, 83, 84 (two-thirds majority). Rules 3, 4, 8, 9, 10, 15, 22, 85, 163 of the Rules of Procedure of the UNGA provide that certain acts may be taken upon the request or approval of the majority of UNGA members. 2

  Art. 10 (absolute majority).

3

  The respective drafts are published in US Department of State, Annexes.

4

  Published in US Department of State, Postwar Foreign Policy Preparation 1939–1945 (Publication 3580, General Foreign Policy Ser 15 1950) Annex 38, 595f. 5

  MJ Peterson, The General Assembly in World Politics (Allen & Unwin 1986) 55.

6

  Norway, UNCIO III, 356f, Doc 2 G/7(n); El Salvador, UNCIO I, 282, Doc 24 P18, Plenary discussion of 29 April 1945; the principle of one State, one vote was unanimously approved in Commission II/l, UNCIO VIII, 364f, Doc 454, II/1/21. 7

  UNCIO III, 356f, Doc 2 G/7(n).

8

  Chile, UNCIO III, 285f, Doc 2, G/7(i); Venezuela, UNCIO III, 199, Doc 2, G/7(d)(l); Honduras (UNCIO III, 351, Doc 2, G/7(m)) went a step further. It suggested that a member directly and particularly interested as well as potentially affected should refrain from voting. Costa Rica suggested that no member of the Organization to which acts of aggression had been attributed should vote in its own case in the UNGA, UNCIO III, 276, Doc 2, G/7(h). Both suggestions were rejected in Commission II/l, UNCIO VIII, 375f, Doc 494 II/1/23. 9

  UNCIO III, 570, Doc 2, G/14(o).

10

  UNCIO III, 177, Doc 2, G/7(c), Doc 2, G/7(c)(l).

11

  UNCIO III, 285f, Doc 2, G/7(i); according to this proposal, unanimity was required for decisions relating to military action by the Organization. 12

  India, UNCIO III, 528, Doc 2, G/14(h).

13

  India, ibid.

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14

  Egypt, UNCIO III, 457, Doc 2, G/7(q)(l).

15

  Norway, UNCIO III, 368, Doc 2, G/7(n) (1); Belgium, UNCIO III, 338, Doc 2, G/7(k) (1); Uruguay, UNCIO III, 39, Doc 2, G/7(a) (1); alternatively, these States proposed that the reference to exclusion be eliminated altogether from ch V s C of the Dumbarton Oaks Proposals. 16

  See Klein and Schmahl on Art. 10 MN 23f.

17

  Mexico, UNCIO III, 183, Doc 2, G/7(c)(l), withdrawn, UNCIO VIII, 377, Doc 494, II/l/23.

18

  El Salvador, UNCIO III, 534, Doc 2, G/14(j).

19

  Mexico, UNCIO III, 183, Doc 2, G/7(c)(l).

20

  Mexico, ibid.

21

  Ecuador, UNCIO III, 405, Doc 2, G/7(p).

22

  UNCIO VIII, 495, Committee II/1, Doc 1092 II/1/39.

23

  Proposed by Ecuador, UNCIO III, 405, Doc 2, G/7(p).

24

  Proposed by Cuba, UNCIO VIII, 383, Committee II/1, Doc 4895, II/1/22.

25

  See the debate in A/AC. 149/SR. 25 (14 June 1971) and the rejection noted in A/8426 (September 1971) Annex IV, para 136. 26

  cf for this Woeste and Thomma on Art. 17.

27

  Currently (June 2012) there are 193 member States represented in the UNGA. In 2002 Switzerland and Timor-Leste joined, see UNGA Res 57/1 (10 September 2002) UN Doc A/ RES/57/1 and UNGA Res 57/3 (27 September 2002) UN Doc A/RES/57/3; in 2006 Montenegro followed, see UNGA Res 60/264 (28 June 2006) UN Doc A/RES/60/264; and in 2011 South Sudan was admitted, see UNGA Res 65/308 (14 July 2011) UN Doc A/RES/ 65/308. 28

  See Fassbender on Art. 2 (1).

29

  See Rule 124f of the Rules of Procedure of the UNGA.

30

  Tams on Art. 5 and Art. 6; Tomuschat on Art. 19.

31

  FO Wilcox, Representation and Voting in the United Nations General Assembly, US Senate, Committee on Foreign Relations, Subcommittee on the United Nations Charter (Staff Study No 4, 1954) 1–23; AW Dulles, War or Peace (Macmillan 1950) 191–94; Commission to Study the Organization of Peace (1966) 13–18; G Clark and LB Sohn, World Peace through Law (3rd edn, Harvard UP 1966) 399–402. 32

  The wording has been criticized on these grounds by Kelsen, 180f and, in fact, para 2 has occasionally been misinterpreted in UNGA debates. 33

  GAOR 8th Session 459th Plen mtg, 314.

34

  By UNGA Res 1668 (XVI) (15 December 1961) UN Doc A/RES/1668(XVI), it was decided with express reference to Art. 18, that any proposal to change the representation of China was an important question. This decision was affirmed by UNGA Res 2025 (XX) (17 November 1965) UN Doc A/RES/2025(XX), until in 1971 the motion was overturned. Draft Res A/L.632 stated that the procedural question of representation of China should be an important one, but it was rejected by 59 votes to 55, with 15 abstentions. Therewith the substantive question of seating the representative of the People’s Republic of China had not been considered as ‘important’ (UNGA Res 2758 (XXVI) (25 October 1971) UN Doc A/RES/ 2758(XXVI), adopted by 76 votes to 35, with 17 abstentions). See C Tomuschat, ‘UN General Assembly’ MPEPIL, vol X (OUP 2012) MN 10; see also P Sands and P Klein,

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Bowett’s Law of International Institutions (Nomos 2009) 276; MJ Peterson, The UN General Assembly (Routledge 2006) 73. 35

  Kelsen, 183–84.

36

  Arts 10, 11, 13, and 14.

37

  See eg Arts 17, 21, 22, and 23.

38

  Report of the SG, GAOR 5th Session Annexes (Agenda Item 49), 1–6, para 22. This question had been raised at the fourth session in connection with the question of the majority required for the adoption of amendments to proposals and parts of proposals relating to important questions within the meaning of Art. 18 (2). See now Rule 84 of the Rules of Procedure of the UNGA, which was introduced following the report of the SG. 39

  Rule 19 of the Rules of Procedure of the UNGA, the rule relating to the emergency special sessions, was adopted by UNGA Res 377 A (V) (3 November 1950) UN Doc A/RES/ 377A(V). 40

  Rule 81 of the Rules of Procedure of the UNGA.

41

  Introduced by UNGA Res 475 (V) (1 November 1950) UN Doc A/RES/475(V).

42

  HG Schermers and NM Blokker, ‘International Organizations or Institutions, Voting Rules and Procedures’ MPEPIL, vol VI (OUP 2012) MN 13. 43

  See Rule 87 (b) of the Rules of Procedure of the UNGA, introduced by UNGA Res 2323 (XXII) (16 December 1967) UN Doc A/RES/2323(XXII). 44

  Rules 82–91 of the Rules of Procedure of the UNGA.

45

  Rules 92–95 of the Rules of Procedure of the UNGA.

46

  Rule 92 of the Rules of Procedure of the UNGA; according to Annex V, para 16, the secret ballot can be dispensed with for elections to subsidiary organs when the number of candidates corresponds to the number of seats to be filled. The same procedure applies to the election of the President and Vice-Presidents of the UNGA. However, a delegation may request a vote on a given election. 47

  UNGA Res 59/313 (12 September2005) UN Doc A/RES/59/313, 3, para 15.

48

  See the Reports of the Ad Hoc Working Group on the Revitalization of the General Assembly, eg A/64/903 (8 September 2010) 4, 5 (Agenda Item 118); GAOR 64th Session 50th Plen mtg. 49

  Rule 86 of the Rules of Procedure of the UNGA.

50

  Rule 67, second sentence, of the Rules of Procedure of the UNGA.

51

  See Rule 123f of the Rules of Procedure of the UNGA.

52

  Rule 125 of the Rules of Procedure of the UNGA.

53

  GAOR 58th Session 44th Plen mtg, 8.

54

  eg one of them was the World Summit Outcome, see UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1. 55

  eg UNGA Res 47/52A (9 December 1992) UN Doc A/RES/47/52A; UNGA Res 51/136 (13 December 1996) UN Doc A/RES/51/136; UNGA Res 63/62 (2 December 2008) UN Doc A/ RES/63/62. 56

  UNGA Res 58/7 (4 November 2003) UN Doc A/RES/58/7 and UNGA Res 58/8 (4 November 2003) UN Doc A/RES/58/8. Relating to the first resolution the US was criticized for its economic embargo of Cuba—the US, Israel, and the Marshall Islands voted against the adoption of the resolution. With regard to the second resolution, North Korea voted ‘no’

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because it disagreed with the International Energy Agency report, criticizing it for the withdrawal of obligations of the Treaty on the Non-Proliferation of Nuclear Weapons. 57

  This was especially true when at its 39th session the UNGA discussed whether the question of apartheid was an important one within the meaning of Art. 18 (2). The issue was finally put to a vote under Rule 85 of the Rules of Procedure and affirmed (GAOR 39th Session 98th Plen mtg). The question was, however, decided differently by the UNGA (GAOR 41th Session 64th Plen mtg). 58

  GAOR 52nd Session 62nd Plen mtg; GAOR 52nd Session 63rd Plen mtg; GAOR 52th Session 65th Plen mtg; GAOR 52nd Session 91st Plen mtg; GAOR 53rd Session 63rd Plen mtg; GAOR 53rd Session 64th Plen mtg; GAOR 53rd Session 65th Plen mtg; GAOR 53rd Session 66th Plen mtg. By adoption of UNGA Res 53/30 (23 November 1998) UN Doc A/ RES/53/30 it was decided by consensus, that ‘the General Assembly…determines not to adopt any resolution or decision on the question of equitable representation on and increase in the membership of the Security Council and related matter, without the affirmative vote of at least two-thirds of the Members of General Assembly’. 59

  GAOR 4th Session Annexes (Agenda Item 60) 5–8, A/2100. After a debate, the UNGA decided that the adoption of this draft resolution required a two-thirds majority, GAOR 6th Session 370th Plen mtg, 469. The draft resolution failed to obtain the required majority. During the same session, the ad hoc political committee recommended a draft resolution (GAOR 6th Session Annexes (Agenda Item 20), 2–5, A/2097), according to which Libya should now be admitted to the UN. Again it was suggested that this was a question which came under Art. 18(2). The UNGA, however, decided that the adoption of the draft resolution did not require a two-thirds majority (GAOR 6th Session 370th Plen mtg, 476). 60

  This was done when the UNGA considered a recommendation to reclassify post allowances for New York and Paris. However, the issue was not voted upon and the respective resolutions received more than a two-thirds majority of the votes cast (GAOR 6th Session 662nd Plen mtg, 1236–37, paras 30, 34, and 41–44). A similar argument was advanced when the UNGA considered the bringing into operation of the UNCDF (GAOR 21st Session 1492nd Plen mtg, 3, paras 17–21) and to include Russian among the working languages (GAOR 23th Session 1752nd Plen mtg, 12, paras 134 and 135). However, both motions were rejected. This argument was again put forward when the UNGA discussed whether the under-secretaries and directors were allowed to travel first class. It was accepted in the first instance; however, it was later rejected at the same meeting (GAOR 27th Session 2206th Plen mtg, paras 148–202). 61

  This motion was put to a vote and rejected after a lengthy debate (GAOR 39th Session 101st Plen mtg). In this context, the Legal Counsel pointed out that the notion ‘recommendations with respect to the maintenance of peace and security’ was not limited to recommendations to the UNSC. 62

  This argument was raised with respect to a draft resolution which envisaged amending the Statute of the Administrative Tribunal (GAOR 10th Session 541st Plen mtg, paras 126– 37). The motion was rejected. 63

  GAOR 2nd Session 106th Plen mtg, 666.

64

  GAOR 2nd Session 108th Plen mtg, 743.

65

  GAOR 3rd Session pt 2, 218th and 219th Plen mtgs, 584–87, 591–93, 607, 608.

66

  GAOR 7th Session 401st Plen mtg, 333–34; (IX) 511th Plen mtg, 49, para 125; (X) 551st Plen mtg, 404, para 38. 67

  GAOR 7th Session 404th Plen mtg, 377, para 9.

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68

  GAOR 7th Session 407th Plen mtg, 426, para 50.

69

  GAOR 7th Session 409th Plen mtg, 449, para 25.

70

  GAOR 7th Session 406th Plen mtg, 413–14, para 73.

71

  GAOR 9th Session 515th Plen mtg, 548, para 94; by UNGA Res 844(IX) (11 October 1954) UN Doc A/RES/844(IX), the UNGA adopted Special Rule F Annex III, Rules of Procedure, according to which decisions on questions relating to reports and petitions concerning the Territory of South West Africa will be regarded as important questions within the meaning of Art. 18 (2). The question arose, however, as to whether Art. 18 was applicable at all or whether a different voting procedure was required. By UNGA Res 904 (IX) (23 November 1954) UN Doc A/RES/904(IX), the UNGA requested the ICJ to give an Advisory Opinion on the question of whether ‘special rule’ was a correct interpretation of the Advisory Opinion of the ICJ of 11 July 1950 (South West Africa [1950] ICJ Rep 128). In its Advisory Opinion of 7 June 1955 (Voting Procedure [1955] ICJ Rep 67), the ICJ ruled that it was up to the UNGA to decide whether decisions of this nature involved ‘important questions’ or ‘other questions’. However as a result of the independence of Namibia (formerly the Territory of South West Africa) on 21 March 1990, Annex III to the Rules of Procedure (UN Doc A/520/Rev. 15) is no longer applicable and has been removed. See UNGA Res 2372 (XXII) (12 June 1968) UN Doc A/RES/2372(XXII); Rules of Procedure UN Doc A/520/Rev. 17, paras 16 and 42. 72

  GAOR 12th Session 726th Plen mtg, 568, paras 109, 110.

73

  GAOR 12th Session 731st Plen mtg, 623, paras 136–38.

74

  GAOR 16th Session 1084th Plen mtg, 1114, para 102.

75

  GAOR 17th Session 1195th Plen.mtg, 155–56, para 60.

76

  UNGA Res 1668 (XVI) (15 December 1961) UN Doc A/RES/1668(XVI); UNGA Res 2025(XX) (17 November 1965) UN Doc A/RES/2025(XX). 77

  GAOR 9th Session 509th Plen mtg, 461, para 294; GAOR 11th Session 664th Plen mtg, 1263, paras 178–81; GAOR 12th Session 724th Plen mtg, 547, para 131. 78

  GAOR 9th Session 511th Plen mtg, 490, para 125; GAOR 10th Session 551st Plen mtg, 404, para 38. 79

  GAOR 13th Session 792nd Plen mtg, 627, para 260; GAOR 14th Session 856th Plen mtg, 747, para 129; GAOR 15th Session 956th Plen mtg, pt I, 1429, para 187. 80

  GAOR 14th Session 840th Plen mtg, 585–86, paras 105f.

81

  GAOR 15th Session 958th Plen mtg, pt I, 1479, para 130; GAOR 15th Session 958th Plen mtg, pt II, 322–4, paras 182, 189, 196. 82

  GAOR 15th Session 981st Plen mtg, pt II, 273, para 124; GAOR 16th Session1067th Plen mtg, 887–89, paras 105, 115–117. 83

  GAOR 15th Session 993rd Plen mtg, pt II, 449, paras 139, 140.

84

  GAOR 15th Session 995th Plen mtg, pt II, 497, paras 363, 365.

85

  GAOR 16th Session 1066th Plen mtg, 871–77, paras 146, 165, 196, 217.

86

  GAOR 16th Session 1078th Plen mtg, 1029, para 4; GAOR 17th Session1191st Plen mtg, 1100–1, paras 63–66. 87

  GAOR 16th Session 1102nd Plen mtg, 1349, para 158.

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88

  Saudi Arabia, GAOR 1st Session pt 2, 52nd Plen mtg, 1052; the same allegation was made at some length during the 11th UNGA, GAOR 11th Session 656th and 657th Plen mtgs, 1155, 1163–64, 1166. 89

  The UNGA (GAOR 10th Session 541st Plen mtg, 291, paras 156–57) decided to reject the motion that a two-thirds majority was required. 90

  During the discussion on a draft resolution whereby the UNGA requested the UNSC to take effective measures to ensure implementation of UNGA Res 2252 (ES-V) (4 July 1967) UN Doc A/RES/2252(ES-V) and 2452 A (XXIII) (19 December 1968) UN Doc A/RES/ 2452A(XXIII), it was pointed out that this item came under Art. 18 (3). This motion was objected to on the grounds that the resolution related to the maintenance of peace and security. The UNGA decided that the adoption of the resolution only required a simple majority (GAOR 24th Session 1827th Plen mtg, 6, para 62). 91

  GAOR 39th Session 98th Plen mtg. Although the motion was intended to deal with a draft resolution on apartheid as an important question, the President put it to a vote under Art. 18 (3). A decision was made that a two-thirds majority was required; however, the GAOR 41st Session 64th Plen mtg decided upon this issue by a simple majority. 92

  GAOR 46th Session PV. 74; the UNGA rejected the motion that the adoption of a resolution revoking a previous resolution required a two-thirds majority. 93

  UNGA Res 1108 (XI) (16 November 1956) UN Doc A/RES/1108(XI); UNGA Res 1135 (XII) (24 September 1957) UN Doc A/RES/1135(XII); UNGA Res 1239 (XIII) (23 September 1958) UN Doc A/RES/1239 (XIII); UNGA Res 1351 (XIV) (22 September 1959) UN Doc A/ RES/1351(XIV); UNGA Res 1493 (XV) (8 October 1960) UN Doc A/RES/1493(XV). By UNGA Res 2758 (XXVI) (25 October 1971) UN Doc A/RES/2758(XXVI) this motion was overturned (see n 8). 94

  UNGA Res 1181 (XII) (29 November 1957) UN Doc A/RES/1181(XII).

95

  UNGA Res 1333 (XIII) (13 December 1958) UN Doc A/RES/1333(XIII).

96

  UNGA Res 1580 (XV) (20 December 1960) UN Doc A/RES/1580(XV).

97

  UNGA Res 2079 (XX) (18 December 1965) UN Doc A/RES/2079(XX).

98

  GAOR 41st Session 64th Plen mtg.

99

  Pointed out by the Legal Counsel, GAOR 39th Session 101st Plen mtg.

100

  JA Moore and J Pubantz, The New United Nations. International Organization in the Twenty-first Century (Pearson Prentice Hall 2006) 125. 101

  See M Marín-Bosch, Votes in the UN General Assembly (Kluwer Law International 1998) 15–19; L Ziring, RE Riggs, and J Plano, The United Nations: International Organization and World Politics (Thomson Wadsworth 2005) 102–8; M Darrow and L Arbour, ‘The Pillar of Glass: Human Rights in the Development Operations of the United Nations’ (2009) 103 AJIL 446–501, 449. 102

  The European Union itself has currently only observer status at the UNGA. This excludes ‘fundamental rights, which belong only to United Nations Members, such as voting or presentation of candidates’. See GAOR 64th Session 122nd Plen mtg (Agenda Item 120); UNGA Draft Res 64/L.67 (31 August 2010) UN Doc A/RES/64/L.67 and UNGA Draft Res 65/ L.64 (21 March 2011) UN Doc A/RES/65/L.64. For further information about the European Union and the United Nations, see M Rasch, The European Union at the United Nations (Nijhoff 2008) 205f; B Fassbender, ‘The Better People of the United Nations? Europe’s Practice and the United Nations’ (2004) 15 EJIL 857–84, 875, 882.

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103

  GAOR 1st Session 63rd Plen mtg, 1321, 1322, statement by Belorussian SSR, Ukrainian SSR, Soviet Union. 104

  GAOR 4th Session 273rd Plen mtg, 571, statement by the former Yugoslavia.

105

  Non-participation was likewise practised, eg by India at the conclusion of the debate on the Korean question (GAOR 7th Session 430th Plen mtg, 274) and by most of the member States of the Antarctic Treaty when the UNGA voted upon its resolutions concerning Antarctica (GAOR 40th Session 117th Plen mtg and 41st Session 96th Plen mtg). 106

  R Wolfrumand J Pichon, ‘Consensus’ MPEPIL, vol II (OUP 2012) MN 3.

107

  See Tomuschat on Art. 19 MN 23.

108

  See the criticism about the consensus procedure by Secretary-General Kofi Annan, ‘In larger freedom: towards development, security and human rights for all’, UN Doc A/ 59/2005 (21 March 2005) 40–41. 109

  H Cassan, ‘Le consensus dans la pratique des Nations Unies’ (1974) 20 AFDI 456–85.

110

  R Wolfrum and J Pichon, ‘Consensus’ MPEPIL, vol II (OUP 2012) MN 9.

111

  P Sands and P Klein, Bowett’s Law of International Institutions (Nomos 2009) 27; MD Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’ (2006) 16 EJIL 879–906, 900, see eg the practice of the UNGA relating to nuclear weapons recalling the content of Res 1653 (XVI) (24 November 1961) UN Doc A/RES/1653(XVI), indicating an opinio iuris. 112

  The statistics rely upon the compilation of United Nations Documentation: Dag Hammarskjöld Library. Due to the method of counting of the resolutions, the numbers may differ from the Repertory of Practice of United Nations Organs, see RP, Art. 18, Supp No 9, vol 2.

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Ch.IV The General Assembly, Voting, Article 19 Christian Tomuschat From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): Peace keeping

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(p. 637) Article 19 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. A.  Drafting History 1–2 B.  Substantive Requirements 3–16 I.  Member States 3 II.  Financial Contributions 4–11 III.  Arrears 12–16 C.  Legal Consequences 17–34 I.  The Loss of the Right to Vote 17–28 II.  Relevant Organs 29–33 III.  The Right to Vote 34 D.  Procedure 35–38 I.  Information by the Secretary-General and Decision by the President or Chairman 35–37 II.  Appeal against a Ruling by the President or Chairman 38 E.  Authorization to Exercise the Right to Vote in Accordance with Article 19 clause 2 39–43 I.  Substantive Requirements 39–42 II.  Procedure 43 F.  Special Issues 44–47 I.  Desuetudo 44 II.  Change of Government 45 III.  State Succession 46 IV.  Other Sanctions 47

Select Bibliography Bond A, ‘U.S. Funding of the United Nations: Arrears Payments as an Indicator of Multilateralism’ (2003) 21 Berkeley Journal of International Law 703. Cárdenas EJ, ‘UN Financing: Some Reflections’ (2000) 11 EJIL 67.

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Ciobanu D, Financial Obligations of States Under Article 19 of the UN Charter (Giuffrè 1973). Francioni F, ‘Multilateralism à la Carte: The Limits to Unilateral Withholdings of Assessed Contributions to the UN Budget’ (2000) 11 EJIL 43. Gerson A, ‘Multilateralism à la Carte: The Consequences of Unilateral ‘Pick and Pay’ Approaches’ (2000) 11 EJIL 61. Kirgis FL, ‘United States Dues Arrearages in the United Nations and Possible Loss of Vote in the UN General Assembly’ (July 1998) ASIL Insights accessed 12 June 2012. Koschorreck W, ‘Financial Crisis’ in R Wolfrum (ed), United Nations: Law, Policies and Practice (CH Beck 1995).(p. 638) Nelson RW, ‘International Law and US Withholding of Payments to International Organizations’ (1986) 80 AJIL 973. Ohse G, ‘Die Suspension des Stimmrechts in der Generalversammlung der UNO’ (1973) 21 VN 155. Reckhard M, Die rechtlichen Rahmenbedingungen der Sanktionierung von Beitragsverweigerung im System der Vereinten Nationen (Lang 1999). Rosenstock R, ‘Article 19: The Caribbean Contribution—A Note’ (1970) 64 AJIL 919. Schnoor B, ‘International Law, the Power of the Purse, and Speaking with One Voice: The Legal Cacophony Created by Withholding U.S. Dues from the United Nations’ (2007) 92 Iowa Law Review 133. Tomuschat C, ‘Die Beitragsverweigerung in Internationalen Organisationen’ in W Flume and others (eds), Festschrift Mann (CH Beck 1977) 439. Zoller E, ‘The ‘Corporate Will’ of the United Nations and the Rights of the Minority’ (1987) 81 AJIL 610.

A.  Drafting History 1  The inclusion of Art. 19 in the text of the Charter can be traced back to the experience of the League of Nations. Originally, the expenses of the Geneva-based Organization were distributed according to the scale of assessment used by the Universal Postal Union. Even after it had been acknowledged that this scale was inappropriate, the reform of the Covenant of the League in 1921 confined itself in the newly-worded Art. 6 (5) to the General Directive that the expenses ‘shall be borne by the Members of the League in the proportion decided by the Assembly’. No provision was made for the legal consequences of a delay in payments in the Financial Rules of the League. It was only stated that the SG had to call upon members every three months to make their payments and submit a report to the Council and the Assembly at regular intervals. Thus, only the usual diplomatic ways and means could be used vis-à-vis States that had fallen into arrears. Consequently, considerable arrears accumulated over the years.1 2  It is surprising that the Dumbarton Oaks Proposals did not draw any lessons from the experiences of the League of Nations. At the San Francisco Conference, some smaller States submitted amendments designed to introduce certain sanctions for delayed payment of contributions in order to guarantee minimum discipline in discharging financial obligations vis-à-vis the Organization. The solution now enshrined in Art. 19 draws heavily on the proposals of the Netherlands and Norway to the effect that a State in arrears was to lose its right to vote in the GA2 or that this right would be suspended.3 According to suggestions submitted by India, only participation in any kind of election under the Charter should be excluded,4 and Australia confined itself to providing for disqualification with regard to the election of the non-permanent members of the SC.5

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(p. 639) B.  Substantive Requirements I.  Member States 3  Article 19 deals only with the contributions of member States of the UN. Non-member States are also assessed with regard to the expenses of those activities in which they can (and do) participate. Thus, Liechtenstein, San Marino, and Switzerland contributed to defraying the costs of the ICJ before their admission as members. Today, the only nonmember State that is actively involved in UN matters is the Holy See, for which a minimal rate of 0.001 per cent has been fixed.6 However, the consequences of failing to honour such financial obligations are not regulated by Art. 19. At the extreme, non-members enjoy an observer status. Since they do not have a right to vote in the GA, they cannot lose any such right. However, the GA is free to choose appropriate consequences in accordance with Art. 60 of the Vienna Convention on the Law of Treaties (VCLT) if a non-member State is in arrears. In the case of the Holy See, such considerations are of a speculative nature only.

II.  Financial Contributions 4  The SG correctly stated a few years ago that the obligation for a member State to pay its contributions punctually and completely is a ‘fundamental…obligation of membership’.7 From time to time, in its resolutions on the scale of contributions, the GA admonishes member States ‘to pay their assessed contributions in full, on time and without imposing conditions’,8 in particular as a response to pressure exerted by the United States (see MN 11). The text of Art. 19 speaks of financial contributions without qualifying this term any further. The current financial system of the UN comprehends a multitude of financial payments by member States. In particular, most financial needs of the Organization for operative purposes are covered by so-called ‘voluntary’ payments by member States. In strict legal terms, such ‘voluntary’ contributions are mostly based on ad hoc undertakings as they are primarily entered into at pledging conferences. 5  Inasmuch as Art. 19 makes the loss of voting rights dependent on arrears in the amount of contributions due for two full years, it implicitly provides that only contributions to the budget of the UN as determined under Art. 17 are relevant. Only this type of financial obligation derives from membership. No obligations which have been accepted on a voluntary basis may be taken into account. A member State may not be sanctioned if it has made a financial pledge which at a later stage it finds itself unable to fulfil. To advocate a loss of the right to vote in such instances as well could hardly be reconciled with the principle of equality of all member States. Contributions that have been (p. 640) promised, but not actually made, to programmes financed by voluntary payments may not be considered for the purposes of Art. 19. The only relevant expenses are those listed in the programme budget,9 which are distributed among member States in accordance with the applicable scale of assessments,10 as well as all those other expenses provided for in special accounts which have been approved under Art. 17 and apportioned among members. Article 19 refers to the method of calculation laid down in Arts 17 (1) and (2). It has also been the consistent practice of the Organization to leave voluntary contributions out of account. 6  For many years in the past, it was controversial whether contributions designed to cover expenditure for peacekeeping operations may be taken into consideration in calculating arrears under Art. 19. In 1964, the Soviet Union, together with Byelorussia, Czechoslovakia, Hungary, Poland, Romania, and the Ukraine, had come within the purview of Art. 19 because of their refusal to contribute to the costs of the peacekeeping operations UNEF I and ONUC. In order to justify their conduct, those States claimed11 that UNEF I and ONUC had been vitiated by unlawfulness since only the SC was empowered to take measures for the maintenance of peace, and that such measures had to remain under the authoritative control of the SC. No State, they argued, was obligated to make contributions to the costs of

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activities violating the Charter. Moreover, the determination of the financial burden deriving from actions affecting Chapter VII fell within the exclusive power of the SC. Hence, the decision by the GA to apportion the ensuing costs among member States had been taken ultra vires. The budgetary power of the GA according to Art. 17 referred only to the normal expenses of the Organization. In principle, expenses for enforcement action under Chapter VII had to be borne in each case by the relevant aggressor State.12 These views stood in marked contrast to the opinion of the ICJ of 20 July 1962,13 in which the costs of the two controversial operations had been characterized as expenses of the Organization within the meaning of Art. 17 (2). At the time, the conflict could be settled only by a consensual renunciation to apply Art. 19. On 1 September 1965, the GA approved a compromise solution to the effect ‘that the question of the applicability of Art. 19 of the Charter will not be raised with regard to the United Nations Emergency Force and the United Nations Operation in the Congo’.14 Since it was acknowledged in the practice of the GA that the responsibility (p. 641) for peacekeeping operations lies exclusively in the hands of the SC, no objections have been raised since then against counting the costs for such operations as expenses of the Organization. However, it has been alleged from time to time that specific costs had to be borne according to a specific distribution scheme (see MN 8). 7  The question of whether member States are required to contribute to financing activities that are (possibly) inconsistent with the Charter touches upon the general issue of legal protection against unlawful acts by the UN. The ICJ refrained from dealing with this issue in its Advisory Opinion of 20 July 1962, and thereby undermined the persuasive force of its reasoning. In principle, a right to refuse payment of assessed contributions should be recognized within certain limits. The obligations of each member are determined by the Charter; none is bound to condone a practice which, according to a bona fide assessment, exceeds that legal framework.15 To be sure, the issue cannot be examined solely in terms of substantive law. If a majority within the GA adopts a programme entailing financial consequences, it will not be easily prepared to acknowledge that it has infringed the law. Since in the UN, contrary to the situation in the European Union, no judicial machinery for the settlement of disputes between the Organization and its members is provided for, the solution for such conflicts must be sought elsewhere, particularly in negotiations. The compromise of 1 September 1965 constitutes a typical illustration of such a negotiated settlement. However, as long as a solution has not been found, the majority supporting a resolution will normally take the view that no well-founded objections can be raised against that resolution. Therefore, although expenses for unlawful activities of the Organization do not qualify as expenses within the meaning of Art. 17 (2) and cannot be taken into account for the purposes of Art. 19, the mere contention of a member State that it is using its (partial) refusal to pay contributions solely as a means of defence against an abuse of power by an organ acting unlawfully is by no means sufficient to escape the application of Art. 19. 8  All later peacekeeping operations (in April 2011: fourteen peacekeeping missions and one special political mission) were decided by the SC, with China participating actively as from December 1981. Nevertheless, a considerable number of States have refused to pay the share incumbent upon them. While the Soviet Union, together with its Eastern European allies, changed its attitude in April 198716 (a policy which Russia has since followed), several Arab States persist in their refusal. Generally, it has been and is still contended that the financial charges resulting from the stationing of peacekeeping troops at the borders of Israel have to be borne by the alleged aggressor, namely Israel. It is surely the case that, under the auspices of the principle of non-use of force, acts of aggression constitute an internationally wrongful act and give rise to a duty of reparation. But irrespective of the question of which of the States involved is responsible for the armed conflicts of the past, the GA is in no way prevented from distributing the financial charges of peacekeeping operations undertaken with a view to safeguarding international peace and security in the manner it sees fit and appropriate. The financial responsibility of an

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aggressor does not constitute a rule of ius cogens which may under no circumstances be departed from. Likewise, the opinion of the ICJ of 20 July 1962 rejects any distinction between regular expenses of the Organization and other expenses (p. 642) occasioned by measures for the maintenance of peace.17 Consequently, the objections against the apportionment of the costs of UNDOF and UNIFIL do not constitute a legal criticism, but stem from a different evaluation of political desirability which cannot impinge upon the question of the applicability of Art. 19. 9  According to the current practice of the UN, the costs of peacekeeping operations are consistently included in the amounts relevant for calculating arrears within the meaning of Art. 19.18 This practice has not been changed, in spite of criticisms which were repeatedly voiced in the Committee on Contributions (CoC). Particular account is taken of the low capacity to pay of many Third World countries; the ordinary scale of assessments does not apply. Despite the privileged treatment granted to them,19 many States fall regularly in arrears concerning their payment of the costs of peacekeeping operations.20 It is, in any event, an unfortunate precedent that in December 1981 the GA by Res 36/116 A, para 2, transferred to a special account China’s arrears relating to peacekeeping operations for the time from 25 October 1971 (recognition of the representation of China by the government of the People’s Republic) to 31 December 1981, and thereby exonerated China from those arrears at least de facto. Paragraph 4 of the Resolution states that the question of the applicability of Art. 19 to that unpaid assessment ‘shall not be raised’. This formulation was deliberately adopted from the compromise of 1 September 1965, to which the first paragraph of the Preamble refers.21 In the debate preceding the adoption of the Resolution, diverging opinions as to its legal significance were expressed. The EC countries claimed that the proposed decision was authorized by Art. 19 cl 2, and that China would therefore be entitled to vote in spite of its arrears.22 On the other hand, the Soviet Union took the view that the intended settlement was superfluous, since there existed no duty to pay contributions with regard to peacekeeping operations.23 Both points of view seem to be incorrect. The application of Art. 19 cl 2 would have presupposed a consultation of the CoC. No such consultation took place, however, before the 36th session of the GA. The transfer of the unpaid contributions to a special account constitutes nothing less than a veiled act of forgiveness whose justification must be sought outside the scope of Art. 19. By its concession, the UN secured China’s willingness to participate in the future in defraying the costs of UNDOF and UNIFIL (UNGA Res 36/116 A (10 December 1981) para 3). The objectionable feature of this preferential treatment is that it undermines the equality of all States with regard to the Organization’s financial charges as it is embodied in the scale of assessments. (p. 643) What has been conceded to China could not be legitimately denied to other States. However, the compromise of 1 September 1965 made clear that the Great Powers enjoy a special position, simply because the UN would be unable to function in their absence. 10  The costs for the international criminal tribunals established by the Security Council— the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)—also constitute financial obligations to be taken into account for the purposes of Art. 19.24 11  No State is entitled to withhold assessed contributions on grounds of political expediency, because it does not like the general orientation of policies determined by the SC or the GA, or because it wishes to pressure other nations into consenting to changes of the Charter. In this sense, in particular the unilateral reduction of the American contribution to 20 per cent by virtue of the Kassebaum-Solomon Amendment25 in order to secure weighted voting for decisions having financial implications was clearly unlawful.26 The same was true of the cap of 25 per cent on peacekeeping contributions enacted in 1994 by Congress. Unfortunately, the United States has generally taken the habit of not

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complying with its duty to pay assessed contributions on the most diverse political grounds, treating this legal obligation as a pawn in a political power game.27

III.  Arrears 12  Loss of the right to vote is contingent upon the substantive requirement that the amount of arrears equals or exceeds the amount of the contributions due for the preceding two full years. 13  Contributions are in arrears only after they have become due and payable. Reg 3.4 of the Financial Regulations and Rules of the Organization28 contains precise provisions to that effect. It provides that contributions and advances shall be considered as due and payable in full within thirty days of the receipt of the communication of the SG referred to in Reg 3.4 above, or on the first day of the calendar year to which they relate, whichever is later. As of 1 January of the following calendar year, the unpaid balance of such contributions and advances shall be considered to be one year in arrears. The member States are hence free to choose whichever of the two dates is most advantageous to them. Generally, the deadline 30 days after the receipt of the communication of the SG is the (p. 644) later date. As a rule, the member States can be informed about the exact amount of their contributions only after the GA has concluded its work in the month of December of the preceding year. The SG is doing its utmost to expedite this procedure. Within the CoC, a number of far-reaching proposals to introduce incentives for member States which pay their contributions on time were discussed29 without any actual results as yet. In particular, no interests are raised on outstanding assessed contributions. Instead, attention has shifted on institutional mechanisms suited to reduce the amount of arrears. Member States having run up excessive debts vis-à-vis the Organization are encouraged to submit to multi-year payment plans under which they would each year not only pay their assessed contributions, but also a fraction of their arrears.30 14  Based on the third clause of Reg 3.4 of the Financial Regulations and Rules, the SG has ever since the inception of the UN taken the view that arrears of the current year had to be left out of consideration31 This view means that a balance is established only once every year, on 1 January. On that occasion, it is examined whether the accumulated arrears equal or exceed the amount due for the preceding two calendar years. If the answer is negative, the issue is settled for the whole year. No legal consequences ensue if the member State concerned continues to withhold payments and the addition of all outstanding commitments then exceeds the critical threshold. In concreto, the extreme generosity of this regulation means that a financially weak member State can permit itself to maintain a constantly negative balance of only slightly less than two full annual contributions, and that it can even postpone payment until shortly before the start of a session of the GA when it has to ensure that the accumulated arrears of the past are reduced below the borderline amount. Since the commitments of the current financial year are disregarded, the permanent amount of arrears may consequently even come close to three full annual contributions. There are in fact a number of smaller countries which make extensive use of this opportunity. If the big contributors availed themselves of the flexibility inherent in Reg 3.4 of the Financial Regulations and Rules with the same alacrity, the UN would inevitably fall into a financial and hence political abyss. 15  With a view to combating such abuses the GA requested under UNGA Res 55/5 A (26 October 2000) that the SG examine whether it might be preferable to compute the arrears incurred by member States semi-annually, ie both on 1 January and 1 July of each year. In fact, a report by the SG established according to this request32 concluded that such a new method would indeed strengthen the sanctioning effect of Art. 19 by making it applicable

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much earlier than according to the current method. However, to date the Financial Regulations and Rules have not been amended in that sense. 16  Calculating the arrears of a given country is a somewhat complex undertaking. The main difficulty stems from the fact that separate accounts are maintained for each peacekeeping operation and also for the two international criminal tribunals. Regarding peacekeeping operations, in particular the calculation of the financial value of contributions in kind may give rise to controversies.

(p. 645) C.  Legal Consequences I.  The Loss of the Right to Vote 17  Regarding the loss of the right to vote, provided for as a sanction by Art. 19, it has been controversial ever since the financial crisis unleashed by UNEF I and ONUC whether that loss occurs ipso facto or whether a constitutive resolution of the GA is required. At the time of that crisis, the United States in particular insisted on an automatic effect of Art. 19.33 In a legal opinion of 1968, the Legal Counsel of the UN endorsed that viewpoint.34 On the other hand, the Soviet Union claimed several times that the loss of the right to vote required a resolution of the GA to be adopted by a two-thirds majority, since it amounted to a ‘suspension of the rights and privileges of membership’ in the sense contemplated by Art. 18 (2).35 18  A literal interpretation of Art. 19 cl 1 confirms the correctness of the view according to which a loss occurs automatically. The English text indicates the legal consequences less clearly than the other authentic versions. The words ‘shall have no vote’ could also be reconciled with an interpretation to the effect that the legal obligation still needs to be translated into a concrete act of application. But the French text leaves no room for doubt by specifying that a debtor in arrears ‘ne peut pas participer au vote’. Similarly categorical is the Spanish version which includes the words ‘no tendrá voto’. It would almost amount to a perversion of that text if one defended the view that the right to vote existed as long as the GA had not taken a decision on forfeiture. 19  A systematic interpretation of Art. 19 corroborates the conclusions to be drawn from a literal interpretation. Clause 2 of Art. 19 explicitly refers to a decision of the GA. Accordingly, nothing would have been more natural than to emphasize the necessity of a decision of the GA here as well, if the drafters had wished to lay down such a procedural requirement. Furthermore, the second clause would have no real meaning if the GA already had to take positive action under the first clause. In the case of a discretionary decision, it would be a self-evident necessity to take into account whether the member State concerned had fallen into a situation of financial emergency without being at fault. Finally, it emerges from a comparison with Art. 5 that the drafters were fully aware of the difference between a legal effect ex lege and a mere authorization or command to bring about such a juridical effect. A suspension of the rights of membership according to Art. 5 never takes place automatically but must be determined by the GA. The members of the UN are thus given the opportunity to reflect on the possible consequences of such a sanction. Since Art. 5 on one hand and Art. 19 cl 1 on the other hand are couched in different terms, this textual divergence must imply a difference in substantive meaning. 20  If one inquires into the object and purpose of the differentiation between the automatic sanction of Art. 19 cl 1, and the sanction of Art. 5, which can be imposed only by a constitutive resolution, a number of cogent reasons come to the fore. The temporary suspension of the rights and privileges of membership, as a comprehensive act of (p. 646) forfeiture, constitutes such a severe measure that it was indispensable to provide for similarly comprehensive procedural guarantees. At the same time, the application of Art. 5 amounts to a legal as well as political condemnation of the member State concerned. For this reason as well, protection had to be ensured by procedural provisions suited to prevent From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

any hasty and overzealous action. Certainly, the sanction of Art. 19 is also intended to exert pressure on a member State, but this sanction is not rooted in a dimension of moral disapproval. One could therefore easily prescribe an effect ex lege, without thereby creating the danger of exposing member States to a grave risk. Finally, the calculation of contributions in arrears, although not simple, is in principle free of any political evaluation. Admittedly, the habit practised by some States of questioning the legality of certain resolutions has complicated this simple accounting exercise, in a manner unforeseen by the drafters of the Charter. 21  Since the GA has no margin of discretion if the requirements of Art. 19 are met, except in cases where a member State can invoke in its favour the specific circumstances of Art. 19 cl 2, a decision to be taken by it would lack any inherent justification. The member State concerned could, however, hope that the other member States would not act according to the clear instruction imparted by Art. 19 cl 1. Moreover, if a two-thirds majority were necessary in accordance with the official view of the former Soviet Union, voting battles with a highly uncertain outcome would have to take place every time. Thus, Art. 19 cl 1 would be largely deprived of its effect as an instrument of pressure. Consequently, the teleological evaluation of the provision also militates in favour of its ex lege effect. 22  As the interpretation of the text has yielded clear results, Art. 32 of the Vienna Convention on the Law of Treaties precludes turning back to the drafting history. In spite of his extensive analysis of all the sources, Ciobanu, who defends the opposite viewpoint, has not been able to find any evidence which would convincingly demonstrate that the drafters had different intentions from those which are reflected in the text.36 The only relevant commentary one can refer to is a sentence by the Rapporteur of Commission II, Ricardo J Alfaro from Panama, which reads: ‘A member which has fallen two years in arrears on its financial obligations to the Organization, however, will not be allowed to vote except by special decision of the Assembly.’37 At most, one can detect in this sentence a certain lack of precision similar to that inherent in the definitive text. It is not suited, however, to be adduced as evidence to overturn the results arrived at by literal, systematic, and teleological interpretation. 23  In practice, the application of Art. 19 has until now been based almost consistently on the assumption that a member State which fulfils the substantive requirements of the first sentence automatically loses its right to vote. When Haiti fell into arrears before the fourth special session of the GA (May 1963), the President of the GA informed the SC in a letter of 15 May 196338 that he would not have permitted that country to participate in a formal vote if such a vote had taken place in the presence of a Haitian representative. Shortly afterwards, however, the Soviet Union protested against this view.39 During the crisis of 1964/65, the United States requested in the first place that the States which had fallen into arrears should be denied the right to vote during the forthcoming (p. 647) 19th session of the GA.40 At the inaugural meeting on 1 December 1964, which had been postponed for two and a half months because of the controversy, agreement was reached on adopting draft proposals by consensus without a formal vote (‘no objection procedure’).41 The situation became even more critical after the resumption of the session in the new year when it emerged that other countries—among them France, for the same reasons as the Eastern European countries—had come within the purview of Art. 1942 as of 1 January 1965. On 16 February 1965, Albania formally challenged the ruling of the President of the GA that the remaining agenda items would be settled pursuant to a consensus procedure as well. According to Rule 71 (at that time, Rule 73) of the Rules of Procedure of the GA, a vote was now inevitable. The representatives of the States in arrears were allowed to join in the vote.43 The American delegate declared ‘that such a vote would not involve or prejudice the question of the applicability of Article 19’.44 Although the Albanian objection was later

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rejected by a large majority, the GA adjourned on 18 February 1965, because it had become obvious that a decision had to be taken on the issue of the loss of the right to vote. 24  The Special Committee on Peace-Keeping Operations established with a view to settling the matter succeeded in fact in elaborating a compromise formula45 which suggested that the question of the applicability of Art. 19 ‘will not be raised’ with regard to UNEF I and ONUC, and that the difficulties of the Organization should be solved through voluntary contributions. This compromise was approved by the GA on 1 September 1965.46 The United States had paved the way on 16 August 1965 by making the following declaration: Therefore, without prejudice to the position that Art. 19 is applicable, the United States recognizes, as it simply must, that the General Assembly is not prepared to apply Article 19 in the present situation and that the consensus of the membership is that the Assembly should proceed normally. We will not seek to frustrate that consensus, since it is not in the world interest to have the work of the General Assembly immobilized in these troubled days. At the same time, we must make it crystal clear that if any member can insist on making an exception to the principle of collective financial responsibility with respect to certain activities of the Organization, the United States reserves the same option to make exceptions if, in our view, strong and compelling reasons exist for doing so. There can be no double standard among the members of the Organization.47 25  It later became clear that the compromise of 1965 does not signify a general suspension of Art. 19. In 1967, 1968, and 1969, when Haiti and the Dominican Republic had got into arrears with more than two annual contributions, these two States were disregarded in a number of roll-call votes or in the distribution of voting bulletins.48 (p. 648) In 1968, Haiti was explicitly authorized, after it had invoked the factual requirements of Art. 19 cl 2, to participate in voting until the CoC had given its opinion.49 A similar authorization was accorded to Yemen in 1971 when, as indicated by the representative of that country, a remittance in the necessary amount had already been dispatched but had not yet reached the UN.50 A similar procedure was adopted in 1973 when the GA, in the opening meeting of the 28th session on 18 September 1973, authorized Bolivia, the Central African Republic, Guinea, and Paraguay to participate in voting after assurances had been given that the amount due had already been dispatched.51 Out of these States, Bolivia52 and later the Central African Republic53 contended at the same time that the delay was related to circumstances beyond their control. Without a decision having been taken on the second application, the President informed the GA that an agreement had been reached with the State concerned.54 This agreement implied that the Central African Republic would neither vote in the Plenary of the GA nor in its Committees; that in the case of a roll-call vote it would not be called; and that in the case of informal votes its position would not be taken into account either.55 During the 31st session in 1976, another such agreement was reached with the two States concerned (the Central African Republic and the Congo).56 In September 1977, four States were in arrears when the 31st session of the GA was resumed. With two of them (the Central African Empire and the Dominican Republic), an agreement on non-participation in voting could again be reached. In the case of South Africa, the problem had lost its relevance because of the exclusion, effective as from 1974, of the South African delegation from the GA, while Democratic Kampuchea claimed that it was not bound to pay the debts of the former government (Lon Nol, March 1970 to April 1975). The GA decided to keep the applicability of Art. 19 in abeyance until the examination of this legal objection.57 At the beginning of the 32nd session, the conflict had not yet been resolved. In order to avoid a precedent, the President of the GA was elected by acclamation58 in departure from Rule 92 cl 1 of the Rules of Procedure of the GA (‘All elections shall be held by secret ballot’). Shortly afterwards, Kampuchea made a payment which reduced its arrears below the limit specified in the first sentence of Art. 19.59 During

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the eighth special session of the GA in April and May 1978, the six States which owed the UN more than two full annual contributions were not called during the final vote on the Declaration on Namibia,60 an omission which was objected to by the Soviet Union with reference to the alleged lack of automatic effect of Art. 19.61 In 1980, Chad had come within the scope (p. 649) of application of Art. 19.62 After the Chadean representative had emphasized the situation of emergency prevailing in his country,63 the GA adopted a resolution to permit the exercise of the right to vote on account of these special circumstances.64 26  To put an end to the somewhat haphazard approach to requests under Art. 19 for an authorization to vote notwithstanding accumulated arrears, the GA established in 1999 a specific methodology for States wishing to avail themselves of the opportunities of the exceptional clause. Governments having to face up to unforeseen financial difficulties, are ‘urged’ to ‘provide the fullest possible supporting information, including information on economic aggregates, government revenues and expenditure, foreign exchange resources, indebtedness, difficulties in meeting domestic or international financial obligations and any other information that might support the claim that failure to make necessary payments had been attributable to conditions beyond’ their control.65 Generally, the GA shows a high degree of generosity in accordance with the suggestions of the CoC.66 Nonetheless, not all requests under Art. 19, second clause, are granted. 27  The practice as described, which is now handled fairly openly in the relevant reports of the CoC, is apparently based on the premise that Art. 19 cl 1 has an ipso iure effect. States in arrears are prevented from voting. The voting machine at their delegation seat is deactivated.67 Furthermore, it could not be explained otherwise why in a number of instances the debtors in arrears were authorized to vote by a (constitutive) decision. In sum, the compromise of 1965, in spite of its wording, did not touch upon the provision of Art. 19 cl 1. The real—and only—point of contention was the question of whether the costs for the two controversial peacekeeping operations UNEF I and ONUC had to be borne by the member States under Art. 17. 28  In Western States, in any event, doctrine overwhelmingly takes the view, in full accordance with the practice referred to, that Art. 19 cl 1 is directly effective when its substantive requirements are met, and that no implementing decision of the GA is needed.68 Conversely, a State recovers its right to vote ipso iure as soon as it makes the requisite payment and thus falls below the critical threshold.69

II.  Relevant Organs 29  The text of Art. 19 cl 1 states in general that the loss of the right to vote occurs ‘in the General Assembly’. (p. 650) 30  All resolutions of the GA are definitively adopted in the Plenary. Since Art. 19 cl 1 purports to impose an appreciable sanction, it must, in accordance with the literal meaning of the text, apply to the Plenary. 31  Nothing else can apply to the main committees of the GA. The Plenary forms a whole together with its main committees. The Charter does not even mention the main committees, which are not merely subsidiary organs in the sense of Art. 22. It is well known that almost the entire work of discussion and drafting is done in the main committees. Votes in these committees influence greatly the ultimate fate of a draft proposal. In the letter from the President of the GA of 15 May 1963,70 where the issue of loss of the right to vote was raised for the first time, its applicability to the main committees is considered self-

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evident. In practice, the Plenary and the main committees have always been dealt with in the same way. Legal doctrine is unanimous in concurring with this view.71 32  In subsidiary organs established according to Art. 22, Art. 19 cl 1 can have no effect. In a literal sense, such organs are not the GA. It must further be considered that organs pursuant to Art. 22 generally comprise only a limited circle of members. An individual State invariably discharges the function of a representative of the regional group concerned. If it were denied the right to vote, the whole regional group would be affected. Additionally, decisions of subsidiary organs never have a definitive character but must at a later stage pass through the filter of the GA itself. 33  Similar considerations apply to the other UN organs, in particular the SC. The composition of the SC is based on a skilfully conceived system of equitable regional distribution of seats. If contrary to the wording of Art. 19 one affirmed its applicability to the SC, the functioning of the SC would be hampered, whereas Art. 19 is solely conceived as a sanction against a member State concerned.72 The drafting history confirms this result. At the San Francisco Conference, the Netherlands had submitted a proposal according to which, besides the loss of vote in the GA, a seat in the SC would be forfeited.73 This proposal was not acted upon,74 which demonstrates a deliberate will of the drafters to except the SC from the scope of application of Art. 19.

III.  The Right to Vote 34  The loss of the right to vote does not mean that the State in arrears may never participate in a vote. The crisis of 1964–65 was bridged for a while by adopting draft proposals in a no-objection procedure. Neither is a State in arrears excluded from a consensus procedure. This is illustrated by the election of the President of the GA in 1977, which took place by acclamation.75 Nor does a delay in payments affect elections under para 16 of Annex VI to the Rules of Procedure of the GA, when with respect to subsidiary organs of the GA or the President and the Vice-Presidents of the GA the number of candidates corresponds to the number of seats to be filled.76 In all of these instances, the delegations (p. 651) of member States are not required to vote individually. It would also be hard to see how under such circumstances one could eliminate a member State in arrears.

D.  Procedure I.  Information by the Secretary-General and Decision by the President or Chairman 35  Although Art. 19 cl 1 deploys its effects ipso iure, a certain procedure is essential in order to ensure its application. The SG regularly informs the President of the GA about the situation at the beginning of a session in a letter.77 This letter is published as an A document and is therefore also available to the chairmen and the vice-chairmen of the main committees. A general practice has evolved according to which the attention of the Plenary is immediately drawn to the information contained in this document in the opening meeting of each session. The President reads out the text of Art. 19 cl 1, and declares that he assumes the GA to take due notice. Generally, it is decided ‘accordingly’.78 Although the meaning of this decision is not completely clear, one is entitled to assume that, in accordance with the information received, the direct effect of Art. 19 cl 1 is taken account of either by not calling the member State concerned in a roll-call vote, or by not distributing a voting bulletin to it. 36  Since the arrears are calculated on the basis of the payments failing for the two preceding years, the SG informs the GA again of the relevant arrears in a letter early in January. The States concerned are thereby called upon either to make the requisite

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payments or to seek an authorization under Art. 19 cl 2. The GA is subsequently informed about any payments received by the Organization.79 37  According to legal advice given by the SG on a situation where a member State which had not fully paid its arrears, was allowed to vote, due to incorrect information provided by the responsible officers in the UN Secretariat, the relevant balloting was invalid.80 Accordingly, the election of those six judges (out of a total of eleven) who on the basis of a first round of voting had already obtained the nececessary number of ballots to fill the vacancies in the International Criminal Tribunal for Rwanda, was also declared invalid. After a heated debate in the GA,81 the legal opinion was accepted as authoritative.82(p. 652) Accordingly, the election process was started anew. It may seem doubtful whether this approach to instances where a member State was inadvertently permitted to vote provides the sound answer for all similar instances. The opinion deserves to be heeded where every individual vote matters, but not where simply a majority is required, the disenfranchised State being just one element in a large majority.

II.  Appeal against a Ruling by the President or Chairman 38  A State allegedly in arrears and therefore excluded from voting by the President can challenge the relevant ruling according to Rule 71 of the Rules of Procedure of the GA. The President shall then immediately make a decision, which can again be challenged by an appeal whose final determination rests with the GA. It is hence possible, through this procedural mechanism, to bring about a decision by the GA itself. A challenge would be successful if the objecting State could muster a majority in its favour. In such instances, the GA is bound by the applicable substantive law. If and when there does indeed exist a delay in payments as stated in Art. 19 cl 1, it must dismiss the objection.83 Nonetheless, the GA enjoys a certain amount of discretion de facto, particularly because its determination cannot be reviewed as to its lawfulness by any judicial body. To date, there exists no relevant practice.

E.  Authorization to Exercise the Right to Vote in Accordance with Article 19 clause 2 I.  Substantive Requirements 39  A member State may be permitted to vote if its failure to pay is due to conditions beyond its control. The French version, in accordance with the Spanish text, speaks of ‘circonstances indépendantes de sa volonté’. By comparison, the English text seems to lay down the strictest requirements. 40  In the practice of the UN, a distinction is drawn between a provisional authorization to exercise the right to vote and an authorization for a longer period of time. A provisional authorization can be given in instances where the amounts due have already been dispatched but have not yet reached one of the accounts of the UN. Another group comprises those cases where a country has been authorized to participate in voting until the outcome of the examination of an application under Art. 19 cl 2. 41  As far as applications which are not merely provisional are concerned, the relevant practice has considerably changed during the last decade. For more than two decades since the inception of the UN, no requests under Art. 19 second clause were made. In 1968, an application submitted by Haiti84 was not supported by the CoC because the amount needed to descend below the critical threshold (approximately US $30,000) was a ‘relatively small sum’.85 No decision was taken by the GA itself since Haiti made the necessary payments immediately after the completion of the work of the CoC, so that it (p. 653) could participate in the vote on the Chinese question on 19 November 1968.86 In 1969, Haiti was again in arrears87 and invoked a situation of economic emergency,88 but then made the necessary payment within one day’s time so that its application did not need to be acted upon.89

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Likewise, an application submitted in 1981 by the Central African Republic90 met with little sympathy. The CoC was of the view that many other countries were in a similar situation, that the amount at stake was relatively modest, and that in addition the delay was not attributable to circumstances beyond the control of the applicant.91 After this unfavourable view had been expressed, the Central African Republic paid the amount in arrears without insisting on a decision of the GA itself. Only once during those early decades was positive use made of the power of Art. 19 cl 2, namely in favour of Chad.92 This practice tended to show that the CoC had opted for applying a strict yardstick, probably on account of the fact that most Third World countries are placed in a difficult situation characterized by scarcity of transferable currency. If this general situation could lead to an application of Art. 19 cl 2, the principle of collective financial responsibility of all members would soon collapse. 42  In the more recent past, however, the GA seems to be more inclined to accept applications alleging a national emergency situation. Belarus and Ukraine were granted exemptions with regard to their arrears in contributing to the financing of peacekeeping operations.93 In 1995, the GA was particularly generous in finding that the arrears of no fewer than eight States were due to conditions beyond their control.94 However, since the minimum rate (‘floor’) was reduced to a bare 0.001 per cent as from the budget year 1998, the CoC again advocated a stricter review.95 Nonetheless, in 2000, the GA again granted generous authorizations under Art. 19 cl 2, contrary to a first proposal of the CoC.96 Since that time, exemptions have been granted regularly to between six and eleven States. The Central African Republic, the Comoros, Guinea-Bissau, Liberia, Sao Tome and Principe, and Somalia belong to that core group of States that apparently live under structural conditions of financial emergency.

II.  Procedure 43  According to Rule 160 of the Rules of Procedure of the GA, the CoC advises the GA on all questions regarding the application of Art. 19. Applications for an exceptional authorization according to Art. 19 cl 2 are consequently first submitted to the CoC. (p. 654) On the basis of the report of the CoC, the GA makes its determination by a simple majority, since none of the exceptional situations of Art. 18 (2) are given.

F.  Special Issues I.  Desuetudo 44  As has been stressed several times, there can be no question of a desuetudo of Art. 19 cl 1,97 quite apart from the question of whether, in view of the silence of the two Vienna Conventions on the Law of Treaties, desuetudo may be recognized as a ground for the termination of contractual obligations.98 Article 19 cl 1 has been applied continually since 1965. An exception was made only with respect to the costs of UNEF I and ONUC, which were legally questionable in spite of the opinion of the ICJ of 20 July 1962.99 To the extent that Arab States have refused to contribute to the costs of some peacekeeping operations related to the dispute between Israel and Palestine, such arrears are taken into account in calculating the amount relevant for the purposes of Art. 19 cl 1. By virtue of its ‘Goldberg Reservation’,100 the United States has not acquired any rights contrary to the Charter. The compromise of 1965 was based on the recognition, by all parties involved, that legally controversial expenses should not be enforced via Art. 19 cl 1. To that extent, every State in a similar position should be able to claim a right to equal treatment. The situation is totally different, however, when a State unilaterally reduces its payments, as practised by the United States for a number of years. There can be no doubt that all of the reductions caused by the Gramm-Rudman-Hollings Act or by the Kassebaum Amendment must be

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taken into account for the calculation of the arrears relevant for the purposes of Art. 19 cl 1.

II.  Change of Government 45  According to general rules of customary law, a simple change of government affects neither the rights nor the duties of a State.101 Nevertheless, in the case of China, a departure was made from that rule. By UNGA Res 3049 C (XXVIII) (19 December 1972), it was decided to transfer to a special account the arrears that had accumulated during the time when the national Chinese government had held the Chinese seat at the UN; thereby, at least de facto, those amounts were definitively written off. Similar attempts by the government of Democratic Kampuchea to reach the dismissal of the unpaid contributions (p. 655) accumulated during the term of office of the Lon Nol government (1970–75)102 failed. The GA rejected that line of reasoning.103

III.  State Succession 46  If States merge, which happens from time to time (eg the merger of Egypt and Syria in 1958 to form the United Arab Republic, or the absorption of the German Democratic Republic by the Federal Republic of Germany in October 1990), the new State or the enlarged State which has grown by absorption must be held responsible for all debts of a predecessor that has become extinct. In the case of dismemberment (eg the secession of Pakistan from India in 1947, and Bangladesh from Pakistan in 1972), the logic of the assessment of contribution, which is based on capacity to pay, demands that existing arrears be distributed between the new States according to this yardstick. However, such a construction faces the difficulty that the new State which is seceding does not automatically become a member of the UN. Thus, Bangladesh, which had attained independence in 1972, was successful with its application for membership only in September 1974. When the Federal Republic of Yugoslavia was admitted to the UN as a new member State on 1 November 2000 (UNGA Res 55/12) after it had renounced its claim to continue the legal personality of the Socialist Federal Republic of Yugoslavia (SFRY), no immediate settlement could be reached. Eventually, by UNGA Res 63/249 (24 December 2008), the GA recommended that unpaid assessments, in the amount of about $1.25 million, be apportioned among the successor States.

IV.  Other Sanctions 47  No State will ever be excluded from the UN simply because of a delay in paying its contributions. When, however, the conduct of a State is evaluated for the purposes of an application of Art. 6, the manner in which it has honoured its financial commitments may be taken into consideration. Article 19 is not exclusive in the sense that, in a case of delayed payment of contributions, a loss of a State’s voting right in the GA would be the only reaction to be envisaged.104(p. 656)

Footnotes: 1

  See GHS, 176; W Schücking and H Wehberg, Die Satzung des Völkerbundes, vol 1 (3rd edn, Vahlen 1931) 582–83. 2

  Netherlands, UNCIO III, 322–29, 325.

3

  Norway, UNCIO III, 353–64, 356, 365–75, 367.

4

  ibid, 527–30, 528.

5

  ibid, 543–53, 546.

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6

  See UNGA Res 64/248 (24 December 2009) UN Doc A/RES/64/248 para 12 (b).

7

  UN Doc A/42/841 (1987) para 4.

8

  See lately UNGA Res 55/5 A (26 October 2000) UN Doc A/RES/55/5 para 2; UNGA Res 56/243 A (24 December 2001) UN Doc A/RES/56/243, para 5; UNGA Res 57/4 B (20 December 2002) UN Doc A/RES/57/4, para 2; UNGA Res 58/1 B (12 December 2003) UN Doc A/RES/58/1, para 11; UNGA Res 59/1 B (23 December 2004) UN Doc A/RES/59/1, para 3; UNGA Res 60/237 B (23 December 2005) UN Doc A/RES/60/237, para 14; UNGA Res 61/243 (22 December 2006) UN Doc A/RES/61/243 para 18; see also report of the SG (18 October 2010) UN Doc A/65/519 para 30: ‘In order to maintain the financial health of the Organization, it remains as critical as ever for Member States to meet their financial obligations to the United Nations in full and on time.’ 9

  Adopted for the biennium 2010–11 by UNGA Res 64/244 A (24 December 2009) UN Doc A/RES/64/244 and UNGA Res 65/260 A (24 December 2010) UN Doc A/RES/65/260. 10

  For regular expenses provided for in the programme budget the scale of assessments is different from the scale which applies to the costs of peacekeeping operations like UNMIK and UNTAET. See, on the one hand, UNGA Res 55/5 B (23 December 2000) UN Doc A/RES/ 55/5 on the other, UNGA Res 55/235 (23 December 2000) UN Doc A/RES/55/235 (listing ten different groups of countries identified according to their responsibility for the maintenance of international peace and security and their capacity to pay, in contrast to the former model of four groups of countries according to UNGA Res 43/232 (1 March 1989) UN Doc A/RES/43/232). As far as the two international criminal tribunals, established by the SC, are concerned, their expenses are apportioned by half according to the scale of assessments applicable to the regular budget and by another half in accordance with the scale of assessments applicable to peacekeeping operations. 11

  Memorandum of 11 September 1964, UN Doc A/5729 (1964) GAOR 19th Session Annexes (Agenda Item 21) 6–10; contradicted by the US memorandum of 8 October 1964, UN Doc A/5739 (1964), ibid, 10–18. 12

  Memorandum of 9 September 1964 (n 11) 8; letter of 7 November 1964, UN Doc A/ 5777, GAOR 13th Session Annexes (Agenda Item 21) 19f, 20. See also letter by Czechoslovakia (26 November 1964) UN Doc A/5281, ibid, 21f, 22. 13

  Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151f, 179.

14

  RP 3 I, 398, para 26; for details see MN 23, 24.

15

  Tomuschat, 449; Zoller, 632; Francioni, 54f, suggests that the power of withholding assessed contributions should be restricted by the three principles of specific necessity, integrity, and consistency. 16

  Statement of 25 November 1986 UN Doc A/C.5/41/SR. 35 7, para 27.

17

  Certain Expenses [1962] ICJ Rep 166–67.

18

  RP 5 I, 219, para 3. The UNGA has consistently stressed that the costs of peacekeeping operations are expenses of the Organization to be borne by member States in accordance with Art. 17 (2) of the Charter, see lately UNGA Res 55/235 (23 December 2000) UN Doc A/ RES/55/235 para 1(a); UNGA Res 64/249 (24 December 2009) UN Doc A/RES/64/249 para 2 (a). See also the Declaration on the Occasion of the 50th Anniversary of United Nations Peacekeeping, Annex to UNGA Res 52/2 (6 October 1998) UN Doc A/RES/53/2. 19

  For the division of the Member States in ten groups according to financial capacity see UNGA Res 55/235 (23 December 2000) UN Doc A/RES/55/235.

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20

  See the complaints voiced by the UNGA in resolutions on the peacekeeping operations in the Central African Republic and Chad, UNGA Res 65/254 (24 December 2010) UN Doc A/RES/65/254 para 1; the Democratic Republic of the Congo, UNGA Res 65/255 (24 December 2010) UN Doc A/RES/65/255; Haiti, UNGA Res 65/256 (24 December 2010) UN Doc A/RES/65/256 para 2. 21

  Pakistan (27 November 1981) UN Doc A/C.5/36/SR.56 6 para 26.

22

  United Kingdom (30 November 1981) UN Doc A/C.5/36/SR.57 12, para 58; also Canada, ibid, 11, para 52. 23

  (30 November 1981) UN Doc A/C.5/36/SR.557 8, paras 32–34.

24

  See UNGA Res 47/235 (14 September 1993) UN Doc A/RES/47/235 and most recently UNGA Res 64/240 (24 December 2009) UN Doc A/RES/64/240 (ICTY); UNGA Res 49/251 (20 July 1995) UN Doc A/RES/49/251 and most recently UNGA Res 64/239 (24 December 2009) UN Doc A/RES/64/239 (ICTR). 25

  22 USC 287e, (1986) 25 ILM 27.

26

  See Memorandum by the then twelve Member States of the European Community, 14 March 1986, (1986) 25 ILM 482. The issue was provisionally resolved when the GA determined that, without prejudice to the provisions of the Charter, efforts should be made to continue the ‘existing practice of reaching decisions by consensus’, UNGA Res 41/213 (19 December 1986) UN Doc A/RES/41/213 para 6. 27

  For a detailed account of these initiatives see accessed 12 June 2012. Criticism by Bond, passim; Francioni, passim, in particular, 48; Cárdenas, passim; for a defence of the American strategies see Gerson, passim. An even more far-reaching restriction contained in the Henry J Hyde United Nations Reform Act of 2005, was passed by the US House of Representatives on 17 June 2005 but did not find approval with the US Senate; see critical comment by Schnoor, passim. For a recent statistical breakdown of the US arrears see figures provided by the Global Policy Forum, accessed 12 June 2012. 28

  (9 May 2003) UN Doc ST/SGB/2003/7.

29

  See Report of the Committee on Contributions (2000) UN Doc A/55/11, paras 6–15; Report of the Committee on Contributions (2004) UN Doc A/59/11, paras 27–32. 30

  See Report of the Committee on Contributions (2010) UN Doc A/65/11, paras 78–82; general approval for such plans by UNGA Res 57/4 B (20 December 2002) UN Doc A/RES/ 57/4, para 1. 31

  RP 1 I, 602, para 6.

32

  (2001) UN Doc A/55/789.

33

  Memorandum of Law (February 1964) 58 AJIL 753–78; also memorandum of 8 October 1964 (n 11) 16. 34

  Annex to (1968) UN Doc A/7146, (1968) UNJYB 186–88; the same view is expressed in a memorandum of 4 April 1974, (1974) UNJYB 156–57. 35

  (1963) UN Doc A/5431, (1968) A/7111; supported by Mexico, (1968) UN Doc A/7118; Haiti, (1968) UN Doc A/7129; Dominican Republic, (1968) UN Doc A/7136. 36

  Ciobanu, 49–55; see also the US Memorandum of Law (n 33) 756f.

37

  UNCIO VIII, 265.

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38

  Reprinted in the US Memorandum of Law (n 33) 759.

39

  (1963) UN Doc A/5431.

40

  Memorandum ‘The United Nations Financial Crisis’, UN Doc A/5739 (1964) GAOR 19th Session Annexes (Agenda Item 21) 10f, 16. 41

  GAOR 19th Session (1 December 1964) 1286th Plen mtg, paras 7–11; RP 3 I, 397; see also Wolfrum on Art. 18 MN 31–33. 42

  RP 3 I, 397–98.

43

  GAOR 19th Session (18 February 1965) 1330th Plen mtg, para 103.

44

  ibid, para 101.

45

  UN Doc A/5916 (1965) GAOR 19th Session Annexes (Agenda Item 21) 85; RP 3 I, 398.

46

  GAOR 19th Session (1 September 1965) 1331st Plen mtg, paras 3, 4.

47

  UN Doc A/5916/Add.1 (1965) GAOR 19th Session Annexes, vol II (Agenda Item 21) 86 (‘Goldberg Reservation’), reprinted in MM Whiteman (1968) 13 Digest of International Law 331. 48

  1967: Dominican Republic, 1518th Plen mtg, 19 May 1967, para 5; 1968: Haiti and Dominican Republic, 2nd Committee, 1582nd mtg (10 June 1968) para 2; 1671st Plen mtg (12 June 1968) para 66; 1672nd Plen mtg, para 63; 1969: Haiti, 1753rd Plen mtg (16 September 16 1969) para 36. This practice was objected to by a letter of protest from the Soviet Union of 19 June 1968 UN Doc A/7111, to which the SG replied by his opinion of 26 July 1968, see n 34. A description of the relevant events is also given by Rosenstock, 919– 24. 49

  GAOR 23th Session 1674th Plen mtg (24 September 1968) para 40.

50

  GAOR 25th Session 1934th Plen mtg (21 September 1971) 3, para 24.

51

  GAOR 28th Session 2117th Plen mtg (18 September 1973) paras 31, 32.

52

  (1973) UN Doc A/9157, Annex I.

53

  (1973) UN Doc A/9157/Add. 3.

54

  GAOR 28th Session 2131st Plen mtg, para 70.

55

  RP 5 I, 220, with note 220; the contribution was then paid at the beginning of October 1973, see (1973) UN Doc A/9157/Add. 4. 56

  GAOR 31th Session 1st Plen mtg (21 September 1976) para 43.

57

  GAOR 31th Session 108th Plen mtg (13 September 1977) para 3; RP 5 I, 220, para 10.

58

  GAOR 32th Session 1st Plen mtg (20 September 1977) para 8.

59

  RP 5 I, 220, para 11.

60

  GAOR (S-9) 15th Plen mtg (3 May 1978) 241, paras 58, 59.

61

  ibid, paras 61–65.

62

  (1980) UN Doc A/35/456.

63

  Annex to (1980) UN Doc A/35/456, 2.

64

  GAOR 35th Session 1st Plen mtg (16 September 1980) para 34.

65

  UNGA Res 54/237 (23 December 1999) UN Doc A/RES/54/237, s C.

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66

  Thus, the Central African Republic, the Comoros, Guinea-Bissau, Liberia, Sao Tome and Principe, and Somalia were permitted to vote during the 65th Session of the UNGA, UNGA Res 65/3 (8 October 2010) UN Doc A/RES/65/3 paras 5, 6. 67

  See eg the vote on the request addressed to the ICJ to given an Advisory Opinion on Kosovo’s unlilateral declaration of independence, where Liberia was excluded (8 October 2008) UN Doc A/63/PV.22, 11. 68

  CPF/Florent, 819; B Conforti, The Law and Practice of the United Nations (Nijhoff 1996) 39; cf Kirgis; M Medina, La Organización de las Naciones Unidas (2nd edn, Editorial Tecnos 1974) 48; Ohse, 157; Rosenstock, 924; D Ruzié, Organisations internationales et sanctions internationales (Colin 1971) 22–23; HG Schermers and NM Blokker, International Institutional Law (3rd edn, Nijhoff Publishers 1995) 909, para 1459; with some doubts also N Singh, Termination of Membership of International Organizations (Praeger 1958) 52; M Virally, L’Organisation mondiale (Colin 1972) 505; a contrary view was held by Ciobanu, 49– 75; Kelsen, 717–20. 69

  Ohse, 158 in accordance with the constant practice of the GA.

70

  See n 38.

71

  GHS, 178.

72

  cf Kirgis; Medina (n 68) 47; Ohse, 158; Schnoor, 1176.

73

  UNCIO VIII, 508–09, 509.

74

  ibid, 364–65.

75

  See n 58.

76

  See eg (16 September 1986) UN Doc A/41/PV.1, 12.

77

  eg at the beginning of the 65th session of the UNGA the information was provided by letter of the SG (9 September 2010) UN Doc A/65/359, which listed six States (Central African Republic, Comoros, Guinea Bissau, Liberia, Sao Tome and Principe, Somalia) as coming within the scope of Art. 19. This letter was taken note of by the UNGA during its opening meeting on 14 September 2010. Shortly thereafter, the UNGA determined by UNGA Res 65/3 (8 October 2010) UN Doc A/RES/65/3, that the failure of the six States to meet their financial membership obligations was due to circumstances beyond their control. 78

  See Press Release GA/10857 on first Plenary meeting of the UNGA on 15 September 2009. 79

  By letter of 12 January 2011, UN Doc A/65/691, the SG reported that eighteen States remained above the threshold of arrears for the two preceding years (2009–10), all of them Third World countries or successor States of the former Soviet Union. In Add 1-8 (up to 25 March 2011) it was successively reported that nine of those States had paid their arrears so as to remain below the amount specified in Art. 19. Since the six States referred to above were permitted to vote during the entire 65th session, only three States remained without the right to vote: Grenada, Kyrgyztan, Rwanda. 80

  Legal advice of 29 and 30 January 2003 (2003) UNJYB 526–28.

81

  During this debate, reflected in UN Doc A/57/PV.80, 29 and 31 January 2003, a passage from the first edition of this commentary on Art. 19 was textually cited (15), but with the truncated indication that the passage stemmed from the UN Charter Commentary by ‘Bruno Simma’. 82

  For a full account see UN Doc A/57/PV.80.

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83

  Underlined also by the US Memorandum of Law (n 33) 767.

84

  Letter of 23 September 1968, in Second and Third Reports of the Committee on Contributions, UN Doc A/7210/Add.1, Annex I, 6 (1968) GAOR 23th Session Supp 10A. 85

  Third Report, ibid, 5, para 6.

86

  See (1968) UN Doc A/7238/Add.1 and GAOR 23th Session (19 November 1968) 1742nd Plen mtg, 22–23, paras 231–32. 87

  (1969) UN Doc A/7672.

88

  Letter of 26 February 1981, Report of the Committee on Contributions, GAOR 36th Session Supp 11; UN Doc A/36/11, Annex II, 33. 89

  (1969) UN Doc A/7672/Add. 1.

90

  Letter of 26 February 1981, Report of the Committee on Contributions, GAOR 36th Session Supp 11; UN Doc A/36/11, Annex II, 33. 91

  ibid, 18, 58.

92

  See MN 25 with n 64.

93

  Decision 48/472, 23 December 1993; Decision 49/470, 23 December 1994; see also UNGA Res 54/242 (23 December 1999) UN Doc A/RES/54/242. 94

  UNGA Res 50/207 (23 December 1995) UN Doc A/RES/50/207: Comoros, Georgia, Kyrgyztan, Latvia, Liberia, Sao Tomé and Principe, Tajikistan, Turkmenistan. 95

  See Report of the Committee on Contributions (2000) UN Doc A/55/11 paras 21–60 and UNGA Res 55/5 A (26 October 2000) UN Doc A/RES/55/5. 96

  UNGA Res 55/5 A (26 October 2000) UN Doc A/RES/55/5.

97

  Suggested by M Franck, Nation against Nation: What Happened to the UN Dream and What the US Can Do About It (OUP 1985) 259; further voices from the political discussion in the United States are reproduced by Zoller, 614–16. 98

  On this issue see eg M Kohen, ‘commentary on Art. 42 VCLT’ in O Corten and P Klein (eds), La Convention de Vienne sur le Droit des Traités (Bruylant 2006), 1604, para 25; P Reuter, Introduction au droit des traités (2nd edn, Presses universitaires de France 1985) MN 206, 220; I Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester UP 1984) 163–64; ME Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Nijhoff 2009) 548. 99

  Certain Expenses [1962] ICJ Rep 151.

100

  MN 24 (n 47).

101

  See eg A Verdross and B Simma, Universelles Völkerrecht (3rd edn, Duncker & Humblot 1984) paras 390–91. 102

  Report of the Committee on Contributions (UN Doc A/32/11) GAOR 32nd Session Supp No 11, 35, para 88. 103

  See MN 25 with n 57.

104

  Of the same view are Ciobanu, 74; Kelsen, 720.

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Ch.IV The General Assembly, Procedure, Article 20 Christophe Eick From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — International peace and security

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Article 20 The General Assembly shall meet in regular annual sessions and in such special sessions as occasion may require. Special sessions shall be convoked by the Secretary-General at the request of the Security Council or of a majority of the Members of the United Nations. A.  The Origin of the Wording 1–5 I.  Wording Proposals 1–4 II.  The Absence of a Provision for the Siting of Meetings 5 B.  Regular Sessions6–24 I.  Frequency 6–8 II.  Prior Notice Period 9 III.  Commencement 10–15 IV.  Duration and Closing 16–20 V.  Interruptions 21–24 C.  Special Sessions 25–57 I.  Regular Special Sessions 25 II.  Emergency Special Sessions 26 III.  Prerequisites for all Special Sessions 27–39 1.  A Request by the Security Council 28–32 2.  A Request by a Majority of United Nations Members 33–35 3.  Convening by the General Assembly 36–39 IV.  Additional Prerequisites for Emergency Special Sessions 40–52 1.  A Threat to the Peace 41–42 2.  The Failure of the Security Council to Act 43–47 3.  Emergency Special Session Overlapping with Regular Session 48–49 4.  The Irrelevance of other Emergency Special Sessions 50–52 V.  Terms of Notification and Opening 53–54 VI.  Duration, Closing, and Interruptions 55–57 D.  Meeting Places 58–69 I.  Rules of Procedure 58–61 II.  Sessions away from Headquarters 62–69 1.  The Third General Assembly 63 2.  The Sixth General Assembly 64

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3.  The 43rd General Assembly 65–68 4.  Unsuccessful Attempts to Shift Sessions 69 Annex 1:  Regular Sessions Annex 2:  Regular Special Sessions Annex 3:  Emergency Special Sessions

Select Bibliography Andrassy J, ‘Uniting for Peace’ (1956) 50 AJIL 563. Bailey SD, The General Assembly of the United Nations (Praeger 1960).(p. 658) Kolasa J, Rules of Procedure of the United Nations General Assembly. A legal analysis (Zaklaw Narodowy im Ossolinskich 1967). Lewin A, ‘Article 20’ in J Cot, A Pellet, and M Forteau (eds), La Charte des Nations Unies (3rd edn, Economica 2005). New Zealand Ministry of Foreign Affairs and Trade (ed), United Nations Handbook (Ministry of Foreign Affairs and Trade 2010). Nolte G, ‘Uniting for Peace’ in R Wolfrum (ed), United Nations: Law, Policies and Practice (CH Beck 1995). Peterson MJ, ‘General Assembly’ in T Weissand S Daws (eds), The Oxford Handbook on the United Nations (OUP 2007). Reicher H, ‘The Uniting for Peace Resolution on the Thirtieth Anniversary of its Passage’ (1981) 20 Colum J of Transntl L 1. Schaefer M, ‘Notstandssondertagungen der Generalversammlung’ (1983) 31 VN 78.

A.  The Origin of the Wording I.  Wording Proposals 1  The Dumbarton Oaks Proposals contained the following recommendation concerning meetings of the GA: ‘The General Assembly should meet in regular annual sessions and in such special sessions as occasion may require.’1 In the editing process, delegates replaced the word ‘should’ by the word ‘shall’. This change was adopted by the San Francisco Conference. The second sentence, which was not part of the Dumbarton Oaks Proposals, was added according to a proposal by Committee I (Structure and Procedures) of Commission II (General Assembly).2 2  Various suggestions were made for textual changes to the Dumbarton Oaks Proposals. Mexico, for example, proposed the following wording: ‘The Assembly shall meet in ordinary session once a year at the seat of the P.U.N. and in extraordinary session, called by the Secretary General either at the request of the Council or of a simple majority of the members of the P.U.N.’3 However, before its consideration, Mexico changed the amendment to read as follows: ‘The General Assembly should meet in regular annual sessions and, when occasion shall so require, in special sessions which shall be convened by the Secretary General, or at the request of the Security Council or of one half plus one of the members of the Organization.’4 Uruguay recommended a supplement concerning the convening of special sessions: ‘on the initiative of the Security Council or of the [General] Assembly itself, by a simple majority of its members’.5 Egypt suggested changing Mexico’s proposal, substituting ‘shall’ instead of ‘should’ and adding ‘as provided for in this Chapter’ after ‘special sessions’.6 Chile proposed a different means of requesting a special session, by recommending the formulation ‘as occasion may require and as decided upon by the [Security] Council or requested by two-thirds of the members of the [General] Assembly’.7 Venezuela’s draft comments did not include any change of wording, but added that special

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sessions should be convened by the SG, (p. 659) whenever the SC or the requisite number of members, yet to be determined, should so require.8 3  On 22 May 1945 the Structure and Procedure Committee II/1 discussed the wording of the Dumbarton Oaks Proposals and the proposed changes.9 The Committee unanimously adopted the Dumbarton Oaks Proposals as a draft without changing the wording. However, the Committee declared that the method of convening special sessions should be specified in the Charter and it drafted a proposal to this effect.10 4  Four days later, the Drafting Subcommittee of Committee II/1 formulated and adopted a version which was very close to the final version of Art. 20 cl 2 of the Charter.11 Commission II approved this version without discussion on 30 May. The Advisory Committee of Jurists of the Co-ordination Committee, to which the text was forwarded,12 substituted ‘Organization’ for ‘United Nations’.13 On 17 June, the draft was adopted by the Coordination Committee without further discussion.14

II.  The Absence of a Provision for the Siting of Meetings 5  Articles 3 (2) and 7 (1) of the Covenant of the League of Nations had specified that the meetings of the GA be held in Geneva, Switzerland, the seat of the Organization.15 Yet the Charter (for the Rules of Procedure, see MN 58–61) contains no provision for the siting of meetings of the GA. This is remarkable, especially since Art. 28 of the Charter contains a provision on the siting of meetings of the SC. A specification of the seat had already been missing in the Dumbarton Oaks Proposals.16 However, the Inter-American Juridical Committee, a committee of legal experts which had been established by the Third Consultative Conference of South American Foreign Ministers in 1942, stated in its report to the Panamerican Union (the predecessor of the OAS) of 8 December 1944, that the GA would usually hold its meetings at the headquarters of the Organization, without excluding the possibility of holding meetings elsewhere.17 The report was circulated among the American governments. The underlying idea of the Inter-American Juridical Committee’s report was already to be found in Mexico’s proposal.18 Committee II/1, however, rejected the proposal in order to prevent any implication that meetings abroad would become a regular occurrence or to create a rule in this regard.19

(p. 660) B.  Regular Sessions I.  Frequency 6  The League of Nations Covenant had not determined the frequency of meetings. Article 3 (2) required meetings ‘at stated intervals’. Article 1 (1) of the Assembly’s Rules of Procedure of 11 November 1920 called for annual sessions.20 7  In contrast to the SC, which is able to function continuously according to Art. 28 of the Charter, the GA meets in regular session every year. ‘Year’ means the calendar year from 1 January to 31 December. However, the meetings may be extended past 31 December into the next year, which has been regular GA practice, in particular in recent years (see MN 55–57). By UNGA Res 111 (II) (13 November 1947) and 196 (III) (3 December 1948), the GA created the Interim Committee. The Committee was to function as a permanent organ through which the GA was able to meet permanently. The Interim Committee was composed of one representative of each member State. It was also called the ‘little GA’. UNGA Res 295 (IV) transformed the Interim Committee into a permanent organ. Six Eastern European member States21 objected to this change, arguing22 that it would amount to a violation of Art. 20 of the Charter.23 As a result of this objection, these States never participated in the meetings of the Interim Committee, which has never been formally abolished, although it has not discussed any matters since 1950 and held its last meeting in 1961.24

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8  It is a prerequisite for the opening of a regular GA session that no other GA session has been convened in the same year. On 9 February 1946, due to the misgivings of the Presidential Committee, the GA declared, by UNGA Res 29 (I),25 the session beginning in September 1946 to be the second part of the first GA, which began on 10 February 1946.26 Normally, the session beginning in September 194627 would have continued as the second GA. According to the decision of February 1946, however, the second session took place only in 1947.

II.  Prior Notice Period 9  The notification of States of the beginning of a GA session is based upon Rule 5 of the Rules of Procedure of the GA.28 Article 5 was already part of the GA Provisional Rules of Procedure which were adopted by the Preparatory Commission on 16 November 1945, upon conclusion of the drafting work by its Executive Committee. The second GA accepted this draft.29 Rule 5 places on the SG the duty to notify the member States at least 60 days before the opening of the session. According to Rule 11 of the Rules of (p. 661) Procedure, other principal organs and specialized agencies (Art. 57 (2)) have to be provided with copies of the notice of convention.

III.  Commencement 10  The Charter is silent as to the exact date of the opening. The GA Rules of Procedure state in Rule 1 that the GA 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’. 11  The first part of the first GA was opened in London on 10 January 1946. Invitations were distributed by the Preparatory Committee according to its tasks resulting from the Interim Agreement of 1945.30 12  During the second part of the first GA, the then Secretary-General Trygve Lie, proposed to change the Provisional Rules of Procedure which had foreseen the first Tuesday after 2 September as the opening date of a regular session. He intended to have the GA open on the first Tuesday after 2 October. Apparently, Lie expected to gain a more effective UN by this change.31 But many States criticized the SG’s proposal, in that it would create problems concerning the time schedules of their own parliaments and the consideration of GA decisions affecting the member States’ budgets. In UNGA Res 77 (I) (12 December 1946),32 the GA adopted the version of Rule 1 of the Rules of Procedure which was valid until 1998: ‘The General Assembly shall meet every year in regular session, commencing on the third Tuesday in September.’ In 1952 four member States proposed to change Rule 1.33 They wanted the GA to start its work on the third Tuesday in April. The GA postponed the decision34 on this proposal to the eighth regular session, where it was unanimously rejected.35 13  In 1997, the open-ended High-level Working Group on the Strengthening of the United Nations System, established under UNGA Res 49/252 (14 September 1995), recommended that the Plenary meetings of the GA should be formally opened every year on the first Tuesday following 1 September. The GA, in its Res 51/241 (31 July 1997), adopted this recommendation, which became effective 1 January 1998. However, both the openings of the 53rd and of the 54th GA deviated from this new rule,36 as had other openings in the past from the then current Rule 1 of the Rules of Procedure.37 14  With UNGA Res 55/14 (3 November 2000), the GA again amended Rule 1 of the Rules of Procedure, fixing as opening date ‘the Tuesday following the second Monday in September’. In this resolution the GA was ‘mindful that, for practical reasons, the closing of the regular sessions of the General Assembly should be on a Monday, which should not be a holiday, and the opening of the regular sessions should be on the following day, that is to say, on a Tuesday’. Noting that the Monday immediately preceding the first Tuesday following 1 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

September falls on a UN holiday at Headquarters, the GA (p. 662) decided to specify the Tuesday following the second Monday in September as the opening date of regular sessions. 15  However, this amendment was only short-lived. At its 57th session, the GA, with UNGA Res 57/301 (13 March 2003), again changed Rule 1 of the Rules of Procedure to its current version. In this resolution, the GA ‘noted that the advancement of the opening date of the regular session as decided in its resolution 55/14 has resulted in insufficient time to ensure preparedness for the session’. With UNGA Res 57/301, the GA also decided that the ‘general debate’, which every year brings Heads of State or Government, ministers of foreign affairs, or other high officials to New York to address the GA, ‘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’ (now Annex VIII of the Rules of Procedure). In practice, however, seven days is usually sufficient to accommodate all speakers.38

IV.  Duration and Closing 16  Neither the Charter nor the Rules of Procedure contain provisions relating to the duration of a session. During the second part of the first GA, Canada wished to discuss a time-frame for GA sessions39 that would accelerate the GA’s work. The GA considered adopting time limits during the first and the following regular sessions.40 A number of subcommittees worked on proposals for time limits, but the only result was the amendment of ‘Annex I’ to the Rules of Procedure by UNGA Res 362 (IV). Annex I comprises suggestions to shorten debates and to exclude matters already discussed by member States in other organizations or conferences.41 While the GA was holding its seventh session, the SG initiated a discussion to limit GA sessions to six to eight weeks. In UNGA Res 689 A (VII),42 the GA set up a special committee to deal with this matter.43 Its proposals, however, resulted in no time limits but only in a change of the Rules of Procedure by the 8th GA44 with Res 791 (VIII),45 which related to the General Committee and the organization of the GA’s work. 17  UNGA Res 1898 (XVIII)46 was devoted to the same goals. It was drafted by the ad hoc Committee on the Improvement of the Methods of Work of the General Assembly.47 Likewise, UNGA Res 2837 (XXVI)48 contained a proposal for a change of the Rules of Procedure and approved of the deliberations49 of the Special Committee50 on the (p. 663) Rationalization of the Procedures and Organization of the General Assembly. Two of the Committee’s proposals were to maintain an average duration of thirteen weeks for regular sessions, and, in any case, to end the session ‘before Christmas’.51 18  The current wording of Rule 2 of the Rules of Procedure reads as follows: ‘On the recommendation of the General Committee, the General Assembly shall, at the beginning of each session, fix a closing date for the session.’ It was inserted into the Rules by UNGA Res 698 B (VII).52 In practice the SG suggests a closing date, which is subsequently turned into a formal proposal to the GA by the General Committee.53 In years in which the ordinary session took more time than scheduled, the appointed closing date was postponed54 by GA decisions or resolutions—in some cases more than once—or became obsolete55 because of an interruption of the session. Contrary to Rule 2 of the Rules of Procedure, the 41st GA suspended by decision the fixing of a closing date56 and never actually adopted one. The 40th GA had already decided, in UNGA Res 40/472,57 to shorten the 41st session by three weeks. But then the GA did not follow its own decision and its 41st session lasted one entire year. Subsequently, the 42nd and 43rd sessions also came into conflict with Rule 2.58

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19  From the 45th session onwards, the practice has been for the GA to approve, at the beginning of each session, the recommendation of the General Committee as to both the closing date of the session (usually the day before the opening of the following regular session) and the date on which the session would ‘recess’.59 The ‘recess’ would take place before Christmas, arguably in keeping with the original idea that meetings should take place before the end of the calendar year. As a result, regular sessions today consist of a ‘main part’ of approximately thirteen weeks and a ‘resumed part’ in which additional meetings are held throughout the following calendar year until the closing of the session in September. Most thematic debates, consultation processes led by the President of the GA, and working group meetings would take place during that period.60 20  Hence, for all practical purposes, the GA can now be considered to be in permanent session from the date of its opening to the date of its closing.

(p. 664) V.  Interruptions 21  Rule 6 of the Rules of Procedure in its original61 and still62 valid version states: ‘The General Assembly may decide at any session to adjourn temporarily and resume its meetings at a later date.’ The GA has on several occasions adjourned and resumed, or, in other words, interrupted, its meetings63 in order to complete its agenda after the closing date. Decisions to interrupt are usually made according to a proposal by the President of the GA, and, in the case of the usual ‘recess’ before Christmas (see MN 19), upon recommendation of the General Committee. The reopenings were delayed in the cases of the first and third sessions. 22  As a matter of custom, the GA authorizes its President to reopen an interrupted regular session. In 1953, the Soviet Union denied the competence of the President to reopen the seventh session before 2 February 1953, supporting its opinion with the argument that a decision of such importance should not be at the discretion of one person.64 However, nothing came out of the Soviet Union’s efforts. 23  When it interrupted its eighth session, the GA decided that it would only be continued with the approval of the majority of the member States to deal with the Korean question. This decision has been heavily criticized.65 A legal basis to require a qualified majority for a GA decision only exists in the case of the convocation of a special session according to Art. 20 cl 2. This is an exceptional rule, so one could conclude that it ought not to be extended to apply to regular sessions. Nevertheless, the GA followed its decision to request a qualified majority. The then President of the GA, Mrs Lakshmi Pandit, endeavoured to reopen the session on 2 September 1954, according to a motion from India. But the qualified majority was not reached.66 The session was not reopened until 20 September 1954 and then only for the purpose of the closing of the eighth session. 24  A peculiar aspect of the interruption procedure developed in the fifth session. The GA dealt with the Korean question until 5 November 1951.67 In 1951 the Plenary only met six times,68 never taking a vote on the interruption of the session.

C.  Special Sessions I.  Regular Special Sessions 25  Article 3 (2) of the League of Nations Covenant had given the League Assembly discretion to convene for special sessions if the circumstances required. The UN Charter, for its part, grants the GA the power to meet for special sessions ‘as occasion may require’. In the early years of the Organization, the notion ‘occasion’ was merely understood to refer to urgent matters. Later, practice expanded the understanding to include problems of the (p. 665) world community that had a permanent character, like disarmament, the Namibian question, the new International Economic Order, developing countries, gender issues, HIV/ AIDS etc, or to commemorate an event, such as the 60th anniversary of the liberation of the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Nazi concentration camps. For questions of this nature, the GA preferred to hold special sessions. They are listed in Annex 1 to this contribution. The General Assembly, in recent years, has also convened ‘high-level meetings’, ‘high-level events’, or ‘summits’ of the GA on very similar issues, such as on migration, the Least Developed Countries, or HIV/AIDS. These meetings, usually held to coincide with the general debate, although similar in function to special sessions, form part of the GA’s regular sessions.

II.  Emergency Special Sessions 26  In 1950, the fifth GA introduced a completely new category of sessions, namely emergency special sessions.69 Part A, para 2 of UNGA Res 377 (V) (3 November 1950), the so-called Acheson Resolution, better known as the Uniting for Peace Resolution,70 changed the GA’s Rules of Procedure accordingly. The Soviet Union, Poland, Czechoslovakia, Ukraine, and Byelorussia voted against the Resolution. Part A, para 1 of the Resolution reads as follows: The General Assembly,…Resolves that if the Security Council, because of a lack of unanimity of its 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 therefore. 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; … There is no explicit legal basis for emergency special sessions in the Charter. Thus, they can only be seen as in conformity with the Charter if they are regarded as special sessions of a modified character. Otherwise, it might be argued that the Charter would need an amendment to encompass them. According to Art. 108, amendments to the Charter require adoption by a vote of two-thirds of the members of the GA, and must be ratified in accordance with the respective constitutional process by two-thirds of the members of the UN, including all the permanent members of the SC. In the light of this provision, the introduction of emergency special sessions by UN practice cannot be regarded as a formal modification of the Charter. Although the legality of emergency special sessions has been heavily disputed in the past, today they are generally recognized as lawful and in conformity with Art. 20 of the Charter.71 Even States which originally objected have made use of GA Res 377 A (V). None of the participants in the ICJ Advisory Opinion on Legal Consequences of the Construction of a Wall, including Israel, challenged the right of the GA to convene, in principle, an emergency special session. All emergency special sessions are listed in Annex 3 below.

(p. 666) III.  Prerequisites for all Special Sessions 27  Special and emergency special sessions are convened under the same basic rules. The GA is bound by a request from either the SC or the majority of UN members. The introduction of any additional condition regarding such a request, or any relaxation of these conditions, would be contrary to the Charter.72

1.  A Request by the Security Council

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28  To date, the SC has called for seven special sessions, namely the second special session (1948) and the first, second (1956), third (1958), fourth (1960), sixth (1980), and ninth (1982) emergency special sessions.73 The SC has to request a special session by means of formal decision. Concurrent motions by nine members would, according to Art. 20, be insufficient.74 The Seven Power Draft75 of UNGA Res 377 A (V) had proposed that individual motions by seven SC members would be sufficient to call an emergency session, but this did not become part of UNGA Res 377 A (V). 29  Until the Charter amendment of 17 December 1963, which entered into force on 31 August 1965, seven positive votes were necessary for a formal SC decision. According to the amendment, a formal decision requires nine votes in favour.76 This requirement applies to the convocation of both kinds of special sessions, despite the wording of Rule 8 of the Rules of Procedure, which distinguishes between them. Rule 8(a) demands a simple SC request for the convocation of special sessions. Paragraph (b), being applicable to emergency sessions, reads ‘from the Security Council, on the vote of any nine77 members thereof’. However, the legal requirements in this respect are the same for both kinds of special sessions, since Art. 27 (2) of the Charter is the authoritative rule here. It is true that UNGA Res 377 A (V) still retains its unchanged wording and requires only seven votes of SC members. But since it is a GA declaration, it has no binding force and can only be seen as the legal opinion of the GA concerning the interpretation of Art. 27.78 30  Whether the convocation is a procedural matter or a substantive matter in the sense of Art. 27 (3) is a crucial question, because all non-procedural questions are open to the veto right of the five permanent SC members. The San Francisco Declaration of 7–8 June 1945, also called the Four Power Declaration,79 sponsored by China, the United Kingdom, the United States, and the Soviet Union80 for consideration in Commission III Committee 1 of the San Francisco Conference, circumscribes matters which are (p. 667) always considered to be of a procedural nature and are therefore not subject to the veto. The convening of special sessions is neither explicitly included nor can it be inferred to be included among these procedural matters.81 The GA expressed a non-binding opinion on this question in GA Res 267 (III),82 para 6, which designates applications to the SG for the convening of special sessions as procedural matters. 31  Consequently, before voting to convene a special session, the SC has to decide whether it is dealing with a procedural or non-procedural question. According to s II para 2 of the San Francisco Declaration, this preliminary vote is subject to the veto (See Zimmermann on Art. 27 Annex for the text of the San Francisco Declaration). Hence, there is the possibility of the so-called ‘double veto’. On 15 September 1947 a motion to let the GA83 deal with the Greco-Albanian conflict in a special session fell victim to the Soviet double veto.84 The GA did not discuss the conflict until the United States had managed, by procedural means, to withdraw the matter from the SC’s agenda.85 Since then, no transfer of a matter to the GA has failed because of a veto. However, the Soviet Union has since drawn the attention of the other member States to the veto right twice: first, during the deliberations86 on the Uniting for Peace Resolution,87 and secondly, during the debate88 on UNSC Res 157 (17 September 1960),89 taking the view that UNGA Res 377 A (V) was contrary to the Charter. Resolution 157 contained the motion to convoke the fourth emergency special session.90 Nevertheless, the Soviet Union renounced further opposition (Rule 30 of the Provisional Rules of Procedure of the SC) to the SC President’s decision91 to treat the vote on special sessions as not being subject to the veto. The Soviet Union itself had approved of the application for the first emergency special session92 without any reservation.93 The application had explicitly referred to the Uniting for Peace Resolution and was rejected by two permanent SC members, France and the United Kingdom. However, the fourth emergency special

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session took place following action by the SC. Likewise, the second and sixth emergency special sessions were held despite Soviet opposition. (p. 668) 32  Hence, there now appears to exist a rule that the convening of special sessions is a procedural matter not affected by the right of veto. Accordingly, the convening is listed under ‘procedural matters’ in the SC’s Repertory of Practice.

2.  A Request by the Majority of United Nations Members 33  Besides the SC, the majority of UN members can also call for a special session. Even members which, according to Art. 19 of the Charter, have no right to vote or those whose credentials have been rejected and which therefore do not take part in the session may participate in such a decision. However, a member suspended according to Art 5 may not vote.94 34  Until now, no request has ever been formulated and signed by a majority of member States. Rather, member States have made use of Rule 9 of the Rules of Procedure of the GA, which provides the assistance of the SG for a member State which wants to have a special session convened. According to Rule 9, a member State can file its request with the SG. The SG immediately informs the other member States and asks them for their opinion. If a majority of concurring opinions is reached within thirty days, a special session will be convened. The first, third, sixth and 28th special sessions and the fifth, seventh, eighth, and tenth emergency special sessions were called in accordance with this Rule.95 In June 195296 and in March 1960,97 thirteen and twenty-three member States respectively filed applications for special sessions without success. It is doubtful whether the 30-day term is adequate for emergency special sessions, since they are supposed to consider urgent matters. Furthermore, the Uniting for Peace Resolution provides in its para 1, first sentence, that these sessions have to be held ‘immediately’.98 35  In addition, the Interim Committee has the right to call for a special session if it has the support of the majority of UN member States.99 It has, however, never made use of this right.

3.  Convening by the General Assembly 36  The GA has convened twenty-three of the twenty-eight special sessions that have taken place to date.100 Conditions were placed upon the decision101 to convene a special or emergency special session on Korea. As events emerged, however, the conditions were never fulfilled. Every year between 1961 and 1973, the SG was authorized by the GA to convene a special session in case of unforeseen peace-keeping expenses of the SC rising above US $10 million. Since 1974, such authorizations have been repeated every second year, and until now only one of these authorizations has led to a special session, namely the eighth, when UNIFIL was created.102 The 19th GA adopted the prolongation of the authorization by consensus.103 (p. 669) 37  Rule 7 of the Rules of Procedure allows the GA to fix a date for a special session. One can conclude from this provision that the GA has the power to summon a special session. However, this procedure can only apply to emergency special sessions if the date of commencement of the session is scheduled to follow the closing of a regular session, since beginning an emergency special session during a regular session would be prohibited. Urgent matters arising during a regular session have to be added to the regular GA agenda according to Rules 15 and 19 of the Rules of Procedure. 38  Article 20 cl 2 states that a GA decision to convene a special session must be taken with the consent of a majority of members, even though most GA decisions come about by a simple majority of the members present.104 However, this general principle is not applicable to the convening of special sessions, since Art. 20 expressly requires a ‘majority of the Members’. Nor would it be possible to argue that convening a special session would fall under Art. 18 (2) through the elevation of such an action to the rank of an important From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

question. This argument is substantiated by the legislative history of Art. 20. During the San Francisco Conference, Committee II/1 decided to draft exact prerequisites for the convening of special sessions.105 An explicit proposal by Uruguay106 to let the GA decide on special sessions by simple majority was rejected. Hence, an absolute majority is necessary. 39  However, the application of this rule by the GA remains unsatisfactory. The requests for the tenth, 11th, 13th, 15th, 16th, 17th, and 19th to 27th special sessions107 were accepted without being subject to recorded votes.108 An adoption without a vote makes it impossible to say whether there was a majority of members concurring. In this way practice has modified Art. 20 of the Charter. Furthermore, two decisions for the convocation of special sessions were taken subject to certain conditions.109

IV.  Additional Prerequisites for Emergency Special Sessions 40  In the Uniting for Peace Resolution,110 the GA formulated further legal conditions for requests to convene emergency special sessions.

1.  A Threat to the Peace 41  Only in cases where there is a threat to or breach of the peace, or after an act of aggression has occurred, may the GA call for an emergency special session.111 It remains doubtful whether these conditions were met in the cases of the fifth, seventh, and eighth sessions.112 The application by Senegal for the convocation of the seventh session was criticized by Israel113 on this point. Similarly, Israel held that the dispute between Israel (p. 670) and the Palestinians over the building of a new neighbourhood in Jerusalem, which gave rise to the convening of the tenth session in 1997, could not be considered a threat to international peace and security.114 42  Concerning a right of the SG to reject an application in cases in which, in his opinion, no threat to the peace exists, the Secretariat published the following legal opinion in 1980:115 1.  …The Secretary-General under these provisions of the Rules of Procedure has no authority to exercise any discretion if: (a) he receives a request from a Member for an emergency special session, and (b) a majority of Members concur in that request. 2.  By letter…the representative of Senegal requested the convening of an emergency special session, and…more than a majority of Member States… concurred … 3.  …The letter thus records the views of certain Governments that the requirements of General Assembly resolution 377 A (V) have been met both in respect of the use of the veto and of a threat to international peace and security. The veto is a matter of public record and as regards the requirement of a threat to the peace the Secretary-General cannot substitute his judgement for that of the Government requesting an emergency special session. 4.  In the ultimate analysis, it is for the General Assembly to interpret authoritatively its own resolutions and, in this case, to decide whether a request for an emergency special session meets the requirements of resolution 377 A (V). This has in effect been answered in the present case in the affirmative by the concurrence of a majority of Members in the request for the convening of the seventh emergency special session.

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The SG is, however, free to inform the members about any doubts he entertains in this regard. If the SG is authorized by the GA to convene116 an emergency special session, he has complete discretion to decide whether to do so or not.

2.  The Failure of the Security Council to Act 43  According to UNGA Res 377 A (V), before the GA may convene an emergency special session, the SC must have failed to exercise its primary responsibility for the maintenance of international peace and security. The failure must follow from a lack of unanimity of the permanent members. Even if nine117 or more SC members concur, the casting of a veto by one permanent member has the consequence that the SC has not acted according to its responsibility. The ICJ, in its Advisory Opinion on Legal Consequences of the Construction of a Wall, has reaffirmed these conditions, including for the reconvening of an emergency special session. Thus the Court noted that the 10th emergency special session was reconvened on 20 October 2003 on the same basis as in 1997 (when it had been originally convened), ‘after the rejection by the SC, on 14 October 2003, again as a result of the negative vote of a permanent member, of a draft resolution…The Court considers that the SC again failed to act as contemplated in resolution 377 A (V)’.118 The Court, furthermore, held that this situation did not change up to December 2003, when (p. 671) the 10th emergency special session had been reconvened once again and the GA request for the Advisory Opinion had been passed.119 It is to be noted, however, that despite the ICJ’s clear pronouncement on the matter, the GA has since resumed its 10th emergency special session under conditions that did not meet the prerequisites laid out in UNGA Res 377 A (V). This was notably the case on 15 January 2009, when the 10th emergency special session was reconvened for the ninth time.120 44  Regarding the wording of UNGA Res 377 A (V) ‘because of a lack of unanimity of its permanent Members’, the question arises as to which interpretation is to be valid in cases where the permanent members unanimously reject a proposed resolution. If one stays close to the wording, one would have to conclude that not even a unanimous veto could deprive the GA of its responsibility. One has to take into account, however, that UNGA Res 377 A (V) was adopted at a time when the SC’s work was very much affected by the Cold War. 45  Voting in the SC can take place while a permanent member is absent, does not participate in the vote, or abstains (this was notably the case in the Cold War era). Accordingly, even a positive vote by one or more members, accompanied by abstention, absence, or non-participation in the vote by the rest of the permanent members, is to be regarded as unanimous121 and may accordingly not be regarded as a failure of the SC. If there is not a single positive vote by any permanent member, even a negative vote by one or more and abstentions, absence, or non-participation by the other permanent members do not lead to a ‘failure’ in the sense of UNGA Res 377 A (V). 46  A request basing itself on a failure of the SC has to be revised as an application for a special session in the sense of Art. 20 in cases where there is no such failure due to disagreement among the permanent members. It can then be assumed that the applicant wants the GA to deal with the matter under all possible circumstances.122 47  Before informing member States about the convening of an emergency special session, the SG has to determine whether the SC is in reality blocked by a veto.

3.  Emergency Special Session Overlapping with Regular Session 48  According to para 1 cl 2 of UNGA Res 377 A (V), an emergency special session ‘may be convened if the GA is not in session’. From this it was generally deduced that an emergency special session may not be convened while the GA is in session. As was pointed out in a memorandum by the UN Office of Legal Affairs in 1967, ‘holding simultaneous sessions would be contrary to the basic purpose of emergency special sessions as a device for speedily convening the Assembly when it is not already in session’.123 Indeed, matters of an From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

urgent character do not need formal inclusion on the GA’s agenda.124 The (p. 672) IndiaPakistan conflict of 1971 provided a pertinent example. It was not discussed in any committee before it was added to the agenda of the Plenary.125 The Korean conflict was the subject of GA discussion on 6 December 1950, following a motion by six member States to deal with the matter immediately.126 49  However, GA practice in recent years would seem to indicate that contrary to this longheld view, an emergency special session may be convened even when the GA is in regular session. In the case of ‘resumed’ or ‘reconvened’ emergency special sessions, these sessions have often been held when a regular session was in progress.127 Indeed, the ICJ, in its Advisory Opinion on Legal Consequences of the Construction of a Wall, considered: 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 Organisation has been identified which would be thereby violated.128 Arguably, this reasoning would also apply to the convening of a (new) emergency special session.

4.  The Irrelevance of other Emergency Special Sessions 50  Paragraph 1 cl 2 of UNGA Res 377 A (V) leads to the conclusion that a new emergency session may not be convened if one is already under way: ‘If not in session at the time, the General Assembly may meet in emergency special session.’ This conclusion was reinforced by para 5 of the Annex to UNGA Res 377 (V), amending Rule 19 of the Rules of Procedure. The amendment required that additional matters falling within the scope of UNGA Res 377 A (V) would have to be added to the agenda of the ongoing emergency special session. But practice has developed in the opposite direction. Thus, the second emergency session was convened although the first one was still in session. The second emergency session was opened in GA Meeting 564 on 4 November 1956. Meetings 563 and 565 of the first emergency session were held on November 3 and 5 respectively.129 According to the wording of UNGA Res 377 A (V), the SC’s application for the second session should have been interpreted as a proposal for an amendment to the GA’s agenda or for the convening of a special session. 51  However, the system of regular, special, and emergency special sessions leads to the interpretation of para 1 cl 1 of UNGA Res 377 A (V) as only relating to regular sessions, since special and emergency special sessions are supposed to deal with particular matters. 52  The GA’s right to make an amendment to the agenda of a regular session by adding an urgent matter remains unaffected,130 even if it falls under the Uniting for Peace Resolution.

(p. 673) V.  Terms of Notification and Opening 53  The convening of special sessions resulting from an application by the SC or a majority of members follows within fifteen days of the notification of member States. For emergency sessions the notice period is reduced to 24 hours. States are informed about special sessions by the SG at least fourteen days (request by the SC), or ten days (request by majority of members) before the first meeting.131 The term of notification for emergency sessions is twelve hours in both cases. If the GA itself wishes to hold a special session according to Rule 7, it also decides on the notification procedure. The GA regularly sets up a committee for the preparation of a special session. The notification of other UN organs of regular sessions follows Rule 11. The same applies for special sessions.

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54  Contrary to these rules, the sixth special session was postponed132 after a motion by the Group of 77. It finally began more than one month after the latest legally possible date. The SG referred to regular session practice to justify this procedure.

VI.  Duration, Closing, and Interruptions 55  Although Rules 2 and 6 belong to Chapter I of the Rules of Procedure (Regular Sessions), they apply to special sessions as well. This view is substantiated by the system of Rules 2 and 6, since they, contrary to Rules 1, 4, and 5, do not explicitly refer to regular sessions. Similarly, GA practice concerning special sessions follows Rules 2 and 6. Examples of this practice are furnished by the sixth and seventh special sessions,133 where closing dates were fixed and were later postponed. The fifth special session was delayed twice.134 The fifth and seventh emergency special sessions were also postponed.135 56  Both the seventh and tenth emergency special sessions have been adjourned temporarily and reconvened at later dates by the President of the GA upon requests from member States, in accordance with resolutions taken prior to adjournment.136 57  This practice has been the subject of some criticism by member States. When the seventh emergency special session was reconvened in 1982, some twenty-one months after its temporary adjournment, the United States held the view that this had ‘the effect of undermining the provisions of the rules of procedure of the GA for the convening of an emergency special session to address a specific issue of immediate concern’.137 Similarly, Israel has criticized the ‘rolling character’ of the 10th emergency special session, ‘reconvened at a time and on a subject that is detached from the original session’ as being at odds with the very intent of UNGA Res 377 (A) and the GA’s Rules of Procedure.138 However, this view was not shared by the ICJ when it held that the ‘rolling character’ of the 10th emergency special session did not have any relevance with regard to the validity of a decision taken by the GA during such a reconvened emergency special session.139

(p. 674) D.  Meeting Places I.  Rules of Procedure 58  Rule 3 of the Rules of Procedure governs the place where meetings of the GA are held: ‘The General Assembly shall meet at the Headquarters of the United Nations unless convened elsewhere in pursuance of a decision taken at a previous session or at the request of a majority of the Members of the United Nations.’ This wording has never been changed. By UNGA Res 25 (I),140 the GA named, and by UNGA Res 100 (I)141 and 182 (II),142 confirmed, New York City as the headquarters of the UN. With a few exceptions (MN 62f), all GA sessions have been held in New York City. Until 1951, meetings took place in London (UK), Flushing Meadows (New York City), and at Lake Success (New York). Since 1952, meetings have been held at the UN building located at the East River in Manhattan. 59  The GA can decide to meet abroad for the opening of a session, a complete session, parts of a session, or even just a few meetings. A simple majority is sufficient for the validity of such a decision.143 However, according to Rule 3, the GA must not decide to shift one or more meetings away from New York City after the opening of a session. 60  Only member States have the right to request the transfer of a session to a place other than New York City. The procedure for requesting such a move is similar to that for the convocation of special sessions. The SG is, by Rule 4, entitled to communicate the request and his own recommendations to the other UN members. To be successful, the request has to be supported by a majority of members within 30 days of the date of the communication.

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The request is only valid for the next session if it is submitted at least 120 days before the fixed opening date of that session. 61  By analogy with special sessions, a GA Plenary decision or a decision of the Interim Committee may be substituted for a majority of concurring opinions of members. A look at GA practice shows that the GA is not bound by Rule 3 and may, even while in session, shift one or more sessions away from Headquarters. It could, however, be argued that, according to the rules applicable for the convocation of special sessions, such a decision must be taken by an absolute majority (see MN 38).

II.  Sessions away from Headquarters 62  The first part of the first regular session, which was convened in London, did not fall under the Rules of Procedure, as London had been named the place of the meeting by the preparatory Commission. To date, two sessions144 have taken place abroad according to a decision of the previous GA. The fifth GA was opened and took place in New York City but was closed145 in Paris, France. Up to now, the instrument of Rule 4 of the Rules of Procedure has never been used. The 43rd GA decided to hold six meetings abroad.

(p. 675) 1.  The Third General Assembly 63  UNGA Res 184 (II)146 stated that the next GA was to be held in Europe. The SG was authorized to choose a place after consultations with an ad hoc committee. After a unanimous proposal by the committee,147 the SG decided to let the GA hold its session in Paris.148 By UNGA Res 263 (III), the session was interrupted. Part 2 was held in New York City.

2.  The Sixth General Assembly 64  Since the dedication of the UN building in New York was not to be expected until 1952, the fifth GA authorized the SG and the GA President by UNGA Res 497 (V)149 to find an appropriate place in Europe for the following session. UNGA Res 499 (V) again fixed Paris as the venue for meetings.150

3.  The 43rd General Assembly 65  Six meetings of the 43rd GA were shifted to the Palace of Nations, Geneva, Switzerland, due to a controversy between the UN and the United States over the invitation extended to the head of the Executive Committee of the PLO, Yasser Arafat, to speak to the Plenary on behalf of the PLO. One of the items on the agenda of the session was the question of Palestine. However, Arafat was denied access to American territory by the US government. According to UNGA Res 3237 (XXIX) (22 November 1974)151 the PLO enjoys observer status at the UN. Since 15 December 1988, the PLO observer has been called ‘Palestine’. 66  By UNGA Res 43/48 (30 November 1988)152 the GA urged the US government to issue a visa for Arafat. The GA argued153 that any refusal would run contrary to the Headquarters Agreement of 1947,154 especially to its Arts 11–13. But the US government insisted on the refusal, reasoning that its government declaration155 on the entry into force of the Headquarters Agreement constituted a valid legal basis for the right to deny access in the case of a threat to American national security.156 The United States argued that its security would be affected by the admission of Arafat. 67  On 2 December 1988,157 with 154 votes in favour, the Plenary decided to hold its meetings on the Palestine problem158 in Geneva, which thus made it possible for Arafat to present the PLO’s viewpoint in person. Some member States, by explanations of vote, disclaimed any effect on normal practice by their votes in favour of the move.159 The expenses for the removal amounted to US $440,700.

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(p. 676) 68  With UNGA Res 42/229 B, the GA asked the ICJ to give an Advisory Opinion on whether the United States was obliged to arbitrate with the UN on the dispute under the Headquarters Agreement.160

4.  Unsuccessful Attempts to Shift Sessions 69  Two unsuccessful attempts were made to move a GA session abroad. On 15 December 1946, the GA discussed and rejected161 a motion by the Ukraine. On 21 October 1977, the Philippines proposed to hold the 33rd regular session in Manila.162 For fiscal reasons, it later withdrew its proposal. The GA accepted the withdrawal by UNGA Res 32/421 (9 December 1977).163

Annex 1:  Regular Sessions No

Duration

1

10 Jan–14 Feb 1946

Original closing date164

Interruption by

Plenary No165

Res No166

Res 29 (I) (9 Feb 1946)

33

33

23 Oct–16 Dec 1946

34

70

2

16 Sept–29 Nov 1947

49

77

3

21 Sept–12 Dec 1948

52

75

5 Apr–18 May 1949

32

23

4

20 Sept–10 Dec 1949

57

88

5

19 Sept 1950–5 Nov 1951167

30 Nov 1950

56

126

6

6 Nov 1951–5 Feb 1952

26 Jan 1952

43

107

7

14 Oct–20 Dec 1952

20 Dec 1952

DEC of 18 Dec 1952168

36

91

Res 705 (VII) (18 Apr 1953)169

17

10

3

3

40

94

1

0

Res 263 (III) (6 Dec 1948)

24 Feb–23 Apr 1953

17–28 Aug 1953 8

15 Sept–9 Dec 1953

8 Dec 1953

Res 716 (VIII) (8 Dec 1953)170

20 Sept 1954 9

21 Sept–17 Dec 1954

10 Dec 1954

43

101

10

20 Sept–20 Dec 1955

10 Dec 1955

45

88

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No

Duration

Original closing date164

Interruption by

Plenary No165

Res No166

11

12 Nov–8 Mar 1957

15 Feb 1957

Res 1119 (XI) (8 Mar 1957)171

95

124

9

1

54

103

46

110

2

2

63

123

97

117

53

28

DEC of 19 Dec 1961174

81

119

Res 1743 (XVI) (23 Feb 1962)175

19

4

15

2

10–14 Sept 1957 12

17 Sept–14 Dec 1957

14 Dec 1957

13

16 Sept–13 Dec 1958

12 Dec 1958

Res 1281 (XIII) (5 Dec 1958)172

20 Feb–13 Mar 1959 14

15 Sept–13 Dec 1959

5 Dec 1959

15

20 Sept–20 Dec 1960

17 Dec 1960

DEC of 15 Dec 1960173

7 Mar–21 Apr 1961 16

19 Sept–20 Dec 1961

20 Dec 1961

15 Jan–23 Feb 1962

7–28 June 1962 17

18 Sept–20 Dec 1962

21 Dec 1962

81

124

18

17 Sept–17 Dec 1963

20 Dec 1963

80

113

19

1 Dec–18 Feb 1965176

5 Mar 1965177

45

14

1

0

DEC of 18 Feb 1965178

1 Sept 1965 20

21 Sept–22 Dec 1965

22 Dec 1965

77

125

21

20 Sept–20 Dec 1966

20 Dec 1966

93

115

22

19 Sept–19 Dec 1967

19 Dec 1967

DEC of 19 Dec 196179

83

113

DEC of 12 June 1968180

30

4

1

1

24 Apr–12 June 1968 23 Sept 1968

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No

Duration

Original closing date164

23

24 Sept–21 Dec 1968

24

Interruption by

Plenary No165

Res No166

20 Dec 1968

79

117

16 Sept–17 Dec 1969

16 Dec 1969

86

127

25

15 Sept–17 Dec 1970

15 Dec 1970

95

131

26

21 Sept–22 Dec 1971

21 Dec 1971

98

153

27

19 Sept–19 Dec 1972

19 Dec 1972

85

146

28

18 Sept–18 Dec 1973

18 Dec 1973

90

150

1

0

93

158

1

0

94

179

107

208

2

0

111

215

DEC 33/432 of 20–21 Dec 1978184

91

182

DEC of 29 Jan 1979185

5

23

12

1

120

233

DEC 35/450 of 17 Dec 1980186

99

226

15–16 Jan 1981

DEC of 16 Jan 1981187

1

0

2–6 Mar 1981

188

11

1

DEC of 18 Dec 1973181

16 Sept 1974 29

17 Sept–18 Dec 1974

17 Dec 1974

DEC of 18 Dec 1974182

16 Sept 1975 30

16 Sept–17 Dec 1975

16 Dec 1975

31

21 Sept–22 Dec 1976

21 Dec 1976

DEC 31/429A of 22 Dec 1976183

13–19 Sept 1977 32

20 Sept–21 Dec 1977

20 Dec 1977

33

19 Sept–21 Dec 1978

19 Dec 1978

15–29 Jan 1979 23–31 May 1979 34

18 Sept 1979–7 Jan 1980

18 Dec 1979

35

16 Sept–17 Dec 1980

16 Dec 1980

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No

Plenary No165

Res No166

11 May 1981

2

0

14 Sept 1981

1

0

105

242

6

2

115

252

10–13 May 1983

6

1

19 Sept 1983

1

0

104

239

26 June 1984

1

0

17 Sept 1984

1

0

105

246

10–16 Apr 1985

2

2

39

17 Sept 1985

1

0

40

17 Sept–18 Dec 1985

DEC 40/470 of 18 Dec 1985192

122

259

25

11

0

1

0

102

213

1

0

99

228

29 Feb–23 Mar 1988

11

2

12–13 May 1988

3

2

16–17 Aug 1988

2

1

36

Duration

15 Sept–18 Dec 1981

Original closing date164

15 Dec 1981

Interruption by

DEC 36/461 of 18 Dec 1981189

16 Mar–20 Sept 1982 37

38

39

21 Sept–21 Dec 1982

20 Sept–20 Dec 1983

18 Sept–18 Dec 1984

21 Dec 1982

20 Dec 1983

18 Dec 1984

17 Dec 1985

28 Apr–20 June 1986

DEC 37/452 of 21 Dec 1982189A

DEC 38/456 of 20 Dec 1983190

DEC 39/456 of 18 Dec 1984191

15 Sept 1986 41

16 Sept–22 Dec 1986

193

DEC 41/470 of 19 Dec 1986194

14 Sept 1987 42

15 Sept–21 Dec 1987

DEC 42/460 of 21 Dec 1987195

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No

Duration

Original closing date164

Interruption by

Plenary No165

Res No166

1

0

DEC 43/459 of 22 Dec 1988197

85

230

198

5

2

18–20 Apr 1989

4

1

11 June 1989

1

0

18 Sept 1989

1

0

19 Sept–29 Dec 1989

88

240

20 Feb 1990

1

0

12 Mar 1990

1

0

26 Mar–2 Apr 1990

2

0

17 May 1990

1

1

28 June 1990

1

1

20 July 1990

1

0

11, 12, 14, and 17 Sept 1990

4

3

18 Sept–21 Dec 1990

72

257

29 April 1991

1

0

3, 13, and 17 May 1991

3

10

10, 21, and 28 June 1991

3

2

27 Aug 1991

1

1

13 and 16 Sept 1991

2

0

17 Sept–20 Dec 1991

79

221

4 and 14 Feb 1992

2

2

2 and 19 Mar 1992

2

11

19 Sept 1988 43

20 Sept–23 Dec 1988 14 Feb–7 Mar 1989

44

45

46

196

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No

47

48

Duration

Original closing date164

Interruption by

Plenary No165

Res No166

13 April 1992

1

2

6 and 22 May 1992

2

2

29 and 31 July 1992

2

3

24 and 25 Aug 1992

2

1

14 Sept 1992

1

0

15 Sept–23 Dec 1992

94

220

19 Jan 1993

1

0

11 Feb 1993

1

0

16 Mar 1993

1

2

8, 15, 20, and 29 Apr 1993

4

1

6, 10, and 28 May 1993

3

2

15, 22, and 25 June 1993

3

0

28 July 1993

1

0

17 Aug 1993

1

0

14, 15, and 20 Sept 1993

3

4

21 Sept 1993–23 Dec 1993

87

232

21 Jan 1994

1

1

14 Feb 1994

1

1

9 and 24 March 1994

3

6

5 and 14 April 1994

3

11

26 May 1994

1

6

23 June 1994

1

1

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No

49

50

51

Duration

Original closing date164

Interruption by

Plenary No165

Res No166

8, 14, 28, and 29 July 1994

5

6

24 Aug 1994

1

1

14 and 19 Sept 1994

3

2

20 Sept–23 Dec 1994

95

234

26 Jan 1995

1

0

28 Feb 1995

1

0

19 and 31 March 1995

2

6

6, 13, and 21 April 1995

3

3

24 and May 25 1995

2

0

21 June 1995

1

0

12 and 20 July 1995

2

8

14 and 18 Sept 1995

2

1

19 Sept–23 Dec 1995

100

218

28 Feb 1996

1

0

6 March 1996

1

0

3, 11, 19, 23, and 25 April 1996

14

7

10 and 24 May 1996

3

2

7 June 1996

1

16

16 July 1996

1

0

29Aug 1996

1

1

9, 10, 16, and 17 Sept 1996

6

2

17 Sept 1996–18 Dec 1996

89

222

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No

Duration

Original closing date164

Interruption by

Plenary No165

Res No166

12, 13, and 27 March 1997

5

2

3, 18, and 25 April 1997

3

4

20, 21, and 22 May 1997

3

2

13, 17, and 20 June 1997

3

10

16 and 31 July 1997

2

1

4 Aug 1997

1

0

15 Sept 1997

1

2

52

16 Sept 1997–8 Sept 1998199

92

298

53

9 Sept 1998–13 Sept 1999

107

243

54

14 Sept 1999–5 Sept 2000

100

283

55

5 Sept 2000–10 Sept 2001

112

285

56

12 Sept 2001–9 Sept 2002

112

312

57

10 Sept 2002–15 Sept 2003

94

338

58

16 Sept 2003–13 Sept 2004

95

318

59

14 Sept 2004–13 Sept 2005

118

314

60

13 Sept 2005–11 Sept 2006

100

289

61

12 Sept 2006–17 Sept 2007

109

296

62

18 Sept 2007–15 Sept 2008

122

278

63

16 Sept 2008–14 Sept 2009

105

311

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No

Duration

64

Original closing date164

Interruption by

Plenary No165

Res No166

15 Sept 2009–14 Sept 2010

122

301

65

14 Sept 2010–12 Sept 2011

118

316

66

13 Sept 2011200

(p. 677) (p. 678) (p. 679) (p. 680) (p. 681) (p. 682)

Annex 2:  Regular Special Sessions No

Duration

Plenary No201

Res No202

Subject

Convocation

1

28 Apr–15 May 1947

12

4

Palestine

C203 at the request of the United Kingdom of 2 Apr 1947, which obtained the necessary majority on 13 Apr 1947204

2

16 Apr–14 May 1948

7

5

Palestine

SC Res S/714/II (1 Apr 1948)205 by 9 votes (China, France, United Kingdom, United States and others) to 0 and 2 abstentions (Soviet Union, Ukrainian SSR) at the request206 of the United States207

3

21–25 Aug 1961

11

2

France/Tunisia Bizerta

C at the request of 47 members208 of 7 Aug 1961.209 Until 10 Aug 1961 another 5 members had concurred in the request, so the necessary majority was obtained210

4

15 May–27 June 1963

3

9

financial situation of the UN

GA Res 1866 (XVII) (20 Dec 1962)211 by 77 to 0 votes and 21 abstentions212 of 110 members: regular special sessions until 30 June 1963213

5

21 Apr–23 May 1967, 6, 13 June 1967

21

4

South-West Africa

GA Res 2145 (XXI) (27 Oct 1966)214 with 114 to 2 votes and 3 abstentions215 of of 121 members: regular special sessions at the latest Apr 1967216

6

9 Apr–2 May 1974

25

3

NIEO

C at the request of Algeria of 30 Jan 1974,217 which obtained the required majority on 14 Feb 1974

7

1–16 Sept 1975

24

2

NIEO

GA Res 3172 (XXVIII) (17 Dec 1973)218 with 123 to 0 votes and 0 abstentions of 135219 members: regular special sessions short time before the 30th regular session

8

20–21 Apr 1978

2

2

financing of UNIFIL

GA Res 32/214 (21 Dec 1977)220 by 123 to 9 votes and 3 abstentions221 of 149

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No

Duration

Plenary No201

Res No202

Subject

Convocation

members: possible regular special sessions 9

24 Apr–3 May 1978

15

2

Namibia

GA Res 32/9H (4 Nov 1977) by 135 to 0 and 6 abstentions222 of 149 members: regular special sessions before the 34th regular session

10

23 May–30 June 1978

27

2

disarmament

GA Res 31/189 B (21 Dec 1976)223 without voting224 of 147 members: regular special sessions May/June 1978225

11

25 Aug–15 Sept 1980

21

4

NIEO

GA Res 32/174 (19 Dec 1977) without voting226 of 149 members: regular special sessions

12

7 June–10 July 1982

29

1

disarmament

GA Res 33/71 H (14 Dec 1978)227 by 129 to 0 votes and 13 abstentions228 of 150 members: regular special sessions

13

17 May–1 June 1986

8

2

financial situation of Africa

GA Res 40/40 2 (Dec 1985)229 without voting230 of 159 members: regular special sessions of 21–31 May 1986

14

17–20 Sept 1986

7

1

Namibia

GA Res 40/97 F (13 Dec 1985)231 by 148 to 0 votes and 6 abstentions232 of 159 members: regular special sessions before the 41st regular session

15

31 May–26 June 1988

22

1

disarmament

GA Res 41/60 G (3 Dec 1986)233 without voting234 of 159 members: session in 1988

16

12–14 Dec 1989

6

1

apartheid

GA Res 43/50 (5 Dec 1988) without voting of 159 members: session in 1988

17

20–23 Feb 1990

8

2

drugs

GA Res 44/16 (1 Nov 1989) without voting of 159 members

18

23 Apr–1 May 1990

11

3

International economic cooperation

GA Res 43/460 (7 Mar 1989) by 123 to 1 votes and no abstention of 159 members: session from 23–27 April

19

23–27 June 1997

11

2

Earth Summit + 5

GA Res 50/113 (20 Dec 1995), without a vote

20

8–10 June 1998

9

3

drugs

GA Res 51/64 (12 Dec 1996), without a vote

21

30 June–2 July 1999

9

1

population and development

GA Res 52/188 (18 Dec 1997), without a vote

22

27–28 Sept 1999

5

1

Small island developing States

GA Res taken at 19th special session

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

No

Duration

Plenary No201

Res No202

Subject

Convocation

23

5–9 June 2000

10

2

women

GA Res 52/100 (26 Jan 1998), without a vote

24

26–30 June 2000

10

1

social development

GA Res 53/28 (19 Nov 1998), without a vote

25

6–8 June 2001

6

1

Habitat II

GA Res 52/190 (12 Dec 1997), without a vote

26

25–27 June 2001

8

1

HIV/AIDS

GA Res 55/13 3 Nov 2000), without a vote

27

8–10 May 2002

6

1

children

GA Res 51/186 (12 Dec 1996), without a vote

28

24 Jan 2005

2

–

60th anniversary liberation Nazi concentration camps

C at the request of Australia, Canada, the EU Member States, New Zealand, Russia and United States of 10 Dec 2004, which obtained the necessary majority in Jan 2005235

(p. 683) (p. 684) (p. 685)

Annex 3:  Emergency Special Sessions No

Duration

Plenary No

Res No236

Subject

Convocation

1

1–10 Nov 1956

7

8237

Suez Canal

After vetoes of 30 Oct 1956238 SC Res S/3721 (1 Oct 1956)239 at the request of Yugoslavia,240 persistent refusal241 of France242 and the United Kingdom243

2

4–10 Nov 1956

6

6

Hungary

After veto of 4 Nov 1956244 SC Res S/ 3733 (4 Nov 1956)245 at the oral request of the United States246

3

8–21 Aug 1958

15

2

Middle East, Lebanon Jordan

After vetoes of 18–22 July 1958247 SC Res S/4083 (7 Aug 1958),248249 at the amended requests of the United States250 and Soviet Union251

4

17–20 Sept 1960

6

2

Congo

After veto of 17 Sept 1960252 SC Res S/ 4526, (17 Sept 1960) at the request of the United States,253 persistant refusal of Soviet Union

5

17 June–21 July 1967254

34

5

Middle East 6day-war

Without, C255 at the request of the Soviet Union of 13 June 1967, which obtained the required majority on 16 June 1967 and caused convocation256

Sept 18, 1967

1

1

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No

Duration

Plenary No

Res No236

Subject

Convocation

6

10–14 Jan 1980

7

2

Afghanistan

After veto of 7 Jan 1980257 SC Res 462, Jan 1980258 at the request259 of Mexico and the Philippines

7

22–29 July 1980

11

3

Middle East

20–28 Apr 1982

10

1263

Palestine

After veto of 30 Apr 1980,260 C at the request of Senegal of 1 July 1980,261 which caused convocation after obtaining the required majority on 21 July 1980,262 persistent refusal of Israel

25–26 June 1982

3

1

16–19 Aug 1982

7

3

24 Sept 1982

1

1

8

8–14 Sept 1981

12

2

Namibia

After vetoes of 30 Apr 1981,264 C at the request of Zimbabwe of 12 Aug 1981,265 which caused convocation after obtaining the required majority on 2 Sept 1981266

9

29 Jan–5 Feb 1982

12

2

Middle East Golan Heights

After veto of 20 Jan 1982267 SC Res 500 (28 Jan 1982)268 at the request of Jordan,269 persistent refusal of Israel270

10

24–25 Apr 1997

3

2

After veto of 7 and 21 March 1997, C at the request of Qatar (letter of 31 March 1997)

15 July 1997

2

1

Occupied East Jerusalem and the rest of the Occupied Palestinian Territory

13 Nov 1997

2

1

17 March 1998

2

1

5, 8–9 Feb 1999

3

1

18–20 Oct 2000

2

1

20 Dec 2001

2

1

7 May 2002

2

1

5 Aug 2002

2

1

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No

Duration

Plenary No

Res No236

19 Sept 2003

1

1

20–21 Oct 2003

2

1

8 Dec 2003

1

1

16–20 July 2004

4

1

17 Nov 2006

2

1

15 Dec 2006

2

1

15–16 Jan 2009

5

1

Subject

Convocation

(p. 686) (p. 687)

Footnotes: 1

  UNCIO III, 7.

2

  UNCIO VIII, 454, 458.

3

  UNCIO III, 97, 167. P.U.N. was the abbreviation for ‘Permanent Union of Nations’.

4

  UNCIO III, 183.

5

  ibid, 39.

6

  ibid, 457.

7

  ibid, 286.

8

  ibid, 199, 224.

9

  A compilation of the proposals can be found in UNCIO VIII, 524f.

10

  ibid, 390.

11

  ibid, 542–43.

12

  ibid, 37.

13

  UNCIO XVII, 407.

14

  ibid, 200.

15

  (1920) 1 LNOJ 3–11.

16

  A proposal by the US Department of State named the seat of the UN as the place of meetings, HA Notter, Postwar Foreign Policy Preparation 1939–1945 (US Dept of State 1949) 475, 527, 585, 598. 17

  Report on the Dumbarton Oaks Proposals submitted to the Pan-American Union for Distribution to the American Governments (1945) 39 AIJL 57, 67.

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18

  See n 2.

19

  UNCIO VIII, 391.

20

  (1920) 1 League of Nations Official Records 229.

21

  Soviet Union, Byelorussia, Ukraine, Poland, Czechoslovakia, and Yugoslavia.

22

  On the reasons, see Kelsen, 176: ‘Nothing in the Charter prevents the UNGA to… function continuously …’. 23

  GAOR 2nd Session 110th Plen mtg (11 November 1947); (1947/8) UNYB 75–81 and (1948/9) UNYB 406–12. 24

  cf (1984) UNYB 1315.

25

  GAOR 1st Session Resolutions and Decisions, Part I, 38ff.

26

  (1946/7) UNYB 55.

27

  See MN 10.

28

  UN Doc A/520 (12 December 1947) now valid: UN Doc A/520/Rev.17; the Rules of Procedure are printed as Annex 1 to this Commentary. 29

  UN Doc A/71/Rev.1.

30

  UNCIO XV, 511–53.

31

  (1946/7) UNYB 120f.

32

  GAOR 1st Session, pt II, 139.

33

  (1952) UNYB 75f; RP I 608f, paras 17ff.

34

  GAOR 7th Session Supp No 20, 65.

35

  GAOR 8th Session Supp No 17, 41; (1953) UNYB 17ff.

36

  The opening of the 53rd GA took place on Wednesday, 9 September 1998 (UNGA Res 52/232 (4 June 1998) UN Doc A/RES/52/232), the opening of the 54th UNGA Session on 14 September 1999 (UNGA Res 53/239 (8 June 1999) UN Doc A/RES/53/239), the second Tuesday of that month. 37

  The openings of the 2nd, 6th, 7th, 11th, 19th, and 23rd UNGA.

38

  Permanent Mission of Switzerland (ed), The PGA Handbook: A practical guide to the United Nations General Assembly (2011) 78. 39

  (1946–47) UNYB 121ff.

40

  GAOR 1st Session pt II, 198–99; GAOR 3rd Session pt II, Resolutions, 17; (1948–49) UNYB 38f. 41

  GAOR 4th Session Resolutions, 59; Annex 2 of the Res is Annex 1 to the GA’s Rules of Procedure; see further (1948–49) UNYB 40ff. 42

  21 December 1952, GAOR 7th Session Supp No 20, 62–63.

43

  (1952) UNYB 68ff, RP I 615–16, paras 57–62.

44

  (1952) UNYB 15ff.

45

  23 October 1953, GAOR 8th Session Supp No 17, 49.

46

  11 November 1963, GAOR 28th Session Supp No 15, 4–5, Res 1898 (XVIII) is Annex IV to the Rules of Procedure.

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47

  The Committee had been set up by the UNGA, GAOR 28th Session Supp No 17, 76, and had been given the task of drafting the Annex to the Rules of Procedure by UNGA Res 1845 (XVIII) (19 December 1962) UN Doc A/RES/1845(XVIII), GAOR 18th Session Supp No 17, 76. 48

  17 December 1971, GAOR 26th Session Supp No 29, 5–15.

49

  Annex V to the Rules of Procedure.

50

  The Committee was installed by UNGA Res 2632 (XXV) (11 November 1970) UN Doc A/ RES/2632(XXV) GAOR 25th Session Supp No 28, 5–6. 51

  UNGA Res 2837 (XXVI) (17 December 1971) GAOR 26th Session Supp No 29, 5–15; see Annex V, para 4 to the Rules of Procedure. 52

  21 December 1952, GAOR 7th Session Supp No 20, 63; see also (1952) UNYB 68ff; the former wording of Rule 2 requested the GA to fix a target date for the closing of sessions, Res 362 (IV) (22 October 1949) GAOR 4th Session, Resolutions, 59. 53

  See Annex 1, col 4.

54

  See Annex 1, cols 2 and 3.

55

  See Annex 1, col 4. See also MN 21–24.

56

  UNGA Decision 41/401 (20 September 1986) GAOR 41st Session Supp No 53, 280 in connection with Doc A/41/250/Add 1 para 4. 57

  5 May 1986, GAOR 40th Session Supp No 53, 332f.

58

  UNGA Decision 42/401 (18 September 1987) GAOR 42th Session Supp No 49, 312 in connection with UN Doc A/42/250 para 9; UNGA Decision 43/401 (23 September 1988) GAOR 43rd Session Supp No 49, 312 in connection with UN Doc A/43/250 para 6. 59

  For the 52nd–55th Sessions of the UNGA, the decision on the closing date was not taken at the beginning of the session, but in the course of the session, together with the opening date of the following session: UNGA Res 52/232 (4 June 1998) UN Doc A/RES/52/232; UNGA Res 53/224 (7 April 1999) UN Doc 53/224; UNGA Res 53/239 (8 June 1999) UN Doc A/RES/53/239; and UNGA Res 55/14 (3 Nov 2000) UN Doc A/RES/55/14. 60

  See Permanent Mission of Switzerland (n 38) 14.

61

  UN Doc A/520/Rev.17.

62

  From 1947, UNGA Res 147 (II) (20 October 1947) UN Doc A/RES/147(II), to 1949, UNGA Res 362 (IV) (22 October 1949) UN Doc A/RES/362(IV), Rule 6 was Rule 5. 63

  See Annex 1.

64

  GAOR 7th Session Plen 406th session, 417, paras 115–117. Finally, the President was empowered by the UNGA, para 125, see also RP I 610, paras 30–32. 65

  See RP I 611–12, paras 34–38.

66

  ibid, 612f, paras 39–42.

67

  See MN 36.

68

  See Annex 1, note 4.

69

  See M Schaefer, ‘Notstandssondertagungen der Generalversammlung’ (1983) 31 VN 78; CPF/Lewin, 830–33. 70

  GAOR 5th Session Supp No 20, 10–12.

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71

  GHS, 182ff; ND White, The United Nations and the Maintenance of International Peace and Security (Manchester UP 1990) 130; M Schaefer, ‘Notstandssondertagungen der Generalversammlung’ (1983) 31 VN 79. 72

  In favour of a two-thirds majority when world peace is threatened: J Andrassy, ‘Uniting for Peace’ (1956) 50 AJIL 563, 574f; on facilitations see FA Vallat, ‘The General Assembly and the Security Council of the United Nations’ (1952) 29 BYIL 63, 100. 73

  See Annexes 2 and 3 below.

74

  Andrassy, 575; contra C Tomuschat, ‘Generalversammlung’ in R Wolfrum (ed), Handbuch Vereinte Nationen (CH Beck 1991) 227 MN 7. 75

  A/C.1/576, revised in A/C.1/576/Rev 1; (1950) 4 IO 721–23; on the drafting of this resolution see further (1950) UNYB 181ff; H Reicher, ‘The Uniting for Peace Resolution on the Thirtieth Anniversary of its Passage’ (1981) 20(1) Columb J of Transntl L 1, 20f and note 135. 76

  Change to Art. 27 by UNGA Res 1991 A (XVIII) (17 December 1963) UN Doc A/RES/ 1991(XVIII) GAOR 18th Session Supp No 15, 21–22. 77

  In Rule 8 (b) ‘seven’ was changed to ‘nine’ by UNGA Res 2046 A (8 December 1965) UN Doc A/RES/2046/A GAOR 20th Session Supp No 14, 88. 78

  H Kelsen, Recent Trends in the Law of the United Nations (1951) 983f; Andrassy, 575ff; K Prößdorf, Die ‘Uniting for Peace’ Resolution (Universität Köln 1960) 75ff; contra Vallat, above (n 72). 79

  UNCIO XI, 709–14 (English) and 752–57 (French).

80

  France associated itself with the declaration of the other permanent SC members on 8 June. 81

  For the interpretation of the San Francisco Declaration see SD Bailey and S Daws, The Procedure of the UN Security Council (3rd edn, OUP 1998) 455ff; F Przetacznik, ‘The Double Veto of the Security Council: A New Appraisal’ (1980) 58 Rev de Droit Int de Sci Diplom et Polit 153ff. 82

  14 April 1949, GAOR 3rd Session Resolutions, 7–10.

83

  (1946/7) UNYB 350ff; Bailey and Daws (n 81) 244f.

84

  The resolution was sponsored by the United States, S/552, deliberations recorded in SCOR 2nd Year 202nd mtg, 2399–400. 85

  S/555, decision on withdrawal SCOR 2nd Year 202nd mtg, 2405.

86

  (1950) UNYB 184ff.

87

  UNGA Res 377 (V).

88

  SCOR 15th Year 906th mtg, 37, paras 195–97.

89

  SCOR 15th Year Resolutions and Decisions 1960, 8.

90

  Its subject was the Congo Crisis, see Annex 3 below.

91

  On the question of whether the President is bound by the San Francisco Declaration, especially when not representing a permanent member, see SE Werners, The Presiding Officers in the United Nations (Bohn 1966) 158ff; Schaefer (n 69) 110f; on the President’s legal possibilities against a veto see E Jiménez de Aréchaga, Voting and the Handling of Disputes in the Security Council (Carnegie Endowment for International Peace 1950) 11ff. 92

  Its subject was the Suez Crisis.

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93

  The United Kingdom, in contrast to the Soviet Union and supported by France, made a reservation, SCOR 11th Year 751st mtg, paras 148–150; the Soviet Union had even voted against a British motion to declare the Uniting for Peace Resolution as incompatible with the Rules of Procedure; the Soviet Union’s objections against the convocation of the 1st emergency special session related to the substance of the resolution (creation of UNEF); see GJ Tunkin, ‘The Legal Nature of the United Nations’ (1966-II) 119 Rec des Cours 55–56. 94

  See JM Lavieille, ‘La procédure de suspension des droits d’un Etat membre des Nations Unies’ (1977-I) 81 RGDIP 456–60; Kelsen, 712f. 95

  See Annexes 1 and 2 below.

96

  Concerning Tunisia, A/2137.

97

  Concerning French nuclear testing in the Sahara, A/4369.

98

  cf Schaefer (n 69) 81, on the 8th emergency special session.

99

  Kelsen, 984.

100

  See Annex 1 below.

101

  UNGA Res 507 (VI) (5 February 1952) UN Doc A/RES/507(VI), GAOR 6th Session Supp No 20, 7, the resolution was adopted with fifty-one votes in favour, five against, and two abstentions; at that time the UN had sixty member States. 102

  UNSC Res 425 (19 March 1978) UN Doc S/RES/425, SCOR 33rd Year Resolutions and Decisions, 5. 103

  GAOR 19th Session Supp No 15, 7; GAOR 19th Session 1286th Plen mtg, paras 7–11.

104

  Rules 85 and 86 of the Rules of Procedure.

105

  UNCIO VIII, 390, 524–25.

106

  UNCIO III, 39.

107

  See Annex 2 below. The decision to hold the 7th special session was taken by recorded vote. The fixing of the opening date, however, was effected without a vote. The convocation of the 18th special session was decided upon by a regular vote, A/43/460. 108

  A Verdross and B Simma, Universelles Völkerrecht (3rd edn, Duncker & Humblot 1984) para 122. 109

  GAOR 19th Session Supp No 15, 7; GAOR 42nd Session Supp No 49, 285.

110

  UNGA Res 377 A (V) (3 November 1950) UN Doc A/RES/377A(V).

111

  On this problem see Kelsen (n 78) 977f; Reicher (n 75) 11ff.

112

  See Annex 3 below; Schaefer (n 69) 80f.

113

  UN Doc A/35/344.

114

  (1997) UNYB 395.

115

  Secretariat, Office of Legal Affairs, (1980) UNJYB 187f.

116

  See MN 36.

117

  Reicher (n 75) 11; only the extension of the SC to fifteen members in 1966 made it possible for nine members to vote in favour while all permanent members disagreed. 118

  Legal Consequences of the Construction of a Wall (Advisory Opinion) [2004] ICJ Rep 151. 119

  ibid.

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120

  See Letter by the Permanent Representative of Israel dated 14 January 2009, UN Doc A/ES-10/439. The delegations of France and the United Kingdom were also critical, albeit with reference to Art. 12 of the Charter, UN Doc A/ES-10/PV.33 (15 January 2009). 121

  The convocation of the 5th emergency special session (on the Middle East) conflicts with this conclusion; the Soviet request (letter of 13 June 1967) for a UNGA emergency session led to the convocation, GAOR (ES-V) 1526th Plen mtg, 1, the Soviet Union did not contend a failure of the SC; the Soviet Draft Res (condemnation of Israel) on the Middle East in the SC, SCOR 22nd Year 1358th mtg, para 45 (UN Doc S/7951/Rev.2), was not vetoed. 122

  The opposite point of view is held by A Lall, The UN and the Middle East Crisis (2nd edn, Columbia UP 1970) 116ff. 123

  (1967) UNJYB 321, 324.

124

  Rule 15 of the UNGA’s Rules of Procedure.

125

  Application by the SC, which explicitly referred to UNGA Res 377 A (V) (3 November 1950) UN Doc A/RES/377A(V); UNSC Res 303 (6 December 1971) UN Doc S/RES/303 (1971) SCOR 26th Year Resolutions and Decisions, 10; the UNGA dealt with the matter, GAOR 26th Session 2002nd Plen mtg, paras 18–27. 126

  UN Doc A/1618 (4 Dec 1950); the Draft Res of these six States in the SC, SCOR 5th Year 521st mtg, 16, had been struck down by a Soviet veto, 530th mtg, 22–25; cf (1950) UNYB 243f; Reicher (n 75) 24. 127

  The 7th and 10th emergency special sessions, which were adjourned and resumed many times, overlapped with more than one regular session and have still not been closed; see Annex 3. 128

  ibid (n 118) 152.

129

  The first one on Hungary, the second one on the Suez Canal.

130

  See Korea Crisis, UNGA Res 498 (V) (1 February 1951) UN Doc A/RES/498(V); UNGA Res 500 (V) (18 May 1951) UN Doc A/RES/500(V); on these resolutions see M Schaefer, Die Funktionsfähigkeit des Sicherheitsmechanismus der Vereinten Nationen (1981) 133–37; id, (1983) 31 VN 80, 81. 131

  Rule 10 of the Rules of Procedure of the UNGA.

132

  Latest date for convocation was 1 March 1974; the first session took place on 9 April 1974, GAOR (S-VI) Annexes, No 7; (1974) UNYB 305f; RP 5 I paras 34–38. 133

  RP 5 I 224, paras 39–40.

134

  GAOR (S-V) Plen, 1522nd mtg, paras 161–62; Plen, 1523rd mtg, para 2.

135

  GAOR (ES-V) Supp No 1, 4; (1967) UNYB 218ff, 223.

136

  See Annex 3 below.

137

  Letter from the Permanent Representative of the United States of America dated 19 April 1982, UN Doc A/ES-7/16. 138

  Submission by Israel to the ICJ, 72.

139

  ibid (n 118) 151–52.

140

  14 February 1946, GAOR 1st Session Resolutions and Decisions, 37.

141

  14 December 1946, GAOR 1st Session Resolutions and Decisions, 196–97.

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142

  20 November 1947, GAOR 2nd Session Resolutions and Decisions, 151–52.

143

  Rules 85 and 86.

144

  The third (Part I) and the sixth UNGA.

145

  Closing date: 15 November 1951.

146

  GAOR 2nd Session Resolutions and Decisions, 153.

147

  UN Doc A/524, UN Doc A/526.

148

  It was opened on 21 September 1948 at the Palais de Chaillot, cf (1957/8) UNYB 32ff.

149

  14 December 1950, GAOR 5th Session Supp No 20, 80.

150

  The SG made the necessary arrangements with the French authorities, 122 UNTS 191– 219. 151

  GAOR 29th Session Supp No 31, 4.

152

  GAOR 43rd Session Supp No 49, 275–76.

153

  Summary of legal opinions of the disputing parties by USG Fleischhauer in a meeting of the Committee on Relations to the Host Country of 28 November 1988, UN Doc A/C.6/43/7. 154

  GAOR 2nd Session Resolutions and Decisions, 91–102; 11 UNTS 11–39.

155

  11 UNTS 40–41.

156

  UN Doc A/C.6/43/SR. 51, 12–13; A/43/PV. 65, 36–37; A/43/PV: 67, 35–36.

157

  GAOR 43rd Session Supp No 49, 49.

158

  From 13–15 December 1988. Arafat opened the discussion on Palestine on 13 December 1988, A/43/PV/78, 2–40. 159

  UN Doc A/43/PV. 67, 38–41.

160

  Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 [1988] ICJ Rep 9. The ICJ held that the United States were obliged to arbitrate with the UN on the dispute. 161

  (1946–47) UNYB 12.

162

  UN Doc A/32/246; the application was later modified so as to include only the first part of the session, Rev 1. 163

  GAOR 32nd Session Supp No 45, 230; see also (1977) UNYB 1038; RP 5 I 223, para 12.

164

  Until 1952 target closing date for the sessions.

165

  Number of the Plenary meetings.

166

  Total number of the passed Resolutions, special parts of Resolution, eg A or B, are not mentioned. 167

  After the 50th meeting on 15 December 1950, Plenary meetings only took place on 1, 13 February; 20 March; 18, 26 May; and, in Paris, on 5 January 1951. 168

  GAOR 7th Session 406th Plen mtg, para 125: interruption lasting no later than 24 Feb 1953 or earlier. 169

  GAOR 7th Session Supp No 20 A (A/2361/Add 1) 3.

170

  GAOR 8th Session Supp No 17 (A/2630) 4.

171

  GAOR 11th Session Supp No 17 (A/3572) 61.

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172

  GAOR 13th Session Supp No 18 (A/4090) 34.

173

  GAOR 15th Session 948th Plen mtg, para 145: interruption until 7 March 1961.

174

  GAOR 16th Session 1083rd Plen mtg, para 66: interruption until 15 January 1962.

175

  GAOR 16th Session Supp No 17 (A/5100) 42–43.

176

  On 30 December 1964 the GA President declared a recess of the meetings until 18 January 1965, GAOR 19th Session 1314th Plen mtg, para 17. 177

  This was only a suggestion of the SG and not fixed by the UNGA; see RP 3 I, Art 20, para 21. 178

  GAOR 19th Session 1330th Plen mtg, paras 332–333: interruption until 1 September 1965. 179

  GAOR 22nd Session 1643rd Plen mtg, para 285.

180

  GAOR 22nd 1672nd Plen mtg, para 169.

181

  GAOR 28th Session 2206th Plen mtg, paras 237–238.

182

  GAOR 29th Session 2325th Plen mtg, para 193.

183

  GAOR 31st Session Supp No 39 (A/31/39) 196.

184

  GAOR 33rd Session Supp No 45 (A/33/45) 236.

185

  GAOR 33rd Session 96th Plen mtg, paras 90–91 in connection with agenda item 14, Res 33/182 A (21 December 1978). 186

  GAOR 35th Session Supp No 48 (A/35/48) 282.

187

  GAOR 35th Session 101st Plen mtg, paras 1–2.

188

  Interruption by declaration of the GA President.

189

  GAOR 37th Session Supp No 51 (A/37/51) 287.

189A

  GAOR 37th Session Supp No 51 (A/37/51) 287.

190

  GAOR 38th Session Supp No 47 (A/38/47) 288.

191

  GAOR 39th Session Supp No 51 (A/39/51) 310.

192

  GAOR 40th Session Supp No 53 (A/40/53) 332.

193

  No target date was fixed.

194

  GAOR 41st Session Supp No 53 (A/41/53) 281.

195

  GAOR 42nd Session Supp No 49 (A/42/49) 314.

196

  No target date was fixed.

197

  GAOR 43rd Session Supp No 49 (A/43/49) 314.

198

  Interruption by declaration of the GA President.

199

  Opening and closing dates for the regular session.

200

  Opening date for the regular session.

201

  Total number of Plenary meetings.

202

  Total number of the passed Resolutions.

203

  C = concurrence of the majority of the member States within thirty days of the information from the SG of the request of convocation.

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204

  A/286; see (1946/47) UNYB 276–77.

205

  SCOR 3rd Year Supp (April 1948) 5.

206

  S/705.

207

  See (1947/48) UNYB 257, 410ff.

208

  On the request of each of thirty-eight non-aligned member States to Secretary-General U Thant and of nine East European member States to Under-Secretary Cordier. 209

  GAOR (S-III) Annexes, para 7, A/4831.

210

  See (1961) UNYB 105; RP 3 I, Art 20, paras 26–29; (1961) 9 VN, No 3, 6–7.

211

  GAOR 17th Session Supp No 17 (A/5217) 61.

212

  GAOR 17th Session 1201st Plen mtg, para 65.

213

  cf (1992) UNYB 551–54.

214

  GAOR 21st Session Supp No 16 (A/6316) 2–3.

215

  GAOR 21st Sesseion 1454th Plen mtg, para 244.

216

  See (1966) UNYB 599–602, 605–06.

217

  GAOR (S-VI) Annexes, para 7, A/9541.

218

  GAOR 28th Session Supp No 30 (A/9030) 53.

219

  GAOR 28th Session 2203rd Plen mtg, para 135.

220

  GAOR 32nd Session Supp No 45 (A/32/45) 205–06.

221

  GAOR 32nd Session 110th Plen mtg, para 171.

222

  GAOR 32nd Session 37th Plen mtg, para 64.

223

  GAOR 31st Session Supp No 390 (A/31/39) 44–45.

224

  GAOR 31st Session 106th Plen mtg, para 132.

225

  See (1976) UNYB 54ff.

226

  GAOR 32nd Session 107th Plen mtg, para 67.

227

  GAOR 33th Session Supp No 45 (A/33/45) 50–52.

228

  GAOR 33th Session 84th Plen mtg, agenda item 227.

229

  GAOR 40th Session Supp No 53 (A/40/53) 25–26.

230

  GAOR 40th Session 98th Plen mtg, para 3 (A/40/PV.98.3).

231

  GAOR 40th Session Supp No 53 (A140/53) 57.

232

  GAOR 40th Session 115th Plen mtg, paras 57–58 (A/40/PV.115) 57–58.

233

  GAOR 41st Session Supp No 53 (A/41/53) 86.

234

  GAOR 41st Session 94th Plen mtg, para 77 (A/41/PV.94) 77.

235

  Press Release of 11 January 2005 (SG/SM/9672).

236

  Total number of resolutions passed.

237

  The Resolution concerning the credentials refers to the first and second emergency special sessions. 238

  For the Draft Res by United States S/3710 by seven votes (China, Soviet Union, United States, and others): two (France, GB) and two abstentions, SCOR (11) 749th mtg, para 186;

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for Draft Res Soviet Union S/3717/Rev. 1 by seven votes (China, Soviet Union, and others): two (France, GB) and two abstentions, SCOR (11) 751st mtg, para 147. 239

  SCOR (11) Supp (October–December 1956) 116f; by seven votes (China, Soviet Union, United States, and others): two (France, GB) and two abstentions, SCOR (11) 751st mtg, para 147. 240

  S/3719.

241

  With the objection that the prerequisites of GA Res 377 A (V) have not been fulfilled.

242

  SCOR (11) 751st mtg, paras 96–98, 108, 124, 151; cf W Pfeifenberger, Die Vereinten Nationen (Pustet 1971) 247ff; SB Bailey, How Wars End. The United Nations and the Termination of Armed Conflict (1946–1964) (Clarendon Press 1982) 53ff. 243

  SCOR (11) 751th mtg, paras 81–87, 93–94, 109, 149–50; cf Pfeifenberger (n 244); Bailey (n 244). 244

  For the Draft Res by United States, S/3730/Rev 1, by nine votes (China, France, GB, United States, and others): one (Soviet Union) and one abstention, SCOR (11), 754th mtg, para 68. 245

  SCOR (11) Supp October–December 1956, 127; by 10 votes (China, France, GB, United States, and others): 1 (Soviet Union), SCOR (11) 754th mtg, para 75. 246

  ibid, para 70.

247

  For the Draft Res by United States, S/4050/Rev 1, by nine votes (China, France, GB, United States and others): one (Soviet Union) and one abstention, SCOR (13), S/PV.834, 46; for Draft Res Japan S/4055/Rev 1 by 10 votes (China, France, GB, United States, and others); one (Soviet Union), SCOR (13) 837th mtg, (China, France, GB, United States, and others): one (Soviet Union), SCOR (13) 837th mtg, 7–10; see Pfeifenberger (n 244) 249–57. 248

  SCOR (13) Supp (July–Sept 1958) 126–27; unanimously adopted, SCOR (13) 338th mtg, para 225. 249

  Adopted without explicit reference to UNGA Res 377 A (V).

250

  SA/4056 Rev 1.

251

  S/4057/Rev 1.

252

  For the Draft Res by Ceylon and Tunisia, S/4523, by six votes (China, GB, United States, and others): two (Soviet Union and another) and one abstention, SCOR 15th Year 906th mtg, para 157. 253

  S/4525.

254

  On 5 July 1967 the GA had adopted a proposal of its President to hold the next meeting first on 12 July 1967 in order to make consultations between the delegations in the meantime possible, GAOR (ES-V) 1549th mtg, paras 227–51; see also (1967) 13 UNYB 215. 255

  See (n 205).

256

  A/6720.

257

  For the Draft Res by Bangladesh et al, S/13729, by thirteen votes (China, France, GB, United States, and others): two (Soviet Union and another), SCOR 35th Year S/PV.2190 and Corr 1 and Add 1, para 140. 258

  SCOR 35th Year Resolution and Decisions of the SC 2; by twelve votes (China, France, GB, and others): two (Soviet Union and another) and one abstention. 259

  S/13731.

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260

  For the Draft Res by Tunisia, S/13911 by ten votes (China, Soviet Union, and others): one (United States) and four (France, GB, and others) abstentions, SCOR (35) 2220th mtg, para 151. 261

  UN Doc A/ES-7/1, p 2.

262

  ibid, 1.

263

  Plus a supplemented new version of the first resolution about the credentials of the delegates. 264

  For the Draft Res by Niger, Tunisia, and others, S/14459, and S/14460/Rev 1 by nine votes: three each and three abstentions S/14461 by eleven votes: three and one abstentions and, S/14462, by twelve votes: at a time with China, Soviet Union and others and France, GB, United States against SCOR (36) 2277th mtg; see also (1981) UNYB 1133ff, 1148. 265

  A/ES-8/1, p 2.

266

  ibid, 1.

267

  For the Draft Res by Jordan, S/14832/Rev 1 by nine votes (China, Soviet Union, and others): one (United States) and five (France, GB, and others) abstentions, SCOR 37th Year 2329th mtg; see (1982) UNYB 503–06. 268

  SCOR 37th Year Resolution and Decisions of the SC 2; by thirteen votes (China, France, Soviet Union, and others) 0 and two (GB, United States) abstentions, SCOR 37th Year, 2330th mtg. 269

  UN Doc S/14848.

270

  UN Doc A/ES-9/4.

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Ch.IV The General Assembly, Procedure, Article 21 Thomas Fitschen From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter

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(p. 688) Article 21 The General Assembly shall adopt its own rules of procedure. It shall elect its President for each session. A.  The Rules of Procedure 1–91 I.  Legal Framework 1–7 II.  Key Features of the Rules of Procedure as Applied in Practice 8–91 1.  Sessions 8–16 (a)  Regular Sessions 9–13 (b)  Special Sessions 14 (c)  Emergency Special Sessions 15–16 2.  Participants 17–25 3.  The Secretariat 26–27 4.  The Committees 28–44 (a)  Main Committees 29–32 (b)  General Committee 33–36 (c)  Credentials Committee 37–39 (d)  Other Standing Committees 40 (e)  Other Committees 41–44 5.  Conduct of Business 45–61 (a)  Setting up the Agenda 45–50 (b)  Debate 51–61 (aa)  General Debate 51–52 (bb)  Debate by Agenda Item 53–54 (cc)  Informal Thematic Debates 55 (dd)  High-Level Meetings 56 (ee)  Time Limits 57 (ff)  Procedural Motions 58 (gg)  Right of Reply 59 (hh)  Point of Order 60–61 6.  Decision-making 62–89 (a)  Resolutions and Decisions 63–67 (b)  Majority Required 68–70 (c)  Quorum 71–72

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(d)  Amendments 73 (e)  Methods of Voting 74–84 (aa)  Roll-call Vote, Electronic Voting System 74–75 (bb)  Adoption without a Vote and Consensus 76–83 (cc)  Vote by Secret Ballot 84 (f)  Motion to Take No Action 85 (g)  Absence and Non-Participation 86–87 (h)  Explanation of Votes 88 (i)  Elections 89 7.  Documentation 90–91 B.  The President of the General Assembly 92–106 I.  Election 92–96 II.  Functions 97–104 1.  Conduct of Business 99–101 2.  Composition of Committees 102 (p. 689) 3.  Representation 103 4.  The Changing Role of the PGA 104 III.  Vice-Presidents 105–106

UN Materials Report of the Preparatory Commission of the United Nations, PC/20, Chapter I, s 3. Report of the Committee on Procedures and Organization, GAOR (II), ii, Annexes, Doc A/ 388. Draft Rules of Procedure by the Committee on Procedures and Organization, ibid (Doc A/ 388, pt III).

Select Bibliography Baehr P and Gordenker L, The United Nations: Reality and Ideal (Praeger 1984). Bailey S, The General Assembly of the United Nations. A Study of Procedure and Practice (Praeger 1964). Chrispeels E, ‘Procedures of Multilateral Conference Diplomacy’ in MA Boisard and EM Chossudovsky (eds), Multilateral Diplomacy/La Diplomatie Multilaterale: The United Nations System at Geneva/Le Système des Nations Unies à Genève: A Working Guide/Guide de Travail (2nd edn, Nijhoff 1998) 119. Kaufmann J, United Nations Decision Making (Sijthoff & Noordhoff 1980). ——— Conference Diplomacy: An Introductory Analysis (2nd edn, Nijhoff 1988). ——— ‘Some Practical Aspects of United Nations Decision-Making, Tactics and Interaction between Delegates’ in MA Boisard and EM Chossudovsky (eds), Multilateral Diplomacy/La Diplomatie Multilaterale: The United Nations System at

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Geneva/Le Système des Nations Unies à Genève: A Working Guide/Guide de Travail (2nd edn, Nijhoff 1998) 231. Lee RS, ‘Multilateral Treaty-Making and Negotiation Techniques: An Appraisal’ in Bin Cheng and ED Brown (eds), Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenberger (Stevens 1988) 157. Marin-Bosch M, Votes in the UN General Assembly (Kluwer 1998). McWhinney E, United Nations Law Making: Cultural and Ideological Relativism and International Law Making for an Era of Transition (Holmes & Meier 1984). Much C, ‘Revitalisierung der UN-Generalversammlung—die unendliche Geschichte’ in J Varwick and A Zimmermann (eds), Die Reform der Vereinten Nationen—Bilanz und Perspektiven (Duncker & Humblot 2006) 85. Permanent Mission of Switzerland to the UN (ed), The PGA Handbook. A practical guide to the United Nations General Assembly (Permanent Mission of Switzerland to the United Nations 2011). Peterson MJ, The UN General Assembly (Routledge 2006) 41–89. ——— ‘General Assembly’ in TG Weiss and S Daws (eds), The Oxford Handbook on the United Nations (Oxford University Press 2007) 97. Sloan B, United Nations General Assembly Resolutions in our Changing World (Transnational Publishers 1991). Smith CB, Politics and Process at the United Nations: The Global Dance (Lynne Rienner 2006). Sobel R, Procedure at International Conferences. A Study of the Rules of Procedure at the UN and at Inter-Governmental Conferences (2nd edn, CUP 2006). Suy E, ‘Rôle et signification du consensus dans le processus législatif des Nations Unies’ in MA Boisard and EM Chossudovsky (eds), Multilateral Diplomacy/La Diplomatie Multilaterale: The United Nations System at Geneva/Le Système des Nations Unies à Genève: A Working Guide/Guide de Travail (2nd edn, Nijhoff 1998) 205.(p. 690) Walker RA, Manual for UN Delegates: Conference Process, Procedure and Negotiation (United Nations Institute for Training and Research 2011). Wolfrum R and Pichon J, ‘Consensus’ in MPEPIL (online edn). Zemanek K, ‘Majority Rule and Consensus Technique in Law-Making Diplomacy’ in RSJ Macdonald and DM Johnston (eds), The Structure and Process of International Law (Nijhoff 1983) 857.

A.  The Rules of Procedure I.  Legal Framework 1  The General Assembly is the ‘chief deliberative, policy-making, and representative organ of the United Nations’ (World Summit Outcome, UNGA Res 60/1 (16 September 2005) para 149). Whereas the Charter describes the competences of the GA in detail, questions of procedure are covered only by a few basic provisions (see Arts 18–20, 22). In Art. 21, first sentence, the Charter has left it to the GA to adopt its own rules of procedure as it deems necessary for the conduct of its business. The GA adopted its first set of provisional Rules of Procedure1 at its very first session in 1946, based on a draft contained in the report of the Preparatory Commission.2 Upon the recommendation of a Special Committee created for this purpose, the GA then adopted, at its second session, its Rules of Procedure,3 which already contained all the essential procedural provisions that are still valid today.4 They entered into force on 1 January 1948.

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2  The rules valid at present5 regulate the procedures of all organs and other bodies of the GA: eighteen Chapters and 163 Rules plus eight Annexes based on decisions of the GA contain the principles and specific guidelines for the conduct of work of the GA, covering, inter alia, the different types of session, the preparation of the agenda, composition and credentials of delegations, the role of the president and vice-presidents, the General Committee, the Secretariat, languages, records, Plenary meetings, committees, admission of new members to the UN, elections, and administrative and budgetary questions. 3  By laying down the ground rules for the GA’s parliamentary-style diplomacy, the provisions contained in the Rules supplement the GA-related provisions of the Charter, and a number of them indeed correspond directly to, or even reproduce textually, Articles of the Charter (Rules 49, 82, 83, 85, 144, 146, 161). They have legal character inasmuch as they bind the members participating in the proceedings of the GA, but without having the same normative effects as the Charter provisions to which they relate. Although they do not apply anywhere outside the GA, they can have important indirect effects in regulating diplomacy among States within the GA. Delegations can utilize them as a political instrument to determine the direction or speed of the deliberations of GA organs on important substantive issues, or even to prevent debate or action concerning a matter altogether. To the extent that the GA’s resolutions and decisions can have (p. 691) normative effects,6 ‘playing by the rules’ in the process of their negotiation and adoption may have important legal repercussions even outside the UN. 4  A few rules, while initially operative only within the Organization, may even have important political implications for States beyond the confines of the GA itself. The decisions on accreditation or refusal of accreditation, for example, which are not covered by the Charter itself, can have important external effects. Likewise, decisions on admission of new members (Rules 134–138) as well as elections to certain posts or bodies may be important for determining a State’s political and general legal status in the international community.7 5  As the Rules contribute to determining the rights and duties of states within the UN and regulate much of the diplomatic intercourse between the sovereign member States in the GA, they have been called a ‘Mini Charter’.8 But unlike the Charter the rules of procedure are much more a living text and a practical tool for organizing the daily workings of the GA. They are much easier to amend—or even to circumvent or disregard altogether—than the Charter. In fact, and this is important to understand, the GA is almost entirely free to conduct its business differently from what the rules prescribe—if it so decides. 6  It is in the nature of conference diplomacy that not all procedural issues can be dealt with in advance. A great number of procedural methods that are being followed today have developed over the years in the practical work of the organs of the GA according to their day-to-day requirements. Four types of ‘changes’ can be distinguished. The first and most formal one is a proper amendment of the Rules, which has happened several times since 1946.9 Most of the formal amendments were simply due to the UN`s growing membership which necessitated several changes in the number of vice-presidents and of the members of certain committees as well as adaptations of other provisions. In other cases, practice revealed that rules were implemented insufficiently or disregarded altogether, prompting the GA over the years to set up a number of special bodies for the purpose of reviewing its procedures and organization.10 While some of their recommendations on the conduct of the GA’s business led to direct amendments of the Rules, the bulk of their views found their way into Annexes to the Rules.11 In addition, the GA passed a number of resolutions on the strengthening of the Organization which were (p. 692) to guide the conduct of business without formally becoming part of the Rules.12 Still another group of ‘amendments’ are

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those cases where the repeated application of new procedural methods created precedents which later became generally accepted practice without any formal decision by the GA. 7  Looking at the stream of resolutions on the rationalization of the proceedings and on the ‘revitalization’ of the GA, one could come to the conclusion that the GA finds itself in a state of permanent overhaul.13 But the work carried out in the GA’s very own Ad hoc Working Group on the Revitalization of the General Assembly that has been active for the past few years and has prepared numerous resolutions on this topic has yielded little progress as far as the Rules are concerned. Most proposals to make the work of the GA more effective and politically relevant have been around for quite some time,14 and it would be up to member States to apply the insights and recommendations that they themselves have formulated. The GA is of course aware that this is at the core of the problem when it repeatedly stresses, somewhat helplessly, ‘the importance of implementing resolutions on the revitalization of its work’ and expresses its concern as to ‘their lack of implementation and impact on the authority, effectiveness and efficiency of the Assembly’.15

II.  Key Features of the Rules of Procedure as Applied in Practice 1.  Sessions 8  The GA can meet in regular, special, or emergency special sessions (see Eick on Art. 20).

(a)  Regular Sessions 9  The GA meets every year in a regular session commencing on the Tuesday following the second Monday in September (Rule 1 as amended by UNGA Res 55/14 (3 November 2000)); the closing date is fixed at the beginning of each session upon recommendation of the General Committee (Rule 2, usually the last Monday before the start of a new session, whereas the regular meeting period normally ends before Christmas of each year). In accordance with established practice the seating arrangement is being reshuffled for each session by drawing lots to choose the delegation that shall occupy the first desk on the GA floor, followed by all other delegations according (p. 693) to English alphabetical order. All technical arrangements for the organization of the session as well as numerous recommendations on the conduct of business, including those that supplement the rules of procedure or recall earlier decisions relative to the proceedings, are laid out by the Secretary-General in a report to the General Committee (‘Organization of the xth regular session of the General Assembly, adoption of the agenda and allocation of items’, UNGA Doc A/BUR/session/1), which the latter adopts and forwards to the GA for approval. 10  The session begins with a general debate which normally opens on the Tuesday following the opening of the session and shall be held without interruption over a period of nine working days.16 Following a 2004 recommendation by the General Assembly,17 the Presidents of the GA have tried to give some guidance for the general debate by suggesting an issue or issues of global concern to be addressed during the general debate,18 but that has had little impact on the structuring or content of the debate. The general debate is then followed by meetings of the Main Committees and the Plenary ‘by item’ according to the agenda. 11  Its designation as the ‘Millennium Assembly of the GA’ notwithstanding, the 55th session of the GA 2000/2001 was a regular session like any of its predecessors. In political terms, however, it was a special event as it presented, in the words of the GA, a ‘unique and symbolically compelling moment to articulate an animating vision for the UN in a new era’ (UNGA Res 53/202 (17 December 1998)). Its general debate was preceded by the socalled ‘Millennium Summit’ from 6–8 September 2000, attended by Heads of State and Government. Technically, however, the Summit is considered ‘an integral part of the

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Millennium Assembly’ (UNGA Res 53/202, para 2), and its ‘Millennium Declaration’ is a GA resolution (UNGA Res 55/2 (8 September 2000)). 12  Since the Millennium Summit, holding special events at the highest level immediately before the general debate has become a standing feature of the opening weeks of the GA, the idea being to make use of the presence of so many high-level representatives for particular one-off debates that can emphasize certain political issues and provide important political input for debates elsewhere. These events often comprise not only debates in the classical sense, but also workshops or roundtable discussions, and sometimes result in a summary of the discussions provided by the President, or even a negotiated outcome document adopted by the participants. The 65th session saw no fewer than three high-level events (the High-level Plenary Meeting as a contribution to the International Year of Biodiversity, the High-level Plenary Meeting to review and assess progress made in addressing vulnerabilities of Small Island Developing States, and the High-level Plenary Meeting on the Follow-up to the Outcome of the Millennium Summit) squeezed into the week before the general debate, pushing back the beginning of the latter for two days and even requiring meetings on Saturday. The 66th session’s general debate was again preceded by three High-level Meetings (on Desertification, on Non-Communicable Diseases, and to commemorate the tenth anniversary of the adoption of the Durban Declaration and Program of Action). (p. 694) 13  As much as the political focus on single issues is welcome, it is beginning to dawn upon the GA that too many of them immediately before the general debate may affect the latter’s value by diverting some of the attention of the international public. In its UNGA Res 65/315 on the revitalization of the General Assembly, the GA noted ‘with appreciation that the high level meetings… give more visibility to very important topics’, but also underlined the ‘need… to preserve the integrity of the general debate in September’ and called for an enhancement of ‘the coordination of the scheduling of high level meetings with a view to optimizing the number and distribution’ of such events.19

(b)  Special Sessions 14  Special sessions are convened, as the occasion may require, at the request of the SC or of a majority of the member States (see Art. 20); their convocation takes place within fifteen days of the receipt of such a request (Rule 8a). Furthermore, any member of the UN is entitled to request the SG to convene a special session (for further details see Rules 8–9). In recent years the GA has often used the format of special sessions to address current social or developmental issues in a concise manner at a high level (eg special sessions on drugs 1998 and HIV/AIDS in 2001) and to undertake a five-year-term review of many of the world conferences that were held between 1990 and 1996 without having to convene another world conference for that purpose. The GA has fixed the dates for these ersatz world conferences with their extensive preparatory processes sometimes years in advance, including meetings of special Preparatory Committees as for the Conferences themselves.

(c)  Emergency Special Sessions 15  An emergency special session20 can be convened outside a regular session of the GA within twenty-four hours after the receipt of a request in case of a threat to the peace, a breach of the peace or an act of aggression, and a genuine paralysis of the SC due to the use of the veto (Rule 8). It can be convened upon request by the SC (procedural vote without the possibility of veto), by a majority of the members of the UN, or by any member of the UN, provided a majority of UN members concur in the request (Rule 9 (b)). The opening is notified to all UN members by the SG at least twelve hours in advance (Rule 10, second sentence). Emergency special sessions meet in Plenary only (Rule 63). Other specific provisions concern the provisional agenda (Rule 16, third sentence) and the

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introduction of additional items on the agenda by two-thirds majority (Rule 19, second sentence). Apart from that, the normal Rules apply. 16  To avoid recurring debates on whether the conditions for convening an emergency special session in reaction to developments in the Middle East are being met, the Tenth Emergency Special Session held on 24 April 1997, was never formally closed. It can be reconvened by the President at short notice, as has repeatedly been done since then.

2.  Participants 17  Sessions of the GA are attended by members (ie member States of the Organization) and observers. The question of membership, ie whether or not a State may participate in the work of the Organization, has to be distinguished from the question of who, ie which government, is entitled to represent a member State (see also Magiera on Art. 9 MN 7–16). (p. 695) 18  The legal status of non-members of the UN is not regulated by the Charter, nor do the Rules of Procedure contain provisions on the participation of non-members in the work of the GA. The rights and duties flowing from an invitation to participate in the work of the GA in the capacity of observer, which over time has been extended to a number of non-member States (most of which later became full members of the UN), to other entities such as national liberation movements, and to international organizations, is a matter of practice only and lacks general legal foundation. Some of the specific conditions of an observer’s participation can be found in the respective resolution whereby the GA invites the entity, and occasionally subsequent decisions (for questions relating to different forms of observer status, to functions of observers and their legal base, see Magiera on Art. 9 MN 6). 19  The former Trust Territory of South West Africa, which later became the independent State of Namibia, was a particular case in terms of the Rules of Procedure. As early as 1954 the GA adopted six ‘special rules’ of procedure for the exercise of the rights and petitions relating to the Trust Territory of South West Africa (UNGA Res 844 (IX) (11 October 1954)) which were annexed to the Rules (see UN Doc A/520/Rev.15, Annex III). After the GA had determined that the mandate of South Africa for Namibia was terminated and had taken ‘direct responsibility’ for that territory until its independence, the UN Council for Namibia was created by UNGA Res 2248 (S-V) as the ‘legal administrative authority for Namibia’ on 19 May 1967. The Council then represented Namibia in international organizations, at conferences, and vis-à-vis third countries. It was granted observer status by the GA and its subsidiary bodies as well as by the majority of UN specialized agencies. In addition, the South West Africa People’s Organization (SWAPO) received observer status as a national liberation movement (UNGA Res 31/152 (20 December 1976)). After Namibia’s independence in 1989 and membership in the UN as of 23 April 1990, the Council, having fulfilled its mandate, was formally dissolved on 9 October 1990, and Annex III of the Rules was declared no longer applicable in an amendment to the Rules dated 21 August 1991 and was deleted from subsequent editions of the Rules. 20  At the 29th session, the GA invited the PLO, the ‘representatives of the Palestine people’, to participate in GA Plenary sessions on the question of Palestine (UNGA Res 3210 (XXIX) was adopted on 14 October 1974 by 105 votes to four, with twenty abstentions). The PLO was furthermore invited to participate as an observer at sessions and conferences under the auspices of the UN (UNGA Res 3237 (XXIX) (22 November 1974); also UNGA Res 33/28 (7 December 1978) and 33/147 (20 December 1978)). The GA conferred additional procedural rights on the PLO in UNGA Res 52/250 (7 July 1998). Since the 43rd session the observer representing the PLO has used the designation ‘Palestine’ (UNGA Res 43/160 (9 December 1988)).

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21  The specialized agencies of the UN such as the FAO, WHO, UNESCO, or ILO enjoy observer status based on the agreements which they have concluded with the UN Organization. They are given an opportunity to participate (without a right to vote) in the deliberations of the Committees of the GA if the questions to be discussed touch upon their respective competences. In specific cases, the administrative heads of specialized agencies have delivered statements before the Plenary of the GA.21 22  Representatives of other international organizations or regional institutions have also been invited to participate since the third session of the GA (for details see Fastenrath on Art. 4 MN 49–50). In 1994 the GA decided that the granting of observer status should (p. 696) be ‘confined… to those intergovernmental organizations whose activities cover matters of interest to the Assembly’ (UNGA Dec 49/426 (9 December 1994)). 23  Formal observer status has also been granted to certain non-State organizations which have a separate status in international law, such as the International Committee of the Red Cross (UNGA Res 45/6 (16 October 1990)), the Sovereign Military Order of Malta (UNGA Res 48/265 (24 August 1994)), and the World Federation of Red Cross and Red Crescent Societies (UNGA Res 49/2 (19 October 1994)) in view of their special role and functions in international humanitarian relations. 24  As to the participation of NGOs in the work of the UN,22 Art. 71 of the Charter only provides that ECOSOC may make ‘suitable arrangements for consultations with NGOs’. For the GA, however, no such Charter provision exists, and accordingly the Rules are silent on how NGOs might participate in the work of the GA.23 But despite the absence of any formal guiding rules on this matter, practice has evolved early on to allow a certain degree of informal participation by NGOs in the work of some main committees and several of its subsidiary bodies. Representatives of NGOs, such as the Jewish Agency for Palestine and the Arab Higher Committee, were given the right to speak on questions of direct interest to them already in the early days of the UN. They were granted the right to make statements and to answer questions.24 NGO representatives from the Trust Territories have participated, for example, in the work of the Special Political and Decolonization Committee and its predecessor, the Trusteeship Committee (Fourth Committee), in their capacity as petitioners. In all such instances NGOs had expressly requested permission to petition the Committee on an issue of concern to them, and it was in that capacity that the Committee allowed them to speak and participate in its work. In a similar manner, NGOs have participated in the work of the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples. Ad hoc bodies of the GA have also allowed NGOs to follow its formal meetings and to address the respective body, upon the request and at the discretion of the chairperson. 25  NGOs have also played an important role in recent special sessions and at High-level Meetings of the General Assembly. In view of the tremendous influence which NGO representatives had had on the 1992 UN Conference on Environment and Development in Rio de Janeiro, the GA decided to invite the ‘major groups as identified in Agenda 21 (p. 697) and represented by non-governmental organizations’ also to participate ‘in the debate on an overall review and appraisal of the implementation of Agenda 21’ at the 19th special session in 1997. The GA added, however, that the arrangements concerning the participation of NGOs ‘will in no way create a precedent for other special sessions of the Assembly’ (UNGA Dec 51/467 (18 April 1997)). A similar practice, with differences in details according to the respective decisions of the GA on the modalities, has been followed for all subsequent Special Sessions devoted to the follow-up of other World Conferences held in the 1990s and, in recent years, for High-level Plenary Meetings.

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3.  The Secretariat 26  Under Rule 45, the SG or any of his staff so designated (for details cf Chesterman on Art. 98 MN 2–6) shall act as the Secretariat of the GA in all its meetings, its committees, and sub-committees. The SG is responsible for the preparation and organization of regular and special sessions of the GA. He has to draft and circulate the agenda (Rule 12), process and circulate all documents (Rule 47), and ‘generally, perform all other work which the Assembly may require’ (Rule 47). 27  The SG must make an annual report to the GA on the work of the Organization; that report shall be communicated to members of the UN at least forty-five days before the opening of the session (Rule 48). In addition, the SG has to prepare ‘such supplementary reports as may be required’. Over the years the number of supplementary, special reports requested by the various GA organs has increased enormously. The Group of High-level Experts recommended that ‘resolutions should request reports only in cases where that would be indispensable for facilitating the implementation’ of the resolution. The GA, drawing on this recommendation, encouraged member States ‘to exercise restraint in making proposals requesting new reports …, bearing in mind the desirability of reducing the number of such reports’ (UNGA Res 48/264 (29 July 1994) para 5; UNGA Res 50/206 C (23 December 1995) paras 6–8). The SG has also time and again criticized this inflationary development and has asked the GA to show some self-restraint, but to little avail.

4.  The Committees 28  According to Art. 22 of the Charter the GA may establish such subsidiary organs as it deems necessary for the performance of its functions. The Rules foresee the so-called Main Committees (Part XIII of the Rules), two procedural committees (the General Committee, Part VI, and the Credentials Committee, Part IV), and two standing committees (the Committee on Contributions and the Advisory Committee on Administrative and Budgetary Questions, Part XVI of the Rules). For other subsidiary and ad hoc bodies established by the GA under Rule 161 see Khan on Art. 22.

(a)  Main Committees 29  At present the GA has six main committees25 (formerly seven; Rule 98 was amended by UNGA Res 47/233 in order to merge the Special Political and the Trusteeship (p. 698) Committees; the Fourth Committee is now the ‘Special Political and Decolonization Committee’) whose responsibilities largely correspond to the major fields of activities of the UN. They operate as ‘committees of the whole’, meaning that their membership comprises all member States (for representation of member States in these committees see Rules 100 and 101). 30  All agenda items are allocated to a main committee before being considered in Plenary unless the GA explicitly decides to consider the item immediately in a Plenary meeting (Rule 65) due to their political importance or their cross-cutting character. Agenda items are normally assigned to one main committee only. In 2007, however, the GA allocated the item ‘administration of justice’ to both the Fifth and the Sixth Committees, the latter having to examine the legal issues of the overhaul of the UN’s internal justice system, whereas the former was to decide on the budgetary and administrative issues involved. 31  Each main committee elects, on the basis of equitable geographical representation, a chairperson, three vice-chairpersons,26 and a rapporteur, so that each regional group has one post in the bureau. Each regional group provides one chairperson, with the sixth chairmanship rotating following a fixed pattern that stretches over a period of twenty sessions.27 The chairperson, the vice-chairpersons, and the rapporteur form the bureau of the committee and as such guide the organization of work, the conduct of debates, the drafting and timing of proposals, and the content of the final reports. During the sessions, they are often entrusted with conducting formal or informal negotiations or consultations

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aimed at the solution of concrete, controversial issues (see Rules, Annex VI, para 21). With these tasks the chairpersons of the main committees often have a greater influence on concrete decisions of their body than, for instance, the vice-presidents in the Plenary. 32  Under Rule 102 the committees may set up sub-committees, which shall elect their own officers.

(b)  General Committee 33  The GC has twenty-seven members. It is chaired by the President of the GA and comprises the twenty-one Vice-Presidents of the GA and the chairpersons of the six main committees. No two members of the GC may be representatives of the same delegation (Rule 38, as amended by UNGA Res 1990 (XVIII) (17 December 1963)). A member that has requested the inclusion of an item but is not represented in the GC is entitled to attend any meeting at which the discussion of that item is scheduled (Rule 43). 34  In accordance with Rules 40 and 41, the GC shall, at the beginning of each session, consider the provisional agenda, together with the supplementary list; make recommendations to the GA with regard to each item proposed, concerning its inclusion in the agenda, examine requests for the inclusion of additional items in the agenda, and make recommendations thereon to the GA; make recommendations to the GA concerning the (p. 699) closing date of the session; and make proposals on the allocation of items to the Plenary or to one of the main committees. 35  As the General Committee makes only recommendations, the final decision whether or not to include an item in its own agenda is taken by the GA. The GA examines the report of the General Committee in its first session, and unless a member State challenges the recommendation and requests otherwise, would normally follow the proposals by the GC. In preparing its recommendations the GC should take care not to decide upon any political question nor discuss the substance of an item, except insofar as this bears upon the question of whether to include the item on the agenda or not. This, of course, may be of tremendous political importance, as can be seen in the case of the repeated decision by the GC to reject a request to include items concerning Taiwan on the proposed agenda.28 The GC’s recommendation to refer the consideration of an item to a main committee has also been challenged in Plenary on several occasions. A proposal to have an item considered directly in Plenary is regarded as having been rejected if the Plenary endorses the original recommendation by the GC.29 36  In addition to its responsibilities concerning the agenda, the GC assists the President of the GA in drawing up the agenda for each Plenary meeting, in determining the priority of items, and in coordinating the proceedings of all committees of the GA; and in general assists the President in his general conduct of the work of the GA. The GC also meets periodically throughout each session to review and make recommendations concerning progress. It may also meet at such other times as the President deems necessary or upon the request of any of its members (Rule 42). This function of regularly reviewing the work programme of the GA with the aim of rationalization has gained increasing importance since the debate on reforming the procedures of the UN, which started at the 40th session. So far, the GC has not been very successful at fulfilling its rationalization tasks in practice.30

(c)  Credentials Committee 37  The Credentials Committee consists of nine members who are appointed by the GA (Rule 28), traditionally at the first Plenary meeting, on the proposal of the President of the GA. The Committee elects a chairman, but no vice-chairman or rapporteur. Its task is to examine the letters of credentials submitted by delegations and to report to the GA.31 Under Arts 19 (2) and Rule 25, delegations of members may consist of up to five representatives and alternate representatives and an unlimited number of advisers, technical advisers, experts, and persons of similar status as may be required. The From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Representatives have to submit a certification of their status, the ‘letter of credentials’, addressed to the SG (p. 700) and signed by their Head of State or Government or minister for foreign affairs, preferably one week before the opening of the session (Rule 27). Unlike the list of delegations requested by the SG at the beginning of each session and comprising all categories of delegates at that point in time, the letter of credentials is a legal document spelling out the names of States’ representatives throughout the session of the GA.32 38  The tasks of this Committee are merely technical in nature. It has no authority to cast a political judgment on any government issuing a letter of credentials. Upon completion of its work, the Committee submits a report to the GA. Notwithstanding this fact, the credentials of a number of member States have been challenged in the Credentials Committee on political grounds (for a full account see Magiera on Art. 9 MN 25–38).33 39  The first and second special sessions of the GA appointed credentials committees of their own, but since the third special session the regular session’s credentials committee also serves at a special session. The same applies to emergency special sessions.

(d)  Other Standing Committees 40  The Advisory Committee on Administrative and Budgetary Questions (ACABQ, Rules 155–157) consists of sixteen members, including three financial experts of recognized standing (Rule 154). It is responsible for expert examination of the programme budget of the UN and assists the Fifth Committee (Rule 157). The Committee on Contributions is an eighteen-member expert committee. Its function is to advise the GA on the apportionment of the expenses of the Organization under Art. 17, para 2 of the Charter (Rule 160).

(e)  Other Committees 41  In addition to the standing committees, the GA may establish such committees as it deems necessary for the performance of its functions (ad hoc committee). The rules guiding the conduct of business in committees are to a very large extent identical, or (p. 701) at least similar, to those relating to Plenary meetings. Special provisions are contained in Rules 99–133. Unlike in Plenary meetings, the necessary quorum for the consideration of an item only requires the presence of one-quarter of the committee members. Decisions can only be taken, however, if the majority of the committee members are present (Rule 108). 42  Member States that are not members of a particular committee but have a special interest in an item may be invited to participate in its work, without a right to vote (see Rules, Annex V, para 112). In practice, the special interest is not being examined, and nonmembers submitting a request have regularly been invited to participate as observers. 43  Since 1974, the practice of creating ad hoc committees has also been established for special sessions of the GA. For a number of special sessions, so-called ‘ad hoc committees of the whole’ were created; others have set up certain thematic committees. 44  Other subsidiary bodies established by the GA work under the rules that apply to the committees (Rule 161). The SG acts as their secretary (Rule 45). The meetings are held in public unless the respective body decides otherwise (Rule 60).

5.  Conduct of Business (a)  Setting up the Agenda 45  Under Rule 12, a provisional agenda of the next session must be communicated to members of the UN at least sixty days before the opening of a session. But since that is only two months before the next session and does not leave sufficient time for preparations, the Special Committee on the Procedure and Organization of the GA decided in 1971 to have the SG draw up a ‘Preliminary List of Items to be Included in the Provisional Agenda’ (always UN Doc A/session/50) within the first three months of each year, and, if needed, a revised list in April (UN Doc A/session/50/Rev.1). The preliminary list gets further developed into the ‘Annotated Preliminary List of Items to be Included in the Provisional

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Agenda’ (UN Doc A/session/100). This document is particularly useful for delegates and observers alike, as the ‘annotations’ contain information on the reports to be expected and concise background information on the history of each subject and the previous resolutions. 46  Under Rule 12, the Provisional Agenda of the next regular session (UN Doc A/session/ 150) then appears in mid-year. It must include the reports from the principal organs of the UN, all items the inclusion of which has been ordered by the GA at previous sessions, all items proposed by another principal organ of the UN, all items proposed by member States, all items pertaining to the budget for the next financial year and reports pertaining to the previous year, all items which the SG deems necessary to put before the GA, and finally, all items proposed by States not members of the UN under Art. 35 (2) of the Charter (Rule 13). 47  Any member or any principal organ of the GA or the SG may request, until thirty days before the opening of the session, the inclusion of supplementary items in the agenda. Under Rule 14, such items will be placed on the Supplementary List of Items (UN Doc A/ session/200), which must be communicated to members at least twenty days before the opening. 48  The final proposal on the agenda and the allocation of items to a committee or the Plenary is then made by the General Committee. The GC submits its report to the Plenary for approval (Organization of the xth Regular Session of the General Assembly, (p. 702) Adoption of the Agenda and Allocation of Items, UN Doc A/session/250) as soon as possible after the opening of the session (Rule 21). After the GA has decided on the agenda, the final Agenda of the xth Session of the General Assembly is published as UN Doc A/session/251; the Allocation of Agenda Items to the committees can be found in document A/session/252. 49  The inclusion of additional items ‘of an important and urgent character’ (Rule 15) can be requested even after the deadline and during session if the GA so decides. Consideration of such an item shall not take place before seven days have elapsed since it was placed on the agenda and a committee has reported on it, unless the GA decides otherwise. In practice the GA has been fairly generous and accepted additional items throughout the year without too much attention to their urgency and importance. 50  The Rules do not provide specific criteria for selecting the items to be put on the agenda. In the context of the debate on UN reform initiated at the 40th session, efforts to rationalize the methods and procedures of the GA focused in particular on the possibility of streamlining the agenda and making it more transparent. A number of important recommendations to this end (eg the grouping of related items under the same title, biannualization or triannualization of items, the discontinuation of items which have lost their relevance or urgency, the forwarding of items to other main or subsidiary organs or even to consideration by specialized agencies) are already contained in formal amendments to the Rules of Procedure (see Rules, Annex V, and UNGA Res 48/264, Annex I) or are recalled regularly in the report by the GC or resolutions by the GA.34 An important step towards agenda reform was taken at the 58th session when the GA decided that the agenda of the GA should be organized under headings corresponding to the priorities of the Organization as contained in the medium-term plan or the strategic framework, as appropriate (UNGA Res 58/316 (1 July 2004) Annex).

(b)  Debate (aa)  General Debate

51  Deliberations at each session of the GA normally start with the general debate, where many States will be represented by their Heads of State or Government, foreign ministers, or other high representatives. This part of the debate is called ‘general’ because it does not come under any single item, allowing the participants to choose freely what to address and

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which issues to raise. By tradition, the first member State to speak is Brazil, followed by the United States as the host country. 52  The participation of observer entities in the general debate has long remained controversial. At the 31st session, the President of the GA ruled, after lengthy consultations, that if promoted by the course of the debate, he would grant observers the right to reply in particular cases, even in Plenary.35 In accordance with UNGA Res 3237 (XXIX) (29 November 1974), and under this presidential ruling, the PLO was granted the right to reply during the general debate of the 32nd session without formal opposition. The same right was granted to the PLO at the 33rd session. In a letter dated 18 October 1977,36 (p. 703) the Member States of the EC criticized the fact that observers were granted the same rights as UN member States. During the 40th session, India, as president of the non-aligned movement, took the initiative to invite the PLO and SWAPO to participate with the right to deliver a statement in the solemn meeting marking the 40th anniversary of the UN, which was to be conducted at the level of Heads of State or Government.37 Due to opposition of Western countries the sponsors of this initiative refrained from putting the resolution to a vote. As a compromise, the President of the GA referred in a statement to the continued validity of UNGA Res 3237 (29 November 1974) and 31/152 (20 December 1976). Since then, however, the GA has clarified the issue by expressly deciding to grant the right to deliver a statement during the general debate to the PLO (UNGA Res 52/250 (7 July 1998)), the Holy See in its capacity as observer state (UNGA Res 58/314 (1 July 2004)), and the European Union in its capacity as observer (UNGA Res 65/276 (3 May 2011) Annex). (bb)  Debate by Agenda Item

53  The following substantive debate in the GA, whether in Plenary or in any of the committees, is then being held ‘by item’. As no speaker may address the meeting without permission from the President, delegates wishing to take the floor in formal meetings have to inscribe in the speakers list, and will be given the opportunity to speak accordingly. In practice delegations speaking for the members of larger groups (eg the Group of 77, the European Union, the African Union, etc) are being called up first. 54  On any given item in the Plenary as well as in the committees this ‘debate’ normally consists of the reading out of prepared statements by delegations which have requested to be included in the list of speakers. These statements are usually delivered upon instructions from capitals, and where a delegation also speaks for a number of others, agreeing on the text has often required lengthy interstate discussions. As this leaves delegations little room to react spontaneously to what previous speakers have said, the GA and some of its bodies are experimenting with more interactive forms of exchanging views. The GA has recommended consideration, in the context of the debate of all main committees, of the ‘use of innovative mechanisms, in accordance with the Rules of Procedure, such as panel discussions with delegations and interactive debates’ (UNGA Res 50/227 (24 May 1996) Annex I, para 16). (cc)  Informal Thematic Debates

55  One way of discussing current issues outside the procedural strictures of a formal meeting that is being used more frequently now are so-called informal thematic debates, which the GA has decided to convene as a measure to strengthen its role and authority (UNGA Res 59/313, para 2). They are convened by the President of the GA on substantive issues of importance to member States that are not as such on the agenda, often after consultations with the membership. Presentation by experts in the form of panel discussions, the absence of official records, and an outcome in the form of a resolution are supposed to lead to a more lively and open exchange of views among delegations.38 The 65th Session under President Deiss so far saw the high point of thematic debates, with debates nearly every month on a wide range of issues, including the rule of law, (p. 704) international migration and development, disarmament and world security, the green

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economy, global governance, the responsibility to protect our intercultural dialogue. In addition the President of the 65th session also scheduled an unprecedented number of informal Plenary meetings to hear briefings on issues of relevance for the work of the GA, including by the Secretary-General or by representatives of the chairs of the G20 before or after important meetings. (dd)  High-Level Meetings

56  In addition to the high-level meetings held in connection with the general debate (see MN 12), the GA can decide to hold individual high-level meetings throughout the year. These events often extend over several days and are attended by ministers and senior experts: they often include round-table discussions and a rich programme of side events organized by relevant international organizations, NGOs, or member States, and are meant to emphasize individual topics of current political relevance. The 65th session, for example, saw high-level meetings of the GA on HIV/AIDS (8–10 June 2011) and Youth (25–26 July 2011). The 67th session (2012–13) has featured, inter alia, a high-level meeting on the rule of law. With the depth and focus of their debates and the involvement of many stakeholders these high-level meetings have in recent years more or less replaced the format of the more costly special sessions in the social and economic sphere. (ee)  Time Limits

57  Whereas sovereign member States have the right to express their opinion freely with respect to every agenda item, the GA saw the necessity of invoking certain limitations on the right to speak very early on. The Rules therefore provide for the competence of the GA (Rule 72) and its main committees (Rule 114) to limit the duration and number of statements by one representative. Further limitations on the right to speak are the closure of the list of speakers (Rules 73 and 115; this does not apply, however, to the right of reply, as a delegation may wish to exercise that right in response to what the very last speaker on the list has said) and the limitation of the number of speakers on certain procedural issues. As a matter of practice, no time limit applies to statements delivered in the general debate, but delegations are encouraged to observe a voluntary guideline of up to fifteen minutes for their statements. (ff)  Procedural Motions

58  Procedural motions are meant to influence the conduct of proceedings. Under Rule 74, a delegate may move the adjournment of the debate on the item under discussion. In addition to the proposer, two other delegates may speak in favour of, and two against, the motion which shall then be put to the vote. Under Rule 75, a delegation may at any time move the closure of debate on the item under discussion. Permission to speak on the proposed closure shall be given to only two speakers opposing the closure, after which the motion shall be put to the vote. If the GA is in favour of the motion, the presiding officer shall declare the closure of the debate.39 Suspension or adjournment of an ongoing meeting can be requested under Rule 76. This will often be done where delegations need more time to consult with each other or within their groups, or if they need a short interruption of the debate to ask for instructions. Such motions shall not be debated but decided upon immediately (for motions to take no action see MN 85). (p. 705) All procedural motions are adopted by a simple majority, ie the majority of members present and voting. (gg)  Right of Reply

59  A representative who considers that a previous representative has referred to his or her country in an inacceptable way may request permission to reply to that statement even after the speakers’ list has been closed (Rules 73 and 115). Statements made in the exercise of the right of reply shall, as a general rule, be made at the end of meetings (Rules, Annex IV, para 77), or at the end of the same day if there are two meetings allocated for the same agenda item (see Rules, Annex V, para 8). The number of interventions by one delegation in the exercise of this right is limited to two per meeting, the first one being limited to ten From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

minutes, the second to no more than five minutes (Rules, Annex V, paras 9 and 10). In general, delegations are requested to use restraint in the exercise of their right of reply (Rules, Annex IV, para 77). These recommendations have been widely implemented. As a matter of courtesy, no replies are made to statements by Heads of State.40 (hh)  Point of Order

60  A point of order is an intervention directed to the presiding officer requesting him to make use of his powers, mostly relating to the manner in which the debate is conducted, to the maintenance of order, or to the observance of the rules of procedure.41 Points of order raised under Rule 113 involve questions necessitating a ruling by the presiding officer and are thus distinct from the procedural motions mentioned above that are decided by a vote of member States. A point of order must be immediately decided by the presiding officer, any appeal against the ruling must also be immediately put to the vote.42 Since points of order require a ruling by the presiding officer, the right to make them is limited to full members of the respective body. Palestine was given ‘the right to raise points of order related to the proceedings on Palestinian and Middle East issues, provided that the right to raise such point of order shall not include the right to challenge the decision of the presiding officer’ (UNGA Res 52/250, Annex);43 the same applies to the Holy See in ‘proceedings involving’ it (UNGA Res 58/314 (1 July 2003) Annex, para 7).44 61  Points of order are to be distinguished from other interventions, such as requests for information or clarification, or remarks concerning the material arrangements of the meeting such as seating, the functioning of the interpretation system, room temperature, insufficient lighting, noise, etc. Remarks of this kind made during a meeting may (p. 706) have to be dealt with by the presiding officer, but they do not require a ruling, which is why in practice also other participants may make them.45

6.  Decision-making 62  Decision-making in the GA has undergone considerable change during the past six decades. Not all of these changes are reflected in the Rules of Procedure. Corresponding to the respective Charter provisions, the Rules foresee ‘voting’, ie the majority rule, as the way of taking decisions (Rules 82–91). A strict reading of those provisions might suggest that voting is indeed the only such method; in practice, however, only a small number of the decisions and resolutions adopted at each session get voted upon, whereas by far the largest part is adopted without a vote.

(a)  Resolutions and Decisions 63  The term ‘decision’ as used in Art. 18 refers to all types of action which the GA takes by vote while performing its functions under the Charter, including elections.46 64  Outside elections the GA ‘decides’ in the form of decisions or resolutions. Decisions, which are often of a more technical nature, are mostly drafted by the Secretariat and are introduced by the presiding officer. The GA adopts between 80 and 100 decisions each session. The bulk of the work, however, gets done in the form of resolutions, of which the GA adopts between 250 and 300 per session. Resolutions normally need to be proposed by a member State (the sponsor). Other member States who want to express their particular support for the text can become co-sponsors, either by signing the draft resolution before it is submitted to the Secretariat, or later through a respective declaration before or even after the adoption of the resolution. Some resolutions, however, are drafted and submitted by the chairman of a committee or sub-committee (chairman’s draft), a bureau member on behalf of the entire bureau, or by a facilitator who submits the text on behalf of their respective delegation(s). In this case the drafts are often not supposed to be co-sponsored.

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65  Draft resolutions should be submitted in writing as early as possible during a debate in order to enhance and facilitate the negotiating process (see Rules, Annex V, paras 87–88), but not before the text is ready for action, because any subsequent amendment requires a costly and time-consuming revision process of the respective documents in all six languages. They should be as clear and succinct as possible (see Rules, Annex V, para 95)— a recommendation which is being largely disregarded in practice. 66  Where an item has been allocated to a Main Committee and the Committee has adopted a resolution, the Committee’s draft resolution is submitted to the Plenary for final decision. Where adoption of the resolution would involve expenditures of the UN, the draft has to be accompanied by an estimate of expenditures prepared by the Secretariat. No resolution in respect of which expenditures are anticipated shall be adopted by the GA until the ACABQ has had the opportunity of stating the effect of the proposal on the budget of the UN (Rule 153). (p. 707) 67  The adoption in the Plenary is independent of that at Committee level, ie member States are free to change their vote at the higher level. It is thus not altogether rare for a draft resolution that was voted upon in the Committee to be adopted without a vote or receive different votes in the Plenary because delegations changed their minds after the vote in the Committee.

(b)  Majority Required 68  The principle that decisions of the General Assembly are taken by a majority vote is enshrined in Art. 18 of the Charter. Depending on the substance of the matter in question a simple or a two-thirds majority of the members present and voting is required. In that respect Art. 18 distinguishes between ‘important questions’ (para 2) and ‘other questions’ (para 3). Paragraph 2 draws up a list of questions which are deemed to be important in this sense, thus requiring a two-thirds majority. The formulation ‘these questions shall include’ indicates that the list is not exhaustive.47 Paragraph 3 sets forth that the majority required for decisions on ‘other questions’ shall be a simple majority of the members present and voting. It further provides for the creation of ‘additional categories of questions to be decided by a two-thirds majority’. The determination of such additional categories shall also be made by a simple majority of the members present and voting. Rules 82 to 91 (voting) and 92 to 95 (elections) restate and supplement these general Charter principles. 69  For the purpose of the Rules on voting, the phrase ‘members present and voting’ means those members casting an affirmative or negative vote. Members which abstain from voting are considered as not voting (Rule 86). The fact that those who abstain are not counted for establishing the majority required can lead to situations where a resolution gets adopted even though the number of affirmative votes is relatively small and may be far outweighed by the number of abstentions.48 70  The Charter principles in Art. 18, however, do not prevent the GA from imposing even stricter majority requirements. In its Res 53/30 the GA decided ‘not to adopt any resolution or decision on the question of equitable representation on and increase in the membership of the Security Council without the affirmative vote of at least two-thirds of the members of the GA’, which means that for decisions of this type no fewer than 128 ‘yes’ votes would be required.

(c)  Quorum 71  It is a fact of life that not all 193 members of the GA or the Main Committees can be present at any given time during the entire meeting. The purpose of the quorum in Rules 67 and 108 is to fix the minimum number of representatives that must be present at a formal meeting. Thus the presiding officer may declare open and permit the debate to proceed when at least one-third of the members of the GA or one-quarter of the members of a Committee are present.49 To take action on a proposal, however, the presence (p. 708) of a From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

majority of the members of the GA shall be required. The quorum is based solely on the member’s presence at the meeting, it does not require that the respective member is eligible to vote.50 If it is clear that a quorum does not exist prior to the meeting the presiding officer should not open the meeting before such quorum is obtained. If during the meeting a representative challenges the existence of the quorum and it is then determined that there is indeed no quorum, the meeting shall be immediately suspended or adjourned.51 72  The decision of the GA in Res 53/30 concerning decisions on the issues of equitable representation on and increase in the membership of the Security Council (see MN 70) has also affected the quorum for any decision on this type of question: as the required number of affirmative votes cannot be reached if less than two-thirds of the members are present, the quorum for this type of decision would also be at two-thirds of the members of the GA.

(d)  Amendments 73  Amendments moved to a proposal are to be voted upon first (Rule 90). Disputes relating to the basic question of whether the GA has the authority at all to decide upon a specific issue are put to the vote immediately before a vote on the substantive proposal is taken (Rule 79).

(e)  Methods of Voting (aa)  Roll-call Vote, Electronic Voting System

74  With the introduction of electronic voting devices the voting by show of hands or by sitting and standing and the roll-call vote (for the procedure see Rule 87a),52 which are mentioned in Rule 87 as the ‘normal’ means of voting, have been practically replaced by a mechanical recorded vote (Rule 87b). A roll-call vote can still be requested by any representative, but when an electronic voting system is available, a roll-call vote should as far as possible not be requested (Rules, Annex VII, para 2). The last roll-call in Plenary was recorded on 9 December 1992, during the 47th regular session, on the subject of Antarctica. 75  In case of error delegates may ask for correction of their vote. Following a ruling of the President at the 15th session, a request for correction of a vote after the closure of the voting procedure can be granted where the result of the vote has not yet been proclaimed.53 Since the introduction of mechanical means, however, belated requests to change a vote after the voting machine has been locked are no longer granted; in practice the locking of the voting machine is announced in advance by the chair to give delegations a last chance to check their vote. Delegations who cast their vote erroneously may advise the Secretariat that they had intended to vote differently; this does not change the result, but their declaration is reflected in the meeting record. (p. 709) (bb)  Adoption without a Vote and Consensus

76  Whereas the League of Nations required unanimity on all decisions of any importance, it seemed natural for the victorious ‘United Nations’ after World War II to follow a democratic approach and allow for majority vote as the standard procedure of decisionmaking. But with the expansion of UN membership the interests and positions of member States have become more and more divergent, and ‘natural’ majorities shifted away from the old founding members. It also became apparent, though, that resorting to a vote does not really lead towards the solution of world problems which require the commitment of all States. International cooperation could not be secured either by ignoring the majority or by out-voting the minority.54 The Rules, however, do not make reference to decision-making other than by voting. So for the reasons above, and in the exercise of its discretion to organize its own procedure, the UN has developed methods of decision-making which aim to arrive at an agreement on the terms of a resolution or decision without having to resort

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to a formal vote (‘consensus’).55 Over the years it has become established practice of the GA and its Main Committees to strive for such ‘consensus’ wherever possible. 77  One has to differentiate, though, between consensus-seeking as a negotiating technique and consensus as a method of taking decisions without a vote.56 Going for consensus in negotiations means that all participants should make every effort—through consultations and negotiations,57 by trying to explore all possibilities for compromise, and by a readiness to accept, in the end, a mutual give-and-take on all sides—to come to an agreement and achieve a decision that is sufficiently acceptable to be adopted without a vote. Consensus implies that in the end all delegations can go along with the decision, however reluctantly, and that even those who are not in complete agreement are prepared not to block, or ask for a vote on, the decision. The difference to other forms of decision-making lies in the fact that delegations are indeed committed to making every effort possible to integrate all views and to find a formula which all participants in a negotiation can go along with. While this may help to arrive at solutions accepted by all, the inherent danger lies in the fact that it may indeed stall the taking of a decision, as a small minority may always ask for continuation, claiming that not all possibilities for a consensus have been exhausted.58 (p. 710) 78  As a method of decision-making the consensus procedure simply means that— in the absence of a specific request for a vote—draft resolutions and decisions are adopted without a vote.59 In cases where the presiding officer, who is of course familiar with the negotiating history of the proposal that is up for adoption, has not received any specific request for a vote and has good reasons to believe that the committee or the GA is indeed prepared to skip the vote, he will ask whether, in the absence of any objection, he ‘may take it that the Committee/the General Assembly wishes to adopt the proposal without a vote?’ It is then up to a delegation to block the adoption of the proposal by lodging an objection or by specifically requesting a vote on the proposal. It is for the objecting delegation to formulate the grounds for its objection, which has the same effect as requesting a vote on the proposal. If there is no such request or objection, the presiding officer will then simply declare that ‘it is so decided’, ie that the GA has decided to adopt the text without voting. Delegations who do not wish to join such a ‘consensus’ but who, for political reasons, are equally reluctant to call for a vote, can declare their non-committal and distance themselves from the consensus in an oral explanation. This declaration will be reflected in the meeting records, but politically the resolution will be counted as a ‘consensus text’ nonetheless. 79  The same practice of adopting resolutions without a vote has emerged even in cases where parts of a proposal have been voted on separately. Despite a vote on parts of a resolution, the text as a whole can still be adopted without a vote if no vote on the entirety of the text is being requested.60 The practice of adopting decisions without a vote is also being used for the large number of technical and other uncontroversial resolutions and decisions. In UN parlance, however, they too are often referred to as ‘consensus resolutions’ even though no difficult negotiations may have taken place at all. 80  In legal terms resolutions adopted without a vote are no more or less ‘binding’ than those adopted ‘only’ by a vote, as under Art. 13 all GA resolutions are generally only recommendations. The difference between the two types of adoption is political. Whether and to what extent a resolution adopted without a vote is really supported by all member States is a matter of interpretation and has to be determined by taking into account the entire negotiating and decision-making history of the text, including any declarations made upon its adoption. 81  The consensus procedure, even though it is today the preferred method of reaching decisions in the practice of UN organs, has actually never been expressly referred to in the body of the GA’s Rules of Procedure. The first UN body to have officially introduced ‘consensus’ as its procedure of decision-making was the Committee on the Peaceful Uses of Outer Space in 1961. Since then its use has rapidly spread to other subsidiary organs of the

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GA. But only very few other bodies have formally agreed on using it as their prevalent mode of decision-making, either in their rules of procedure61 or in the form of an understanding read into the records by their chairperson. At the universal level, the 1974 World Population Conference was ‘to reach decisions on the basis of consensus, which is understood to mean, according to UN practice, general agreement without vote, but not necessarily unanimity’;62 another famous example is the UN Conference on the Law of (p. 711) the Sea, where, after a long and bitter debate on methods of work in the First Committee at the 28th session in 1973, a statement by the President of the Conference was appended to the rules of procedure that ‘the Conference should make every effort to reach agreement on substantive matters by way of consensus and there should be no voting on such matters until all efforts at consensus have been exhausted’.63 The Rules themselves made clear, however, that after a determination that all efforts at reaching general agreement had been exhausted, putting such a matter to the vote was indeed still possible.64 82  As to the GA, the Special Committee on the Rationalization of the Procedures and Organization of the GA in 1971 considered in its report, ‘that the adoption of decisions and resolutions by consensus is desirable when it contributes to the effective and lasting settlement of differences’, but also emphasized ‘that the right of every member state to set forth its views in full must not be prejudiced by this procedure’. That recommendation was not formally incorporated into, but appended to the Rules in an Annex (see Rules, Annex V, para 104). 83  The consensus principle was again one of the key issues during the debate concerning the budget reform at the 41st session. Following a legal opinion by the Legal Counsel of the SG, who affirmed the legality of the procedure, the GA adopted without a vote a resolution whereby it agreed ‘that the Committee for Programme Coordination should continue its existing practice of reaching decisions by consensus’ and considered it ‘desirable that the Fifth Committee, before submitting its recommendations on the outline of the programme budget to the General Assembly in accordance with the provisions of the Charter and the rules of procedure, should continue to make all possible efforts with a view to establishing the broadest possible agreement’. But the GA also took care to put both recommendations under the umbrella affirmation ‘that the decision-making process is governed by the provisions of the Charter of the UN and the rules of procedure of the GA’ (UNGA Res 41/213 (19 December 1986)). (cc)  Vote by Secret Ballot

84  The Rules currently do not provide for secret ballot other than for elections. Yet the absence of an express provision does not, as a matter of principle, prevent the GA from resorting to a secret ballot if it so decides. The advantage of a secret ballot would be that it would allow delegations to cast a vote while at the same time avoiding possible repercussions that might result from an open or recorded vote.65

(f)  Motion to Take No Action 85  An important procedure to prevent action from being taken altogether is a motion to take no action. This motion is not expressly mentioned in the Rules but has developed out of practice. Its aim is to bar the GA from taking action on a certain proposal in the course of the current session. Unlike the adjournment of the debate on the item under discussion— which postpones the debate to a later date—a motion to take no action defers a decision and is silent on the future of the contested proposal. The first motion of (p. 712) this kind occurred at the 38th session, when Iran submitted an oral amendment to the draft decision by which the GA was to approve the report of the Credentials Committee, proposing that ‘the GA approves the report of the Credentials Committee except the credentials of Israel’. Speaking on behalf of the Nordic States, Norway tabled a proposal that no action be taken on the Iranian proposal during the course of that session of the GA. A procedural debate erupted in which the Legal Counsel affirmed the legality of this procedure in accordance

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with Rule 74.66 The motion by Norway was adopted by seventy-nine votes to forty-two, with nineteen abstentions. Recent cases included motions to take no action by Russia on a draft resolution tabled by Georgia on the internally displaced persons in the 63rd and 64th sessions. The motions were defeated and the resolution was then adopted. Member States speaking out against the motion emphasized the right of sovereign States to request a discussion of any item in the GA, a right that would be stifled if the GA accepted motions to take no action.67

(g)  Absence and Non-Participation 86  ‘Members present and voting’ are, according to Rules 86 and 126, only those members casting an affirmative or negative vote. Abstentions are qualified as not voting. If no vote is recorded, a delegation is considered ‘absent’. Absence and abstention therefore reduce the number of votes required to establish a simple or two-thirds majority. 87  Not taking part in a decision may be meant as a strong political expression of a delegation’s basic difficulties with a decision. ‘In the room’, however, it may be difficult to tell the difference between a delegate who boycotts a vote for political reasons and one who simply misses the moment due to other reasons. Delegates who wanted to demonstrate their basic opposition to a draft decision or resolution without having to join the voting have thus developed a procedure whereby they remain in their seat but declare their ‘nonparticipation in the vote’. Initially there was considerable disagreement over how to qualify such ‘non-participation in the vote’ despite physical presence. In a ruling at the 18th session, the President of the GA, after consultations with the SG and the chairpersons of the Committees, decided that a delegation which declared it was not participating in a vote was to be regarded as being absent and that it was not to be listed as participating in the vote in the records of the meeting. The member may, however, request in an explanation of vote (before or after the vote) that its ‘non-participation’ be reflected in the records of the meeting.68 This procedure is established practice today.

(h)  Explanation of Votes 88  The President may permit members (except the proposer, because his positive vote does not need explanation) to explain their votes, either before or after the vote (Rule 88). Explanations of votes should be limited to ten minutes. When the same item is considered in Plenary and in a main committee, delegations are urged to give an explanation of their vote only once, except when the content of the statement changes (see Rules, Annex VI, paras 6– 7). These recommendations have not been given the necessary attention.

(p. 713) (i)  Elections 89  Whereas Rule 92, for reasons of principle, calls for elections by secret ballot (for details of the procedure see Rules 93 and 94), practice proved to be more flexible. Exceptions, such as election by acclamation, have been made for the election of the President or the VicePresidents or relating to the composition of subsidiary organs. At its 34th session, the GA, upon the recommendation of its President, decided that the practice of dispensing with the time-consuming secret ballot when the number of candidates corresponds to the number of seats to be filled (the so-called ‘agreed slate’) should become standard procedure unless a delegation specifically requests a vote on a given election (see Rules, Annex VI, para 16). In some recent cases, certain candidates were elected by acclamation and others by secret ballot at one and the same election. In another case at the 31st session, the GA elected four out of five candidates by acclamation on the basis of agreed slates recommended by their respective regional groups and referred the election of the fifth member back to ECOSOC. In other cases, elections of candidates nominated by some regional groups were done by

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acclamation while postponing the election of the remaining officeholder, giving the respective regional group another chance to come up with an agreed candidate.

7.  Documentation 90  Upon recommendation of the GA, the number and volume of records of meetings have been drastically reduced (see Rules, Annex V, para 108 (a)). Verbatim records are provided only for Plenary and First Committee meetings. The GC and the other main committees receive only summary records. Upon specific request, the Fourth Committee may obtain transcriptions of some of its meetings which do not, however, become part of the Official Records of the Committee (ibid, para 108 (b)). With only a few exceptions, summary records of meetings of subsidiary organs have been dispensed with (see Rules, Annex VI, para 27). The GA has taken a number of decisions relating to the reduction of documentation (see Rules, Annex V, para 106) and the limitation of the volume of reports by subsidiary organs to the GA (see Rules, Annex V, para 106; Annex VI, paras 25 and 26). They have been implemented to a large extent by subsidiary organs. 91  Member States should refrain, as far as possible, from requesting the circulation of any individual communications as official documents of the GA, since that requires expensive translation and editing according to general rules. They should rather request their circulation under the cover of a note verbale and only in those official languages in which they are submitted (Rules, Annex VI, para 30). Although the SG circulates all communications in the shortest possible time, this recommendation has been given little attention.

B.  The President of the General Assembly I.  Election 92  Under Art. 21, second sentence, the GA is to elect a President ‘for each session’. An Australian proposal at Dumbarton Oaks to leave the length of the President’s term open and simply to say that the President ‘exercises his functions until his successor is nominated’ was rejected. Rule 30—as amended by UNGA Res 56/509 (8 July 2003)—now (p. 714) provides that the GA shall elect its President at least three months before the opening of the session over which he or she is to preside. The President so elected assumes his or her functions at the beginning of the session and shall hold office until the close of that session. As a matter of practice, the acting President also presides over a special session (with the exception of the second special session in 1948) or an emergency special session held during the term of his office.69 93  According to Rule 92, the election of the President of the GA shall be held by secret ballot, and there are no nominations. The latter clarification was a result of the controversial election of the first President of the GA in 1946. Although the Norwegian foreign minister, Trygve Lie (who later became the first SG of the UN), had been formally nominated by the Soviet Union, the Belgian foreign minister, Paul-Henri Spaak, who had not been officially nominated at all, succeeded in a secret ballot, with the Soviet Union protesting against the procedure. Despite the provision to proceed with secret ballots, the GA has regularly elected its President by acclamation since the 32nd session, with the exception of the 36th, 38th, and 41st sessions. The secret ballot has thus become the exception to the rule, and was formally dispensed with by the GA at its 34th session (UNGA Dec 34/401 on the rationalization of the procedures and organization of the General Assembly, now Rules, Annex VI, para 16). The only exceptions have indeed resulted from a lack of agreement within the regional group whose term it is to occupy the post.70 At the 36th session, Ismat T Kittani of Iraq obtained the same number of votes as the other candidate, K Kaiser of Bangladesh, in the second ballot. He was elected, in accordance with Rule 93, by a drawing of lots by the President of the previous session. At the 38th session, Jorge E Illueca of Panama defeated D Hepburn of the Bahamas in the first ballot. At the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

beginning of the 46th session there were three candidates for the President, and the GA proceeded to elect Samir Shihabi of Saudi Arabia by secret ballot. 94  The Rules do not specify any personal requirements which the President has to fulfil. The qualifications needed follow from the function as presiding officer of the meetings of the GA, or in the words of the 1949 Special Committee on Methods and Procedures of the General Assembly: ‘The satisfactory progress of the proceedings depends essentially on (his or her) competence, authority, tact and impartiality,…respect for the rights both of majorities as well as minorities and…familiarity with the rules of procedure’ (see Rules, Annex I, para 39). 95  In addition to the subjective requirement of personal competence, there is a tacit agreement not to elect any of the five permanent members of the SC to the post of President, continuing a practice already observed by the League of Nations. Apart from that, the President nowadays is selected following the principle of equitable geographical representation. This principle was established fairly late in the history of the GA. In the early years of the Organization the election procedure was dominated by the majority of the Western countries. In 1953 the Indian Ambassador, Mrs Vijaya Pandit, was the first independent candidate to be elected. A number of initiatives, mainly by Eastern European countries, in particular Czechoslovakia and Poland, finally led to the formal acceptance of the principle of rotation at the 23rd session in 1968, when (p. 715) the GA decided that in the election an ‘equitable geographical rotation’ between the four regions Africa/Asia, Eastern Europe, Latin America, and Western Europe should be applied. 96  At the 33rd session the GA decided to separate the regions of Africa and Asia and to extend the rotation of the presidency to five instead of four regions, with the following key applied: in years ending in 0 and 5: Western European and other countries (WEOG), in years ending in 1 and 6: Asia; in 2 and 7: Eastern Europe; in 3 and 8: Latin America; in 4 and 9: Africa (UNGA Res 33/138 (19 December 1978)). Due to the differing numbers of members of each regional group, this key implies widely differing chances for each member State to provide the President of the GA.

II.  Functions 97  Although the President is not a main organ of the UN and has only limited functions under the Charter and the Rules, his office has in practice been attributed a great prestige and political importance, as a reflection of the organ over which he or she presides, the GA being the only main organ with universal membership and a number of important distributive and supervisory functions. 98  Unlike the SG, whose independence from his or her national government is a prerogative of the Charter,71 the President of the GA has to perform a dual role. While remaining a member of his or her national delegation, the President has to observe the interests of all member States. This dual function is reflected in Rule 37, under which the President (or a Vice-President acting as President) shall not vote, but designate another member of his or her delegation to cast the vote instead. In practice, this dual function has created problems of compatibility at times, but on the whole Presidents have successfully separated their national interests and their international responsibility. Rule 36 now clarifies that in the exercise of his or her functions, the President remains under the authority of the GA. Many Presidents, however, have been able to exert considerable influence on the decision-making process due to their leadership, efficiency, and ability to act in a fair and non-partisan manner.

1.  Conduct of Business

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99  The most important task of the President is the conduct of GA Plenary meetings.72 His or her respective powers are laid down in Rules 35 (general functions), 67, 68, 73–76, 78, and Annexes I (para 39) and IV (lit g, specific functions). The most important requirement for the acceptance of his decision in a particular case is his or her meticulous knowledge of the Rules of Procedure and their interpretation, since the President’s rulings can always be challenged by the majority of the GA. In the handling of procedural questions, Presidents have exercised considerable political influence.73 Further to the procedural function of steering the GA meetings, a number of Presidents have been able to occupy an important function in the substantive political consultations of the GA. The success of Presidents in guiding formal (with conference facilities provided by the Secretariat) or informal consultation processes depends to a large degree on the (p. 716) respective persons’ personality and long-standing UN experience as well as their ability to play the role of, and their political acceptance as, ‘honest broker’ between the different interest groups. In situations of political deadlock a ‘President’s draft’ may become the basis for a compromise between otherwise irreconcilable proposals. In other instances a draft text submitted by the President can be the non-partisan starting point for the development of a document which is politically important for all members, often with the help of so-called facilitators selected for that purpose by the President. 100  The GA has strengthened the role and leadership of the President by authorizing him to propose interactive debates on current issues on the agenda of the GA (UNGA Res 59/313, op 3)74 and by calling on him to ensure increased cooperation, coordination, and exchange of information with the SC and ECOSOC through periodic meetings with their presidents (UNGA Res 58/126, Annex, para 6, UNGA Res 64/301, op 7, and UNGA Res 65/315, op 9). Where the GA’s decisions on the organization of High-level Meetings of the General Assembly allow for the participation of civil society, the President often has the right to register and propose the respective representatives to the GA for approval. 101  The Secretariat provides the President with the necessary assistance in the exercise of this function. It not only provides the infrastructure necessary for the effective fulfilment of his or her tasks (office, secretary, conference facilities, speaker, etc), but also offers advice on the handling of procedural matters. The Department for General Assembly and Conference Managements assists him in the organization and management of all GA meetings. Under the chairmanship of the SG’s Chef de Cabinet, all committee secretaries (who belong to the Secretariat’s professional staff) meet daily to discuss procedural questions relating to the work of the Plenary as well as all committees. If necessary, the Legal Counsel, who also acts as an adviser to the President or the chairmen of the main committees, participates in those meetings.

2.  Composition of Committees 102  The President has the right to propose the membership for the Credentials Committee (Rule 28). The GA also frequently requests the President to provide nominations for new members of sub-committees or ad hoc committees with limited membership. Where a resolution constituting the legal basis for the creation of a committee does not contain a formula for its composition, the President chooses the members according to the principle of ‘equitable geographical representation’—often after long and tedious consultations with all regional groups.

3.  Representation 103  In addition to his functions as chair of the GA meetings, the President also acts on behalf of, and represents, the GA inside and outside the UN. He or she fulfils representative tasks (ie maintains contacts with Heads of Government and other national representatives), attends receptions, travels abroad on official missions and makes public statements (eg when taking office, at press conferences, in messages on various special occasions, such as UN Day, Human Rights Day, Day of Struggle against Racial Discrimination, etc). The From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

contents of such statements are not normally subject to consultation with (p. 717) member States beforehand, but they should nevertheless reflect the broadest possible spectrum of interests.

4.  The Changing Role of the PGA 104  With the expansion of the GA’s workload and meetings no longer confined to the main part of the session between September and December, but scheduled on a year-round basis, the expectations in the presence and active leadership of the President have risen considerably.75 Gone are the days when a President could afford to be away from New York for longer periods of time between January and September. With an agenda of around 180 items which produce approximately 250 to 300 resolutions and 80 to 100 decisions, the GA is now ‘in session’ much more intensively throughout the year than ever. Additional informal thematic debates on an almost monthly basis that the GA has requested the PGA to convene, high-level meetings whose outcome documents often require weeks of negotiations, consultation processes guided by one or more facilitators selected and supervised by the President, regular contacts with the Presidency of the Security Council and ECOSOC on which the PGA in turn has to debrief the GA, and briefings of the GA by the Secretary-General on his activities are taxing the PGA’s capacity to oversee, manage, guide, and lead the ongoing work of the GA. In addition, a year-round stream of official visitors calling on the PGA for political talks in New York and invitations to represent the GA in conferences and gatherings abroad are increasingly turning the Presidency of the GA into a full-time job for any officeholder.76 To allow the strengthening of the Office of the President77 a Trust Fund in Support of the Office of the President of the General Assembly has been established through which member States and others may, in accordance with the financial rules and regulations, support and contribute to the work of the PGA.

III.  Vice-Presidents 105  The GA has twenty-one78 Vice-Presidents. Under Rule 30 they shall be elected at least three months before the beginning of the session, but only after the election of the chairpersons of the six Main Committees, so as to ensure the representative character of the General Committee, where under Rule 38 no two members shall be members of the same delegation. Since the Charter does not contain any specific regulations, member States agreed, in the course of the first session, to elect States and not individual personalities to the post of Vice-President. Under Rule 31 they are to be elected after the election of the chairpersons of the six main committees and in such a way as to ensure (p. 718) the representative character of the General Committee. They hold office until the close of the session at which they are elected. In 1978 (UNGA Res 33/138, Annex, para 2) the GA decided that the distribution of vice-presidencies among regional groups should be as follows: Africa 6, Asia 5, Eastern Europe 1, Latin America 3, WEOG 2, plus one for each of the permanent members of the SC. 106  Their individual functions relating to the conduct of business during GA meetings are fairly unimportant, as they preside over Plenary meetings only in the event of the President’s absence, and that normally happens only for short intervals. What gives the post of Vice-President a certain political influence, however, is the fact that the Vice-Presidents are also members of the General Committee and of the bureau and thus collectively oversee the general organization of work of the GA.

Footnotes: 1

  UNGA ‘Provisional Rules of Procedure for the General Assembly’ (28 April 1947) UN Doc A/71/Rev.1.

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2

  Preparatory Commission ‘Report of the Preparatory Commission of the United States’ (23 December 1945) UN Doc PC/20, ch I, s 3. 3

  UNGA ‘Rules of Procedure for the General Assembly’ (12 December 1947) UN Doc A/520.

4

  UNGA Res 173 (II) (17 November 1947) UN Doc A/RES/173(II).

5

  UNGA ‘Rules of Procedure for the General Assembly’ UN Doc A/520/Rev.17 (printed in Annex I to the commentary), embodying amendments and additions adopted by the General Assembly up to September 2006 (2008). 6

  For details see Klein and Schmahl on Art. 10 MN 47–63.

7

  B Sloan, United Nations General Assembly Resolutions in our Changing World (Transnational Publishers 1991) 17. 8

  CP/Lewin, 841.

9

  For a complete list of amendments see introduction to UNGA ‘Rules of Procedure for the General Assembly’ (2008) UN Doc A/520/Rev.17, XI–XXI. 10

  See for example UNGA Res 51/241 (31 July 1997) UN Doc A/RES/51/241, entitled ‘Strengthening of the United Nations System’; UNGA Res 55/285 (7 September 2001) UN Doc A/RES/55/285, ‘Revitalization of the General Assembly’. 11

  See UNGA Res 362 (IV) (22 October 1949) UN Doc A/RES/362(IV); UNGA Res 684 (VII) (6 November 1952) UN Doc A/RES/684(VII); UNGA Res 791 (VIII) (23 October 1953) UN Doc A/RES/791(VIII); UNGA Res 1898 (XVIII) (11 November 1963) UN Doc A/RES/ 1898(XVIII); UNGA Res 2837 (XXVI) (17 December 1971) UN Doc A/RES/2837(XXVI); UNGA Res 3189–91 (XXVIII) (18 December 1973) UN Doc A/RES/3189(XXVIII) UN Doc A/ RES/3190(XXVIII) UN Doc A/RES/3191(XXVIII); UNGA Res 31/96 (14 December 1976) UN Doc A/RES/31/96, as contained in Annexes I–VII of the Rules, see also UNGA Res 48/264 (29 July 1994) UN Doc A/RES/48/264, with Annex I, ‘Guidelines on the Rationalization of the Agenda of the General Assembly’; UNGA Res 50/227 (24 May 1996) UN Doc A/RES/50/227, Annex I entitled ‘Further Measures for the Restructuring and Revitalization of the UN in the Economic and Related Fields’. 12

  See eg UNGA Res 51/241 (31 July 1997) UN Doc A/RES/51/241, entitled ‘Strengthening of the United Nations System’; UNGA Res 55/285 (7 September 2001) UN Doc A/RES/ 55/285, ‘Revitalization of the General Assembly’. 13

  The President of the 55th session of the GA, Ambassador Holkeri of Finland, stated that: ‘GA working methods have not improved, as verified by the increase in the number and/or length of agenda items, resolutions, plenary items, reports…and speakers’ interventions. This has led to fatigue with the GA’s work, overtaxing of small delegations, empty halls, nonpunctual and non-interactive sessions, rubber-stamping of resolutions, marginalization, lack of responsiveness, lack of representation, and encroachment by the Security Council and other organs on the GA’s domain.’ 14

  An inventory/chart of all resolutions on revitalization, with all proposals clustered by topic, is contained in the 2009 Report of the Ad Hoc working Group on the Revitalization of the General Assembly, UNGA ‘Report of the Ad Hoc Working Group on the Revitalization of the General Assembly’ (10 September 2009) UN Doc A/63/959, Annex; see also the 2008 Report, UNGA ‘Report of the Secretary General 62/608’ (21 December 2007) UN Doc A/ 62/608, Annex. 15

  UNGA Res 65/315 (12 September 2011) UN Doc A/RES/65/315, 2; for a critique of the GA’s efforts to revitalize itself see also C Much, ‘Revitalisierung der UNGeneralversammlung—die unendliche Geschichte’ in J Varwick and A Zimmermann (eds),

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Die Reform der Vereinten Nationen—Bilanz und Perspektiven (Duncker & Humblot 2006) 85. 16

  UNGA Res 57/301 (13 March 2003) UN Doc A/RES/57/301, now also Annex VIII to the Rules. 17

  UNGA Res 57/126 (11 December 2002) UN Doc A/RES/57/126, Annex, Part A, para 7.

18

  For the 65th session, President Deiss had proposed ‘Reaffirming the central role of the United Nations in global governance’, compare UNGA ‘Report of the Secretary General A/ BUR/65/1’ (14 September 2010) UN Doc A/BUR/65/1 para 20. 19

  UNGA Res 65/315 (12 September 2011) UN Doc A/RES/65/315, op 16.

20

  Introduced following UNGA Res 377 (V) A (3 November 1950) UN Doc A/RES/377(V) (Uniting for Peace). 21

  See RP I, 653–54, para 100.

22

  For a full account of the rights of NGOs see the Report of the Secretary-General, ‘Arrangements and Practices for the Interaction of Non-governmental Organizations in all Activities of the United Nations System’ (10 July 1998) UN Doc A/53/170. Views of member States, members of specialized agencies, observers, intergovernmental and nongovernmental organizations on that report are reproduced in UNGA ‘Report of the Secretary General A/54/329’ (8 September 1999) UN Doc A/54/329. 23

  The GA, in its ‘Millennium Declaration’ (UNGA Res 55/2 (8 September 2000) UN Doc A/ RES/55/2), has expressed the intention ‘to give greater opportunities to the private sector, non-governmental organizations and civil society in general, to contribute to the realization of the Organization’s goals’ (para 30). In UNGA Res 55/162 (14 December 2000) UN Doc A/ RES/55/162, on the follow-up to the outcome of the Millennium Summit the GA ‘calls for enhanced partnership and cooperation with…civil society, including non-governmental organizations and the private sector, to ensure their contribution to the implementation of the Declaration’ (para 12, emphasis added). A panel of eminent persons under the chairmanship of President Cardoso of Brazil, established by SG Kofi Annan in 2004, took the concept further and made a number of far-reaching proposals (compare the Report ‘We the Peoples: Civil Society, the United Nations and Global Governance’, UNGA ‘Note by the Secretary-General A/58/817’ (11 June 2004) UN Doc A/58/817) which were, however, not taken up by the GA). 24

  See RP I, 654–55, paras 101–04.

25

  They are: (a)  Political and Security Committee (First Committee); (b)  Economic and Financial Committee (Second Committee); (c)  Social, Humanitarian and Cultural Committee (Third Committee); (d)  Special Political and Decolonization Committee (Fourth Committee); (e)  Administrative and Budgetary Committee (Fifth Committee); (f)  Legal Committee (Sixth Committee).

26

  As of UNGA Res 52/163 (15 December 1997) UN Doc A/RES/52/163. Until 1971 the committees had only one vice-chairperson; that figure was raised to two by UNGA Res 2837 (XXVI) (17 December 1971) UN Doc A/RES/2837(XXVI). An updated list of the officers of all main committees can be found in the ‘Annotated preliminary list of items to be included in

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the provisional agenda’ which is published every year before the start of the next regular session. 27

  For details see Rule 30, UNGA ‘Rules of Procedure for the General Assembly’ (2008) UN Doc A/520/Rev.17, 8, fn 14. 28

  Compare eg the debate in the GA Plenary on 21 September 2007, concerning the Report of the General Committee of the 62nd session (UNGA ‘Report of the General Committee A/ 62/250’ (19 September 2007) UN Doc A/62/250), UNGA ‘First Report of the General Committee’ GAOR 62nd Session UN Doc A/62/PV.2, 2–12. 29

  RP 3 I, 408, para 19.

30

  For an early criticism of the work of the Committee see the Conclusions of the Special Committee on the Rationalization of the Procedures and Organization of the General Assembly, Annex IV of the Rules of Procedure, para 9-14. 31

  For details see letter by the Office of Legal Affairs on the practice of the GA with regard to the examination of credentials submitted by member States, dated 12 February 1985, (1985) UNJYB 128–30. On the question whether member States not members of the Committee may participate as observers in the Committee’s work see letter of the Office of Legal Affairs dated 7 November 1983, (1983) UNJYB 173–74. 32

  cf Letter to the Permanent Representative of a Member State regarding credentials and composition of delegations dated 2 September 2005, (2005) UNJYB. 33

  For the case of Israel see E McWhinney, United Nations Law Making: Cultural and Ideological Relativism and International Law Making for an Era of Transition (Holmes & Meier 1984) 216–20. For the case of the credentials of the representative of Afghanistan in 1996 see UNGA ‘First Report of the Credentials Committee’ (23 October 1996) UN Doc A/ 51/548. For the case of Honduras in 2009, see Note to the Under-Secretary-General and Chef de Cabinet concerning UNGA Res 63/301 on Honduras, (2009) UNJYB 407–10. In the case of Côte d’Ivoire in 2010 the Committee had initially recommended accepting the letter of credentials signed by President Gbagbo, but when the latter refused to cede his office after the elections and the African Union recognized Mr Ouattara as President Elect, the Secretariat submitted an updated version of the credentials of the representatives of Côte d’Ivoire to the Committee. The Committee accepted the new version of the credentials and confirmed that the recommendation contained in its report to the GA was to be understood as applying to the ‘updated version’ of the credentials in question. The report was submitted to, and approved by, the GA without discussion, cf UNGA ‘Credentials of representatives to the sixty-fifth session of the General Assembly’ (22 December 2010) UN Doc A/65/583/Rev.1; see also the record of the adoption of the proposal on 23 December 2010, in UNGA ‘Credentials of representatives to the sixty-fifth session of the General Assembly’ UN GAOR 65th Session UN Doc A/65/PV.73. In 2011 a motion to defer action on the proposal of the Credentials Committee to accept the credentials submitted by the representative of the National Transitional Council of Libya at the beginning of the 66th session was rejected by 107 votes against and twenty-two votes in favour, with twelve abstentions; thereafter the credentials were accepted by a recorded vote of 114 delegations in favour and seventeen against, with fifteen abstentions (UNGA Res 66/1 (16 September 2011) UN Doc A/RES/66/1A). 34

  cf UNGA Res 65/315 (12 September 2011) UN Doc A/RES/65/315, that invites further proposals for the elimination of items on the agenda of the Assembly, ‘including through the introduction of a sunset clause’, but only ‘with the clear consent of the sponsoring State or States’.

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35

  GAOR 31th Session 9th Plen mtg, paras 152–154.

36

  See UN Doc A/32/280.

37

  See UN Doc A/40/L.2/Rev.1.

38

  cf UNGA Res 65/315 (12 September 2011) UN Doc A/RES/65/315, para 8, where the GA underlined the ‘inclusive character’ of these debates ‘on current issues of critical importance’ and encouraged the PGA to continue this practice. 39

  For the procedural effects of closure of debate see the memorandum of the Legal Counsel to the USG for Political and General Assembly Affairs, dated 10 November 1983, (1983) UNJYB 174–7. 40

  See UNGA ‘Provisional Verbatim Record of the Thirty-Second Meeting’ (17 October 1988) UN Doc A/43/PV.32, 51. 41

  See also Rules, Annex IV, para 79.

42

  Rules, Annex IV, para 79. cf E Chrispeels, ‘Procedures of Multilateral Conference Diplomacy’ in MA Boisard and EM Chossudovsky (eds), Multilateral Diplomacy/La Diplomatie Multilaterale: The United Nations System at Geneva/Le Système des Nations Unies à Genève: A Working Guide/Guide de Travail (2nd edn, Nijhoff 1998) 127. 43

  This does not include points of order in connection with the actual conduct of voting; cf Interoffice Memorandum to the Secretary of the Human Rights Council regarding the possible right of non-members of the HRC to raise points of order, dated 19 November 2007, (2007) UNJYB 443–45, para 10. 44

  Unlike the resolutions concerning the Holy See and Palestine, no mention of the right to raise points of order is made in UNGA Res 65/276 (4 May 2011) UN Doc A/RES/65/276, whereby the GA expanded the participatory rights of the European Union in its capacity as observer. 45

  For an explanation see also Rules, Annex IV, para 79; cf also Interoffice Memorandum to the Secretary of the Human Rights Council regarding the possible right of non-members of the HRC to raise points of order, dated 19 November 2007, (2007) UNJYB 443–45, para 9. 46

  Note to the ASG for Policy Coordination and Strategic Planning on voting in the General Assembly, dated 2 August 2005, (2005) UNJYB 458–59. 47

  Note to the Assistant Secretary-General for Policy Coordination, dated 2 August 2005, (2005) UNJYB 459, para 2-4. 48

  eg UNGA Res 62/243 (14 March 2008) UN Doc A/RES/62/243 on the situation in the occupied territories of Azerbaijan was adopted by thirty-nine yes votes and seven no votes, whereas 100 delegations abstained. 49

  Since UNGA Res 2837 (XXVI) (17 December 1971) UN Doc A/RES/2837(XXVI); cf Chrispeels (n 42) 126–27. 50

  Constitution of a Quorum, Memorandum by the OLA, (2001) UNJYB 403, para 3.

51

  ibid, para 4.

52

  cf the description of a roll-call by Chrispeels (n 42) 131.

53

  See RP 3 I, 409, para 25; see also legal opinion of the Secretariat, dated 9 February 1984, on the inadmissibility of a request to change the result of a roll-call vote after the vote, (1984) UNJYB 159.

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54

  RS Lee, ‘Multilateral Treaty-Making and Negotiation Techniques: An Appraisal’ in Bin Cheng and ED Brown (eds), Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenberger (Stevens 1988) 187; CB Smith, Politics and Process at the United Nations: The Global Dance (Lynne Rienner 2006) 207–22. 55

  Lee (n 54) 165–66; K Zemanek, ‘Majority Rule and Consensus Technique in Law-Making Diplomacy’ in RSJ Macdonald and DM Johnston (eds), The Structure and Process of International Law (Nijhoff 1983) 862–65; see also Letter of the Legal Counsel to the Legal Counsel of the WHO on the meaning of consensus in the work of the United Nations, dated 21 September 1987 (1987) UNJYB 174–75; Letter of the Legal Counsel to the Chairman of the Third Committee, dated 23 October 2003, (2003) UNJYB 533. 56

  Chrispeels (n 42) 137; Smith (n 54) 218.

57

  For a vivid description of how ‘negotiations’ are being carried out see J Kaufmann, ‘Some Practical Aspects of United Nations Decision-Making, Tactics and Interaction between Delegates’ in MA Boisard and EM Chossudovsky (eds), Multilateral Diplomacy/La Diplomatie Multilaterale: The United Nations System at Geneva/Le Système des Nations Unies à Genève: A Working Guide/Guide de Travail (2nd edn, Nijhoff 1998); Smith (n 54) 141–273, who has coined the term ‘the global dance’ to describe the many circular, slow, or fast-paced moves following different tunes during negotiations at the UN. 58

  Zemanek (n 55) 872; ibid (1987) UNJYB 175.

59

  On the following see ‘Application of Rule 129 of the Rules of Procedure’, letter to the Chairman of the Third Committee, dated 23 October 2003, (2003) UNJYB 533. 60

  ibid.

61

  eg the Conference on Disarmament, see ‘Rules of Procedure of the Conference on Disarmament’ (19 December 2003) UN Doc CD/8/Rev.1, para 18. 62

  Reproduced in (1974) 12 UNJYB 163–64.

63

  (1973) GAOR 28th Session Supp 30, 24.

64

  (12 July 1974) UN Doc A/CONF.62/30/Rev.1, Rule 37. For a situation where a UN organ has instructed a subsidiary organ to work on the basis of consensus, see memorandum of the Office of Legal Affairs to the Acting Assistant Director, Office of Secretariat Services for Economic and Social Matters, dated 28 January 1983 (1983) UNJYB 184. 65

  Note to the President of the General Assembly regarding voting procedures, dated 14 July 2005, para 5, (2005) UNJYB 457–58. 66

  Statement made by the Legal Counsel at the 34th Plenary meeting of the GA on 20 October 1983, (1983) UNJYB 174. 67

  cf the statements by the United Kingdom and France, respectively, in: Procès verbaux of the Plenary Meeting, GAOR 63rd Session UN Doc A/63/PV.104, 13 and GAOR 64th Session UN Doc A/64/PV.115, 6. 68

  See RP 3 I, 409, paras 26–28.

69

  An updated list of the Presidents of the special and emergency special sessions can be found in the ‘annotated preliminary list of items to be included in the provisional agenda’ which is published every year before the beginning of the next session as document A/ session/100. 70

  cf MN 95–96.

71

  cf Ebner on Art. 100 MN 10, 74ff.

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72

  For a full account of the work of the President and his office in guiding the work of the GA see The PGA Handbook published by the Swiss UN Mission in New York in 2011. 73

  See eg the so-called ‘Bouteflika Ruling’ concerning South Africa; see Magiera on Art. 9 MN 34. 74

  See also UNGA Res 64/301 (13 September 2010) UN Doc A/RES/64/301, op 5, where the GA welcomed the holding of thematic debates and encouraged the President to continue with this practice. 75

  As the GA acknowledged in its UNGA Res 65/315 (12 September 2011) UN Doc A/RES/ 65/315, para 25, where it noted that the activities of the President of the General Assembly have ‘increased markedly in recent years’. 76

  For a detailed account see the Annex to the 2009 ‘Report of the Ad Hoc Working Group on the Revitalization of the General Assembly’ entitled ‘Views of the President of the General Assembly on strengthening the institutional memory of the Office of the President of the General Assembly’, UN Doc A/64/903. 77

  For figures on the staffing of the PGA’s Office see UNGA ‘Report of the Ad Hoc Working Group on the Revitalization of the General Assembly’ (8 September 2010) UN Doc A/64/903, paras 18–21. 78

  Up from seventeen by UNGA Res 33/12 (3 November 1978) UN Doc A/RES/33/12. Before, there were only thirteen Vice-Presidents, see UNGA Res 1990 (XVIII) (17 December 1963) UN Doc A/RES/1990(XVIII).

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Ch.IV The General Assembly, Procedure, Article 22 Daniel-Erasmus Khan From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): Human rights

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(p. 719) Article 22 The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions. A.  General Overview 1–3 B.  History 4–5 C.  Practice 6–24 I.  Survey 6–7 II.  Permanent Subsidiary Organs Based on the Rules of Procedure of the General Assembly 8–18 1.  Main Committees 8–15 2.  Standing Committees 16 3.  Procedural Committees 17 4.  Others 18 III.  Other Subsidiary Organs 19 IV.  Special Organs 20 V.  Joint Subsidiary Organs 21 VI.  Treaty Bodies 22 VII.  Functions and Duties of the Subsidiary Organs 23–24 D.  Extent and Limits of the General Assembly’s Powers to Establish Subsidiary Organs 25–34 I.  Extent of the General Assembly’s Power of Organization 25–26 II.  Limits of the Organizational Power 27–34 E.  Procedure for Establishing Subsidiary Organs 35–42 I.  Initiative 35–36 II.  Act of Foundation 37–38 III.  Designation of Members 39–40 IV.  Composition of Subsidiary Organs 41–42 F.  Legal Status of Subsidiary Organs within the United Nations 43–49 I.  Subordination of the Subsidiary Organs under the General Assembly 43–47 II.  Status of Semi-Autonomous Organs 48–49 G.  Trends in the Development of Subsidiary Organs 50–58 I.  A History of Constant Change 50 II.  Recent Developments 51–52

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III.  The Establishment of the Human Rights Council in 2006 53–57 IV.  Prospect 58 Annex: Subsidiary Organs of the General Assembly

Select Bibliography Bailey SD, The General Assembly of the United Nations. A Study of Procedure and Practice (2nd edn, Pall Mall Press 1964). Bretton P, ‘La Transformation de l’O.N.U.D.I. en Institution Spécialisée’ (1979) 25 AFDI 567. Buergenthal T, ‘The Evolving International Human Rights System’ (2006) 100 AJIL 783. (p. 720) Burgorgne-Larsen L, ‘Art. 22’ in JP Cot, A Pellet, and M Forteau (eds), La Charte des Nations Unies (3rd edn, Economica 2005) 849. Fassbender B, ‘Architectural Clarity or Creative Ambiguity? The place of the Human Rights Council in the institutional structure of the United Nations’ in U Fastenrath, R Geiger, DE Khan, A Paulus, S von Schorlemer, and C Vedder (eds), From Bilateralism to Community Interest—Essays in Honour of Bruno Simma (OUP 2011) 443. Finley B, The Structure of the United Nations General Assembly: Its Committees, Commissions and Other Organisms 1946–1973 (Oceana 1977). New Zealand Ministry of Foreign Affairs (ed), United Nations Handbook (rev edn, 2010), cited as: United Nations Handbook (2010–11). Peterson MJ, The UN General Assembly (Routledge 2006). Ramcharan PG, ‘Lacunae in the Law of International Organizations: The Relations between Subsidiary and Parent Organs with Particular Reference to the Commission and Sub-Commission on Human Rights’ in M Nowak and others (eds), Festschrift Ermacora (Engel 1988). Reuter P, ‘Les Organes Subsidiares des Organisations Internationales’ in C Chaumont (ed), Hommage d’une génération de juristes au Président Basdevant (Pedone, 1960). Rudolf B, ‘System of United Nations Committees and Subsidiary Bodies’ MPEPIL (online edn). Sarooshi D, ‘The Legal Framework Governing United Nations Subsidiary Organs’ (1996) 67 BYIL 413. Schermers HG and Blokker N, International Institutional Law. Unity with Diversity (Nijhoff 2011). Szasz P, ‘The Complexification of the United Nations System’ (1999) 3 Max Planck YB UN L 1. Tavernier P, ‘Le Processus de réforme des Nations Unies’ (1988) 92 RGDIP 305. Torres Bernárdez S, ‘Subsidiary Organs’ in RJ Dupuy (ed), Manuel sur les Organisations Internationales/Handbook on International Organizations (2nd edn, Brill Academic 1998). Unger BM, The General Assembly and its Main Committees. A Study in Voting Alignment (Michigan University Microfilms 1974). Vargiu P, ‘From Advisory Opinions to Binding Decisions—the New Appeal Mechanism of the UN System of Administration of Justice’ (2010) 7 Intl Org L Rev 261. Wolfrum R, ‘Ursprüngliche Aufgabenzuweisung und jetzige Aktivitäten der Vereinten Nationen: Faktischer Wandel und normative Bewertung’ in R Wolfrum (ed), Die Reform der Vereinten Nationen—Möglichkeiten und Grenzen (Duncker & Humblot 1989).

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A.  General Overview* 1  Article 22 provides an important legal basis for the complex organizational structure of the UN. As early as 1954, Legal Counsel of the United Nations, Constantin A Stavropoulos, indicated before the ICJ that ‘the General Assembly, pursuant to its powers under Art. 22 of the Charter, had established nearly 100 subsidiary organs since it first met in London in the early part of 1946’.1 He went on to explain that ‘[t]here is considerable difficulty in classifying these organs 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’.2 (p. 721) 2  Today, almost sixty years later, diversity is still the dominant feature of the GA’s organizational sub-structure: indeed, due to an enormously wide range of organizational forms, of the fields and scope of activities, of duration and methods of appointment and termination, of the legal, institutional and factual ties with the GA itself, and finally, the lack of any kind of uniformity in the terminology used for denomination purposes, attempts to put the subsidiary organs established under Art. 22 into the straitjacket of doctrinal ‘typology’ have failed to produce satisfying results.3 Even the UN itself has not succeeded in producing any kind of classification.4 Often treaty bodies that report to the GA also find themselves in the group of subsidiary bodies (eg on the GA’s official website), although systematically they do not belong there. In general, it seems appropriate to classify only those institutions as GA subsidiary organs that have been created by or with the participation of the GA itself.5 Therefore only the Main, Procedural, and Standing Committees, the large group of Subsidiary and Ad Hoc Bodies that embraces several Committees, Commissions, Boards, Councils, Panels and Working, Advisory and Expert Bodies may be qualified as generic GA subsidiary organs. While the total number of subsidiary organs ever established under this Article probably exceeds 500,6 the number in existence at a given period of time is much lower and amounts to an average of hardly more than sixty,7 with decreasing tendency due to measures taken to improve efficiency, systemwide coherence and to cut costs.8 This discrepancy explains itself from the fact that only a limited number of ‘subsidiary organs’ are ‘standing’ or ‘permanent’ bodies, while most of them are established for a limited period only and have a relatively short existence.9 In the early years of the UN, the limits of the authority of the GA to establish subsidiary organs, in particular with regard to the respective powers of other UN organs, and the pre-conditions of the lawful use of these powers, as well as the question of the powers of the subsidiary organs thus created, led to a number of legal controversies.10 Most recently the establishment of the Human Rights Council as a subsidiary organ assigned to the GA evoked a debate about the allocation of competence between ECOSOC and the GA concerning human rights matters.11 However, what is (p. 722) really at issue today is the need for a constant critical review of the GA’s practice from a political and financial perspective. Indeed, it is beyond reasonable doubt that in order to overcome the permanent financial crisis of the Organization, a restrictive handling of the powers of the GA under Art. 22 is indispensable.12 3  Moreover, the various efforts, intensified in the 1990s, for streamlining the Organization’s structure for better effectiveness13 puts the GA’s complex sub-structure in a prominent place on the reform agenda.14 Former Secretary-General Kofi Annan emphasized in his 2005 Follow-up-Report to the outcome of the Millennium Summit that ‘the Assembly also needs to review its committee structure, the way committees function, the oversight it provides to them and their output’.15

B.  History

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4  The UN’s antecedent, the Covenant of the League of Nations, did not expressly authorize the main organs to establish subsidiary organs, but rather provided in Arts 9 and 22 (9) for the creation of only two permanent ‘subsidiary’ organs, namely, the Permanent Armaments Commission and the Permanent Mandates Commission (PMC).16 However, it was never disputed in principle that the Assembly and the Council, as well as being organs of the League, were vested with the power to establish subsidiary committees, commissions, or other bodies in order ‘to act as technical advisers’ to the main organs.17 Numerous such bodies were established during the lifetime of the League.18 Although (p. 723) essentially of a procedural character, an implicit legal basis for this practice may be seen in Art. 5 (2) of the Covenant, which reads: ‘All matters of procedure…including the appointment of committees to investigate particular matters shall be regulated by the Assembly or by the Council….’ The hypothesis that it was indeed intended to build up a complex institutional structure, going far beyond the rather scarce institutional framework expressly foreseen in the Covenant, finds further support in Art. 24 (1), which called for the subordination under the direction of the League of ‘all international bureaux already established by general treaties’. This provision, however, was implemented to a very limited extent only: out of the more than thirty offices in question, no more than six were finally merged into the organization of the League.19 The more important offices which had existed before the war, eg the Universal Postal Union, jealously maintained their independence. Notwithstanding close links to the World Organization, in particular with regard to budgetary questions,20 the International Labour Organization, provided with an independent legal basis under Part XIII of the Versailles Treaty, also managed to remain largely autonomous and self-sufficient vis-à-vis the League.21 This makes it inappropriate to place the ILO among the subsidiary organs stricto sensu.22 In the end, it was this autonomy which saved the ILO from the political shipwreck the League suffered at the outbreak of World War II. This organization did indeed succeed in maintaining its regular activities with less interruption and less reduction than might have been expected, until it was recognized as a specialized agency of the UN, the field of action of which is still, in essentials, the same as those enacted in the Treaty of Versailles.23 5  Article 22 did not play an important role in the preparatory work done at the Dumbarton Oaks and San Francisco Conferences.24 There was no controversy as to the incorporation of an express competence to establish subsidiary organs (cf Art. 7 (2) UNC). For the Coordinating Committee of the Conference of San Francisco, the principle of a decentralized organization of the UN and the idea that the main organs should be independent were decisive factors in the separate assignment of organizational powers both to the GA, as in Art. 22, and to the SC, as in Art. 29 UNC.25 Mexico’s (somewhat (p. 724) restrictive) proposal for the addition of a list of areas in which subsidiary organs could be established was not accepted.26 The drafting history does not provide an explanation for the terminology eventually chosen. The Dumbarton Oaks Proposals referred to ‘bodies and agencies’ of the GA.27 The San Francisco Conference originally worked with the terms ‘auxiliary organ/organe auxiliaire’, but ultimately replaced them with the terms ‘subsidiary organ/organe subsidiaire’. The reasons for this change are not known.28 Since the Charter nowhere defines the term ‘subsidiary organ’,29 the choice of terminology is in itself of hardly any importance. According to UN practice,30 UN subsidiary organs are in principle characterized by the following three essential features: (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 a subsidiary organ are determined, and may be modified by, or under the authority of, a principal organ, and (c) a subsidiary organ may be terminated by, or under the authority of, a principal organ.31 It has rightly been argued that another, fourth element is needed, namely that the subsidiary organ necessarily possesses a certain degree of independence from its principal organ, since otherwise the entity in question

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would simply be part of the principal organ.32 This requirement excludes, inter alia, sessional committees, sub-committees and working groups from the scope of Art. 22.33

C.  Practice I.  Survey 6  The GA’s Rules of Procedure,34 which were passed according to Art. 21 UNC, provide an initial impression of the organizational practice based on Art. 22. Six (until 1993: seven) main committees (Rule 98), two committees on procedure (Credentials (p. 725) Committee, Rule 28 and General Committee, Rules 38–44), and two standing committees (Advisory Committee on Administrative and Budgetary Questions, Rules 155–157 and Committee on Contributions, Rules 157–160) are expressly provided for by the Rules. Apart from these, the GA has created a variety of other subsidiary organs with differing tasks and structures, a list of which is to be found in the Annex below. Some of the currently existing organs can be distinguished from the remaining ones on the basis of their institutional independence and importance, something which holds true in particular for the so-called ‘quasiautonomous bodies’.35 A number of these bodies have a special relationship with ECOSOC, too.36 Finally, another institutional category may be distinguished including so-called ‘treaty bodies’.37 These bodies are established by treaties between the member States of the UN.38 Although they have an institutional relationship with the GA, they cannot be regarded as subsidiary organs of the GA according to Art. 22 or as subsidiary organs according to Art. 7 (2) UNC. 7  An overview results in the following organizational structure: permanent subsidiary organs established by the Rules of Procedure; other subsidiary organs; special organs; and treaty bodies. Behind this simplified classification, there exists a significant variety of structures, tasks, and powers which evade any attempt at more specific systematization. In addition, there exist a number of sub-divisions of some of the individual subsidiary organs. Considering the nature of those institutions referred to below as ‘permanent organs’, it seems more logical to refer to these dependent sub-divisions of the GA as ‘auxiliary organs’ rather than ‘subsidiary organs’.39

II.  Permanent Subsidiary Organs Based on the Rules of Procedure of the General Assembly40 1.  Main Committees 8  The six main committees are established to enable the GA to deal with the agenda of the respective session, and their responsibilities cover most of the GA’s functions. The GA decides upon the assignment of particular items of deliberation to the individual committees according to the recommendations of the General Committee. These committees are responsible for the consideration of the items as well as for making recommendations for decisions and resolutions of the GA. The final decisions of the GA are therefore generally based on a report of the appropriate main committee (Rule 65 of the UNGA Rules of Procedure). 9  The central role of the main committees, which are established at the beginning of each session, demands that they include representatives of each member State. In general, the meetings of the main committees, like the sessions of the GA, are public (exceptions are given in Rule 60). The important question of the appointment of the chairpersons of the main committees (see Rule 103) is regulated by the decision of the GA of 19 (p. 726) December 1978, which purports to distribute the different roles equally between all relevant groups of member States.41

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10  Of the main committees mentioned in Rule 98 of the UNGA Rules of Procedure, the first is defined as the Disarmament and International Security Committee. It deals with questions of peace and security, and, especially since the tenth special session of June 1978,42 with questions of disarmament. When established in 1947, the (original) first committee was designed to serve as an ad hoc committee for issues relating to the problem of Palestine43 and thereupon allocated with questions of particular complexity and sensitivity like apartheid and the Middle East as a whole. In 1956 it had been given permanent status as the Special Political Committee (SPC).44 At its 47th session, the General Assembly, by its Res 47/233 of 17 August 1993, decided to rationalize the structure of the Main Committees and merged the SPC and the Fourth Committee to become the Special Political and Decolonization Committee, in order to reduce the number of committees from seven to six.45 11  The Second and Third Committees are concerned with questions falling into ECOSOC’s area of operation. The Second Committee, the Economic and Financial Committee, is concerned with underdevelopment, population growth, food shortages, environmental protection, human settlements, globalization and trade relations. It also is engaged with Groups of Countries in special situations—such as the Least Developed Countries (LDCs) and Landlocked Developing Countries (LLDCs). In addition the committee’s work directs attention on the question of power of disposition of the Palestinian people in the Occupied Palestinian Territory and of the Arab population in the occupied Syrian Golan over their natural resources. The committee also co-coordinates the activities of various specialized subsidiary organs (like UNCTAD) and specialized agencies (like UNIDO) as envisaged by Arts 58 and 60 UNC. These subsidiary organs have in turn established permanent and ad hoc committees to work on current problems. 12  The Third Committee, the Social, Humanitarian and Cultural Committee, has been especially assigned to the question of the protection and codification of human rights in public international law. Therefore, it considers, among others, the reports of the Special Procedures of the lately established46 Human Rights Council, the reports of the Human Rights Committee (CCPR), which was established by the Covenant on Civil and Political Rights, and the reports of the Committee on the Elimination of Racial Discrimination (CERD). (p. 727) 13  Today’s Fourth Committee, the Special Political and Decolonization Committee, is the product of a merger in 1993 between the SPC and the former Trusteeship Committee.47 These committees were thematically concerned with the same subjectmatters dealt with by the SC. With the termination of the Trusteeship Agreement for the Trust Territory of the Pacific Islands by UNSC Res 956 (1994), and Palau’s admission as the 185th member of the UN which brought the era of the mandate/trusteeship system to an end, the Trusteeship Committee has lost most of its significance, even though in recent years the Committee has shifted the focus of its work more and more towards the problems of regions without self-government.48 14  In comparison, the Fifth Committee, the Administrative and Budgetary Committee, has become increasingly important as the financial and structural crisis of the UN places more emphasis on budgetary concerns. The Fifth Committee is supported by two committees49 provided for by Rules 155 (Advisory Committee on Administrative and Budgetary Questions) and 158 (Committee on Contributions), respectively. 15  The Sixth (Legal) Committee, fulfils an important function in the codification and development of public international law, a task entrusted to the GA by Art. 13 (1) (a) UNC.50 The agenda of this committee encompasses the discussion and critical review of draft agreements, conventions, and other legally relevant texts prepared by special subsidiary

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organs such as the ILC, UNCITRAL, and others. It further deals with all matters concerning the ICJ.51

2.  Standing Committees 16  The two so-called standing committees are not made up of representatives of member States but rather of experts, which support the Fifth Committee in particular (Rules 155 and 158 of the Rules of Procedure of the GA). The Advisory Committee on Administrative and Budgetary Questions (ACABQ)52 is responsible for the preliminary examination of the UN draft budget and for the financial and budgetary arrangements with the specialized agencies.53 The number of its members has been increased several times54 up to sixteen today. It reports to the GA and advises the GA concerning any administrative and budgetary matters. The eighteen members of the Committee on Contributions (CoC)55 advise the GA on all questions concerning the apportionment of contributions to the Organization. This Committee is also consulted by the specialized agencies.

(p. 728) 3.  Procedural Committees 17  The two existing procedural committees are constituted at the beginning of each regular, special, and emergency special session of the GA. The Credentials Committee examines the credentials of the representatives of member States and prepares decisions in cases where the legitimacy of a government is contested.56 The Committee reports to the GA and recommends the adoption of a resolution based on the findings of that report. The General Committee (GC) is a microcosm of the GA (Rule 38) to which the President and the twenty-one Vice-Presidents of the GA as well as the chairmen of the six main committees belong.57 The GC is responsible for organizing the work of the session and for recommending to the GA the scheduling and handling of each item on the agenda. The fact that it is limited to questions of procedure (Rules 40 and 41) has not prevented controversial questions of substance from being discussed within the GC. First in UNGA Res 2837 (XXVI) (17 December 1971)58 the GA established more specific rules for the tasks and the procedures of the GC, and decided that these rules would be contained in Appendix V to the Rules of Procedure of the GA.59

4.  Others 18  Apart from these permanent or standing committees, the GA, as well as other principal institutions, often has created numerous sessional or inter-sessional committees for the purpose of serving the GA during its sessions. These committees may not be referred to as ‘subsidiary organs’60 as they are entirely dependent upon the GA. Therefore, the authorization given to the GA for creating such committees is contained in Art. 21 rather than in Art. 22.61

III.  Other Subsidiary Organs 19  The category of other subsidiary organs, those which have no special status as special organs or treaty bodies, is particularly confusing. The numerous62 subsidiary organs (p. 729) support the GA in the whole range of its tasks. Some of these subsidiary organs only had temporary assignments and have therefore been dissolved.63 But most subsidiary organs are permanent, such as the Board of Auditors, the ILC, and the Tribunals. Many were established for a limited time in order to prepare conferences or to deal with special problems, eg the Preparatory Committee on the Establishment of an International Criminal Court,64 which from 1996–98 played a crucial role in the preparation of the Rome Statute,65 These organs tend, as in the case of other international organizations, to become permanent, although this was not the original intention.

IV.  Special Organs

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20  Included in the category of ‘special organs’ are those largely autonomous subsidiary organs (semi-autonomous organs) established by the GA to undertake particular operational functions.66 Their classification may sometimes be difficult, since the GA has only expressly granted autonomous status within the UN System in a few cases, eg in the case of UNCDF67 or of the United Nations University (UNU).68 The independence of these special organs is evident in the mostly self-directed execution of their functions, in the nature of their financing, often through voluntary contributions of member States, and in the complex organizational structure of their administrative staffs. Most of these semi-autonomous organs are active in the areas of development assistance and general economic and social programmes. In many cases they cooperate closely with ECOSOC. In contrast to the specialized agencies, the semi-autonomous organs do not have their basis in an international treaty and do not possess a legal personality of their own. Another dissimilarity is to be seen in their institutional link with the GA. In particular, the GA has the power to pass decisions which bind the semi-autonomous organs. As an example, UNIDO was originally established as a semi-autonomous organ of (p. 730) the GA,69 until it then became a specialized agency70 without any significant changes in its functions, although there have been changes in its internal structure.71

V.  Joint Subsidiary Organs 21  Rather rare, but recently a focus of attention, another type of body finds its place in the list of the GA’s subsidiary organs. The so-called joint subsidiary organs are usually established under the authority of more than one main organ in a concurrent act. In accordance with Art. 7 (2) UNC and Arts 22, 29, and 68 UNC72 the GA, the SC, and ECOSOC may decide to install an organ that derives its legal basis, its competences, and financing not only from one organ but from the composition of several. This legal construction enhances the political impact of the body,73 but also creates challenges for the legal and financial assignment to its parent organs. As one of the few examples, the Committee on Programme and Coordination is to be named. Formerly established as an ECOSOC subsidiary organ74—it now functions as the main subsidiary organ of ECOSOC and the GA for the joint planning, programming, and coordination of UN activities with financial implications.75 Recently the UN Peacebuilding Commission (PBC) has been established on the basis of such a joint act by the UNSC and the UNGA as a result of the UN World Summit in 2005.76 Its primary function is to advise and assist countries emerging from conflict by developing and proposing strategies for peace-building and post-conflict recovery.77

VI.  Treaty Bodies 22  These institutions are established by particular international treaties and institutionally assigned to the GA,78 which makes the term of ‘treaty bodies’ rather inappropriate. The Human Rights Committee,79 the Committee on the Elimination of Racial (p. 731) Discrimination (CERD),80 and the Committee on the Elimination of Discrimination Against Women (CEDAW)81 may be named as examples. Treaty bodies do not fall into the category of subsidiary organs as defined by Arts 7 and 22 UNC, even though they are institutionally related to the GA, eg though a duty to report.82 This is because the act of creation does not stem from the GA and thus the existence of the treaty body is not conditional on the GA’s will.83 Nevertheless they often are bound with the GA due to such institutional associations as the duty to report.

VII.  Functions and Duties of the Subsidiary Organs

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23  According to the organizational practice of the GA, the functions assigned to the subsidiary organs consist generally in the elaboration of (common) principles, rules, and programmes (UNCITRAL, UNCTAD, UNEP among others), in the financing of relief (UNCDF, UNFPA, UNDP), or in directing technical assistance, as by UNICEF. The World Food Programme (WFO), as the largest international food aid organization in the world, is administered by the UN in conjunction with the Food and Agriculture Organization (FAO) and belongs to the latter group.84 24  A classification of functions must take into account that the subsidiary organs cover the entire range of GA activities. The main emphasis lies in the areas of technical and institutional assistance to accomplish the GA’s given or self-given objectives, such as the protection of refugees (UNHCR, UNWRA), education (UNU, UNITAR), and matters of personnel (International Civil Service Commission (ICSC), UNAT).

D.  Extent and Limits of the General Assembly’s Powers to Establish Subsidiary Organs I.  Extent of the General Assembly’s Power of Organization 25  The extent of the GA’s organizational powers, found in Art. 22, follows from the scope of its duties and from the horizontal and vertical limits due to the interaction with the other main organs of the UN and with the member States. This is also confirmed by the principle that the GA cannot transfer more powers to subsidiary organs than it possesses under the Charter. Whether operational and adjudicatory functions can be assigned to particular subsidiary organs is questionable, as can be seen from the example of the former UN Administrative Tribunal.85 (p. 732) 26  Article 10 UNC grants the GA an all-encompassing sphere of jurisdiction that is more specifically described in Arts 11–17 UNC. The most important of its functions is the discussion of all questions and matters concerning the UN. Even operational activities may be carried out by the GA. Article 18 (2) UNC refers to ‘decisions’ of the GA, which include the sub-category of recommendations by which most of the activities of the GA are carried out.86 Even the task of the UN to ‘promote’ certain activities, as described in Art. 55 UNC, includes operational activities that may be transferred to subsidiary organs.

II.  Limits of the Organizational Power 27  The limits of these operational powers are not clearly established. As early as at the second session of the GA it was decided that a UN Commission for Palestine should be established, which was to perform the tasks of the future government of Palestine during the period of transition. Thus, executive and legislative powers would have been transferred to the Commission, if it had actually come into existence.87 28  In the UNAT Case,88 the ICJ examined whether the GA was allowed to transfer judicial power to a subsidiary organ. Although the ICJ has in general interpreted the powers of the UNGA in light of their functions in an expansive way,89 it came to the conclusion that Art. 22 alone did not grant sufficient authority to allow the tribunal to be established. According to the Charter, the GA has no adjudicatory power which it could transfer. However, the ICJ based the ability to establish the tribunal on implied powers, finding it necessary for the work of the UN to create a mechanism for the settling of disputes between the personnel and the Organization. The ICJ had to refer to Art. 22 together with Art. 7 (2) UNC and Art. 101 UNC in order to give the GA the ability to exercise its implied power.90 Article 22 alone only allows the transfer of such powers to subsidiary organs as the GA itself possesses. As a

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result, Art. 22 does not offer a sufficient legal basis, eg to establish an International Court of Criminal Justice as a subsidiary organ.91 29  A further limitation on the powers of the GA under Art. 22 arises in a horizontal sense from the powers given by the Charter to the other principal organs. The exercise by one such organ of its powers should not lead to a disturbance of the balance established between principal organs by the Charter. Overlap occurs with the responsibilities of the SC in the area of maintaining the peace, and with ECOSOC in the area of economic and social cooperation. In the recent case of the establishment of the Human Rights Council (UNHRC), one may indeed legitimately raise the question whether the GA’s limits of power for creating subsidiary organs have been exceeded at the expense (p. 733) of ECOSOC. Article 68 UNC explicitly provides ECOSOC with the power to ‘set up commissions…for the promotion of human rights’, while there is no such explicit competence foreseen for the GA. It is to be discussed what consequences occur from this overlap from a strictly formal point of view.92 30  According to Art. 24 (1) UNC, the SC has the primary responsibility for the maintenance of international peace. The GA may establish subsidiary organs in this area only if it provides an institutional relationship, like the duty to report, with the SC.93 It is controversial whether the GA has the competence to create a subsidiary organ involving the establishment of a peacekeeping force.94 31  By creating the Interim Committee in 1947, which was intended to assist the GA in fulfilling its duties in maintaining the peace (see Arts 11, 13, 14, and 35 UNC), the GA tried to compensate for the inability of the SC to carry out its functions. In response to the criticism that it had exceeded its powers, the GA pointed out that it had responsibility for maintaining the peace, albeit a subsidiary responsibility.95 The GA authorized the SG, by means of a recommendation, to build up a peacekeeping force which was to enforce the ceasefire during the Suez Crisis in 1956.96 UNEF, which was established for that purpose, must be seen as a subsidiary organ of the GA. On 20 July 1962, in its Certain Expenses97 judgment, the ICJ approved the manner in which UNEF was created, thereby acknowledging the competence of the GA (see Bothe on Peacekeeping MN 23). Since the delivery of that opinion, however, it has become generally accepted, at least in practice, that maintaining the peace falls within the exclusive responsibility of the SC.98 32  A similar encroachment on the authority of the SC can be seen in the establishment of the Committee on the Exercise of the Inalienable Rights of the Palestinian People.99 Considering that the SC had established a similar institution with UNSC Res 242 (22 November 1967) and 338 (21 October 1973),100 the GA emphasized that the (p. 734) Committee should limit its activities to investigating and giving recommendations so as not to intrude on the jurisdiction of other main organs.101 33  From a legal perspective, the definition of the respective powers of ECOSOC and the TC is not problematic, because both main organs perform their functions under the authority of the GA (Arts 60 and 85 UNC). For this reason, the GA is allowed to interfere in ECOSOC’s organizational structure. For example, in UNGA Res 32/162 (19 December 1977), the GA urged ECOSOC to change the Committee of Housing, Building, and Planning into a Commission on Human Settlements.102 When the GA establishes subsidiary organs on the recommendation of ECOSOC, this does not change ECOSOC’s subsidiary position.103 The GA will ensure that ECOSOC, can exercise the powers granted to it by the Charter. Thus, the GA expressly stressed the powers which were assigned to ECOSOC when establishing the organizational structure of UNFPA so that UNFPA should operate ‘without prejudice to the over-all responsibilities and policy-functions of the ECOSOC’.104

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34  In terms of vertical organization, the GA must limit the exercise of its powers to the realm of the UN. It cannot transfer any authority to subsidiary organs that would interfere with the sovereignty of member States. According to Art. 2 (7) UNC, the UN is prohibited from interfering in matters that are within the domestic jurisdiction of a State. At least in the past, the GA had a tendency to interpret domestic jurisdiction in a limited manner (see Nolte on Art. 2(7) MN 73).105 Thus, it has rejected attempts to apply Art. 2 (7) to questions of decolonization, racism, and apartheid.106 The same is true with regard to discussions on infringements of human rights.107 Cases in which powers to be transferred to the subsidiary organs are to be exercised on the territory of a State are highly problematic. Here the UN must ask for the approval of the State concerned. The vote of the State representative in the GA in favour of establishing such organs is not sufficient.108

(p. 735) E.  Procedure for Establishing Subsidiary Organs I.  Initiative 35  In general, the initiative for establishing subsidiary organs comes from the GA. The relevant resolutions are discussed in the standing committees. The GA has also founded subsidiary organs on the recommendation of international conferences, semi-autonomous organs, and other main organs of the UN.109 36  Thus, for example, the World Food Council was created in 1974 by the GA on the recommendation of the World Food Conference.110 But the GA is not obliged to follow the initiatives of other main organs or specialized agencies. It is required only to deal with those recommendations, a requirement which arises from the general duty of cooperation among organs of the same organization, in this case the UN.

II.  Act of Foundation 37  The decision by the GA to found an organ may be viewed as an ‘important decision’ according to Art. 18 (2) UNC, depending upon the circumstances, in which case it requires a two-thirds majority rather than a simple majority of the members present. In practice, such an interpretation is unnecessary when, as in most cases, the GA decides by consensus and without a roll-call vote. Moreover, due to the intensive preparatory work done in the main committees and to the existing majorities in the GA there has been no need to clarify the question. 38  The participation of other main organs in the founding of subsidiary organs may occur when, as is often the case, ECOSOC or the SG establishes a subsidiary organ at the express request of the GA. In general, the SG is entrusted with the task of establishing subsidiary organs consisting of experts charged with the elaboration of a position on particular questions.111

III.  Designation of Members 39  With regard to the designation of members of subsidiary organs under Art. 22, the GA may limit itself to defining the functions to be attributed to the subsidiary organ, including the nomination of members, and authorize its President or the SG to determine the number of members, choose the States to be represented in the subsidiary organ, or to designate members if it is required that experts be appointed ad personam. In the (p. 736) absence of such authorization, the GA alone may determine or change the number of the members.112 40  The exercise of the powers, most prominently those given to the President of the GA, the chairmen of the main committees, or the SG, is under the control of the GA. The GA has occasionally entrusted this task to ECOSOC or to the SG as well as to the executive bodies

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of semi-autonomous organs or to specialized agencies, or it has provided for a cooperative procedure.113

IV.  Composition of Subsidiary Organs 41  Subsidiary organs may be composed of State representatives, experts, or even of a single individual.114 The GA can leave the number of members open and invite any interested State to join. In some cases, even non-member States have been allowed to become members of subsidiary or semi-autonomous organs in the past.115 42  The GA adheres to the principle that subsidiary organs concerned with questions of universal significance should have a geographically balanced composition. It also takes into account the proportion of the finances a State has given or received, as well as the special interests of particular States.116 There is a clear tendency to enlarge the number of members. Although this contributes to inefficiency, it adds to the legitimacy of the organs as well as to better representation of different political and economic trends. In general, no two members of a subsidiary organ shall be members or nationals of the same delegation/ State.117

F.  Legal Status of Subsidiary Organs within the United Nations I.  Subordination of the Subsidiary Organs under the General Assembly 43  Subordination to the GA is a characteristic of the legal status of a subsidiary organ. The GA determines the scope of the subsidiary organ’s powers. As discussed above (p. 737) (MN 5), without the express authorization of the GA, subsidiary organs are not allowed to enter into legal relations with the outside world, whether with specialized agencies, States, or individuals.118 The GA retains at all times organizational power and thereby the ability to control the structure and activities of the subsidiary organs. It can merge all or part of different subsidiary organs119 and can also appoint the existing executive body of one subsidiary organ to act simultaneously as the executive body of another subsidiary organ.120 It can give directives, and, by means of reporting obligations, can create the conditions for maintaining ongoing control of the activities of subsidiary organs. Restrictions only apply for joint subsidiary bodies,121 since certain decisions can only be taken together with the other parent main organ(s) and not unilaterally. 44  A problematic means of controlling these organs is the practice of establishing subsidiary organs on a temporary basis, with the possibility of extending their mandate subject to a review of the activities of the bodies concerned.122 The increase of the efficiency of control has to be weighed against the uncertainty concerning the extension of the mandate, which can hamper the long-term activity of the subsidiary organ. Even if the GA has established a subsidiary organ for an indeterminate period, it retains the power to dissolve it at any time. In practice, this occurs only infrequently. 45  The GA itself determines the organizational structure of the subsidiary organs, although Rule 102 of the UNGA Rules of Procedure gives each of these organs the opportunity to establish subordinate committees and to elect its office-holders. In individual cases, the GA may depart from this rule, because through the adoption of the Rules of Procedure of the GA, it has not forfeited its power to establish subsidiary organs.123 In UNGA Res 3351 (XXIX) (18 December 1974), the GA made the power of subsidiary organs to form subordinate committees which would require additional financing conditional upon its approval.

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46  The rules of procedure of subsidiary organs are basically those of the UNGA Rules of Procedure which govern the GA’s committees (see especially Rules 45, 60ff, 96ff). This follows from Rule 161, which at the same time, however, leaves it open to both the GA and the subsidiary organs to establish other rules of procedure. Thus, there exists for subsidiary organs a residual power over procedure which has in many cases been expressly confirmed by the GA.124 (p. 738) 47  The subordination of the subsidiary organs is especially visible in the areas of budget and personnel. Here, the subsidiary organs are subject to the general rules which govern the GA as well as the UN as a whole.

II.  Status of Semi-Autonomous Organs 48  More recently, the GA has loosened its institutional relationship with the semiautonomous organs and granted them a wide area of autonomy. The powers given to these semi-autonomous organs are in many respects equivalent to those of specialized agencies. This includes the capacity to act under the domestic law of States, to acquire property, or to conclude the contracts necessary to fulfil their functions (UNICEF, UNRWA, using model contracts).125 This restricted legal personality under domestic law, based only on an authorization to act in the name of the UN, does not correspond to the international personality enjoyed by the specialized agencies. These specialized agencies, however, are based on a separate international agreement, and their existence does not depend upon an administrative act of an organ of an international organization alone. The Charter does not authorize the GA alone to establish organs or organizations that are subjects of international law.126 Therefore, the transformation of UNIDO from the status of a semiautonomous organ to that of a specialized agency enjoying international legal personality was possible only on the basis of an international agreement.127 49  In the areas of budget and personnel, the semi-autonomous organs remain extensively coordinated with the rules which govern the UNGA and the UN. Their operational costs are usually covered by voluntary contributions of individual member States. However, here too, the practice is complex: while the regular budgets of UNCTAD, UNEP, UNHCR, and UNDRO are listed under Part IV of the regular budget of the UN,128 the budgets of UNICEF and UNDP are not connected to the UN budget at all.129

G.  Trends in the Development of Subsidiary Organs I.  A History of Constant Change 50  The process by which organizational structures emerged through the creation of subsidiary organs has mirrored the activities of the GA. During the post-war period, it was first (p. 739) humanitarian and then economic and social problems which were the focus of subsidiary organs. The increasing scope of GA activities has required a corresponding increase in the number of such bodies.130 It appears that, since the end of the 1970s, the proliferation of subsidiary organs has reached a point where the structure of the Organization appears increasingly inefficient and in need of reform. Reform of the UN System has lately become the focus of attention in and of itself (see Rensmann on Reform). Several organs concern themselves with reviewing the activities and the existing structures of the Organization in order to cope with financial difficulties and changing political needs. Already back in the 1980s the Bertrand Report131 and the report of the ‘Group of 18’,132 which was accepted by the UNGA, were predominantly concerned with the reform of the whole system without making any detailed proposals as to the extremely broad area of GA subsidiary organs. Nevertheless, the tendency of the general recommendations was toward a reduction in the number of subsidiary organs and increased coordination in order to avoid overlapping responsibilities. In 1980, the GA passed a resolution not to establish any new subsidiary organs for the period of one year.133 However, such a resolution is almost impossible to follow since the GA needs subsidiary organs to deal with any new or urgent From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

matters which may arise. Often, the number of votes required to dissolve or merge subsidiary organs will be lacking, which means that a subsidiary organ may lapse into inactivity, existing only as an organizational shell.

II.  Recent Developments 51  The composition of the group of subsidiary bodies is a matter of constant change due to evolving world politics and humanitarian challenges. Thus not surprisingly, new subsidiary organs are created, some are abolished, and others receive new assignments for their work. While the GA used to mainly react to circumstances caused by political, humanitarian, and also legal crisis, more recently the focus has shifted onto resolving internal weaknesses and deficits of the institutional system by reforming it for greater efficiency and the reduction of costs. Hence in this matter on 12 December 2001 the Ad Hoc Committee on the Scope of Legal Protection under the Convention on the Safety of United Nations and Associated Personnel134 was established. According to the Committee’s report,135 the UNGA adopted the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel.136 On 4 December 2006, the UNGA established the Ad Hoc Committee on Criminal Accountability of United Nations Officials and Experts on Mission,137 which prepared two resolutions138 containing recommendations to States and the SG to investigate and prosecute (if appropriate) (p. 740) crimes of a serious nature which might have been committed by UN officials or experts on mission. The UN Administration of Justice has also witnessed fundamental changes by the abolition of the Former UN Administrative Tribunal and the establishment of a two-tier formal system of the Administration of Justice.139 52  Besides that, efforts were made to increase the cooperation and coordination of the performance of the related functions among the existing subsidiary organs.140

III.  The Establishment of the Human Rights Council in 2006 53  The most fundamental adjustment of the UN institutional system in recent years arose from the establishment of the Human Rights Council (UNHRC) on 15 March 2006 as a GA subsidiary organ in place of the Commission on Human Rights.141 In the end, the UNCHR as an ECOSOC subsidiary body stood out for its ‘eroding credibility and professionalism’142 caused by a ‘membership of States lacking a true commitment to human rights’.143 After the High-level Panel (2004)144 and SG Kofi Annan (2005)145 had put their hand on the plough to restore the credibility of the human rights mechanisms within the UN System, a general debate about the possible implementation of a new body began. In order to allocate more weight to the cause of human rights within the UN System, two options were considered: the elevation of a new council to the status of a principle organ or the creation of a new GA subsidiary organ. In the end, the virtually insurmountable hurdle of a formal charter amendment led to the implementation of the latter option. This solution was also intended to ‘help in strengthening and restoring the General Assembly as the chief deliberative, policy-making and participatory organ under the Charter’.146 At the same time the abolishment of the UNCHR raised the question of legitimacy of the shift of responsibility away from ECOSOC. 54  Article 68 UNC explicitly assigns ECOSOC with the promotion of human rights by establishing a commission to that purpose. On the one hand there is a wide acceptance147 that ECOSOC has been overstrained with the broad scope of responsibilities (such as international social, economic, cultural, educational, and health matters).148 On the other hand it cannot be ignored that nevertheless this legal assignment for the promotion of human rights to ECOSOC by the Charter (Art. 68) remains unaffected. In the end, the UNCHR’s abolition by virtue of an autonomous decision by (p. 741) the members of ECOSOC149 and the fact that the Council’s right to establish new subsidiary bodies for the promotion of human rights in the future remains unimpaired, led to the conclusion that the institutional reform of the UN human rights system with the establishment of HRC is not From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

only a step forward towards more effectiveness, but also legally sand from a formal constitutional perspective.150 55  The UNHRC, based in Geneva, not only carries the burden of achieving a major impact on the development of the UN human rights system and the effective promotion of its assurances. It also needs to emerge from the shadow of the former UNCHR that stood out for its imbalance and lack of transparency and effectiveness. On this basis, the given institutional framework of the Council differs from the former institution. The UNHRC consists of forty-seven members elected by the majority of the members of the GA by secret ballot on the principle of their commitment to ‘the promotion and protection of human rights’.151 The membership is based on an equitable geographical distribution.152 An elected member holds its chair for a term of three years. Immediate re-election is not possible after two consecutive terms. By a two-thirds majority of the members present and voting, the GA may suspend the rights of membership in the Council of a member of the Council that commits ‘gross and systematic violations of human rights’.153 This proviso was applied for the first time in March 2011 when, due to the severe and systematic violation of the Human Rights of its people, Libya as a sitting member was removed from the Council by a consensus vote of the GA.154 56  The Council bases its work on a Universal Periodic Review (UPR) concept, which involves a review of the human rights records of all 193 UN member States (August 2011) once every four years. In order to advise and provide the Council with expertise, the Advisory Committee operates as a think-tank for the Council. Its eighteen expert members focus on study-based research and development opportunities for the Human Rights regime, including an exchange with NGOs. 57  Undoubtedly the UNHRC faces enormous challenges in defining and developing the UN System for the protection of Human rights. While institutional and procedural changes have helped to organize effective and pervading mechanisms, success will only arise from the efforts made by the members of the Council, and—of course—by the member States in total.

IV.  Prospect 58  Albeit in the recent past consolidation measures have led to a certain clarification of the GA’s organizational structure, we undoubtedly still face ‘a veritable jungle of miscellaneous entities’155 in this respect. However, complex and rapidly changing structures should not only give rise to sweeping criticism, but should, in the first place, rather be considered as a true sign of the vitality of the entity at stake.156 From this perspective, (p. 742) the GA in particular cannot but be qualified as a most vivid organism. Nevertheless, due to restraints in budgetary and administrative resources, ongoing efforts to (re-)define priorities and eliminate overlapping and superfluous activities to the greatest possible extent should always retain a prominent place on the GA’s agenda.

Annex: Subsidiary Organs of the General Assembly157 No

Denomination

Relevant legal provisions158

Composition/Structure159

First Committee: Disarmament and International Security

Rule 98; UNGA Res 2837 (XXVI) (1971) UN Doc A/ RES/2837(XXVI); UNGA Res 48/264 (1994) UN Doc A/RES/48/264;

All members

Main committees 1

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No

Denomination

Relevant legal provisions158

Composition/Structure159

UNGA Res 52/163 (1997) UN Doc A/RES/52/163 2

Second Committee: Economic and Financial

Rule 98; UNGA Res 2837 (XXVI) (1971) UN Doc A/ RES/2837(XXVI); UNGA Res 48/264 (1994) UN Doc A/RES/48/264; UNGA Res 52/163 (1997) UN Doc A/RES/52/163

All members

3

Third Committee: Social, Humanitarian and Cultural

Rule 98; UNGA Res 2837 (XXVI) (1971) UN Doc A/ RES/2837(XXVI); UNGA Res 48/264 (1994) UN Doc A/RES/48/264; UNGA Res 52/163 (1997) UN Doc A/RES/52/163

All members

4

Fourth Committee: Special Political and Decolonization160

Rule 98; UNGA Res 2837 (XXVI) (1971) UN Doc A/ RES/2837(XXVI); UNGA Res 48/264 (1994) UN Doc A/RES/48/264; UNGA Res 52/163 (1997) UN Doc A/RES/52/163

All members

5

Fifth Committee: Administrative and Budgetary

Rule 98; UNGA Res 2837 (XXVI) (1971) UN Doc A/ RES/2837(XXVI); UNGA Res 48/264 (1994) UN Doc A/RES/48/264; UNGA Res 52/163 (1997) UN Doc A/RES/52/163

All members

6

Sixth Committee: Legal

Rule 98; UNGA Res 2837 (XXVI) (1971) UN Doc A/ RES/2837(XXVI); UNGA Res 48/264 (1994) UN Doc A/RES/48/264; UNGA Res 52/163 (1997) UN Doc A/RES/52/163

All members

1

Advisory Committee on Administrative and Budgetary Questions (ACABQ)

Rule 155; UNGA Res 14 A (I) (1946) UN Doc A/ RES/14(I)A; UNGA Res 32/103 (1977) UN Doc A/ RES/32/103

16 experts

2

Committee on Contributions (CoC)

Rule 158; UNGA Res 14 (I) (1946) UN Doc A/RES/ 14(I); UNGA Res 31/96 (1976) UN Doc A/RES/ 31/96

18 experts

Standing Committees

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Denomination

Relevant legal provisions158

Composition/Structure159

1

General Committee

Rule 28; UNGA Res 2837 (XXVI) (1971) UN Doc A/ RES/2837(XXVI); Appendix V to the Rules

President and 21 VicePresidents of the GA and the Chairmen of the 6 Main Committees

2

Credentials Committee

Rule 28

9 members

1

Human Rights Council161 (HRC)

UNGA Res 60/251 (2006) UN Doc A/RES/60/251

47 members

2

Human Rights Council Advisory Committee (HRCAC)

HRC Res 5/1 (2007) UN Doc A/HRC/RES/5/1

18 experts

3

Working Groups on Communications and Situations (Complaint Procedure)162

HRC Res 5/1 (2007) UN Doc A/HRC/RES/5/1; HRC Decision 1/104 (2006) UN Doc A/HRC/ DEC/1/104

10 experts

4

Expert Mechanism on the Rights of Indigenous People (EMRIP)

HRC Res 6/36 (2007) UN Doc A/HRC/RES/6/36

5 experts

5

Forum on Minority Issues

HRC Res 6/15 (2007) UN Doc A/HRC/RES/6/15

Open to a wide range of participants

6

Social Forum

HRC Res 6/13 (2007) UN Doc A/HRC/RES/6/13

Open to a wide range of participants

1

Peacebuilding Commission

UNGA Res 60/180 (2005) UN Doc A/RES/60/180 and UNSC Res 1645 (2005) and 1646 (2005) UN Docs S/RES/1645 (2005) and S/RES/1646 (2005)

Joint subsidiary body of the General Assembly and the Security Council; 31 members

2

Committee on Programme and Coordination

ECOSOC Res 2008 (LX) (1974) UN Doc E/RES/ 2008(LX) and UNGA Res 31/93 (1974) UN Doc A/ RES/31/93

21 members

No

Procedural Committees

Subsidiary and Ad Hoc Bodies Intergovernmental Bodies

Joint Subsidiary Bodies

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Denomination

Relevant legal provisions158

Composition/Structure159

1

Working Group on the Right to Development

UNCHR Res 1998/72 (1998) UN Doc E/CN.4/ RES/1998/72; ECOSOC Decision 1998/269 (1998) UN Doc E/DEC/1998/ 269; UNHRC Res 9/3 (2008) UN Doc A/HRC/ RES/9/3

Open to all UN Member and Observer States

2

Intergovernmental Working Group on the Effective Implementation of the Durban Declaration and Programme of Action

UNCHR Res 2002/68 (2002) UN Doc E/CN.4/ RES/2002/68; UNGA Res 60/251 (2006) UN Doc A/ RES/60/251; UNHRC Res 11/12 (2009) UN Doc A/ HRC/RES/11/12

All members

3

Ad Hoc Committee of the Human Rights Council on the Elaboration of Complementary Standards

UNHRC Decision 3/103 (2006) UN Doc A/HRC/ DEC/3/103; UNHRC Res 6/21 (2007) UN Doc A/ HRC/RES/6/21

All member States and Observers

4

Group of Independent Eminent Experts

UNCHR Res 2002/68 (2002) UN Doc E/CN.4/ RES/2002/68; UNCHR Res 2003/30 (2003) UN Doc E/CN.4/RES/2003/30

5 experts

5

Special Procedures of the Human Rights Council

UNHCR Res A/HRC/5/1/ Annex (2007)

Independent human rights experts

1

Working Group on Arbitrary Detention

UNCHR Res 1991/42 (1991); UNCHR Res 1997/50 (1997) UN Doc E/CN.4/RES/1997/50; UNHRC Res 6/4 (2007) UN Doc A/HRC/RES/6/4; UNHRC Res 15/18 (2010) A/HRC/RES/15/18

5 experts

2

Working Group of Experts on People of African Descent

UNCHR Res 2002/68 (2002) UN Doc E/CN.4/ RES/2002/68; UNGA Res 60/251 (2006) UN Doc A/ RES/60/251; UNHRC Res

5 experts

No

Thematic Working Groups of the Human Rights Council

Working Groups

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

No

Denomination

Relevant legal provisions158

Composition/Structure159

9/14 (2008) UN Doc A/ HRC/RES/9/14 3

Working Group on the Use of Mercenaries

UNCHR Res 2005/2 (2005) UN Doc E/CN.4/ RES/2005/2; UNHRC Res 7/21 (2008) UN Doc A/ HRC/RES/7/21

5 experts

4

Working Group on Enforced or Involuntary Disappearances

UNCHR Res 20 (XXXVI) (1980) UN Doc E/CN.4/ RES/1980/20 (XXXVI); UNHRC Res 16/16 (2011) UN Doc A/HRC/RES/ 16/16

5 experts

1

Ad hoc Committee on the Indian Ocean

UNGA Res 2992 (XXVII) (1972) UN Doc A/RES/ 2992(XXVII); UNGA Res 34/80 (1979) UN Doc A/ RES/34/80 [A-B]

Since 1990 (withdrawal of France, UK, United States and German reunification): 43 members

2

Committee on Conferences

UNGA Res 3351 (XXIX) (1974) UN Doc A/RES/ 3351(XXIX); UNGA Res 43/222 (B) (1988) UN Doc A/RES/43/222B

21 members

3

Committee on Information

UNGA Res 33/115C (1978) UN Doc A/RES/ 33/115C; UNGA Res 34/182 (1979) UN Doc A/ RES/34/182

113 members

4

Committee on Relations with the Host Country

UNGA Res 2819 (XXVI) (1971) UN Doc A/RES/ 2819(XXVI); UNGA Res 53/104 (1998) UN Doc A/ RES/53/104

18 members + United States (host country)

5

Committee on the Exercise of the Inalienable Rights of the Palestinian People

UNGA Res 3376 (XXX) (1975) A/RES/3376(XXX); UNGA Res 54/39 (1999) UN Doc A/RES/54/39; UNGA Res 64/16 (2009) UN Doc A/RES/64/16

24 members (+ 25 observers)

6

Committee on the Peaceful Uses of Outer Space (COPUOS)

UNGA Res 1472 (XIV) (1959) UN Doc A/RES/ 1472(XIV) [A-B]; UNGA Res 49/33 (1994) A/RES/ 49/33; UNGA Res 54/68 (1999) UN Doc A/RES/ 54/68 = Endorsement of the Vienna Declaration on Space and Human Development; UNGA Res

69 members

Other Intergovernmental Bodies

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

No

Denomination

Relevant legal provisions158

Composition/Structure159

62/217 (2007) UN Doc A/ RES/62/217 7

Conference on Disarmament (CD)

UNGA Res S-10/2 (1978) UN Doc A/S-10/4

Nuclear Weapon States (5) + 60 other States

8

Special Committee on Peacekeeping Operations

UNGA Res 2006 (XIX) (1965) A/RES/2006(XIX); UNGA Res 51/136 (1996) UN Doc A/RES/51/136

147 members (2011) + 10 other member States, intergovernmental organizations and entities, including (2011) Liberia, Holy See, African Union, European Union, International Committee of the Red Cross (ICRC), International Criminal Court, International Criminal Police Organization (Interpol), International Organization of la Francophonie, Organization of the Islamic Conference, Sovereign Military Order of Malta.

9

Special Committee on the Charter of the UN and on the Strengthening of the Role of the Organization

UNGA Res 3499 (XXX) (1975) UN DocA/RES/ 3499(XXX); UNGA Res 50/52 (1995) UN Doc A/ RES/50/52

All members

10

Special Committee on the Implementation of the Declaration on Decolonization

UNGA Res 1654 (XVI) (1961) UN Doc A/RES/ 1654(XVI); UNGA Res 1810 (XVII) (1962) UN Doc A/RES/1810(XVII); UNGA Decision 63/526 (2008) GAOR 63th Session Supp 49/20

29 members

11

Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories

UNGA Res 2443 (XXIII) (1968) UN Doc A/RES/ 2443(XXIII)

3 members

12

UN Conciliation Commission for Palestine

UNGA Res 194 (III) (1948) UN Doc A/RES/ 194(III); UNGA Res 63/91 (2008) UN Doc A/RES/ 63/91

3 members

13

UN Disarmament Commission (UNDC)

UNGA Res S-10/2 para 118 (1978) UN Doc A/ S-10/4

All members

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

No

Denomination

Relevant legal provisions158

Composition/Structure159

14

UN Scientific Committee on the Effects of Atomic Radiation (UNSCEAR)

UNGA Res 913 (X) (1955) UN Doc A/RES/913(X); UNGA Res 3154 (XXVIII) (1973) UN Doc A/RES/ 3154(XXVIII) [A-C]

21 members

15

UN Open-Ended Informal Consultative Process on Oceans and the Law of the Sea (Oceans Consultative Process)

UNGA Res 54/33 (1999) UN Doc A/RES/54/33

All States, intergovernmental organizations with competence in ocean affairs and entities that have received a standing invitation to participate as observers in the work of the GA

16

Independent Audit Advisory Committee (IAAC)

UNGA Res 60/248 (2005) UN Doc A/RES/60/248; UNGA Res 61/275 (2007) UN Doc A/RES/61/275

5 members

17

Ad Hoc Committee Established by General Assembly Resolution 51/210

UNGA Res 51/210 (1997) UN Doc A/RES/51/210; UNGA Res 49/60 (1994) UN Doc A/RES/49/60

All members

1

UN Commission on International Trade Law (UNCITRAL)

UNGA Res 2205 (XXI) (1966) UN Doc A/RES/ 2205(XXI); UNGA Res 3108 (XXVIII) (1973) UN Doc A/RES/3108(XXVIII); UNGA Res 57/20 (2003) UN Doc A/RES/57/20

60 members

2

Board of Auditors

UNGA Res 74 (I) (1946) UN Doc A/RES/74(I); UNGA Res 55/248 (2001) UN Doc A/RES/55/248

Auditors-General of 3 members + audit staff + Audit Operations Committee (3 full-time directors)

3

International Civil Service Commission (ICSC)

UNGA Res 3042 (XXVII) (1972) UN Doc A/RES/ 3042(XXVII); UNGA Res 3357 (XXIX) (1974) UN Doc A/RES/3357(XXIX)

15 experts

4

International Law Commission (ILC)

UNGA Res 174 (II) (1947) UN Doc A/RES/174(II); UNGA Res 36/39 (1981) UN Doc A/RES/36/39

34 experts

5

Investments Committee

UNGA Res 155 (II) (1947) UN Doc A/RES/155(II); UNGA Res 31/196 (1976) UN Doc A/RES/31/196

9 experts

Expert Bodies

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No

Denomination

Relevant legal provisions158

Composition/Structure159

6

Joint Inspection Unit (JIU)

UNGA Res 2150 (XXI) (1966) UN Doc A/RES/ 2150(XXI); UNGA Res 31/192 (1976) UN Doc A/ RES/31/192

11 experts + Executive Secretary + other staff

7

Panel of External Auditors

UNGA Res 1438 (XIV) (1959) UN Doc A/RES/ 1438(XIV)

10 experts (Members of the Board of Auditors + external auditors of specialized agencies and the IAEA)

8

UN Appeals Tribunal (UNAT) and UN Dispute Tribunal (UNDT)163

UNGA Res 62/228 (2008) UN Doc A/RES/62/228

UNAT = 7 judges; UNDT = 5 judges

9

UN Joint Staff Pension Fund

UNGA Res 248 (III) (1948) UN Doc A/RES/ 248(III); UNGA Res 42/222 (1987) UN Doc A/ RES/42/222

12 experts (+ alternates) + Central Secretariat

1

Advisory Board on Disarmament Matters

UNGA Res S-10/2 (1978) UN Doc A/S-10/4; UNGA Decision 54/418 (1999)

15 experts

2

Advisory Committee on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law

UNGA Res 2099 (XX) (1965) UN Doc A/RES/ 2099(XX), UNGA Res 62/62 (2007) UN Doc A/ RES/62/62

25 members

Advisory Bodies

(p. 743) (p. 744) (p. 745) (p. 746) (p. 747) (p. 748) (p. 749) (p. 750)

Footnotes: *  The author acknowledges that the following text contains elements of the respective comments on Art. 22 co-authored by Meinhard Hilf and himself in the previous edition of this commentary. I am grateful to Nikolai K Wessendorf for his valuable assistance during the preparation of the text of the 3rd edition. 1

  Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (Advisory Opinion) ICJ Pleadings 295. 2

  ibid.

3

  For a rather sceptical view on the feasibility of such a ‘typology’ see P Reuter, ‘Les Organes Subsidiaries des Organisations Internationales’ in C Chaumont (ed), Hommage d’une génération de juristes au Président Basdevant (Pedone, 1960) 417: ‘A cet égard on constate une incroyable diversité; elle échappe même à l’analyse, dans la mesure où les differentes distinctions théoriques auxquelles l’on pourrait avoir recours se combinent dans la pratique à l’infini’. P Szasz, ‘The Complexification of the United Nations System’ (1999) 3 Max Planck YB UN L 3, has identified ‘a veritable jungle of miscellaneous entities’ and the author himself qualifies his ensuing ‘exercise in institutional taxonomy’ merely as ‘an

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academic essay to bring some order into the chaos’. See on the various types of subsidiary organs Paulus and Lippold on Art. 7 MN 13ff. 4

  Early attempts in this regard were hardly satisfying (RP I, 703: ‘In view of the wide variations existing among these organs, their classification, even under broad categories, must be qualified’) and soon given up. 5

  For detailed criteria see MN 5 and 23.

6

  Due to the lack of available recent statistical data on this point, this represents only a rough estimate, based on the fact that the most recent RP (Supp No 6 vol 2), which continues the list of subsidiary organs appended to the studies of Art. 22 in the RP (705ff), Supp No 1 (230ff), No 2 (248ff), No 3 (422ff) and No 4 (250ff) to 31 December 1985, arrives at a total number of 348 respective bodies (282ff). 7

  (1991) UNYB 1040ff (= 74); (1997) UNYB 1590ff (= 54); United Nations Handbook (2000) 24ff (= 52); (2006) UNYB 1730ff (= 51); (2007) UNYB 1557ff (= 54). These numbers, however, do not include bodies established by subsidiary organs themselves (such as the various UNCTAD commissions). 8

  See MN 3.

9

  See also S Torres Bernárdez, ‘Subsidiary Organs’ in RJ Dupuy (ed), Manuel sur les Organisations Internationales/Handbook on International Organizations (2nd edn, Brill Academic 1998) 150, fn 111. 10

  See MN 28ff.

11

  See MN 53.

12

  As early as 1971, a review on a more regular basis was proposed—apparently without success—by the Special Committee on the Rationalization of the Procedures and the Organization of the General Assembly (UNGA ‘Report of the Special Committee on the Rationalization of the Procedures and the Organization of the General Assembly’ UN GAOR 26th Session Supp No 26 UN Doc A/8426 (1971)). See also UNGA Rules of Procedure of the General Assembly subsequently amended by UNGA Res 2837 (XXVI) (17 December 1971) (= UNGA Rules of Procedure of the General Assembly, Annex IV UN Doc A/520/Rev 17 (2008)), by decision 34/401 of 21 September, 25 October, 29 November and 12 December 1979 (=Annex V UNGA Rules), by UNGA Res 39/88 B (13 December 1984) (= Annex VI UNGA Rules) and UNGA Res 45/45 (28 November 1990) (= Annex VII UNGA Rules). For recent developments see MN 50ff. 13

  See eg ‘Re-form. The Bulletin of United Nations Reform’, No 3 (16 July 1997): ‘The United Nations must reduce fragmentation, eliminate overlap and rationalize its structures to work together as an effective whole for undertaking action and achieving results.’ 14

  cf Rensmann on Reform MN 80ff.

15

  Report of the Secretary-General, ‘In larger freedom: towards development, security and human rights for all’ (21 March 2005) UN Doc A/59/2005, 41 MN 163. 16

  On the latter Commission’s leading role within the League system and its most effective and productive work see FS Northedge, The League of Nations its Life and Times 1920– 1946 (Holmes & Meier 1986) 198ff. See also N Bentwich, The Mandates System (Longman 1930). 17

  See HR Cummings, ‘The Technical Organisations of the League’ in P Munch (ed), Les origines et l’oeuvre de la Société des Nations, vol II (Gyldendalske 1924) 283ff. For details see HRG Greaves, The League Committees and the World Order; a Study of the Permanent

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Expert Committees of the League of Nations as an Instrument of International Government (OUP 1931). 18

  cf CP (2nd edn)/Dutheil de la Rochère, 209; P Barandon, ‘Völkerbund’ in K Strupp and HJ Schlochauer (eds), Wörterbuch des Völkerrechts, vol 3 (de Gruyter 1962) 597, 603ff. For a comprehensive outline of the structure of the League including the various subordinate bodies created see the former Deputy Secretary-General of the League, FP Walters, A History of the League of Nations, vol 1 (OUP 1952) 169ff. On the rather complex organizational structure of the economic sector see M Hill, The Economic and Financial Organization of the League of Nations. A Survey of Twenty-Five Years Experience (Carnegie 1946, Kraus reprint 1972). On 24 January 1936, the Council adopted a set of uniform rules for the appointment, composition, and renewal of the term of office of the League’s Committees (General Regulations on Committees, LoN Official Journal (1936) 131ff). 19

  These offices include (see JM Yepes and M Pereira da Silva (eds), Commentaire théorique et pratique du Pact de la Société des Nations, vol 3 (Pedone 1939) 290ff): Le Bureau central international pour le contrôle du commerce des spiritueux en Afrique (Bruxelles); le Bureau hydrographique international (Monaco); le Bureau international des expositions (Paris); le Bureau international d’information et d’étude sur l’assistance aux étrangers (Paris); la Commission internationale de navigation aérienne (Paris); l’Office international Nansen pour les réfugiés (Genève). 20

  Although ILO Director Albert Thomas successfully prevented the League from intervening in the policy or actions of the Organization as a whole, he did not deny the indissoluble relationship between the two organizations: ‘The Labour Office is flesh of the League’s flesh, bound thereto by all the fibres of its being’ (quoted after Walters (n 18) 196). 21

  G Scelle, Précis de Droit des Gens—Principes et Systématique, vol I (Sirey 1932) 268 rightly remarks that ‘[l]’Organisation du Travail est pratiquement indépendante’ and concludes that ‘[c]ette autonomie…reste si grande que l’on peut admettre que le fédéralisme de la S.D.N. est un fédéralisme de grands services publics internationaux, en même temps qu’un fédéralisme interétatique’. 22

  CP (2nd edn)/Dutheil de la Rochère, 209.

23

  See Walters (n 18) 197.

24

  cf CPF/Burgorgue-Larsen, 852ff. The provision in ch V s D No 3 Dumbarton Oaks Proposals (‘The General Assembly should be empowered to set up such bodies and agencies as it may deem necessary for the performance of its functions’—printed in GHS, 665, 667) was indeed never the subject of any in-depth discussion. 25

  cf the discussion in the Committee on Coordination on 30 May 1945, UNCIO XIX, 37, 40 in Doc. WD 60, CO/29; see also CP (2nd edn)/Dutheil de la Rochère, 210 as well as UNCIO I, 617 (Doc 1210, P/20, 27 June 1945); UNCIO VI, 167, 170 (Doc 1186, I/12, 24 June 1945), 207 (Doc 1168, I/11, 23 June 23 1945) as well as UNCIO VIII, 36–37 (Doc 1606, I/6, 16 June 1945). 26

  CP (2nd edn)/Dutheil de la Rochère, 209f. According to this proposal, subsidiary organs were to be established in the sphere of the international protection of human rights and agriculture, as well as international trade and the international economy: UNCIO III, 84 for Chapter IV of Dumbarton Oaks Proposals; for Chapter IX of the Dumbarton Oaks Proposals, cf UNCIO III, 139 and 163, 173 (Doc 2, G/7 (c), 23 April 1945), and 177 (Doc 2, G/7 (c) (1), 5 May 1945).

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27

  See the wording of the Dumbarton Oaks Proposals, ch V s D No 3, printed in GHS, 665, 667. 28

  CP (2nd edn)/Dutheil de la Rochère, 211. Although the terms ‘subsidiary organ’ and ‘auxiliary organ’ have no definite meaning, they do each emphasize a somewhat different relationship to the main organ. They have in common the element of institutional assignment or subordination because, as a rule, neither subsidiary organs nor auxiliary organs take part in the exercise of the external powers of the main organ. Their functions lie in the internal sphere of the main organ. The term ‘subsidiary organ’, however, suggests a body on the same level which discharges its responsibilities independently from the main organ, whereas the term ‘auxiliary organ’ hints at a dependent and more subordinated position. 29

  See RP I, Art. 7 para 9, 224: ‘The term “subsidiary organ” does not appear to have been defined by any organ of the United Nations. In the practice of the United Nations such expressions as “commissions”, “committees”, “subsidiary organs”, “subsidiary bodies” and “subordinate bodies” have been used interchangeably.’ 30

  RP I, Art. 7 para 21, 228.

31

  A strong doctrinal trend of opinion reduces the definition in essence to ‘organs created by decision of principal organs’ (see eg Reuter (n 3) 421, 422 and CA Colliard, Institutions de relations internationales (7th edn, Dalloz 1978) 656, 657), which would, however, as Bernárdez (n 9) at 122, rightly points out, oversimplify the picture. 32

  D Sarooshi, ‘The Legal Framework Governing United Nations Subsidiary Organs’ (1996) 67 BYIL 416ff with further references. 33

  cf Paulus and Lippold on Art. 7 MN 15ff.

34

  UN Doc A/520/Rev.17 (2008); the Rules appear in Annex I to this Commentary.

35

  See Szasz (n 3) 3ff.

36

  So-called ‘joint bodies’, MN 21.

37

  Szasz (n 3) 17ff.

38

  See ibid, 33ff.

39

  Similarly C Tomuschat, ‘General Assembly’ in R Wolfrum (ed), United Nations: Law, Policies and Practice, vol 1 (CH Beck 1995) 549, MN 5/6; CP(2nd edn)/Dutheil de la Rochère, 422, classifies the organs ‘[d’]un caractère quasi permanent’ as subsidiary organs of the GA. 40

  See also B Lindemann and D Hesse-Kreindler, ‘Committees, System of’, in R Wolfrum (ed), United Nations: Law, Policies and Practice, vol 1 (CH Beck 1995) 129ff. 41

  cf app to UNGA Res 33/138 (19 December 1978) UN Doc A/RES/33/138. In UNGA Res 48/264 (29 July 1994) UN Doc A/Res/48/264 the GA decided upon a pattern for the election of the chairs of the main committees (see Annex II of UNGA Res 48/264, which replaces para 4 of the Annex to UNGA Res 33/138 (19 December 1978)). By UNGA Res 52/163 (15 December 1997) UN Doc A/Res/52/163 the number of vice-chairs of the main committees has been increased to three; see also UNGA Rules Annex IV, paras 40, 41, and 54–57 and Annex V, paras 18–20. 42

  This was the first special session on disarmament. It took place in New York from 23 May to 30 June 1978. See UNGA Res S-10/2 (30 June 1978) UN Doc A/RES/S-10/2 which contains a Declaration, a Programme of Action, and a section on international disarmament machinery.

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43

  UNGA Res 106 (S-I) (15 May 1947) UN Doc A/RES/106(S-I); the original name was ‘Ad Hoc Political Committee’. 44

  UNGA Res 1104 (XI) (18 December 1956) UN Doc A/RES/1104(XI).

45

  See further MN 13.

46

  See MN 28, 53ff.

47

  UNGA Res 47/233 (17 August 1993) UN Doc A/Res/47/233; see MN 10.

48

  Lindemann and Hesse-Kreindler (n 40) 133 MN 18.

49

  See MN 16.

50

  See also Fleischhauer and Simma on Art. 13 MN 51ff and M Schröder, ‘Codification and Progressive Development of International Law within the UN’, in R Wolfrum (ed), United Nations: Law, Policies and Practice, vol 1 (CH Beck 1995) 100ff. 51

  The committee is, in particular, examining the Court’s Annual Report to the GA (see most recently: UN Doc A/66/4 covering the period from 1 August 2010 until 31 July 2011). 52

  Governed by UNGA Res 14 (1) (13 February 1946) UN Doc A/RES/14(1), UNGA Res 32/103 (14 December 1977) UN Doc A/Res/32/103 and UNGA Rules of Procedure of the General Assembly, Rules 155 to 157 UN Doc A/520/Rev 17 (2008); see accessed 6 June 2012. 53

  See Art. 17 (3).

54

  See UNGA Res 1659 (XVI) (28 November 1961) UN Doc A/RES/1659(XVI); UNGA Res 2798 (XXVI) (13 December 1971) UN Doc A/RES/2798(XXVI) and UNGA Res 32/103 (14 December 1977) UN Doc A/RES/32/103. 55

  Governed by UNGA A/RES/14 (I) (13 February 1946) UN Doc A/RES/14(I) and UNGA Rules of Procedure of the General Assembly, Rules 158 to 160 UN Doc A/520/Rev.17 (2008); see also UN Doc A/RES/46/221 B (20 December 1991); UN Doc A/RES/48/223 C (23 December 1993); UN Doc A/RES/53/36 D (18 December 1998); UN Doc A/RES/54/237 C (23 December 1999); UN Doc A/RES/54/237 D (7 April 2000); UN Doc A/RES/55/5 B and UN Doc A/RES/55/5 D (23 December 2000); UN Doc A/RES/57/4 B (20 December 2002); UN Doc A/RES/58/1 A (16 October 2003); UN Doc A/RES/58/1 B (23 December 2003); UN Doc A/RES/59/1 A (11 October 2004); UN Doc A/RES/59/1 B (23 December 2004); UN Doc A/ RES/60/237 (23 December 2005); UN Doc A/RES/61/2 (12 October 2006); UN Doc A/RES/ 61/237 (22 December 2006) and accessed 8 June 2012. 56

  As, inter alia, in the cases of Cambodia, China, Yemen, Congo and South Africa. On the Credentials Committee, see in more detail Fitschen on Art. 21 MN 37–39. 57

  Rule 38 UNGA Rules: The chairmen are ‘entitled to attend the meetings of the General Committee and may participate without vote in the discussions’. 58

  Followed by UNGA Res 33/138 (19 December 1978) UN Doc A/RES/33/138; UNGA Res 39/88 (13 December 1984) UN Doc A/RES/39/88; UNGA Res 45/45 (28 November 1990) UN Doc A/RES/45/45; UNGA Res 46/77 (12 December 1991) UN Doc A/RES/46/77; UNGA Res 46/140 (17 December 1991) UN Doc A/RES/46/140; UNGA Res 46/220 (20 December 1991) UN Doc A/RES/46/220; UNGA Res 47/233 (17 August 1993) UN Doc A/RES/47/233 and UNGA Res 48/264 (29 July 1994) UN Doc A/Res/48/264. 59

  n 52; in its 34th session the General Assembly adopted a number of provisions concerning the rationalization of the procedures and organization of the Assembly at its 4th, 46th, 82nd, and 99th plen meetings on 21 September, 25 October, 29 November, and

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12 December 1979, see UNGA Decision 34/401 and UNGA Rules of Procedure of the General Assembly, Annex V UN Doc A/520/Rev.17 (2008). 60

  See MN 5 for the criteria distinguishing subsidiary organs as such.

61

  See Paulus and Lippold on Art. 7 MN 25ff and Fitschen on Art. 21 MN 1–7.

62

  cf United Nations Handbook (2010–11) 22–69; cf also accessed 8 June 2012. 63

  eg lately 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 (last active during the 57th session of the GA in 2003); Open-ended Working Group on the Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa (last active during the 55th session of the GA in 2001); as a result of the decision of the General Assembly to establish a new system of administration of justice, the UN Administrative Tribunal was abolished as of 31 December 2009 and replaced by the United Nations Dispute Tribunal and the United Nations Appeal Tribunal, UNGA Res 61/261 (30 April 2007) UN Doc A/RES/61/261; UNGA Res 62/228 (6 February 2008) UN Doc A/RES 62/228; and UNGA RES 63/253 (24 December 2008) UN Doc A/RES/63/253. 64

  Established by Resolution F of the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (1998), confirmed by UNGA Res 53/105 (8 December 1998) UN Doc A/RES/53/105. 65

  The Draft Statute for the International Criminal Court prepared by the so-called PrepCom, ‘Report of the Preparatory Committee on the Establishment of an International Criminal Court’ UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome 15 June–17 July 1998) (14 April 1998) UN Doc A/CONF. 183/2/Add.1 formed the actual basis of the Rome Conference which began its work on 15 June 1998. See on this remarkable input by a subsidiary organ of the GA to the codification of the core of international criminal law, R Lee (ed), The Rome Conference and its Contributions to International Law in The International Criminal Court. The Making of the Rome Statute. Issues, Negotiations, Results (Kluwer Law International 1999) 7, who rightly underlines ‘the important decisions…made by the…Committee which had significant impact on the subsequent negotiations and ultimately the success of the Conference’. See also P Kirsch, ‘The Development of the Rome Statute’, ibid, 451ff. 66

  See A Verdross and B Simma, Universelles Völkerrecht (3rd edn, Duncker & Humblot 1984) para 144 (‘quasi autonomous special organs’). 67

  UNGA Res 2186 (XXI) (13 December 1966) UN Doc A/RES/2186(XXI).

68

  UNGA Res 2951 (XXVII) (11 December 1972) UN Doc A/RES/2951(XXVII).

69

  UNGA Res 2152 (XXI) (17 November 1966) UN Doc A/RES/2152(XXI) established UNIDO ‘as an organ of the General Assembly, [that] shall function as an autonomous organization within the United Nations’. 70

  By the adoption of the Constitution of the United Nations Industrial Development Organization on 8 April 1979 in Vienna, at the UN conference on the Establishment of UNIDO as a specialized agency. After ratification the Constitution entered into force on 21 June 1985 and UNIDO became the 16th specialized agency of the UN. cf P Herrmann, ‘Industrialisierung: Die Illusionen sind verflogen. Die UNIDO vor der Umwandlung in eine Sonderorganisation’ (1984) 32 MN 6ff (with further references); Bretton P, ‘La Transformation de l’O.N.U.D.I. en institution spécialisée’ (1979) 25 AFDI 567ff.

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71

  cf Meng on Art. 57 MN 128 and Art. 59 MN 4, Hobe on Art. 71 MN 35, fn 138 and Bretton (n 70) 567ff. 72

  See Paulus and Lippold on Art. 7 MN 21–23 and Art. 29 MN 20 and Riedel and Giacca on Art. 68 MN 25. 73

  B Rudolf, ‘United Nations Committees and Subsidiary Bodies, System of’ MPEPIL (online edn). 74

  ECOSOC Res 920 (XXXIV) (3 August 1962) UN Doc E/RES/920(XXXIV) and ECOSOC Res 1171 (XLI) (5 August 1966) UN Doc E/RES/1171(XLI). 75

  ECOSOC Res 2008 (LX) (14 November 1974) UN Doc E/RES/2008(LX) and UNGA Res 31/93 (14 November 1974) UN Doc A/RES/31/93. 76

  Established under and governed by UNGA Res 60/180 (30 December 2005) UN Doc A/ RES/60/180 and UNSC Res 1645 (2005) and 1646 (2005) UN Docs S/RES/1645(2005) and S/RES/1646(2005). 77

  cf United Nations Handbook (2010–11) 104f.

78

  On the classification of these organizations cf Wolfrum R, ‘Ursprüngliche Aufgabenzuweisung und jetzige Aktivitäten der Vereinten Nationen: Faktischer Wandel und normative Bewertung’ in R Wolfrum (ed), Die Reform der Vereinten Nationen— Möglichkeiten und Grenzen (Dunchcer & Humblot 1989) 141ff. 79

  The Human Rights Committee is the monitoring body of the International Covenant on Civil and Political Rights (cf Art. 28ff CCPR). 80

  The CERD is the monitoring body of the Convention on the Elimination of All Forms of Racial Discrimination (cf Art. 8ff ICERD). 81

  The CEDAW functions as the monitoring body of the Convention on the Elimination of All Forms of Discrimination against Women (cf Art. 17ff). 82

  eg see Rule 68 of the Rules of Procedure for the Committee on the Rights of the Child, UN Doc CRC/C/4/Rev.2. 83

  See MN 5 for the criteria distinguishing subsidiary organs as such.

84

  United Nations Handbook (2010–11) 238.

85

  cf MN 27. Due to lack of independence, efficiency, and confidence in the system, by UNGA Res 62/228 (6 February 2008) the GA substituted the former UN Administrative Tribunal with a two-level formal system of administration of justice, composed of a first instance (UN Dispute Tribunal) and an appellate instance (UN Appeals Tribunal). See also n 63. The new system is in place as from 1 July 2009 and the UN Administrative Tribunal is abolished as of 31 December 2009. See also P Vargiu, ‘From Advisory Opinions to Binding Decisions—The new appeal mechanism of the UN system of administration of justice’ (2011) 2 IOLR 261. 86

  With regard to the activities in UNEP, see Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, 163; critical of the operative powers: B Conforti, ‘Prolifération organique, prolifération normative et crise des Nations Unies: Réflexions d’un juriste’ in D Bardonnet (ed), L’Adaption des structures et méthodes des Nations Unies (Colloque 1985, Académie de droit international de la Haye 1986) 153, 156ff. 87

  For the Committee on Rwanda/Burundi, see UNGA Res 1743 (XVI) (23 February 1962) UN Doc A/RES/1743(XVI) and CP (2nd edn)/Dutheil de la Rochère, 429; for the Council on Namibia see UNGA Res 2248 (S-V) (19 May 1965) UN Doc A/RES/2248(S-V).

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88

  [1954] ICJ Rep 47ff; UNGA Res 351 (IV) (24 November and 9 December 1949) UN Doc A/RES 351 (IV); see also M Wood, ‘United Nations Administrative Tribunal’ MPEPIL (online edn) MN 11ff. 89

  For support see CP (2nd edn)/Dutheil de la Rochère 430.

90

  Administrative Tribunal Compensation Awards [1954] ICJ Rep 47, 56.

91

  cf GHS, 191.

92

  For further discussions see MN 54; Riedel and Giacca on Art. 68 MN 8, 50ff, 113 and B Fassbender, ‘Architectural Clarity or Creative Ambiguity? The place of the Human Rights Council in the institutional structure of the United Nations’ in U Fastenrath, R Geiger, DE Khan, A Paulus, S von Schorlemer, and C Vedder (eds), From Bilateralism to Community Interest—Essays in Honour of Bruno Simma (OUP 2011) 443. 93

  In UNGA Res 703 (VII) (17 March 1953) UN Doc A/RES/703(VII) the GA held that the Collective Measures Committee was to instruct the SC about its work. According to UNGA Res 1761 (XVII) (6 November 1962) UN Doc A/RES/1761(XVII) the Special Committee on the Policies of Apartheid of the Government of South Africa was to instruct either the SC or the GA or both together. 94

  cf Klein and Schmahl on Arts. 10 MN 67 and 12 MN 3ff, Peters on Art. 24 MN 19–24, Krisch on Art. 39ff and Bothe on Peacekeeping MN 23ff; M Bothe, Streitkräfte internationaler Organisationen (Heymann 1968) 18ff, 119ff; IN Tewary, The Peace-keeping Power of the United Nations General Assembly (Chand 1974). 95

  cf GHS, 191 MN 317.

96

  UNGA Res 998 (ES-I) (4 November 1956) UN Doc A/RES/998(ES-I).

97

  Certain Expenses [1962] ICJ Rep 35, 162; see also O Dörr, ‘Certain Expenses of the United Nations (Advisory Opinion)’ MPEPIL (online edn) MN 4ff. 98

  cf Verdross and Simma (n 66) para 257, as well as the statement of the representative of the United States before the SPC of 19 November 1974, in (1975) 69 AJIL 69 400; on the status of UN forces see R Sommereyns, ‘United Nations Forces’ EPIL IV (2000) 1106–19. 99

  Implemented by UNGA Res 3376 (XXX) (10 November 1975) UN Doc A/RES/3376/(XXX): the Committee, which at that time consisted of twenty members, was supposed to make recommendations on the recognition of the rights granted to the Palestinian people according to ss 1 and 2 of UNGA Res 3236 (XXIX) (22 November 1974) UN Doc A/RES/ 3236(XXIX). The Committee was supposed to utilize all of the powers which the Charter confers on the main organs in accomplishing their task. 100

  The SC requested that a Special Representative be named to the GA with UNSC Res 242 (1967) UN Doc S/RES/242; in UNSC Res 338 (1973) UN Doc S/RES/338 the implementation of Res 242 was urged. 101

  GAOR 30th Session 2399th Plenary Meeting.

102

  See under II 1 of UNGA Res 32/162 (19 December 1977) UN Doc A/RES/32/162.

103

  In UNGA Res 1934 (XVIII) (11 December 1963) UN Doc A/RES/1934 (XVIII), the GA asked the SG to establish UNITAR on the recommendation of ECOSOC: United Nations Handbook (2010–11) 247. The establishment of UNEP by the GA (UNGA Res 2997 (XXVII) (1972) UN Doc A/RES/2297(XXVII)) goes back to a recommendation of the UN Conference on the Human Environment, which was convened in 1972 in Stockholm on the recommendation of ECOSOC: United Nations Handbook (2010–11) 224. Similarly, the first UNCTAD Conference in Geneva in 1964 rests on ECOSOC Res 917 (XXXIV) (3 August 1962) UN Doc E/RES/917(XXXIV) and ECOSOC Res 963 (XXXV) (18 July 1963) UN Doc E/RES/ 963(XXXV). With UNGA Res 1995 (XIX) (20 December 1964) UN Doc A/RES/1995(XIX) the

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GA established UNCTAD as one of its subsidiary organs, cf United Nations Handbook (2010–11) 210. 104

  UNGA Res 2211 (XXI) (17 December 1966) UN Doc A/RES/2211(XXI) arranged that the SG establish the UN Trust Fund for Population Activities, the predecessor of UNFPA, in 1967. In 1969, UNFPA, in its new form, was placed under the direction of UNDP. In 1972, the GA decided to bring UNFPA under its own direction and designated the UNDP Council, which received its mandate from ECOSOC, as the ‘governing body’ of UNFPA. The GA expressly reaffirmed UNFPA as a subsidiary organ of the GA pursuant to Art. 22 in UNGA Res 34/104 (14 December 1979) UN Doc A/RES/34/104. 105

  Verdross and Simma (n 66) para 267.

106

  eg UNGA Res 820 (IX) (14 November 1954) UN Doc A/RES/820(IX) and Res 917 (X) (9 November 1955) UN Doc A/RES/917(X) on Apartheid, and Nolte on Art. 2(7) MN 39–40; see Tomuschat (n 39) 552 MN 12. 107

  KJ Partsch, ‘Human Rights in General’ in R Wolfrum (ed), United Nations: Law, Policies and Practice, vol 1 (CH Beck 1995) 606, MN 16 and Nolte on Art. 2(7) MN 39–44. 108

  This prerequisite was expressly established in the guidelines of the Interim Committee and the Peace Observation Commission: cf UNGA Res 111 (II) (13 November 1947) UN Doc A/RES/111(II) and UNGA Res 377 (V) (3 January 1950) UN Doc A/RES/377(V). See also UNGA Res 57 (I) (11 December 1946) UN Doc A/RES/57(I) which established UNICEF in pt I 2 c (UNYB (1946/7) 163). 109

  The founding of UNEP in 1972 also goes back to a recommendation of the Conference on the Human Environment in the same year in Stockholm, see n 105. 110

  Established under UNGA Res 3348 (XXIX) (17 December 1974) UN Doc A/RES/ 3348(XXIX). In this, the GA followed the recommendation of the World Food Conference in Rome in 1974 (Res XXII (16 November 1974)). The FAO and the WFP later absorbed the functions of the Council, and consequently the World Food Council was discontinued. 111

  cf in RP I, 703, para 186; RP Supp Nos 1–4 on Art. 22; also in Appendix I the list in Table B: bodies to be established by the SG. Upon requests of the GA, the SG nominated, among others, the Group of Experts on the Economic and Social Consequences of Disarmament (UNGA Res 2685 (XXV) (11 December 1970) UN Doc A/RES/2685(XXV)), as well as the Panel of Experts on the Establishment of an International University (UNGA Res 2691 (XXV) (11 December 1970) UN Doc A/RES/2691(XXV)). 112

  eg the recommendation of the fourth UNCTAD Conference in Nairobi called for the approval of the GA for opening of membership on the Trade and Development Board to all UNCTAD member States, cf UNGA Res 31/2 (29 September 1976) UN Doc A/Res/31/2. For cases of authorization, see GHS, 189. 113

  In this way, the President of the GA nominated, among others, the members of the Ad Hoc Committee on the Charter of the UN (UNGA Res 3349 (XXIX) (17 December 1974) UN Doc A/RES/3349(XXIX), which performed its functions under the name of Special Committee on the Charter of the UN and on the Strengthening of the Role of the Organization (UNGA Res 3499 (XXX) (15 December 1975) UN Doc A/RES/3499(XXX). According to UNGA Res 33/170 (20 December 1980) UN Doc A/RES/33/170 the Chair of the Third Committee nominated the members of the Advisory Committee for the International Year of Disabled Persons in consensus with the regional groups. The twenty members of the Advisory Committee on Disarmament Matters are nominated by the SG, see United Nations Handbook (2010–11) 59. The members of WFC were nominated by ECOSOC and voted on by the GA (UNGA Res 3348 (XXIX) (17 December 1974) UN Doc A/RES/3348(XXIX));

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ECOSOC chooses the members of the Governing Council of UNDP (UNGA Res 2029 (XX) (22 November 1965) UN Doc A/RES/2029(XX)). 114

  See also CP (2nd edn)/Dutheil de la Rochère, 432 (eg UN Commissioner for Namibia, see United Nations Handbook (1990) 21). 115

  eg before it became member State in September 2002, Switzerland was a member not only of a number of ‘quasi-autonomous bodies’ such as, inter alia, UNHCR, UNEP, and UNCTAD, but also of ‘classical’ subsidiary organs such as the Conference on Disarmament. 116

  As in the case of UNHCR.

117

  cf Rule 38 UNGA Rules for the General Committee, Rule 156 UNGA Rules for the Advisory Committee on Administrative and Budgetary Questions, Rule 159 UNGA Rules for the Committee on Contributions. 118

  RP I, 703, para 186; RP Supp Nos 1–4 on Art. 22 contain the exact composition of the organs that are empowered by the GA to deliberate together with governments, special organizations, or other institutions. 119

  UNGA Res 2029 (XX) (22 November 1965) UN Doc A/RES/2029(XX) established the UNDP in 1965 in which the United Nations Special Fund and the United Nations Expanded Program for Technical Assistance (EPTA) were joined. 120

  See UNGA Res 2321 (XXII) (15 December 1967) UN Doc A/RES/2321(XXII) according to which the Administrator and the Governing Council of the UNDP were to exercise the functions of the Managing Director and the Executive Board of the UNCDF. This organizational structure has remained unchanged, cf United Nations Handbook (2010– 2011) 220. 121

  See MN 21.

122

  As it is the case also with well-established institutions such as UNHCR. Initially it was given a three-year mandate to complete its work. By UNGA Res 58/153 (24 February 2004) UN Doc A/RES/58/153 the UNGA finally removed the time limitation on the mandate ‘until the refugee problem is solved’. 123

  See CP (2nd edn)/Dutheil de la Rochère, 427f.

124

  UNGA Res 3081 (XXVIII) (6 December 1973) UN Doc A/RES/3081(XXVII) on the foundation of the UNU (Art. IV (5) of the Charter of the University). 125

  J Wolf, ‘United Nations Children’s Fund’ EPIL IV (2000) 1057–59; for UNICEF, see the model agreement reprinted in K Karunatilleke, Le Fonds des Nations Unies pour l’enfance (Pedone 1967) 292ff. 126

  According to M Hilf, Die Organisationsstruktur der Europäischen Gemeinschaften (Springer 1982) 238, 242, the legal status of special organs like UNRWA, UNICEF, and earlier UNIDO in relation to the UN is not significantly different from that of the subsidiary organs. CA Colliard (n 31) MN 572 ascribes a limited legal capacity to the special organs which have made themselves independent, but no legal personality. In the interest of a clear definition of international legal personality, HG Schermers, International Institutional Law (2nd edn, Sijthoff & Nordhoff 1980) 16, feels it necessary to require a treaty basis; CP (2nd edn)/Dutheil de la Rochère, 219, speaks of a ‘certain degré de personnalisation internationale’ because UNICEF among others is empowered to enter into agreements with governments of member States. 127

  Constitution of the United Nations Industrial Development Organization, adopted 8 April 1979 UN Doc A/CONF/90/19. On the development of UNIDO from a special organ to a

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special organization, see R Bredel and K Kitaoka, ‘United Nations Industrial Development Organization’, MPEPIL (online edn) MN 3ff. 128

  See United Nations Handbook (2010–11) 387.

129

  Such exclusion does not mean that the special organs cannot have access to UN special grants: see on UNITAR, United Nations Handbook (2010–11) 247. On the finances of UNDP, see M Schoiswohl, ‘United Nations Development Programme (UNDP)’ MPEPIL (online edn) MN 11. 130

  In the words of Sarooshi (n 32) 477: ‘The increasing establishment and usage of subsidiary organs in a variety of diverse areas is an indication of the greater degree of de facto international governance being undertaken by the United Nations and its Specialized Agencies.’ 131

  JIU/REP/85/9 UN Doc A/40/988 (6 December 1985).

132

  UN Doc A/41/49, Report of 15 August 1986.

133

  UNGA Res 35/5 (20 October 1980) UN Doc A/RES/35/5; cf P Tavernier, ‘L’Année des Nations Unies: Questions juridiques’ (1980) 26 AFDI 414. 134

  UNGA Res 56/89 (25 February 2002) UN Doc A/RES/56/89.

135

  UNGA ‘Report of the Ad Hoc Committee on the Scope of Legal Protection under the Convention of the Safety of United Nations and Associated Personnel’ GAOR 60th Session Supp No 52 UN Doc A/60/52. 136

  UNGA Res 60/42 (6 January 2006) UN Doc A/RES/60/42.

137

  UNGA Res 61/29 (18 December 2006) UN Doc A/RES/61/29. The Committee last met from 7 to 9 April and on 11 April 2008. 138

  Adopted by UNGA Res 62/63 (8 January 2008) UN Doc A/RES/62/63 and UNGA Res 63/119 (15 January 2009) UN Doc A/RES/63/119. 139

  See nn 63, 85.

140

  eg concerning the question of Palestine, the UNGA requested the UN Conciliation Commission for Palestine, the Committee on the Exercise of the Inalienable Rights of Palestinian People, and other bodies associated with the question of Palestine to cooperate fully and efficiently, UNGA Res 55/52 (25 January 2001) para 7 UN Doc A/RES/55/52 and UNGA Res 57/107 (14 February 2003) para 5 UN Doc A/RES/57/107. Also the question of enhancing the dialogue and cooperation between the First Committee, the Disarmament Commission, and the Conference on Disarmament has been called for by the UNGA, Res 56/26 (8 January 2002) UN Doc A/RES/56/26. 141

  UNGA RES 60/251 (15 March 2006) UN Doc A/RES/60/251.

142

  UNGA ‘Report of the High-level Panel on Threats, Challenges and Change’ (1 December 2004) UN Doc A/59/565 para 283. 143

  Fassbender (n 92) 445.

144

  See n 142.

145

  UNGA Report of the Secretary-General, ‘In larger freedom’ (2005) UN Doc A/59/2005.

146

  ‘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 61st session of the Commission’ (21 June 2005) UN Doc A/59/847–E/ 2005/73 28; Fassbender (n 92) 447.

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147

  cf UNGA Res 61/16 (20 November 2006) UN Doc A/RES/60/16.

148

  cf Arts 60, 62 of the Charter.

149

  ECOSOC Res 2006/2 (15 March 2006) UN Doc E/RES/2006/2.

150

  For a detailed examination cf Fassbender (n 92) 451f.

151

  Para 7 UNGA Res 60/251 (15 March 2006) UN Doc A/RES/60/251.

152

  Africa 13, Asia 13, Eastern Europe 6, Latin America and Caribbean 8 and Western Europe and others 7 seats. 153

  Para 8 UNGA Res 60/251 (15 March 2006) UN Doc A/RES/60/251.

154

  UNGA Res 65/265 (1 March 2011) UN Doc A/RES/65/265.

155

  Szasz (n 3) 3.

156

  See also Torres Bernárdez, 152: ‘“Subsidiary organs”…reflect more than anything else the pulse of life of an international organization, namely the intensity and degree reached in the development of its activities’; and Colliard (n 28) 656: ‘Les organisations internationales sont des êtres vivants. Les statuts constitutifs les créent, ensuite elles jouissent d’une vie propre. Il ne s’agit pas simplement du phénomène juridique de l’attribution aux organisations de la personnalité morale, il s’agit de la possibilité qu’elles ont de créer tous les organes qui leurs sont nécessaires pour accomplir leurs missions.’ 157

  Much of the data contained in this schedule stems from the United Nations Juridical Yearbook and the (New Zealand) United Nations Handbook (2010–11). The list does not contain PrepComms or any other entities with a mere temporary mandate; (ad hoc) working groups are listed selectively. 158

  The legal acts indicated are not exhaustive but are, as a rule, confined to the act establishing the organ and the most recent one increasing its membership or otherwise altering its structure and/or function. References to rules and resolutions are always to those of the GA. 159

  The denomination of the head of the administrative entity in all cases includes staff of a Secretariat or a similar administrative structure. 160

  In 1993 the former Trusteeship Committee merged with the Special Political Committee (UNGA Res 47/233, 14 September 1993). 161

  The Council replaced the Commission on Human Rights. In June 2007 the Human Rights Council agreed on establishing the Human Rights Council Advisory Committee (HRCAC) to replace the former Sub-commission on the Promotion and Protection of Human Rights. 162

  The Human Rights Council’s complaint procedure comprises the Working Group on Communications (WGC) and the Working Group on Situations. 163

  With the UN Appeals Tribunal (UNAT) and UN Dispute Tribunal (UNDT) the GA established a new system of administration of justice, including a two-tier formal system comprising a first instance and an appellate instance and thereby replacing the UN Administrative Tribunal.

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Ch.V The Security Council, Composition, Article 23 Rudolf Geiger From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): International peace and security — UN Charter

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Article 23 (1) The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, 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 Organization, and also to equitable geographical distribution. (2) The non-permanent members of the Security Council shall be elected for a term of two years. In the first election of the non-permanent members after the increase of the membership of the Security Council from eleven to fifteen, two of the four additional members shall be chosen for a term of one year. A retiring member shall not be eligible for immediate re-election. (3) Each member of the Security Council shall have one representative. A.  Composition 1–7 B.  Permanent Members 8–13 C.  Non-Permanent Members 14–21 D.  Reform Proposals 22–36

A.  Composition 1  The Charter confers the primary responsibility for the maintenance of international peace and security on the SC in order to ensure fast and effective action by the UN (Art. 24 (1)). In contrast to the GA, where every member State is represented (Art. 9 (1)), the SC forms a numerically limited group, which should be able to act quickly and enforce its decisions in the international community. This goal has not only led to the recognition in the Charter of a special role for the Great Powers, but also to a substantial limitation on the number of SC members. 2  In the Dumbarton Oaks Proposals it was stated that the SC should consist of eleven members.1 This provision was adopted in the original version of Art. 23 (1). The number of SC members was increased to fifteen only twenty years after the foundation of the (p. 752) UN by an amendment to the Charter.2 The number of powers enjoying special status as permanent members was not, however, altered; indeed it was not questioned. 3  Although the composition of the SC resembles the provisions of the Covenant of the League of Nations which concern the League of Nations Council, there are some essential differences. The League of Nations Council originally consisted of representatives of the four Principal Allied and Associated Powers which had become members of the League (France, United Kingdom, Italy, Japan) and of representatives of four other member States (Art. 4 (1) Covenant). Article 4 (2) of the Covenant, however, empowered the Council to confer permanent status on further member States with the consent of the League’s Assembly and to raise the general number of its members. The advantage of this option was the ability to adapt the Council’s composition to political changes in the community of States. This advantage was not, however, considered to compensate for this provision’s disadvantages when the Charter was being deliberated. The disadvantages consisted of the

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restriction of the political weight of the League’s Assembly and also of the resulting minority position of the Council’s permanent members.3 4  The rigid provisions concerning its composition do not prevent the SC from inviting other member States or even non-member States to its deliberations without the right to vote.4 In the special case of Art. 44, a member not represented in the SC may even have the right to vote. So far, however, there has been no occasion to apply this provision which might be considered an ad hoc increase in the size of the SC. 5  In particular circumstances it might happen that for a temporary period not all the seats of the SC were occupied. Rule 140 of the Rules of Procedure of the GA deals with the case that a member resigns before its term expires. In that case the GA must elect a new member for the rest of the term. 6  In practice there have been two situations where the SC’s seats were not occupied according to the provisions of the Charter. The increase in the number of seats by amendment of the Charter from eleven to fifteen was to enter into force on 31 August 1965. The SC, however, convened with its original eleven members for the rest of the year, because the GA would only fill the new seats in December 1965, the decision being effective as of 1 January 1966. In the meantime, the SC applied the original provisions notwithstanding the amendment of the Charter; it applied the majority rule which actually was no longer in force.5 A short vacancy also occurred at the beginning of 1980, when in 1979 the GA lacked the necessary majority to fill the 15th seat after 148 unsuccessful ballots. This seat was successfully filled only after the 150th election on 7 January 1980. The SC, however, had not passed any resolutions6 during this period. 7  In 1994, Rwanda—a member of the SC at that time—had no representation in the SC because it was unclear who was entitled to represent that State which was suffering with civil war. Consequently, from 14 July to 7 September 1994, the SC passed four resolutions with only fourteen members represented.7

(p. 753) B.  Permanent Members 8  The permanent members are the United States, the Russian Federation (formerly the Soviet Union), the United Kingdom, France, and China. This provision reflects the special status of the three Great Powers of World War II (the ‘Big Three’), which was extended first to China (the ‘Four Policemen’) and then to France8 during the considerations preceding the founding of the UN. By giving these five powers such a prominent position, the Charter embodies an exemption to the principle of sovereign equality. At the time, this was considered justified by the need to secure international peace effectively, which was only conceivable with the participation of these powers. 9  In contrast to the Covenant of the League of Nations, in the UN Charter the number of permanent members cannot be increased without amending the Charter. Nor does it permit quasi-permanent members. In the practice of the League of Nations there were quasipermanent (or ‘permanent non-permanent’) members in the League’s Council.9 These were non-permanent Council members, whose membership of the Council was reconfirmed at the end of each term. In contrast, the Charter expressly excludes the possibility of immediate re-election of non-permanent members of the SC (Art. 23 (2) cl 3). 10  The powers accompanying the special status of the permanent members far exceed the mere right to permanent membership in the SC. A resolution of the SC cannot be passed against the vote of a permanent member except with regard to procedural questions (see right of veto, in Art. 27 (3)); this is also true for the decision as to whether there is a procedural question at all.10 This special status is also clear from the following provisions: Art. 47 (2) cl 1 (Military Staff Committee), Arts 108, 109 (amendments), 110 (3) (entry into force of the Charter), 106 (transitory provisions). These special rights correspond to a special responsibility on the part of the permanent members, which has often been From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

emphasized both by the SC itself and by the GA. Although the special responsibility is not expressly provided for by the Charter, it clearly emanates from the transitory provision of Art. 106. Accordingly, the permanent members jointly provide for the forcible measures necessary to maintain international peace and security in the name of the UN as long as the special agreements envisaged by Art. 43 between the Organization and the member States, in which these place armed forces at the disposal of the Organization to execute military sanctions, have not been reached. 11  Until 1971, it was a contested question which government (the Chinese national government or the communist government) represented the permanent member China.11 At first, China was considered to be legally represented by the national government. In order to back up its vote in favour of the communist government, the Soviet Union boycotted SC meetings from 12 January 1950. Only during its turn to preside over the SC in August 1950 did Moscow resume its activities in the SC.12 The question of China’s representation was on the agenda of the GA from 1951, until it decided in favour of the communist government on 25 October 1971.13 (p. 754) 12  The dispute had been about the proper representation of the member State China and not about replacing a member State by another one. Consequently, naming that member State ‘People’s Republic of China’ instead of ‘Republic of China’ (see the wording of Art. 23 (1) cl 2) meant a change of names only; it related to the replacement of governments, not of States.14 13  In 1991, when the Soviet Union broke up, the President of the (new) Russian Federation informed the SG that the membership of the Soviet Union in the UN, including the SC, was continued by the Russian Federation.15 There was no adverse reaction by any UN organ or member State. The problem of whether the Russian Federation is identical with the Soviet Union (with reduced territory) or a new State having succeeded the Soviet Union has not been addressed.

C.  Non-Permanent Members 14  Originally, the Charter had provided for six non-permanent members. When during the course of decolonization and beginning in 1955, the number of member States of the UN more than doubled within a few years, the newly admitted formerly dependent States asked for greater representation in the SC. In the context of an amendment procedure for the Charter (Art. 108), on 17 December 1963, the GA proposed (Res 1991 (XXVIII)) that the number of seats for non-permanent members be increased from six to ten. The amendment to the Charter came into force on 31 August 1965.16 Article 27 was altered simultaneously so that resolutions of the SC from then on required the vote of nine, instead of seven members. Thus, for the first time the permanent members could be out-voted by nonpermanent members, albeit on procedural questions only (Art. 27 (2)). 15  The non-permanent members are elected by the GA (Art. 23 (1) cl 2). A resolution of the GA needs a two-thirds majority of the members present and voting (Art. 18 (2)). Every year, the GA fills half the seats of non-permanent members for a term of two years (Art. 23 (2), Rule 142 of the Rules of Procedure of the GA). If a non-permanent member resigns before its term of office expires a by-election takes place, filling this seat until the original term ends (Rule 140 of the Rules of Procedure of the GA). 16  Article 23 (1) cl 3 specifies the criteria relevant to the election of non-permanent members. As the most important criterion it mentions the contribution of the candidates to the maintenance of international peace and security and to the other Purposes of the Organization. Next, it mentions the equitable geographical distribution of seats. The Charter does not specify in greater detail how the contribution to international peace should be determined. Special weight could be attributed to the military strength of a candidate, since the members of the SC must exercise their function of securing peace. On

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the other hand, because of the importance of financial contributions for securing peace, one might also take into account the economic strength of a member State. Special regard might also be paid to criteria which could be met by smaller States, like their contribution to solving international conflicts through mediation or maybe (p. 755) even just their peaceful conduct as parties in international conflicts. But there seems to be no special practice in this area, perhaps because the criterion which appears primary, namely a contribution to international peace provided for by the Charter in Art. 23 (1), has been completely neglected in favour of the criterion of an equitable geographical distribution.17 17  According to a ‘gentlemen’s agreement’ concluded between the SC’s permanent members in 1946 on the question of an equitable geographical distribution, two of the then six non-permanent seats would be given to Latin American countries and one each to the British Commonwealth, Western Europe, the Middle East, and Eastern Europe.18 After the admission of numerous Asian and African States from 1955 onwards, this arrangement for an equitable geographical distribution of seats was no longer effective. The GA passed a new arrangement in its resolution of 17 December 1963,19 which also proposed to increase the number of non-permanent members. This has been the arrangement for distributing the seats ever since. Accordingly, five of the ten seats now to be distributed fall to Africa and Asia (three of them to Africa, two to Asia), two to Latin America and the Caribbean, two to Western Europe ‘and other States’, and one to Eastern Europe. Non-European States in the group of ‘Western Europe and other States’ (WEOG) are Australia, Canada, Israel, and New Zealand. 18  In practice, the concept of geographical distribution has been understood literally. It has not been interpreted as a representation of regional political unions or even military alliances. Thus the twenty-seven Member States of the European Union are subdivided into the WEOG (sixteen members), the Eastern European Group (ten members), and Asia (Cyprus). Nor is the GA considered to be bound by specific proposals from the group in question. Thus, from 1949 to 1960 other candidates than those proposed by the Eastern European Group were elected20 from this group. 19  The term of office of a non-permanent member of the SC is two years. Every year the GA elects five non-permanent members alternately. An immediate re-election is not permitted (see MN 9). 20  In 1955, a so-called ‘splitting of terms’ occurred for the first time in order to overcome the disagreement in the GA on the candidates who stood for election.21 The competition between Yugoslavia and the Philippines for a seat to be filled as of 1 January 1956 was ended when Yugoslavia consented to resign after having held office for one year, so that the Philippines could be elected for the rest of the term. Since then, this practice has been reiterated on several occasions.22 And its legality has not been objected to. 21  According to Art. 23 (3), each member of the SC has only one representative. This regulation differs from the corresponding rule concerning the GA in Art. 9 (2) which provides that each member’s number of representatives in the GA cannot exceed five. Rule 13 of the Provisional Rules of Procedure of the SC also provides that the Head of Government or foreign minister of each member of the SC may participate in the SC’s meetings without proving full powers. Other representatives need credentials emanating (p. 756) from the Head of State, the chief of government, or the foreign minister. The letter of credentials is examined by the SG and passed to the SC for approval. Usually, the SC takes no formal decision on the matter. A representative in the SC whose full powers have not been approved or have been objected to takes part in the meetings with the same rights as

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the other representatives until the SC has decided the matter (Rules 16 and 17 of the Provisional Rules of Procedure of the SC).

D.  Reform Proposals 22  Although the number of seats in the SC had been increased in 1965, a group of African, Asian, and Latin American States in 1979 proposed to again increase the number of seats of non-permanent members, now from ten to sixteen, so that the total membership of the SC was raised from fifteen to twenty-one.23 They based their claim on the further substantial increase of the UN membership since 1963 (by thirty-nine members), and also on the fact that in numerous cases the SC in its present composition had shown only a limited political capacity to act because of the East–West conflict and the North–South antagonism.24 By an enlargement of the SC, they expected not only a greater efficacy of the SC in their favour, but also a more balanced regional representation. The proposal did not aim at a change in the number of permanent members, although neither Africa nor Latin America could refer to one belonging to their territory. 23  The proposed increase of the non-permanent membership was meant to be accompanied by a new arrangement for the distribution of seats based on geographical criteria. The proposal suggested the following distribution of seats: five for Africa, four for Asia, three for Latin America, two for Western European and other States (as before), and one for Eastern Europe (as before). The sixteenth seat should alternate between Latin America on the one hand and Africa, WEOG, and Eastern Europe on the other, so that Latin America could claim this seat every other time, while each of the other three groups would only have the seat every sixth time. It was also proposed that resolutions of the SC required a majority of fourteen members. This meant that, except for procedural questions, more than half the non-permanent members would have to consent in addition to the permanent members. 24  From 1979 until 1990, the question of equitable representation on and increase in the membership of the SC appeared on the agenda of every GA session without being debated. After the end of the Cold War, however, and the increasingly active role of the SC resulting from it, the item has become more prominent. The Conferences of Non-Aligned Countries of Accra (1991) and Jakarta (1992) asked for ‘democratization’ of the SC including the granting of permanent membership to the most important Third World States. On 11 December 1992, the GA passed a resolution25 requesting the SG to invite member States to submit written comments on a possible review of the SC membership. The answers made it clear that a reform of the SC was considered necessary, and that not only the number of non-permanent members should increase, but that there (p. 757) should also be new permanent seats, and that at the same time there was need to review the SC’s procedure as well as the rights and obligations of its members. 25  The GA responded by establishing an ‘Open-ended Working Group’26 (OEWG)which delivered three reports. The third report27 comprised a detailed summary of the different proposals and discussions dealing with the issues of size and composition of the SC, decision-making, including the veto, transparency and working methods, amendments to the Charter, and periodic review of the Charter. 26  Apart from the general consent on the basic principle that the reform must lead to a SC both sufficiently small for efficient and effective action and sufficiently large to be representative and legitimate,28 there were substantial differences of opinion as to details.29 Proposals for the suitable size of the SC ranged mostly between twenty-one and twenty-five seats. Germany and Japan were widely expected to fill a permanent seat, but there were no further uncontested candidates for this category from Africa, Asia, or Latin America. It was also disputed whether the new permanent members, if there were any at all, should enjoy the same status as the existing ones (especially regarding the right of

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veto). Also the principles of the election process for non-permanent members were not yet settled. 27  On 20 March 1997 the President of the GA and Chairman of the OEWG Ismail Razali30 presented a draft resolution of the GA in which he proposed the increase of the SC from fifteen to twenty-four by adding five permanent and four non-permanent members. According to this draft, the new permanent members would not have the right to veto. One each would come from the developing States of Africa, Asia, and Latin America and the Caribbean, and two from the industrialized States. The additional four non-permanent members would be one each from African States, Asian States, Eastern Europe States, and Latin American and Caribbean States. Razali suggested reaching an agreement on this plan in a series of consecutive steps: first by taking a framework decision, secondly by endorsing five new permanent members of the SC in a collective (p. 758) vote by a two-thirds majority of the GA, thirdly by finally adopting the amendments to the UN Charter by a GA resolution according to Art. 108. After ten years the situation should be reviewed by a new conference. 28  Since there appeared to be wide differences of opinion on the proposal the Razali draft was not put to a vote. Rather, on 23 November 1998, the GA31 decided not to pass any resolution or decision in the course of the deliberations on the SC reform without the affirmative vote of two-thirds of the GA members. This resolution marked a major setback for the reform process by establishing a further procedural hurdle in addition to the stringent requirements of Art. 108 of the Charter for the final resolution, because now a step-by-step procedure admitting preliminary votes by a two-thirds majority of only the members voting and present (Art. 18 para 3 UN Charter) had become prohibited. 29  Still, a big step forward in the GA’s endeavour towards a comprehensive reform was expected in the year 2000 by the UN Millennium Declaration, to be issued by the Heads of State and Government. The GA, however, only resolved32 that it would intensify its efforts to this end. Now SG Kofi Annan took the lead by convening a ‘High Level Panel on Threats, Challenges and Change’ (HLP) consisting of elder Statesmen and experienced diplomats (‘eminent persons’) who should prepare a report comprising also the project of SC reform. The proposal of the HLP on this issue was to extend the number of SC members to twentyfour. None of the additional members should get a’right of veto’. Each geographical region (Africa, Asia and Pacific, Europe, America) should have six seats. As to the terms of the members the HLP offered two models: according to model ‘A’ the SC should consist of eleven permanent members and thirteen non-permanent members with a non-renewable term of two years. In contrast, according to Model B there should be—apart from the existing five permanent members—only non-permanent members, eight of them with a renewable four-year term, eleven of them with a non-renewable two-year term. These proposals were adopted by the GS in his Report ‘In Larger Freedom’ of 21 March 2005.33 In its resolution on the 2005 World Summit Outcome of 16 September 2005,34 adopted by Heads of State and Government, the GA could only agree to ‘support early reform’ of the SC and to continue its efforts to achieve a decision to this end. 30  Since over the next years there appeared to be no chance for a successful end to the discussions in the Open-ended Working Group, the GA decided to commence intergovernmental negotiations in informal Plenary of the GA in 2009.35 The decision recalled the five key issues of these negotiations: categories of membership, the question of the veto, regional representation, size of an enlarged Council (‘cluster 1’), and working methods of the SC and the relationship between the Council and the GA (‘cluster 2’). The forming of clusters was justified by the fact that cluster 2 did not necessarily depend on formally amending the UN Charter.

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31  In the meantime some States, in the discussions of the reform project, united in groups following a common goal:(p. 759) The Draft Resolution of the G436 32  On 6 July 2005 a group of States37 under the leadership of Brazil, India, Japan, and Germany proposed a draft resolution for increasing SC membership to twenty-five by adding six permanent and four non-permanent members. A decision of the SC should require the affirmative vote of fourteen of twenty-five members. The six new permanent members should be elected according to the following pattern: two each from Africa and Asia, and one each from Latin America and Caribbean as well as Western Europe and Other States. The four non-permanent memberships should be equally distributed among the regional groups of Africa, Asia, Eastern Europe, and Latin America plus Caribbean. The amendments thus finally adopted in accordance with Art. 108 should be reviewed after fifteen years. The right of veto should be extended to the new permanent members only after this had been decided upon within the framework of the review. The G4 group’s four leading States are the candidates for permanent memberships for Latin America, Asia, and WEOG. The Draft Resolution of the African Union38 33  On 14 July 2005 the African States presented their own draft resolution. They agreed with most of the G4 Draft Resolution, except for the status of the permanent members, for whom they demanded the right of veto from the very beginning, and they also wanted to provide for an additional non-permanent membership, which meant a total number of twenty-six SC members. This additional member should come from Africa. The Draft Resolution ‘Uniting for Consensus’ (‘UfC’) 34  This draft resolution39 was transmitted on 21 July 2005 by twelve States under the leadership of Italy. It argued against the creation of additional permanent memberships, ‘convinced that periodic elections and re-elections are the strongest means to promote real accountability, allow for frequent rotation and fair and equitable representation of the member States’. The SC should consist of twenty-five members. The twenty non-permanent members should be elected for two years. They should be eligible for immediate re-election, subject to the decision of their respective geographical groups. The distribution of the seats follows the pattern: six from Africa, five from Asia, four from Latin America and Caribbean, three from WEOG, and two from Eastern Europe. This resolution has sometimes been perceived as the reaction of certain States who could not successfully compete against stronger States of their own region, and especially against the leading States of the G4 (such as Italy v Germany, Argentina v Brazil, Pakistan v India, Republic of Korea v Japan). 35  Given the continuance of the five permanent memberships comprising the ‘right to veto’ the reform of the SC seems to be not only an open-ended, but a non-ending process. The real problem of a SC reform is not so much the permanency of a member State’s seat, but its right to veto. Apparently none of the present permanent members will agree to set aside its right to veto. The veto of a permanent member cannot be overruled, not even in the process of amending the Charter. However, the right to veto of a privileged single State cannot be reconciled with the democratic principle requiring commensurate representation of world regions and their populations. (p. 760) 36  This situation may become detrimental to the authority of the SC, especially when permanent members making use of a veto keep the Council from performing the tasks entrusted to it in Chapter VII UN Charter. The majority of ‘ordinary’ member States of the UN may be tempted to create new international associations which in their founding instruments do not assign aristocratic privileges to one or more allegedly ‘higher ranking’

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States. As K van Kesteren has put it: ‘Humankind has to invent another model for running the planet; new forms of global governance are called for.’40

Footnotes: 1

  Chapter VI s A.

2

  UNGA Res 1991 A (XVIII) (17 December 1963) UN Doc A/RES/1991(XVIII); (1983) UNYB 87; the amendment entered into force on 31 August 1965; (1965) UNYB 232. 3

  See H Kelsen, The Law of the United Nations (1950, repr. 2008) 219f.

4

  Arts 31, 32 UN Charter.

5

  See Memorandum of the Office of Legal Affairs of 6 July 1965, (1965) UNJYB 224.

6

  See also E Suy, ‘Some Legal Questions Concerning the Security Council’ in I von Münch (ed), Staatsrecht – Völkerrecht – Europarecht. Festschrift Schlochauer (de Gruyter 1981) 677. 7

  SD Bailey and S Daws, The Procedure of the UN Security Council (3rd edn, Clarendon Press 1998) 257. 8

  RM, 133f, 642.

9

  cf Kelsen (n 3).

10

  Raising the possibility of a ‘double veto’, see Zimmermann on Art. 27 MN 135–141.

11

  Bailey and Daws (n 7) 179f.

12

  ibid, 183.

13

  UNGA Res 2758 (XXVI) (25 October 1971) UN Doc A/RES/2758(XXVI).

14

  Bailey and Daws (n 7) 179f.

15

  I Winkelmann, ‘Bringing the Security Council into a New Era—Recent Developments in the Discussion on the Reform of the Security Council’ in (1997) 1 Max Planck YB UN L 41. 16

  See n 2.

17

  Bailey and Daws (n 7) 142f.

18

  See ibid.

19

  See n 2.

20

  GHS, 199.

21

  Bailey and Daws (n 7) 144f.

22

  The 1960–61 term split between Poland and Turkey; the 1961–62 term split between Liberia and Ireland; the 1962–63 term split between Romania and the Philippines; the 1964–65 term split between Czechoslovakia and Malaysia; see Repertoire of the Practice of the Security Council, at ‘Tables, Graphs and Data’ accessed 2012. 23

  UN Doc A/35/L.34/Rev.2 (2 December 1980).

24

  M Schaefer, ‘Gedanken zur Effektivierung des Sicherheitsrats’ (1981) 29 VN 199.

25

  UNGA Res 47/62 (11 December 1992) UN Doc A/RES/47/62.

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26

  Open-ended Working Group on the Question of the Equitable Representation on and Increase in the Membership of the Security Council and other Matters Related to the Security Council, UN Doc A/RES/48/26 (3 December 1993). 27

  Adopted by UNGA Decision 50/489 (16 September 1996).

28

  Bailey and Daws (n 7) 388; Rensmann on Reform MN 98

29

  For detailed accounts see ibid, 382f, Winkelmann (n 15) 51f; B Fassbender, UN Security Council Reform and the Right of Veto. A Constitutional Perspective (Kluwer Law International 1998) 221f; T Eitel, ‘The UN Security Council and its Future Contribution in the Field of International Law. What may we expect?’ (2000) 4 Max Planck YB UN L 53–71; B Fassbender, ‘All Illusions Shattered? Looking Back on a Decade of Failed Attempts to Reform the UN Security Council’ (2003) 7 Max Planck YB UN L 183–218; TG Weiss, ‘The Illusion of UN Security Council Reform’ (2003) 16 The Washington Quarterly 147f; D Malone (ed), The UN Security Council—From the Cold War to the 21st Century (Lynne Rienner 2004); M Fröhlich, K Hüfner, and A Märker, ‘Reform des UN-Sicherheitsrats, Modelle, Kriterien und Kennziffern’ in Deutsche Gesellschaft fÜr die Vereinten Nationen (ed), Blaue Reihe Nr. 94 (DGVN 2005); B Hofstötter, ‘Einige Anmerkungen zur Reform des Sicherheitsrates der Vereinten Nationen’ (2006) 66 ZaöRV 143f; G Pleuger, ‘Die Reform des Sicherheitsrates der Vereinten Nationen’ in S von Schorlemer (ed), Praxishandbuch UNO (Springer 2003) 683; N Blokker and N Schrijver (eds), The Security Council and the Use of Force: Theory and Reality—A Need for Change? (Nijhoff 2005); J von Freiesleben, ‘A Look at the Transitional Approach to Security Council Reform’ (24 June 2008) 33 UN Reform Watches accessed 26 July 2012; S Santos, Die Reform des Sicherheitsrates der Vereinten Nationen und ihre Auswirkungen auf die international Ordnung (Nomos 2010); N Ronzitti, The Reform of the UN Security Council, Documenti Istituto Affari Internazionali (Rome) 10/13 accessed 26 July 2012. 30

  Ambassador of Malaysia.

31

  UNGA Res 53/30 (23 November 1998) UN Doc A/RES/53/30.

32

  UNGA Res 55/2 (8 September 2000) UN Doc A/RES/55/2 para 30.

33

  UN Doc A/59/2005.

34

  UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1; Rensmann on Reform MN 125. 35

  Decision 62/557, GAOR 62nd Session, Supp No 49/A/62/49 (vol 3).

36

  UN Doc A/59/L.64.

37

  Comprising about thirty-two States.

38

  UN Doc A/59/L.67.

39

  UN Doc A/59/L.68.

40

  KV van Kesteren, ‘Reform of the Security Council: A No-Win Situation?’ in N Blokker and N Schrijver (eds), The Security Council and the Use of Force: Theory and Reality—A Need for Change? (Nijhoff 2005) 261, 268.

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Ch.V The Security Council, Functions and Powers, Article 24 Anne Peters From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): International peace and security

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Article 24 (1) In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. (2) In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII. (3) The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration. A.  Drafting History 1–5 B.  Practice 6–9 C.  The Primary Responsibility for the Maintenance of International Peace and Security 10–40 I.  ‘Responsibility’ 11–16 1.  Conceptualization 11–14 2.  The ‘Responsibility to Protect’ 15–16 II.  ‘Primary’ 17–30 1.  The Relation to the Powers of the General Assembly 19–24 2.  The Relation to the Powers of the ICJ 25–27 (a)  Absence of Hierarchy and Simultaneous Exercise of Functions 28– 31 (b)  Judicial Review of Security Council Decisions 32–34 III.  The Objective of ‘Maintenance of International Peace and Security’ 35 IV.  The Objective of ‘Prompt and Effective Action by the United Nations’ 36–40 V.  Legal Consequences of a Failure to Discharge ‘the Duties under this Responsibility’ 41–56 D.  Responsibility towards Whom? The Principals of the Council 41–47 I.  General 48–56 II.  Reporting to the General Assembly under Article 24 (3) 48–56 1.  General 48 2.  Practice on Annual Reports 49–51 3.  Special Reports 52 4.  The Accountability Function of the Reports 53–56

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E.  In ‘Accordance with the Purposes and Principles of the United Nations’ 57 F.  The ‘Powers Granted to the Security Council’ 58–80 I.  Specific Powers and Implied Powers 58–62 II.  The Various Types of Powers 63–65 (p. 762) III.  Notably the Power to Take ‘Legislative’ Measures 66 1.  Practice 67–68 2.  Admissibility in Principle 69–75 3.  Normative Constraints on Legislative Action of the Council 76–78 4.  Outlook 79–80

UN Materials ‘The Charter of the United Nations: Draft’ (14 August 1943) US Dept of State (ed), Postwar Foreign Policy Preparation 1939–1945, Publication 3580 (1950) 526–32. ‘Tentative Proposals for a General International Organisation’ (18 July 1944) ibid, 595–606. ‘Dumbarton Oaks Proposals for the Establishment of a General International Organization’ (7 October 1944) UN Yearbook 1946–47 at 4–9 and UNCIO III, Doc 1 (G/P), 2– 23. ‘Plan for the Establishment of an International Organization for the Maintenance of International Peace and Security’ of 23 December 1943 (1944) 1 Foreign Relations of the United States 614. Summary of the ‘United Nations Conference on International Organization’, from 25 April to 24 October 1945 (1946/47) UNYB 12–34. UNGA Res 377(V) (3 November 1950) ‘Uniting for Peace’ (‘Dean Acheson’). Note by the President of the Security Council, Annual report of the Security Council to the General Assembly, of 22 May 2002 (UN Doc S/2002/199). Resolution adopted by the General Assembly, ‘World Summit Outcome Document’ (24 October 2005) UN Doc A/RES/60/1. Report of the Secretary-General: Implementing the Responsibility to Protect (12 January 2009) UN Doc A/63/677.

Select Bibliography Akram M and Haider Shah S, ‘The Legislative Powers of the United Nations Security Council’ in RSJ Macdonald and DM Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Nijhoff 2005) 431. Arangio-Ruiz G, ‘On the Security Council’s Law-Making’ (2000) 83 Riv Dir Internaz 609. Bailey SD and Daws S, The Procedure of the UN Security Council (Clarendon 1998). Bosco DL, Five to Rule them All: The UN Security Council and the Making of the Modern World (OUP 2009). de Wet E, The Chapter VII Powers of the United Nations Security Council (Hart 2004). Gowlland-Debbas V, ‘The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’ (1994) 88 AJIL 643.

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Herdegen M, Die Befugnisse des UN-Sicherheitsrates: Aufgeklärter Absolutismus im Völkerrecht? (CF Müller 1998). Hinojosa Martinéz LM, ‘The Legislative Role of the Security Council in its Fight against Terrorism: Legal, Political, and Practical Limits’ (2008) 57 ICLQ 333. Lowe V, Roberts A, Welsh J, and Zaum D (eds), The United Nations Security Council and War: The Evolution of Thought and Practice Since 1945 (OUP 2008). Marschik A, ‘Legislative Powers of the Security Council’ in RSJ Macdonald and DM Johnston (eds), Towards World Constitutionalism, Issues in the Legal Ordering of the World Community (Nijhoff 2005) 457.(p. 763) Orakhelashvili A, Collective Security (OUP 2011). Rosand E, ‘The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative?’ (2004) 28 Fordham Intl LJ 542. Talmon S, ‘The Security Council as World Legislature’ (2005) 99 AJIL 175.

A.  Drafting History* 1  The powers and procedures of the Security Council differ in important respects from those of the Council of the League of Nations as established in 1919. Notably, the League Covenant did not explicitly confer the responsibility for the maintenance of international peace and security on the League’s Council, although it entrusted the Council with the formulation of plans for ‘the reduction of national armaments’ which was deemed crucial for ‘the maintenance of peace’ (Art. 8 League of Nations Covenant).1 Decision-making required the agreement of all members of the Council, not only of the representatives of the principal allied and associated powers who were permanent members (Art. 5). 2  At the San Francisco Conference of 1945,2 the status and function of the SC in the general context of the organizational structure of the UN—especially vis-à-vis the Plenary organ of the Organization, the GA—and the definition in detail of the functions and powers of the SC were the object of extensive discussions. The very same questions had already been debated in the early planning stages. The Great Powers were determined to obtain a preponderant position in the future organization commensurate with their ‘exceptional responsibilities for the maintenance of international security’ (as the early US American draft for a Charter put it).3 3  The medium and smaller powers within the UN group were critical of the privileged status for the Great Powers, referring to the principle of the equality of States and the realization of the ideal of democracy in international relations.4 The underlying reason for the different political stances taken by the Great Powers on the one hand, and by the medium and small States on the other, is the tension between the preservation of national sovereignty and the perceived need for an international authority responsible for the maintenance of international peace and empowered to render binding decisions. (p. 764) In the course of the discussions, it was finally agreed as a guiding principle that in the new Organization the exceptional responsibilities of the Great Powers for the fulfilment of the Organization’s functions and the privileged position of these powers should be tied to the scope of the decision-making competence and the voting procedure.5 4  The result of the discussions was to leave the ‘primary responsibility’ for the maintenance of international security with the Council, as already foreseen in the early drafts,6 while granting a secondary or co-responsibility for peace and security to the GA within the framework of its general powers to debate and make recommendations. This result was basically already shaped in a verbal compromise during the Dumbarton Oaks negotiations of August to October 1944.7 It further relied on the so-called Yalta formula on the voting procedure as agreed upon among the Great Powers (United States, Soviet Union, and United Kingdom) at the Yalta Conference of February 1945.8 The provisions on the structure, procedures, and competences of the Security Council were then accepted by the

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fifty nations attending the San Francisco Conference against considerable opposition from the medium and smaller powers.9 5  The relationship between the Security Council and the International Court of Justice was also debated at the San Francisco Conference. A Belgian proposal for an amendment of the Dumbarton Oaks text sought to give a State which was party to a dispute brought before the Security Council a right to ask the Court ‘whether a recommendation or a decision made by the Council or proposed in it infringes on its essential rights’.10 But this amendment was criticized by numerous State representatives as an inadequate weakening of the Security Council and was then withdrawn by Belgium.11

B.  Practice 6  The process of shifting responsibility in the field of maintaining international peace and security from the executive to the Plenary organ and back, which had occurred during the negotiations on the Charter, continued after 1945, partly against the formal distribution of powers between the SC and the GA as provided for by the Charter. After an initial period in which the SC functioned properly, with the intensification of the East–West conflict at the beginning of the 1950s, the SC became inoperative because of the frequent use of the veto by its permanent members. The number of meetings held by the SC declined drastically between 1955 and 1960. (p. 765) 7  The GA began to take on the leading role within the Organization with regard to the maintenance of international peace and security. Attempts at giving this de facto shift of the exercise of the responsibility for the maintenance of peace from the SC to the GA a permanent legal basis—for example, by means of the Uniting for Peace Resolution12—were unsuccessful. 8  When the rapid increase in membership made the gaining of majorities in the GA more difficult to calculate for the Great Powers, the original distribution of powers within the Organization resurfaced. Members in general, not only the Great Powers, again had recourse to the SC. The growing number of meetings held by the SC since the beginning of the 1960s manifests this development.13 Since 1991, the activities of the SC have greatly increased.14 9  Article 24 has been virtually never explicitly referred to in decisions adopted by the Security Council, especially not since 1991.15 Actual ‘constitutional debates’ on the provision occurred only in the early years of the Organization.16 Occasionally, draft resolutions which were ultimately not adopted explicitly referred to Art. 24. Furthermore, explicit references to Art. 24 can be found in presidential statements and in the proceedings and in communications of the Council. Implicit references to the principle enshrined in Art. 24 are more frequent; a number of resolutions and presidential statements have alluded to the provision, but without invoking it explicitly.17 While the provision of Art. 24 ‘was more or less a dead letter until 1990, it shows its overwhelming importance for public international law nowadays’.18

C.  The Primary Responsibility for the Maintenance of International Peace and Security 10  The Charter confers on the Council the ‘primary responsibility’ for the maintenance of international peace and security.

(p. 766) I.  ‘Responsibility’ 1.  Conceptualization

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11  As well as in Art. 24, the term ‘responsibility’ is used in Art. 60 (‘responsibility for the discharge of the functions of the Organization’) and in Art. 51 (‘the authority and responsibility’ of the Security Council to take action to maintain or restore international peace and security). The concept of responsibility must first be distinguished from competence, authority, or power. This distinction is made in ordinary language and also in Art. 51.19 12  Second, it is clear that the notion of responsibility in Art. 24 does not relate to secondary obligations in the sense of the ILC Draft Articles on the International Responsibility of Organizations, which arise in the event of a breach of primary norms of international law. ‘Responsibility’ in Art. 24 is not ‘liability’ (secondary level) but relates to the primary level of law. However, thirdly, ‘responsibility’ in the sense of Art. 24 is not necessarily identical with a duty or obligation. 13  A responsibility presupposes a competence to exercise that responsibility. But unlike the term ‘competence’, the term ‘responsibility’ has two predicates. It exists for something (here: the maintenance of international peace and security) and to someone else. In contrast to merely enjoying the ‘competence’ for securing peace, the assignment of a ‘responsibility’ means that the Council is not only entitled to take action in order to maintain peace and security, but that it should fulfil that task and discharge that function properly. Although a ‘responsibility’ is perhaps less strict than a ‘duty’ or ‘obligation’, the term still implies not only a—however imperfect—political or moral but also a legal requirement to act.20 Within the legal framework of the Charter, this view is corroborated by text of Art. 24 which speaks of the Security Council’s ‘duties under this responsibility’, and of the ‘discharge of these duties’. 14  Responsibility means that the Council is responsible to another actor, to a principal. That predicate of ‘responsibility’ is congruent with accountability and responsiveness. So the term ‘responsibility’ highlights the position of trust which has been given to the Council. The follow-up question is to whom exactly the Council is responsible, to whom that fiduciary relationship extends, in other words: who the principals of the Council are (see on this MN 41–47).

2.  The ‘Responsibility to Protect’ 15  The Council’s responsibility for the maintenance of international peace and security includes the so-called ‘responsibility to protect’ (R2P). The Heads of State and Government, relying on the novel concept of ‘responsibility to protect’ have in the World Summit Outcome Document of 2005 further fleshed out and extended the United Nations’ (and thereby also the Council’s) responsibility in the direction of a ‘responsibility…to help to protect populations from genocide, war crimes, ethnic (p. 767) cleansing and crimes against humanity’.21 That document, and a subsequent report of the Secretary-General,22 formulated a three-pillar strategy, consisting in Pillar one: protection responsibilities of States, Pillar two: international assistance and capacity-building, and Pillar three: timely and decisive response. With regard to Pillar three, the States committed themselves by stating: ‘we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-bycase basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.’23 16  So although the responsibility to protect resides first and foremost in the territorial State, a ‘residual responsibility’ falls on the international community acting, ‘through the United Nations’, which includes collective action ‘through the Security Council’, as the relevant documents formulate it.24 Moreover, the Secretary-General stated, speaking of

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R2P, that ‘[w]ithin the Security Council, the five permanent members bear particular responsibility, because of the privileges of tenure and the veto power’.25

II.  ‘Primary’ 17  Article 24 assigns to the Security Council the ‘primary responsibility for the maintenance of international peace and security’. This phrase does not concern the allocation of responsibilities between the Security Council and other actors outside the Organization, but only among different organs. In relation to the members, Art. 51 also implies a primary ‘authority and responsibility’ of the Security Council to take measures for the maintenance of international peace and security in the event of an armed attack against a member which is not affected by the right of self-defence of a member. 18  Because the primary responsibility implies a primary competence, too, the phrase in Art. 24 contains a guideline for the resolution of conflicts of competences among the organs. In the Wall Advisory Opinion, the ICJ emphasized ‘that Article 24 refers to a primary, but not necessarily exclusive, competence’.26 Because it is not exclusive, a space for responsibilities of other organs remains, and there can be overlap. This raises the question of the distribution of the responsibilities between the Security Council and General Assembly on the one hand, and of the former’s relation to the International Court of Justice (ICJ) on the other, in the area of overlap. Generally speaking, the different organs must observe the institutional balance and must pay each other mutual due respect.

(p. 768) 1.  The Relation to the Powers of the General Assembly 19  Article 11 confers on the General Assembly various powers which relate to international peace and security: it may consider general principles in that context (s 1), it may discuss related questions (s 2), it has the power to call to the attention of the Security Council situations which are likely to endanger peace and security (s 3). Moreover, the Assembly may discuss any question of international peace and security under its general competence laid down in Art. 10. These provisions create an overlap of competencies between the Assembly and the Council in the issue area of international peace and security. The exercise of the respective competencies by the organs may lead to activities which conflict in substance. Principles and procedures for avoiding, mitigating, and resolving such conflicts are therefore needed. 20  The qualifier ‘primary’ is one tool in this regard. ‘Primary’ is meant in a substantive and functional sense, not only in terms of timing and procedure.27 This understanding is borne out by the French text which speaks of a ‘principal’ responsibility (‘la responsabilité principale’). The Assembly’s responsibility is therefore residual and secondary. 21  The division of powers between the Council and the Assembly has been much discussed in the context of the General Assembly’s Uniting for Peace Resolution of 1950, also called ‘Dean Acheson’ Resolution. In this resolution, the General Assembly, inter alia, claimed the authority to qualify situations in the sense of Chapter VII (threat to the peace, breach of the peace, or act of aggression), and to make recommendations to the members for collective measures, including ‘the use of armed force where necessary’.28 The justification was that such a power can be derived e contrario from Art. 12 as an implied power of the Assembly in the event of a failure or deadlock of the Council. 22  The Uniting for Peace Resolution had been sponsored by the United States, and back in 1950 constituted an attempt to shift the balance of power between the two organs by breaking the stifling effect of the Soviet use of the veto. Since then, the General Assembly has convened ten emergency special sessions under the Uniting for Peace procedures, some of which had a ‘rolling’ character and lasted over several years.29 Most but not all of the usages related to the Israeli–Arab conflict. So politically speaking, the Uniting for Peace procedures have mostly been employed as a tool by the non-aligned movement in the Assembly, and more specifically the Arab States, to criticize Israel’s policy.30 In the face of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Council inaction vis-à-vis the spectre of genocidal events, such as in Kosovo and Rwanda, reliance on the Uniting for Peace procedures were again suggested by States, by expert reports, and by the Secretary-General.31 However, neither these proposals nor existing practice have resulted in juridically overturning the primary responsibility for the maintenance of peace and security of the Council, and have not shifted any political power away from that body. (p. 769) 23  In legal terms, it has been debated whether some parts of the Uniting for Peace Resolution are unlawful because they infringe upon the Council’s competences. It has been argued that the assignment of the ‘primary’ responsibility to the Council suggests that the Uniting for Peace Resolution is not in conformity with the Charter to the extent that it purports to confer quasi-Chapter VII powers to the Assembly.32 Second, in the Wall Case, Israel had argued that the Security Council, by adopting a roadmap, ‘continued to exercise its responsibility for the responsibility for the maintenance of international peace and security and that, as a result, the General Assembly was not entitled to act’ and to request an Advisory Opinion on the legal consequences of the wall in occupied Palestinian territory.33 However, the ICJ treated the Uniting for Peace Resolution as perfectly lawful when it scrutinized whether the conditions set by that resolution were fulfilled. It did opine that the Security Council had on multiple occasions failed to adopt resolutions on Israeli settlements and on the construction of the wall, so that the requirement that ‘the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility’, as stated in Res 377 (V), was fulfilled in that case.34 24  To conclude, regarding the relationship between the Council and the Assembly, the term ‘primary’ does not offer a precise guideline as to when and under what conditions exactly an act of the Assembly would unduly interfere with the competences of the Council and therefore be ultra vires. The exact delineation of competences is made not by the provision of Art. 24 but by the more specific provisions of Arts 11, 12, and 39, and also by the Uniting for Peace Resolution.

2.  The Relation to the Powers of the ICJ (a)  Absence of Hierarchy and Simultaneous Exercise of Functions 25  Matters concerning international peace and security do not lie exclusively but only ‘primarily’ within the competence of the Council. There is no hierarchy, subordination, or competition between the Council and the ICJ. The Charter does not, in contradistinction to its provisions on the relation between the Council and the General Assembly, prohibit one organ from dealing with a matter pending before the other. The Council and the Court are two distinct organs with distinct functions, and they operate with distinct procedures.35 The Security Council is no court, its decisions are not judgments. The concept of lis pendens is not applicable to them. The Court need not, on any other ground, defer to the Council.36 26  The relation between the Council and the ICJ was specifically at issue in two cases. In the Tehran Hostages Case, the Court examined ex officio whether its competence to decide the case, or the admissibility of the proceedings, were affected by the fact that the Security Council was actively seized of the occupation of the US-American embassy and the detention of its diplomatic and consular staff as hostages.37 The ICJ here made clear (p. 770) that the Court was not restricted in deciding on a legal dispute even when this was also dealt with by the Council. The ‘simultaneous exercise of their respective functions by the Court and the Security Council’ is admitted by the Charter and by the ICJ Statute, said the Court.38 The reason given by the ICJ is that the Court’s resolution of a legal question may be an important factor in promoting the peaceful settlement of a dispute with which the Security Council is dealing.39

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27  In the Lockerbie proceedings,40 the question was, inter alia, whether the ICJ was precluded from dealing with a case of which the Security Council was already seized.41 By not declining jurisdiction in the provisional measures stage (against the objections of the UK and the US which had argued that the request should be qualified as inadmissible because of ‘the risk of contradiction between the resolution and the provisional measures’) the Court implicitly gave a negative answer and implicitly confirmed the Libyan claim of an absence of hierarchy between the two organs.42 The merits of the two parallel cases were never reached due to the parties’ joint request for removal from the Court’s list in 2003.43

(b)  Judicial Review of Security Council Decisions 28  A different question is whether the ICJ can review Security Council decisions.44 The Charter itself does not foresee any specific procedure for determining the legality or validity of an act of the Organization itself which would be analogous to a constitutional review in States, as the Court stressed already in its Advisory Opinion on Certain Expenses.45 In the Namibia proceedings, the ICJ stated: ‘Undoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned.’46 29  However, the lack of an explicit power of direct ‘constitutional’ review does not mean that the Court is prohibited from scrutinizing Council decisions in an incidental fashion (p. 771) in contentious proceedings between States. The conformity of Council decisions with the Charter and with general international law is a legal question.47 As the ICJ stated in the Tehran Hostages Case: ‘It is for the Court, the principal judicial organ of the United Nations, to resolve any legal question that may be at issue between parties to the dispute.’48 The Court was also prepared to address the issue of the legality of a Council decision in the merits stage of the Lockerbie proceedings.49 It did not consider the Libyan assertion that Res 748 (1992) was ‘contrary to international law’,50 as being outside its jurisdiction or otherwise unreviewable. Of course, any ICJ decision on the legality of a Council decision in a judgment will be res iudicata only for the parties to the dispute and will not bind the Council itself. 30  Second, being a ‘legal question’ also in the sense of Art. 96, the legality of Council decision can be directly made the object of a request for an advisory opinion. Third, the legality of a Council decision can pop up incidentally in an advisory opinion on a broader legal question, as it did in the Kosovo proceedings.51 31  A different procedural constellation was present in the Namibia proceedings. Here the Security Council itself requested an advisory opinion in its Res 284 (1970). The legality of these or other Council decisions was not the material subject of the request. Rather, a preliminary question was whether the decision asking for the Court’s opinion was illegal and invalid and therefore inapt to trigger the proceedings. At this point the ICJ formulated the presumption that Council decisions passed in accordance with the organ’s procedures were legal and valid. However, since in that instance the objections against the lawfulness of the Security Council resolution concerned the competence of the ICJ, the Court did not rely on that presumption, but proceeded to examine the objections.52

III.  The Objective of ‘Maintenance of International Peace and Security’ 32  The task of maintaining international peace and security, which is conferred primarily on the Council (Art. 24), and secondarily to the General Assembly (Art. 11)53 is at the same time mentioned as the first purpose of the United Nations as a whole (in Art. 1 (1) and in the Preamble). Furthermore, the phrase ‘international peace and security’ figures in Chapter VII, in Art. 43. The notion ‘peace’ is additionally used in Art. 39. Absent specific

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indications to the contrary, identical words in the Charter should be presumed to carry the same meaning. 33  Article 24 (1) can be understood as the ‘operational version of the UN’s primary purpose of maintaining international peace and security as laid down in Article 1 (1)’.54 (p. 772) Formally speaking, the term ‘international peace and security’ in Art. 24 must have a somewhat broader meaning than the term in Art. 1 (1), because Art. 1 (1) refers only to Chapters VI and VII (dispute settlement and enforcement action), whereas Art. 24 mentions, for example, also Chapter XIII (the trusteeship system). Hans Kelsen therefore understood the phrase to mean about the same as the statement of the Preamble, namely that the peoples of the UN unite their strength ‘to maintain international peace and security’, thus defining the universal purpose of the Organization, without implying any specific function.55 Kelsen concluded that Art. 24 means nothing else but conferring on the Security Council the primary responsibility ‘for the achievement of the general purpose of the United Nations’.56 34  In 1992, one year after the successful Security Council-authorized military action against the aggression of Iraq against Kuwait, the Security Council held an important meeting on the item of ‘[t]he responsibility of the Security Council in the maintenance of international peace and security’, for the first time at the level of Heads of State and Government. In the concluding note, the President of the Security Council, speaking on behalf of the members, diagnosed a ‘time of change’. He considered that ‘the ending of the Cold War’ had created ‘new favourable international circumstances under which the Security Council has begun to fulfil more effectively its primary responsibility for the maintenance of international peace and security’. The note gave the phrase ‘international peace and security’ a very broad meaning. It stated that ‘[t]he absence of war and military conflicts amongst States does not in itself ensure international peace and security. The nonmilitary sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security.’57 This broad conception of a ‘positive’ peace (as opposed to mere absence of military violence) and of ‘human’ security as opposed to mere interstate security is crucial for the post-Cold War understanding of the Council’s exercise of its responsibility under Art. 24.

IV.  The Objective of ‘Prompt and Effective Action by the United Nations’ 35  The primary responsibility for the maintenance of international peace and security is conferred on the Council ‘in order to ensure prompt and effective action by the United Nations’ as a whole. The term ‘action’ is ambiguous and has different meanings at different places in the Charter.58 For example, the title of Chapter VII of the Charter is ‘Action with respect to threats to the peace, breaches of the peace, and acts of aggression’. Likewise, ‘action’ is mentioned in Art. 11 (2).59 Differently from Art. 24, in neither of the other provisions mentioned is it specifically stated who exactly acts or should act. Action ‘by’ the United Nations must in any case be taken by an organ or by members on account of the Organization. The responsibility of the Council is, in Art. 24, conceived of as being instrumental to that end (‘in order to ensure’). Moreover, the provision is directed at ensuring ‘prompt and effective’ action. That action is in turn instrumental in realizing the overall objectives of the Organization. These considerations suggest that (p. 773) the Council could ultimately be held accountable (politically or even legally) for not discharging its responsibility.

V.  Legal Consequences of a Failure to Discharge ‘the Duties under this Responsibility’

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36  What are the legal consequences if the Council fails to discharge its ‘duties under this responsibility’, as Art. 24 (1) puts it? In the cases of Rwanda and Srebrenica, the Council’s failures have been heavily criticized by official reports which found that the SC incurred a political and moral liability.60 The question is whether—in extreme cases such as these—the Council might be under a legal obligation to take a (specific) decision, with the consequence that its passivity would be illegal, and would trigger the international legal responsibility (in the sense of liability, on the second level of law) of the United Nations.61 37  On the premise that the Security Council acts within the realm of law and that its decisions are subject to legal limits,62 there is no reason to desist from attaching legal consequences to the Council’s omission to take a decision regarding international peace and security. Every decision to act is at the same time a decision not to act in a different manner, and vice versa. However, the law generally treats ‘passive’ behaviour differently from ‘active’ behaviour, albeit only in degree. Passive behaviour is legally relevant if it violates a legal obligation to act. In that case, doing nothing constitutes a legally relevant omission. A legal obligation to act, incumbent on the Council, is especially plausible in the context of human rights violations, taking into account that these are, under the practice of the Council, apt to constitute threats to the peace. Additionally, all international human rights instruments give rise to positive governmental obligations to protect human rights against interference by private actors.63 Governmental passivity is here apt to trigger State responsibility for the State’s lack of due diligence to prevent the violation or to respond to it with legal, political, and administrative means as required by the human rights conventions.64 Once it is accepted that the Security Council is bound by international human rights, parallel to States,65 the principles concerning protection developed for States can arguably be transferred to the Council. The need to avoid imposing a rigid standard and the need to respect that public authorities must make (political) choices in terms of priorities and resources arise both for governments and for the Security Council. (p. 774) 38  Although the Council may in principle be held liable for passivity, the trigger or threshold may differ from the situation of responsibilizing it for action. In human rights law, the States’ obligation to intervene and protect persons against aggressions emanating, eg from private actors, is triggered only in extreme cases, where the need for State intervention is obvious. Moreover, the positive obligation to protect is normally not an obligation of result, but mostly an obligation of conduct. It requires the State to exercise due diligence, but not to guarantee absolute protection.66 Along that line, the Security Council could be under a legal requirement to exercise due diligence when human rights are massively threatened in a member State. Such a due diligence requirement is not strict. The Security Council could be deemed to fail it only when it either remains completely passive in the face of massive atrocity or when it takes only token measures which are obviously and egregiously insufficient to tackle the threat. In any case, the Security Council could not be held responsible for a failure to prevent or terminate, for example, a massacre or genocide, but only for a failure to conduct itself adequately, independent of any causality for the result. 39  The violation of that obligation of conduct in maintaining international security in its broad inception, including human security, would then trigger the international responsibility of the United Nations.67 In this sense Special Rapporteur Giorgio Gaja stated that, assuming that general international law requires other entities (including the UN) to prevent genocide, ‘failure to act would have represented a breach of an international obligation. Difficulties relating to the decision-making process could not exonerate the United Nations.’68 In contrast, other commentators opine that the Council ‘is under no strict duty to act when the community of nations is endangered’.69 From that perspective, the idea of a legal responsibility of the United Nations itself for failing to act, for example in

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the face of genocide is ‘absurdly premature and not likely to be affirmed by state practice’.70 40  Given the fact that the Council’s responsibility to maintain peace and security, including its responsibility to protect, is currently less than a hard-and-fast-obligation of the Security Council under international law, the failure on the side of the Council to live up to this responsibility does not, under the law as it stands, constitute an international wrongful conduct in the form of a legally relevant omission to take action. So (p. 775) far, the Council’s doing nothing does not trigger the international legal responsibility of the United Nations under the law as it stands. It is however, perfectly enviseagable that the Council’s responsibility will harden into a legal obligation of conduct which can be violated by the Council’s complete passivity or its obviously inadequate reaction in the face of massive atrocity. That omission would then constitute an internationally wrongful act of the United Nations.

D.  Responsibility towards Whom? The Principals of the Council I.  General 41  As stated above, the concept of ‘responsibility’ implies a position of trust. The Council is a trustee. A crucial question is who the trust givers are. According to the text of Art. 24, the ‘members confer’ the responsibility on the Council and ‘agree’ that it acts ‘on their behalf’. These three phrases raise the question of the legal source of the Council’s responsibility, and, as a corollary to that source, the question to whom the Council is responsible, in other words who the principal of the Council is. All three phrases, taken literally, manifest the idea that the States themselves are the actual principal of the Council, and not the United Nations (as an international organization) itself. In contrast, Hans Kelsen, in his early commentary, took pains to demonstrate that not the members, but rather the Organization itself is the principal.71 42  These two opposing views still exist today. For one group of commentators, the members, who have ‘delegated’ parts of their sovereignty, remain the source of authority of the Council.72 This means that the States, being the trust givers, are in consequence also the principals. From that perspective, ‘the predominant accountability-holder in the case of the SC acting under Chapter VII is neither the membership of the Organization constituted as a Plenary organ, nor the public at large or the individuals affected by the exercise of its power, but rather each and every member state’.73 43  Partisans of the other camp, in contrast, highlight that the Council’s authority and its powers arise from a constituent act, the Charter, but not from members’ parallel delegations.74 From that perspective, the founding act has severed the ‘umbilical cord’ between members and organization. Powers exercised by the latter’s organs are not a mere prolongation of the members’ powers, but qualitatively different from the former; they are a new type of public authority. The consequence would seem to be that the Security Council is accountable not to the members individually, but to the Plenary organ in which these are represented. The General Assembly is, from that perspective, the proper institutional (p. 776) frame which has swallowed the individual States, and is therefore the rightful recipient of the Council’s accounts. 44  To some extent, the divergent views represent different perspectives: an informal, more ‘real-political’ one and a formal more ‘legalist’ one. But the persistence of these two diverging views also manifests the hybridity of the founding act of an international organization, and of the concomitant ambiguous and fluid features of the relationship between the Organization and its members. Sociologically speaking, the United Nations, as any other international organization, is to some extent both, in varying degrees: an alter ego of its members, but also an autonomous actor. It oscillates between the two poles, and the degree of autonomy may change over time. Although the Organization is supposed to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

work in the interests of its members, the whole point of setting up an organization is to render it to a certain extent autonomous from its individual members, with the objective to fulfil certain public functions more effectively. This reasoning can be seen behind the Art. 24 wording ‘prompt and effective action by the United Nations’. The social and factual autonomy of the United Nations is underscored by its juridical independence, its international legal personality. But on the other hand, the Organization’s continuing social and factual dependency on the members is highlighted for example by the fact that the Council does not possess its own armed forces, and that it regularly only authorizes but does not mandate the members to take enforcement action. 45  From a strictly legalist perspective, the principal of the Council is the Organization itself. The Security Council, being an organ of the United Nations, formally acts on behalf of that legal person and not on behalf of the members individually.75 The Charter’s term ‘on their behalf’ can best be understood as highlighting the fact that, despite the restricted membership of the Council, that body is supposed to act in the interests of all members.76 Still, doctrinally, acts of the Council are imputable to the Organization.77 Any decision of the Council taken in discharge of its responsibilities must, therefore, be considered as an action taken by the Organization as a whole.78 46  However, it would be too legalist to ignore the members behind the Organization. The question is not so much whether the organizational veil separating the Council from the members is piercable or not, but rather when, in which context, and under which conditions. That question cannot be answered by a reference to the text of Art. 24 which in a confused way refers to the members. Other legal texts, too, imply that the Council’s responsibility is owed not only to the Organization, but to an ‘international community’, acting ‘through the United Nations’.79 Scholars have pointed out that ‘[t]he (p. 777) powers vested in the Council under the Charter are in the nature of a trust and a delegation from the entire membership of the UN’.80 From that perspective, the members should be allowed to claim ‘a right of supervision on how this responsibility is exercised on their behalf’.81 The question whether members can claim this only inside the United Nations or also extrainstitutionally depends on the view taken on the piercability of the institutional veil. 47  According to the Organization’s institutional design, the supervision is exercised by the General Assembly in which all members are represented. Regularly, the Council’s accountability to the members is channelled through that body. The reporting obligation under Art. 24c (3) (see MN 48–56) serves exactly this end. But this does not legally prohibit the use of other, informal, accountability mechanisms and the design of additional ones should current ones not suffice. From a moral perspective, the ultimate principals of the Council are in any case individual human beings who are ideally represented by their States. But because that representation does not function well in many parts of the world, individuals should be allowed to employ additional tools for responsibilizing the Council, for example individual complaints before domestic courts.

II.  Reporting to the General Assembly under Article 24 (3) 1.  General 48  The reporting obligation enshrined in Art. 24 (3) is a corollary to the principle that the Security Council acts, under Art. 24 (1), on behalf of all members.82 The provision was not yet present in the Dumbarton Oaks Proposal,83 and was inserted into the Charter upon the wish of small and medium States at the conference of San Francisco. Its counterpart is Art. 15 (1), under which the General Assembly shall ‘receive and consider annual and special reports from the Security Council’. Article 15 (1) also requires ‘an account of the measures that the Security Council has decided upon or taken to maintain international peace and security’. These two provisions underscore the idea that the Security Council is a trustee of the membership (or of the ‘international community’), institutionalized in the General Assembly, which must render its ‘accounts’ to the trust givers. Upon criticism of the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

members, the reports’ structure and contents, and the procedure and timing have since the 1990s been repeatedly improved.

2.  Practice on Annual Reports 49  The Security Council’s annual report to the General Assembly on its activities is assigned the sequential number ‘2’ for the session in question and is published as supplement no 2 to the Official Records of the General Assembly. They are available on the internet. Since 2001/02, the reports contain six main parts: Part I: brief statistical description of the key activities of the Security Council; Part II: summary of the questions considered by the (p. 778) Council under its responsibility for the maintenance of international peace and security; Part III: other matters; Part IV: account of the work of the Military Staff Committee; Part V: matters that were brought to the attention of the Council but not discussed; Part VI: work of the subsidiary bodies.84 The length of the reports has grown more or less steadily.85 50  The rapid growth in Council activity from 1989 onwards was accompanied by its increased reliance on informal consultations to which non-members of the Council were not admitted. The exclusionary and closed character of the action was deemed unfair by those non-members especially as the effects of decisions, such as economic sanctions, affected many States. The delivery of the report by the Council provided an opportunity for States to express their frustration. After a crisis in 1992/93, the presentation of the report has become an important opportunity for members to raise issues concerning the respective competencies and responsibilities of the two principal organs. Since then, annual debates on the reports have on the one hand related to the format, content, and timing of the report, and on the other hand more broadly to the procedures and practice of the Council during the reporting period.86 Since 1993, the Security Council repeatedly promised that a draft be made available in advance to all members of the Security Council so as to allow for the finalization of the annual report in time for its consideration during the main part of the regular session of the General Assembly.87 51  The quality of the reports is ‘descriptive rather than analytical in nature’.88 The lack of analysis has been defended by Council members as an inherent feature of the report, because it is impossible for the fifteen members of the Security Council to agree on a common understanding of the action and on a shared analysis.89 A way out of this impasse is the solution retained since 1997. In that year, members of the Council reviewed the format of the annual report and agreed upon a number of procedural and substantive improvements which took effect in the reporting period 1997/98.90 Since that procedural reform the reports contain a ‘brief assessment on the work of the Security Council, which representatives who have completed their functions as Presidents 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 and which should not be considered as representing the views of the Council’.91 At the occasion of the presentation of the annual report 2000/01, criticism flamed up again, in the Council itself and in the GA.92 In response, the format and content of the annual report was again changed.93

(p. 779) 3.  Special Reports 52  Under Art. 24 (3), the Council shall ‘when necessary’ submit special reports to the General Assembly. This has been done only rarely. The few cases happened in the early years and always related to the deferral or refusal of the admission of a new member.94 Under Rule 60 (3) of the Council’s Rules of Procedure, the Council must submit a special report if it does not recommend an applicant State for membership or postpones the consideration of the application.95 Beyond this constellation, given the very scarce practice, it is unclear who decides on the ‘necessity’ of a special report: the Council itself or the General Assembly? In the note of 1997, the Security Council promised to consider the

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delivery of special reports. But since then—to the best of my knowledge—special reports have not been furnished.

4.  The Accountability Function of the Reports 53  The reports are submitted ‘for the consideration’ of the General Assembly. The term ‘consideration’ implies a weak power of the Assembly only. Although ‘consideration’ seems to be more than ‘discussion’ (as foreseen in Art. 11 (2)), maybe an ‘in-depth analysis of the contents of the report’,96 it does not give the General Assembly the right to take specific action, let alone to adopt any political or legal sanctions against the Security Council, upon a report. Secondly, Art. 24 (3) does not convey to the General Assembly the power to hold Security Council responsible for failing to report or for presenting a deficient report. 54  During the 1990s, the debates in the General Assembly revealed diverging views about the purpose of the reports. For the one side, which notably included the members of the Council themselves, the reports were to be a mere ‘diary’ of the Council’s activities and decisions. Other States favoured the view that the report should be a means for the UN members to appraise and assess the performance of the Council.97 In 1993, the UNGA encouraged members to ‘participate actively in a substantive and in-depth discussion on, and consideration of the reports of the Security Council’.98 The practice sketched out above reflects the increasing perception and usage of the reports as a tool for holding the Security Council responsible. Especially since 1997, the Council repeatedly promised some more analytical features, an improved timing, and a personal performance assessment by the holders of the one-month presidential position during the year.99 55  In 2001, two non-permanent members of the Security Council criticized that the annual report failed to achieve its objective of ‘illuminating the work of the Council to the General Assembly’.100 Further critique along that line was expressed in the General Assembly. After the crisis of 2001 and the ensuing revision of the format and content of the report, the annual report 2001/02 was adopted in an open meeting of the Security Council during which the members of the Council commented on format and (p. 780) substance.101 At that meeting, a non-permanent member of the UNSC interpreted the new format as ‘a concrete sign of a collective effort towards transparency and a clear signal that we want to keep the General Assembly better informed’.102 56  The relation between the General Assembly and the Council is not analogous to the relation between a State’s government and its parliament. Nevertheless, the accountability function of the reports is in political terms appropriate.103 It is in legal terms borne out by the wording and structure of the Charter, and by the drafting history.104 Along that line, the provision of Art. 24 (3) is mentioned by the ICTY Appeals chamber in the Tadic decision on jurisdiction as one expression of constitutional limitations on the Council.105 In order to fulfil its accountability function, the report should be analytical and not purely enumerative, and it must contain explanations for the decisions taken (or not taken).106 Giving reasons for legal acts (and for their omission) is instrumental in enabling members to exercise scrutiny and to formulate critique. Giving reasons to that extent has a quasi-democratic function. It is also a requirement of the rule of law, because it clarifies the Council action not only in political but also in legal terms. In conclusion, while the annual reports were in the past barely used by the General Assembly as an accountability tool, that use has always been a topic of debate and has been continuously intensified.

E.  In ‘Accordance with the Purposes and Principles of the United Nations’

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57  Under Art. 24 (2), the Security Council must act in ‘accordance with the Purposes and Principles of the United Nations’. These are first of all enshrined in Arts 1 (purposes) and 2 (principles). Throughout the practice of the UN organs, additional UN principles have emerged, and the ones mentioned have been fleshed out more specifically through multilateral conventions, and through resolutions of the General Assembly (for example the Friendly Relations Declaration Res 2625 (XXV)) and of the Security Council. The protection of human rights, the prohibition of genocide, the right to self-determination and basic principle of IHL must today also be counted among the principles which the Security Council is bound to respect.107 Moreover, the ‘Purposes and Principles’ limitation is not exclusive.108 The Security Council is additionally bound by the entire UN Charter.109 It is moreover arguably bound by norms of general international law which (p. 781) mostly overlap with the Charter principles mentioned as further developed through practice. The problem of legal limits to Security Council action is discussed in the commentary on Art. 25.110

F.  The ‘Powers Granted to the Security Council’ I.  Specific Powers and Implied Powers 58  Article 24 (2) sentence 2 reads: ‘The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.’ Further tasks are explicitly assigned to the Council in other Chapters which are not mentioned in Art. 24 (2). These are tasks under Chapter II (Arts 4 to 6), Chapter IV (Art. 12 (1)), Chapter V (Art. 26), and Chapter XIV (Art. 94 (2)). This scheme raises the question whether the Council possess only those specific powers which are mentioned at different places in the Charter, or additionally a general power to maintain peace and security, beyond the enumerated specific ones. 59  On the one hand, the ICTY Appeals Chamber in the Tadic decision on jurisdiction has drawn from Art. 24 in particular the conclusion that ‘[t]he Charter thus speaks the language of specific powers, not of absolute fiat’.111 On the other hand, the ICJ, in the Namibia Advisory Opinion, stated: ‘Article 24 of the Charter vests in the Security Council the necessary authority to take action such as that taken in the present case. The reference in paragraph 2 of this Article to specific powers of the Security Council under certain chapters of the Charter does not exclude the existence of general powers to discharge the responsibilities conferred in paragraph 1.’112 The Namibia Advisory Opinion thus read Art. 24 (2) not as complete and exclusive formula, but inversely as a phrase which must be understood as e contrario presupposing the existence of general powers.113 60  It is submitted that the ICTY Appeals Chamber’s concern for the rule of law voiced in its Tadic decision on jurisdiction and the legality of Security Council action can be reconciled with the Namibia Advisory Opinion’s concern for an effective fulfilment of functions by relying on the principle of implied powers which governs international organizations. According to that principle, the United Nations ‘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’.114 This principle has been applied not only to the Organization as a whole but has further been used to define the powers of its organs. In the Effect of Awards Advisory Opinion, the ICJ applied it to identify an implied power of the General Assembly to establish an administrative tribunal.115 Along this line, it can be argued that the Council must possess further unspecified powers to take various kinds of measures to the extent that these are essential to discharging its responsibility to maintain international peace and security.

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(p. 782) 61  The legal basis of these implied powers is, from that perspective, not Art. 24 (1) directly, but rather various provisions in the Charter, including their necessary implications. This understanding is compatible with the reading by Hans Kelsen who observed that Art. 24 (1) was intended only to stress the political importance of the Security Council, and ‘not to establish a positive legal effect’. In that reading the provision is ‘not…a general determination of the competence of the Security Council’, and thus not a legal basis for a general power.116 62  The existence of such powers which are unspecified but not disjunct from the overall function of the Council is supported by scholarship.117 Due to vagueness of the concepts of ‘international peace and security’ these powers are broad and allow for very flexible action, but they are not unlimited.

II.  The Various Types of Powers 63  The Security Council is not limited to performing executive-type ‘police’ functions. Historically, however, the American representative at the conference of San Francisco had famously characterized the Security Council as the world’s ‘policeman’.118 A policeman’s job is both to prevent and to repress violence in concrete cases, not normally to enact general rules for unknown cases in the future. But the policeman function, while it may have been on the minds of the drafters, has not been inscribed into the text of the Charter. 64  The Charter itself does not mention executive, legislative, or judicial functions of the Security Council. The ICTY Appeal Chamber’s Tadic decision on jurisdiction highlighted that the division of powers which is largely followed in most municipal systems ‘does not apply to the United Nations. Among the principal organs of the United Nations the divisions between judicial, executive and legislative functions are not clear cut’, the Tribunal stated.119 65  Still, the main activity of the Council has been of an executive type in the sense of taking and enforcing decisions which relate to concrete situations. Especially its Chapter VII powers, where the Council makes a factual assessment (Art. 39) upon which it takes binding decisions as a consequence, resemble the functions of the executive branch in domestic jurisdictions.120

III.  Notably the Power to Take ‘Legislative’ Measures 66  The Council has in the past also taken measures of a legislative or law-making quality. That practice has given rise to occasional criticism by members, and to an intense scholarly debate.121 It now seems settled that the Council may in principle ‘legislate’ but only under specific conditions which can be drawn from the Charter framework and from practice.

(p. 783) 1.  Practice 67  A Council decision has a legislative character when it imposes general and abstract obligations, and when it is not limited to one particular and concrete situation, but applicable to an indefinite number of cases.122 A different type of quasi-legislative effect is brought about through the enforcement by the Council of non-binding standards (such as industrial codes of conduct), by the Council’s contribution to the formation of customary law,123 and by Council decisions pushing members to accede to entire existing treaties.124 These indirectly law-making decisions do not pose similar problems to the actually legislative ones and will not be discussed here. 68  The main examples of law-making resolutions in the proper sense are Res 1373 (of 18 September 2001) on the financing of terrorism and Res 1540 (of 28 April 2004)125 on weapons of mass destruction. Also the establishment of the Criminal Tribunals for the former Yugoslavia by Res 827 (25 May 1993) and for Rwanda by Res 995 (8 Nov 1994) were pieces of legislation in the sense described above, because the resolutions actually contained the statutes of the tribunals, ie general and abstract texts which regulate the

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functioning of novel institutions. Finally, also the two resolutions which exempted US soldiers from the jurisdiction of the ICC (Res 1422 (12 July 2002) and 1487 (12 June 2003)) have been counted among the ‘legislative’ ones, because they contained general and abstract obligations.

2.  Admissibility in Principle 69  The Council is entitled to adopt legislative resolutions. Decisions of that kind are not inadmissible or even illegal on the ground that they are of a wrong type. As a matter of practice, by far the majority of members has supported the legislative resolutions. Those few members who objected could not block the development towards an overall acceptance.126 70  This acceptance can rely on a reasonable interpretation of the Charter. Its wording allows law-making resolutions of the Council, although this was not the historic intent, as stated above. The principle of speciality does not prohibit law-making by the Council. Although no explicit Charter provision authorizes the Council to adopt binding acts with (p. 784) a legislative content, it does not rule it out, either. Article 41 constitutes a sufficient legal basis for legislative acts.127 That provision authorizes the Council to take ‘measures’ not involving the use of force. ‘Measures’ is a broad term which does not limit the Council to concrete and particular decisions, but which encompasses legislative measures.128 71  The concept of ‘threat to the peace’ in Art. 39 has evolved to also comprise general situations, such as terrorism. The Council’s ‘primary responsibility for the maintenance of international peace and security’ (Art. 24) requires it both to remove and to prevent threats to the peace (Art. 1 (1)). Consequently, a proactive (and not just a reactive or remedial) dimension is inherent in the mandate of the Council. This means that it must be allowed to deal with abstract as well as specific threats to the peace.129 72  The principal objections which have been raised against legislative decisions are ultimately not convincing. At first sight, the Council’s law-making activity seems to affect the institutional balance within the Organization. It is the General Assembly which is entrusted with the ‘progressive development of international law’ (Art. 13 (1) (a)), and not the Council. However, the Assembly is explicitly limited to recommendations, debates, and encouragement, and clearly has no authority to enact binding laws. The institutional set-up of the Organization is not similar to a State with the Assembly as the legislature and the Council as the executive.130 Therefore, law-making by the Council does not—as a matter of form—interfere with the Assembly’s competences. 73  The second fundamental objection is that the imposition of binding, general, and in temporal terms unlimited obligations on States which are for the most part not members of the Council overturns the cornerstone of the international legal system, namely the principle that States can be bound only on the basis of their consent which ultimately flows from sovereignty.131 The sovereigntist concern cannot be fully alleviated with the formalistic response that members, by ratifying the Charter and by endowing the Council with the authority to adopt binding legal acts, have in principle consented for the future to be bound by decisions which might impose yet unknown obligations on them, and have to that extent limited their sovereignty. Members did not foresee and could not reasonably foresee that the Council would engage in law-making. By not delineating the Council’s powers more strictly, the members have not forgone their right to protest against novel types of decision-making. They have not given a blank cheque to the Council. 74  Besides affecting State sovereignty and the consent principle, law-making by the Council appears to enjoy a low degree of legitimacy because that body is not or is hardly representative, not legally and barely politically accountable to all States (and their populations), and because the law-making procedure is rather intransparent, hardly (p. 785) deliberative, and not inclusive but exclusive. Although these legitimacy flaws affect all types of Council activity, they are more serious when it comes to law-making action because From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the Council’s quasi-laws interfere more with the rights of third States and of citizens than decisions limited to concrete situations. Overall, law-making by the Council might constitute ‘hegemonic international law’ which carries the risk of (further) eroding the legitimacy of the Council.132 75  This objection which combines concern for institutional functions and for those values which State sovereignty ultimately seeks to protect, namely the consent of the governed, is the most pertinent one. While it is not strong enough to prohibit law-making by the Council, it nourishes the normative quest for a close circumscription of its law-making activity.

3.  Normative Constraints on Legislative Action of the Council 76  Numerous members have formulated conditions under which they would be prepared to accept law-making resolutions. These statements, together with the acquiescence of other States, constitute subsequent practice which must guide the interpretation of the Charter which both founds and limits the Council’s powers. At the same time, these conditions accommodate the normative concerns sketched out above. Based on this, the Charter can and should be interpreted so as to allow law-making decisions if the following requirements are met.133 77  In substance, the subject-matter must fall into the context of Chapter VII. First, lawmaking by the Council should react to a significant, new, and urgent threat in an emergency situation which qualifies as a threat to the peace in terms of Art. 39. Second, the Council must respect the institutional balance between the main organs and must therefore not adopt ‘laws’ which contradict General Assembly resolutions. Third, the resolution should be as little intrusive as possible in terms of material scope and temporary extension. This would imply that a Council decision cannot simply reduplicate entire treaties which are not in force or which have been ratified only by a small number of States, because such a farreaching step is not necessary to address a threat to international peace and security.134 A fourth factor is discussed controversially under the heading of the ‘gap requirement’. It hinges first on the question whether the Council can—when exercising its enforcement powers under Chapter VII—deviate from general international law (customary law or treaties, or both).135 From this starting point, some authors opine that the abrogation, or even de facto modification of the terms or the undoing of the effects of existing treaties (for example the Rome Statute136) is not admissible (even if it were generally possible under Chapter VII, notably by virtue of Art. 103) when the Council acts in a legislative mode. The authors argue that the Council may only legislate when there is a ‘gap’ in the treaty law, and may not abrogate existing treaty provisions.137 However, if Art. 103 fully applies to legislative resolutions, a treaty (p. 786) override by the Council would in principle be no problem.138 But in many cases, Art. 103 will not be applicable, all the more as the scope of application of Art. 103 should be construed narrowly in this regard.139 78  In procedural terms, the elaboration of legislative resolutions should be transparent. Also, the Council should seek a broad consensus among States. As far as the implementation of legislative decisions is concerned, the Council should grant members a leeway, and should assist them in carrying out the decisions. Overall, the Council must remain an exceptional and auxiliary law-maker only, it must make an effort of self-restraint, and may in no way rise up to a ‘world legislator’.140

4.  Outlook 79  Law-making activity of the Council appears necessary in some instances for maintaining international peace and security, especially in urgent situations where treaty making (within the General Assembly or outside of it) is too slow or unfeasible. But it must remain within legal limits. It is not clear which of the normative requirements discussed above are hard and fast legal constraints and which are basically legal policy demands. Probably the Council’s past practice of consulting States has not given rise to a precise legal obligation to consult non-Council members on a draft legislative resolution before it is made final.141 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Due to the small number of events and the variations, that practice has not brought about a concretization or extension of the procedure laid out in Art. 28 by means of a tacit amendment. However, the general principle that any law-making resolution should be adopted only after some form of consultation of non-members of the Council in the drafting process, possibly channelled through the Assembly, finds some basis in Charter principles on State equality (Art. 2 (1)), and on the functions of the General Assembly (Chapter IV). The principle that law-making by the Council must remain the exception, and must remain ‘emergency regulation’, can be understood as an emanation of the Charter-based principle of proportionality. Overall, it seems fair to say that the Council is, when it enacts abstract and general rules, under stricter procedural and substantive limits than when acting in the classical executive mode.142 A legislative Council decision overstepping these limits, however difficult they are to define, would be illegal, or ultra vires in the traditional terminology.143 80  Anyway, the major practical problem is the implementation and enforcement of the legislative resolutions.144 The Council cannot by itself effectively monitor this, but is dependent on the cooperation of the members. To secure that cooperation, the Council must as far as possible forestall any criticism of lacking legitimacy. So in the end, law-making decisions must be based on an overall consensus of the international community both for normative and practical reasons.

Footnotes: *  I thank Jost Delbrück, author of the commentary in the previous edition, for handing over this piece of the commentary and for allowing me to use his work. I am indebted to Thore Neumann for outstanding research assistance and helpful comments on previous versions of this piece. 1

  Covenant of the League of Nations, Part I of the Treaty of Versailles of 28 June 1919 (Treaty of Peace with Germany) in (1919) 13 AJIL Suppl 151–386. 2

  The ‘United Nations Conference on International Organization’, from 25 April to 24 October 1945. See for a summary (1946/47) UNYB 12–34. 3

  Art. 4 (1) of the US-American draft (‘The Charter of the United Nations: Draft’ of 14 August 1943, in US Dept of State (ed), Postwar Foreign Policy Preparation 1939–1945, Publication 3580 (1950) 526, 527). See on the three political visions of the leaders of the USA (Roosevelt), the UK (Churchill), and the Soviet Union (Stalin) near the end of the war and the immediate post-war DL Bosco, Five to Rule them All: The UN Security Council and the Making of the Modern World (OUP 2009) 14–19, with further references. Notably Roosevelt formulated the ‘Four Policemen Concept’ in his speech to the Nation on Christmas Eve 1943 (ibid, 14–15). See s III of the ‘Plan for the Establishment of an International Organization for the Maintenance of International Peace and Security’ of 23 December 1943, prepared by an informal political agenda group and submitted to Roosevelt by his Secretary of State on 29 December 1943 (1944) 1 Foreign Relations of the United States 614, 617. 4

  See Bosco (n 3) 32–38 on ‘the Small-State Insurgency’ at the San Francisco Conference, with further references. 5

  J Delbrück on Art. 24 (2nd edn) MN 1.

6

  Already Art. 4 (3) of the US-American draft, ‘The Charter of the United Nations: Draft’ of 14 August 1943 (n 3).

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7

  See ch V, s B on the GA, and ch VI s B on the SC of the ‘Dumbarton Oaks Proposals for the Establishment of a General International Organization’, of October 1944. The Dumbarton Oaks Conversations took place in two phases, first between the representatives of the USSR, the UK, and the US, then between China, the UK, and the US. France did not participate. The text of the Dumbarton Oaks Proposals is reproduced in (1946/47) UNYB 4– 9 and in UNCIO III, Doc 1 (G/P), 2–23. 8

  See for the Yalta Agreement the conference report reproduced in (1946/47) UNYB 9–10; in scholarship Bosco (n 3) 29–31. 9

  See for a summary of the San Francisco debates on the Security Council (1946/47) UNYB 23–28. 10

  UNCIO III, 336 (Doc 2, G/7 (k) (1)).

11

  UNCIO XII, 48–50, 65–66. That history does not support the conclusion that the intention of the drafters was to preclude any type of incidental legal control of the Council by the ICJ altogether (N Meyer-Ohlendorf, Gerichtliche Kontrolle des Sicherheitsrates der Vereinten Nationen durch den internationalen Gerichtshof (vwf 2000) 171–72). See on the question of judicial review by the ICJ MN 28–31. 12

  UNGA Res 377 (V) (3 November 1950) UN Doc A/RES/377(V).

13

  For example, in the period covered by the annual report 1954/55, twenty-two meetings were held (677th meeting to 698th meeting). In 2010/11, more than ten times as many, namely 231 meetings were held (6367th to 6597th meeting). 14

  See for data the Repertoire of the Practice of the Security Council (RPSC), regularly published by the UN Department of Political and Security Council Affairs, and the annual reports of the Council to the General Assembly under Art. 24 (3), published as Supp No 2 to the Official Records of the GA (see in detail on the annual reports MN 48–56). See for useful fact sheets D Malone (ed), The UN Security Council (Lynne Rienner 2004) appendices; V Lowe, A Roberts, J Welsh, and D Zaum (eds), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (OUP 2008) appendices. 15

  See for the rare exceptions Res 353 (1974), preamb para 8, concerning Cyprus; Res 479 (1980) (28 September 1980) preamb para 4, and Res 514 (1982) (12 July 1982) preamb para 4, both on the situation between Iran and Iraq. 16

  See eg RPSC 1959–63, 303.

17

  See for analytical summaries of the explicit and implicit references made to Art. 24 in the Council practice the Repertoire of the Practice of the Security Council, regularly published by the UN Department of Political and Security Council Affairs, the last available covering the period 2004–07 (as of 19 February 2010). 18

  JA Frowein, ‘Implementation of Security Council Resolutions’ in Vera Gowlland-Debbas (ed), United Nations Sanctions and International Law (Kluwer 2001) 253–65, 253. 19

  But see Legal Consequences of the Construction of a Wall in the Occupied Territory (Advisory Opinion of 9 July 2004) [2004] ICJ Rep 136, para 26. Here the Court seemed to use ‘responsibility’ and ‘competence’ as synonyms. 20

  Sandra Szurek has qualified the responsibility to protect as ‘une responsabilitéobligation de faire’: ‘La responsabilité de protéger, nature de l’obligation et responsabilité internationale’ in Société française pour le droit international (ed), Colloque de Nanterre, La responsabilité de protéger (Pedone 2008) 91, 95, and 96.

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21

  Resolution adopted by the General Assembly, ‘World Summit Outcome Document’ UNGA Res 60/1 (16 September 2005) UN Doc A/RES/60/1 para 139. See in detail Vashakmadze on ‘Responsibility to Protect’. 22

  Report of the Secretary-General: ‘Implementing the Responsibility to Protect’ UN Doc A/ 63/677 (12 January 2009) paras 49–65 (‘Pillar three: timely and decisive response’). 23

  World Summit Outcome Document, para 139.

24

  ‘International Commission on Intervention and State Sovereignty’ (ICISS), The Responsibility to Protect (2001) paras 2.31, heading before para 6.13; World Summit Outcome Document (n 21) para 139. 25

  Secretary-General: ‘Implementing the Responsibility to Protect’ (2009) (n 22) para 61.

26

  Wall (Advisory Opinion) (n 19) para 26.

27

  CPF/Degni Segui/Cassan, 879–907, 880.

28

  UNGA Res 377 (V) (3 November 1950) operative para 1.

29

  See Lowe and others (n 14) appendix 6, Uses of the Uniting for Peace Resolution, 1950– 2006, 706–08. 30

  See for a useful overview and asessment D Zaum, ‘The Security Council, the General Assembly, and War: The Uniting for Peace Resolution’ in Lowe and others (n 14) 154–74. 31

  ICISS (n 24) paras 6.29–6.30; Secretary-General: ‘Implementing the Responsibility to Protect’ (2009) (n 22), para 63. 32

  Degni-Segui and Cassan (n 27) 888 and 890.

33

  Wall (Advisory Opinion) (n 19) para 29.

34

  ibid, paras 29–35.

35

  This distinction is, inter alia, visible in Art. 94 (2).

36

  V 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, 655. 37

  Case Concerning United States Diplomatic and Consular Staff (United States of America v Iran) [1980] ICJ Rep 3, para 39. 38

  ibid, para 40; reaffirmed in Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Jurisdiction of the Court and Admissibility of the Application) (Judgement of 26 November 1984) [1984] ICJ Rep 392, para 93. 39

  United States Diplomatic and Consular Staff (n 37) para 40.

40

  Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Provisional Measures) (Order of 14 April 1992) [1992] ICJ Rep 3; and 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) [1992] ICJ Rep 114. 41

  The Lockerbie proceedings triggered a wealth of scholarship on the question of the relationship between the Security Council and the ICJ which also dealt with the question of legal limits to Security Council action. See first of all the excellent study by B Martenczuk, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrats (Duncker & Humblot 1996). See further B Lorinser, Bindende Resolutionen des Sicherheitsrates der Vereinten Nationen zur Friedenssicherung und deren Überprüfung durch den Internationalen Gerichtshof

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(Nomos 1996); J Herbst, Rechtskontrolle des Sicherheitsrates (Peter Lang 1999); MeyerOhlendorf (n 11). See on legal limits on Council action Peters on Art. 25 MN 56, 199. 42

  Lockerbie (Order on Provisional Measures UK) (n 40) para 36.

43

  Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Order of 10 September 2003); identical for the case against the USA. 44

  See J Alvarez, ‘Judging the Security Council’ (1996) 90 AJIL 1.

45

  Certain Expenses of the United Nations (Advisory Opinion of 20 July 1962) [1962] ICJ Rep 151, 168. See further GR Watson, ‘Constitutionalism, Judicial Review, and the World Court’ (1993) 34 Harv Intl LJ 1–45. 46

  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, para 89. 47

  See on the problem of the legality of the Council decisions Peters on Art. 25 MN 56–199.

48

  United States Diplomatic and Consular Staff (n 37) para 93.

49

  Lockerbie (Order on Provisional Measures UK) (n 40) para 38: ‘the right of the Parties to contest such issues at the stage of the merits must remain unaffected by the Court’s decision’. 50

  ibid, para 36.

51

  Here the ICJ interpreted and applied Res 1244 at length. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion of 22 July 2010) paras 101–21. 52

  Namibia (Advisory Opinion) (n 46) paras 20 and 89. See on the presumption of legality and validity of Security Council decisions Peters on Art. 25 MN 178–182. 53

  See on the delination of competences among the Council and the Assembly MN 17–24.

54

  K Manusama, The United Nations Security Council in the Post-Cold War Era: Applying the Principle of Legality (Martinus Nijhoff 2006) 32. 55

  H Kelsen, The Law of the United Nations: a Critical Analysis of its Fundamental Problems (Stevens 1950) 283. 56

  ibid, 283.

57

  Note by the President of the Security Council UN Doc S/23500 (31 January 1992).

58

  Kelsen (n 55) 281.

59

  The term in Art. 11 (2) refers only to such action as is solely within the province of the Security Council, namely that under Chapter VII. Certain Expenses (Advisory Opinion) (n 45) 165. 60

  See on the moral and political responsibility of the Security Council’s failure to react adequately to the genocides in Rwanda and Srebrenica the Report of the independent inquiry into the actions of the United Nations during the 1994 genocide in Rwanda (‘Carlsson Report’) (16 December 1999) UN Doc S/1999/1257, 32 and 37–38 and Report of the Secretary-General pursuant to General Assembly Resolution 53/55 (15 November 1999) UN Doc A/54/549, para 501 (responsibility in the case of Srebrenica). 61

  See on this problem A Peters, ‘The Security Council’s Responsibility to Protect’ (2011) 8 Intl Org L Rev 1–40.

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62

  Peters on Art. 25 MN 56–99.

63

  Seminally H Shue, Basic Rights (Princeton UP 1980) 35–64.

64

  UN Human Rights Committee, General Comment No 31 [80], Nature of the General Legal Obligations imposed on State Parties to the Covenant (CCPR/C/21/Rev.1/Add. 13 (26 May 2004) para 8. For the ACHR see Inter-American Court of Human Rights, Velásquez Rodriguez v Honduras, Ser C No 4 (1988) paras 172–77. 65

  See Peters on Art. 25 MN 109–127.

66

  For example, in the case-law of the European Court of Human Rights, the member States’ positive duty to protect Convention rights is quite limited so as to not require the impossible or to impose a disproportionate burden upon the authorities. ECHR, Osman v UK, Appl No 87/1997/871/1083 (Judgment of 28 October 1998) Reports 1998-VII, 3124, para 116. 67

  A Tzanakopoulos, Disobeying the Security Council: Countermeasure against Wrongful Sanctions (OUP 2011) 29: an omission of the Council can engage the United Nations’ international legal responsibility if it amounts to the breach of an international obligation incumbent upon the UN. cf also N Elaraby, ‘Some Reflections on the Role of the Security Council and the Prohibition of the Use of Force in International Relations: Article 2 (4) Revisited in the Light of Recent Developments’ in T Eitel, JA Frowein, K Scarioth, I Winkelmann, and R Wolfrum (eds), Verhandeln für den Frieden—Liber Amicorum Tono Eitel (Springer 2003) 41–67, 56: ‘benign neglect of breaches of the peace and acts of aggression’ could constitute ‘a deviation from the rule of law’ (emphasis added). 68

  G Gaja, ‘Third Report on the Responsibility of International Organisations’ (13 May 2005) UN Doc A/CN.4/553 para 10. Gaja tied this statement to the (hypothetical) requirement that the UN had been in a position to prevent the atrocities in Rwanda. It is submitted here that causality should not play a part. 69

  K Doehring, ‘Unlawful Resolutions of the Security Council and their Legal Consequences’ (vol 1, 1997) Max Planck YB UN L 91–110, 91, 97. 70

  J Alvarez, ‘The Schizophrenia of R2P’ in P Alston and E Macdonald (eds), Human Rights, Intervention, and the Use of Force (OUP 2008) 275–84, 282. 71

  Kelsen points out that the phrase the ‘members confer’ is formally incorrect. It could not be the members which confer responsibility on the Council, but at best States which became ‘members’ only through the Charter. Finally, the word ‘agree’ was probably meant as reverential to the sovereignty of the States, underlining their ‘free’ consent. Such agreement can however not include ad hoc agreements. The source of the Council’s powers (and of its responsibility) is the ‘agreement’ as manifest in the Charter. Kelsen deemed the promulgation clause (the members ‘agree’) to be ‘superfluous’; Kelsen (n 55) 281. 72

  See eg Degni-Segui and Cassan (n 27) 883. The ostensible reason is that the task of maintaining the peace is ‘prérogative d’une puissance publique’. 73

  Tzanakopoulos (n 67) 13.

74

  See eg E Lagrange, ‘Le Conseil de Sécurité peut-il violer le droit international?’ (2004) 37 RBDI 568–91, 570. 75

  According to Kelsen (n 55) 280, the phrase ‘on their [the members] behalf’ is as such ‘legally irrelevant and, in addition, incorrect’. 76

  See in that sense Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion of 28 May 1948) [1948] ICJ Rep 57, para 20: ‘[T]he members of the Security Council, in whatever capacity they may be there, are participating in the action of an organ which in the discharge of its primary

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responsibility for the maintenance of international peace and security is acting on behalf of all the Members of the United Nations’ (emphasis added). 77

  Art. 6 (1) Draft Articles on the Responsibility of International Organisations (in the following: ‘DARIO’): ‘The conduct of an organ or agent of an international organization in the performance of 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 of the organization’ (Report of the ILC, 63rd Session, UNGA Res 66/10 GAOR 66th Session Supp 10). 78

  GHS, 202.

79

  World Summit Outcome Document (n 21) para 139; cf also ICISS (n 24), reading together para 2.31 and the heading before para 6.13. 80

  M Akram and S Haider Shah, ‘The Legislative Powers of the United Nations Security Council’ in RSJ Macdonald and DM Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Nijhoff 2005) 431–55, 431, 452 (emphasis added). 81

  E Suy, ‘The Role of the United Nations General Assembly’ in G Abi-Saab, The Changing Constitution of the United Nations (British Institute of International and Comparative Law 1997) 55, 64. 82

  SD Bailey and S Daws, The Procedure of the UN Security Council’ (3rd edn, Clarendon 1998) 263–73, 284. 83

  See ‘Dumbarton Oaks Proposals for the Establishment of a General International Organization’ ch VI s B, in UNCIO III, Doc 1 (G/P), 2–23, 7–8. 84

  See in detail on the practice of annual reporting up to 1997 Bailey and Daws (n 82) 284– 91, also 95–96. 85

  For example, the report for 1954/55 had 39 pages; the report for 2010/11 had 245 pages. 86

  Bailey and Daws (n 82) 285–86.

87

  UN Doc S/26015 (30 June 1993) para 1; Bailey and Daws (n 82) 95. In 1997 again, a Presidential Note promised that that ‘the Security Council will take the necessary action to ensure the timely submission’ (Note by the President of the Security Council (concerning the format of the annual report of the Council to the General Assembly) (12 June 1997) UN Doc S/1997/4512, para 3). 88

  Bailey and Daws (n 82) 95.

89

  ibid, 290.

90

  Presidential Note of 12 June 1997 (n 87).

91

  ibid, para 5. That note foresaw that these assessments be published in an addendum to the reports. In practice however, they have been published within the report itself. 92

  See RPSC (2000–03) 224–25.

93

  Note by the President of the Security Council, Annual report of the Security Council to the General Assembly (22 May 2002) UN Doc S/2002/199. 94

  In 1952, 1957, 1958, 1960, 1961, 1975, 1976. See the repertories of the UNSC.

95

  Provisional Rules of Procedure of the Security Council, as amended 21 December 1982 (UN Doc S/96/rev. 7).

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96

  Suy (n 81) 64.

97

  Bailey and Daws (n 82) 289 with further references.

98

  UNGA Res 47/233 (17 August 1993) UN Doc A/RES/47/233 ‘Revitalization of the work of the General Assembly’, para 5. 99

  See MN 51.

100

  Singapore and Colombia, at the 4375th meeting (18 September 2001) UN Doc S/PV. 4375, 2–3. 101

  RPSC (2000–03) 225 states that this was the ‘first time’. UN Doc S/2002/199 however states that the report would ‘continue to be adopted in a public meeting of the Security Council’. Already the Note by the President S/26015 of 30 June 1998 had promised ‘that the draft report should be adopted at a public meeting of the Security Council’ (para 5). 102

  Statement by the representative of Colombia, 4616th meeting of the Security Council on 26 September 2002 (UN Doc S/PV.4616, 21). 103

  cf also Suy (n 81) 68; Bailey and Daws (n 82) 289; Elaraby (n 67) 59.

104

  See MN 48.

105

  ICTY, case No IT-94-1-AR72, Prosecutor v Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber of 2 October 1995) para 28; Tzanakopoulos (n 67) 11 with note 93. 106

  Bailey and Daws (n 82) 289.

107

  Lagrange (n 74) 585–87.

108

  Peters on Art. 25 MN 81–86.

109

  cf Art. 25 which can be reasonably (though not compellingly) be interpreted as stating that the Security Council decisions are binding if they are in accordance with the Charter. 110

  Peters on Art. 25 MN 56–199.

111

  ICTY, Tadic Jurisdiction (n 105) para 28.

112

  Namibia (Advisory Opinion) (n 46) para 110.

113

  See in that sense also the previous edition, Delbrück on Art. 24 (2nd edn) MN 10.

114

  Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion of 11 April 1949) [1949] ICJ Rep 174, 182. 115

  Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (Advisory Opinion of 13 July 1954) [1954] ICJ Rep 47, 56. 116

  Kelsen (n 55) 283.

117

  See eg Manusama (n 54) 39.

118

  Mr Stassen in commission I, UNCIO VI, 29 (Doc 1006, I/6).

119

  ICTY, Tadic Jurisdiction (n 105) para 43.

120

  Tzanakopoulos (n 67) 9.

121

  See P Szasz, ‘The Security Council Starts Legislating’ (2002) 96 AJIL 901–05; J Tercinet, ‘Le pouvoir normatif du Conseil de Securité: le Conseil de Sécurité peut-il légiferer?’ (2004) 37 RBDI 529–51; E Rosand, ‘The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative?’ (2004) 28 Fordham Intl LJ 542–90; Akram and Haider Shah (n 80); A Marschik, ‘Legislative Powers of the Security Council’ in RSJ Macdonald and DM Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Nijhoff 2005) 457–92; C Denis, Le pouvoir normatif du Conseil de Securité: portées et limites (Bruylant 2005); S Talmon, ‘The Security Council as World From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Legislature’ (2005) 99 AJIL 175–93; B Elberling, ‘The Ultra Vires Character of Legislative Action by the Security Council’ (2005) 2 Intl Org L Rev 337–60; LM Hinojosa Martinéz, ‘The Legislative Role of the Security Council in its Fight against Terrorism: Legal, Political, and Practical Limits’ (2008) 57 ICLQ 333–59; P Neusüß, Legislative Massnahmen des UNSicherheitsrats im Kampf gegen den internationalen Terrorismus (Herbert Utz 2008); M Frenzel, Sekundärrechtsgesetzgebungsakte internationaler Organisationen: völkerrechtliche Konzeption und verfassungsrechtliche Voraussetzungen (Mohr Siebeck 2011) 54–74. See also Krisch in Introduction to Chapter VII MN 31–34 on ‘quasi-legislation’. 122

  Talmon (n 121) 176; Rosand (n 121) with note 11.

123

  See on both types of ‘law-making’ Krisch in Introduction to Chapter VII MN 32.

124

  cf Akram and Haider Shah (n 80) 438.

125

  See R Lavalle, ‘A Novel, if Awkward, Exercise in International Law-Making: Security Council Resolution 1540’ (2004) 51 NILR 411. 126

  Neusüß (n 121) 326 and 342 and 366. Members overwhelmingly accepted the particular decisions because they approved of their specific contents. But the resolutions were not only intended and accepted as isolated acts but had a precedential value (as a matter of form), see eg Szasz (n 121) 905. But see Elberling (n 121) for the position that legislative decisions are in violation of the Charter and invalid (esp 352). 127

  This statement can also be based on an argument e contrario from Art. 40, which explicitly states that provisonal measures must be directed at ‘the parties concerned’. In contrast, Art. 41 mentions no specific addressee (Frenzel (n 121) 67). 128

  ICTY, Tadic Jurisdiction (n 105) para 35: ‘It is evident that the measures set out in Article 41 are merely illustrative examples which obviously do not exclude other measures. All the Article requires is that they do not involve “the use of force”. It is a negative definition.’ 129

  Talmon (n 121) 181.

130

  ‘There is…no legislature, in the technical sense of the term, in the United Nations system and, more generally, no Parliament in the world community. That is to say, there exists no corporate organ formally empowered to enact laws directly binding on international legal subjects. It is clearly impossible to classify the organs of the United Nations into the above-discussed divisions which exist in the national law of States.’ ICTY, Tadic Jurisdiction (n 105) para 43. 131

  See notably Hinojosa Martinéz (n 121) especially 339–40 and 359.

132

  J Alvarez, International Organizations as Law-Makers (OUP 2005) 184–217; Elberling (n 121). 133

  See eg Neusüß (n 121) 366; Talmon (n 121) 182–88; Hinojosa Martinéz (n 121) 339, 344–49. 134

  Talmon (n 121) 186.

135

  See on this problem Peters on Art. 25 MN 133–148.

136

  The question has been discussed with regard to Res 1422 and 1487 on non-transferral to the ICC because these resolutions were probably not in conformity with Art. 86 ICC Statute. See Talmon (n 121) 185–86 with further references. 137

  Hinojosa Martinéz (n 121) 346–47, 356–57.

138

  In that sense Marschik (n 121) 483.

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139

  See on the effects of Art. 103 on Security Council decisions Peters on Art. 25 MN 200– 212. 140

  Rosand (n 121) 579; Marschik (n 121) 484; Hinojosa Martinéz (n 121) 345, 356, and 358. 141

  Marschik (n 121) 485; Hinojosa Martinéz (n 121) 352 (participation is only a ‘necessary political condition’); but see Talmon (n 121) 188. This practice has been celebrated as a step towards ‘democratic’ law-making within the UN (Lavalle (n 125) 436). 142

  Krisch in Introduction to Chapter VII MN 34.

143

  See on the legal limits of Security Council decisions and on the possible consequences of such an illegality Peters on Art. 25 MN 56–199. 144

  Talmon (n 121) 192–93.

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Ch.V The Security Council, Functions and Powers, Article 25 Anne Peters From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — Derogations

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(p. 787) Article 25 The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. A.  Drafting History and Practice 1–7 B.  ‘Decisions’ of the Council: Binding Legal Acts 8–23 I.  What Are ‘Decisions’ and How to Identify Them? 8–10 II.  Binding Decisions also outside Chapter VII, Especially under Chapter VI 11– 14 III.  Members ‘Agree to Accept and Carry out’ 15–19 IV.  The Binding Character of Acts of Subsidiary Organs, Especially of Sanction Committees 20–23 C.  The Interpretation of Security Council Resolutions 24–28 I.  Who? 25 II.  How? 26–28 D.  The Addressees of Obligations Contained in Security Council Decisions 29–55 I.  The Members 29–31 II.  Non-Member States 32–33 III.  Non-State Actors Including Individuals 34–55 1.  Practice 35–39 2.  Internationally Binding Effect 40–44 3.  ‘Direct Effect’ or ‘Self-Executingness’ in Domestic Law? 45–54 4.  Indirect Legal Effects 55 E.  ‘[I]n Accordance with the Present Charter’ 56–199 I.  The Various Readings of the Phrase 56–60 II.  The Existence of Legal Limits to Security Council Decisions 61–71 III.  Which Legal Limits? 72–132 1.  Both Procedural and Substantive Limits 73–74 2.  Article 24 (2): The ‘Purposes and Principles of the United Nations’ 75– 86 (a)  Article 1: ‘Purposes of the United Nations’ 76–78 (b)  Article 2: ‘Principles’ 79–80 (c)  No Exclusiveness of the Purposes and Principles Limitation 81– 86

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3.  The Entire Charter as a Legal Limit 87–96 (a)  Division of Competences/Prohibition of Ultra Vires Decisions 90 (b)  Coverage by a Charter Provision and Proper Interpretation of Charter Terms 91–96 4.  Ius Cogens 97–100 5.  International Customary Law and General Principles of Law 101–108 (a)  Doctrinal Explanations 103–105 (b)  Notably the Principle of Proportionality 106 (c)  Notably the Prohibition of an Abuse of Powers 107–108 (p. 788) 6.  Human Rights 109–127 (a)  Practical Relevance and Affected Rights 110–112 (b)  Doctrinal Explanation 113–123 (c)  Exceptional Derogation of Human Rights 124 (d)  Human Rights: Guideline Quality, Mere ‘Equivalent’ Protection, and Lawful Limitation of their Exercise 125–127 7.  International Humanitarian Law 128–132 IV.  A Limited Power of the Council to Deviate from International Law when Acting under Chapter VII 133–148 1.  No Deviation from the Charter Itself 134–137 2.  No Deviation from General International Law to the Detriment of Third Parties 138–146 (a)  The Historical Meaning of Article 1 (1) for Chapter VII Action 139– 141 (b)  Doctrinal Arguments 142–144 (c)  Practice 145–146 3.  Interim Conclusion 147–148 V.  Conclusion: Modified Application of International Legal Standards to Council Decisions 149–152 VI.  Who Decides on the Legality of a Council Decision? 153–174 1.  The Council Itself, but not as a Final Instance 154–155 2.  The ICJ 156–157 3.  Other International Institutions 158–159 4.  UN Members 160–174 (a)  Object of Review and Standards of Review 161–164 (b)  Different Strategies of Members’ Courts 165–169

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(c)  Assessment: Allowance to Perform a Decentralized Legality Control as an Extraordinary Means of Last Resort—No Violation of Article 25 170–174 VII.  Consequences for the Security Council Decision Itself 175–187 1.  Presumption of Legality with the Procedural Consequence of a Continuing Obligation to Carry out 177–182 2.  Voidness (Absolute Nullity) of Decisions Violating Ius Cogens 183–184 3.  Rebuttal of the Presumption of Legality (and Validity) 185–187 VIII.  Consequences for the Members’ Obligation to Carry out Impugned Council Decisions 188–191 IX.  Consequences of an Illegal Council Decision for the UN: International Legal Responsibility 192–199 1.  The Security Council Decision as an Internationally Wrongful Act 192– 193 2.  The Members’ Implementing Measures as Internationally Wrongful Acts Attributable to the UN 194–198 3.  So far no International Legal Responsibility for Council Inaction 199 F.  The Significance of Article 103 for Council Decisions 200–211 I.  The Principle: Prevailing Effect of Council Decisions 200–202 II.  Narrowing or Neutralizing the Prevailing Effect 203–209 1.  No Application of Article 103 to Obligations of the Security Council Itself 204–205 2.  Presumption against the Creation of a Conflict 206 (p. 789) 3.  No Prevalence Of UNSC Decisions over Ius Cogens 207–208 4.  Prevalence over Contrary Customary Law is Unclear 209–211

UN Materials See the list for Art. 24.

Select Bibliography See the Select Bibliography on Art. 24. In addition: Bianchi A, ‘Assessing the Effectiveness of the UN Security Council’s Anti-Terrorism Measures: The Quest for Legitimacy and Cohesion’ (2006) 17 EJIL 881. Biersteker TJ and Eckert SE, ‘White Paper Addressing Challenges to Targeted Sanctions: An Update of the Watson Report’ prepared by the Watson Institute (Brown University 2009). de Wet E and Nollkaemper PA (eds), P Dijkstra (ass ed), Review of the Security Council by Member States (Intersentia 2003). Doehring K, ‘Unlawful Resolutions of the Security Council and their Legal Consequences’ (1997) 1 Max Planck YB UN L 91.

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Fassbender B (ed), Securing Human Rights? Achievements and Challenges of the UN Security Council (OUP 2011). Gill T, ‘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 Neth YB Intl L 33. Gowlland-Debbas V (ed), United Nations Sanctions and International Law (Kluwer 2001). ——— (ed), National Implementation of United Nations Sanctions: A Comparative Study (Nijhoff 2004). Katselli E, ‘Holding the Security Council Accountable for Human Rights Violations’ (2007) 1 Human Rights and International Legal Discourse 301. Lagrange E, ‘Le Conseil de Sécurité peut-il violer le droit international?’ (2004) 37 RBDI 568. Lamb S, ‘Legal Limits to United Nations Security Council Powers’ in GS Goodwill-Gill (ed), The Reality of International Law: Essays in Honour of Ian Brownlie (Clarendon 1999) 361. Manusama K, The United Nations Security Council in the Post-Cold War Era: Applying the Principle of Legality (Nijhoff 2006). Martenczuk B, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrats (Duncker & Humblot 1996). Megret F and Hoffmann F, ‘The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibility’ (2003) 25 HRQ 314. Payandeh M, ‘Rechtskontrolle des UN-Sicherheitsrats durch staatliche und überstaatliche Gerichte’ (2006) 66 ZaöRV 41. Reinisch A, ‘Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions’ (2001) 95 AJIL 851. Schotten G, Wirtschaftssanktionen der Vereinten Nationen im Umfeld bewaffneter Konflikte: Zur Bindung des Sicherheitsrates an individualschützende Normen (Berliner Wissenschaftsverlag 2007). Starck D, Die Rechtmässigkeit von UNO-Wirtschaftssanktionen in Anbetracht ihrer Auswirkungen auf die Zivilbevölkerung (Duncker & Humblot 2000). Thallinger G, ‘Sense and Sensibility of the Human Rights Obligations of the United Nations Security Council’ (2007) 67 ZaöRV 1015. Tzanakopoulos A, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (OUP 2011).

(p. 790) A.  Drafting History and Practice* 1  In the early stages of the elaboration of the legal foundations for the establishment of a comprehensive world organization for the maintenance of international peace and security there was already a widely shared belief that certain decisions of the Organization in the field of the maintenance of peace would have to be binding upon the members.1 This was a revolutionary and innovative step in the development of international law. The Council of the precursor organization, the League of Nations of 1919, did not have the power to issue binding decisions. In the Covenant of the League, the members undertook ‘to respect and preserve against external aggression the territorial integrity and existing political independence of all Members of the League’ (Art. 10 Covenant of the League of Nations).2 But in case of ‘aggression or in case of any threat or danger of such aggression’ the Council was, by that provision, merely empowered to ‘advise upon the means by which this obligation shall be fulfilled.’

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2  The grave intrusion into the sovereignty of the members which would go along with the new institution’s power to issue binding decisions was in principle deemed indispensable in order to secure the effective functioning of the planned organization in the field of maintaining international peace. Also, the binding effect was only accepted with the proviso that the Great Powers which would be carrying the main burden in discharging the task of maintaining peace were to be accorded a veto right when binding decisions were to be taken. This design was, according to the four governments which had agreed beforehand on the Yalta voting formula, ‘essential if an international organization is to be created through which all peace-loving nations can effectively discharge their common responsibilities for the maintenance of peace and security’.3 3  Along these lines, already the US-American ‘Draft Charter of the United Nations’ of 14 August 19434 provided in Art. 7 (5) and (6) for enforceable ‘recommendations’ by the executive organ and (unlike later drafts) by the general conference as well. The subsequent ‘Plan for the Establishment of an International Organization for the Maintenance of International Peace and Security’ of 23–29 December 19435 provided for a binding decisionmaking power only for the Executive Council. In an Annex to this plan, the fundamental obligations of the member States were enumerated. Among these obligations was mentioned in no 4 the duty of the members [to] accept as binding the decisions of the Executive Council in the settlement of a dispute of which the Council takes jurisdiction and to carry out in good faith the recommendations of the Council with respect to conditions or situations deemed by it as likely to endanger the peace.6(p. 791) This provision is a forerunner of Art. 25 of the UN Charter. 4  There was no provision comparable to Art. 25 in the ‘Tentative Proposals for a General International Organization’ of 18 July 1944.7 But this did not mean that the idea of binding decisions by the Executive Council was abandoned altogether. Rather, the binding nature of decisions taken by this organ was expressed indirectly by describing in s VI A 2 situations which the Executive Council would consider as endangering the peace and in which it would call for sanctions. Sub-paragraphs (c) and (d) of these explanations quoted as such situations cases of ‘failure to accept terms of settlement of a dispute as prescribed under the authority of the international organization’ and ‘failure to comply with a request of the executive council to maintain the existing position or to return to a prior position as determined by the executive council’.8 5  Finally, the provision in Chapter VI, s B, no 4 of the Dumbarton Oaks Proposals of autumn 1944 was: ‘All members of the Organization should obligate themselves to accept the decisions of the Security Council and to carry them out in accordance with the provisions of the Charter.’9 This is the direct predecessor of Art. 25 of the Charter. 6  During the San Francisco Conference, the principle underlying Art. 25, namely that the Organization was to possess a binding decision-making power, was not questioned. The proposal to limit the binding force of the decisions of the SC to those taken under Chapters VI, VII, and VIII did not meet with sufficient support.10 It was held to be too restrictive in view of the comprehensive functions of the Organization and the role accorded to the SC. Despite the adherence by the majority of the participants at the San Francisco Conference to the provision of binding decisions by the SC beyond Chapter VII of the Charter, the true scope of Art. 25 of the Charter eventually remained open. This has led to controversies in UN practice and in scholarship with regard to the meaning of Art. 25.

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7  Article 25 has been rarely explicitly cited in decisions adopted by the Security Council.11 Occasionally, draft resolutions which were ultimately not adopted, explicitly referred to Art. 25. Explicit reference to Art. 25 has moreover been made in the presidential statements, in the Council’s proceedings, in the deliberations, and in communications of the Council, or in notes verbales from members.12 Statements with a bearing on Art. 25 are more frequent; a number of resolutions, presidential statements, or letters (p. 792) of the Chairman, primarily dealing with compliance with sanction measures, implicitly refer to the provision, without invoking it explicitly.13

B.  ‘Decisions’ of the Council: Binding Legal Acts I.  What Are ‘Decisions’ and How to Identify Them? 8  The meaning of the term ‘decision’ or ‘décision’ in English and French is ambiguous.14 It can, first, mean single-case related acts (as opposed to norms). Alternatively, it can mean binding acts (as opposed to recommendations). Thirdly, the word ‘decision’ might be a synonym for legal act, independent of its content or legal effect. The language of the Charter commends the second understanding. Throughout the entire Charter, the prevailing terms for describing Council action are the terms ‘decision’15 and ‘recommendation’.16 Thus, the dichotomy of decisions and recommendations is the leading one. This suggests that ‘decision’ has been conceived of precisely as an opposition to ‘recommendation’, and that both terms do not mean the same thing. Additionally, it must be taken into account that at the San Francisco Conference, the understanding was that ‘recommendations’ were not to be considered as binding from the outset.17 So both the systematic and the historic interpretation of the Charter lead to the conclusion that Council decisions are binding, whereas Council recommendations are not binding. 9  The follow-up question is how we can determine whether any given text adopted by the Council is a decision in the proper sense. The label given to these texts is inconclusive.18 The acts adopted by the Council are normally not called ‘decision’ or ‘recommendation’ but ‘resolution’. In its Namibia opinion, the ICJ highlighted that the question whether a text adopted by the Council is a ‘decision’ in the proper sense, and therefore legally binding, must be determined specifically for each concrete case. The ICJ mentioned as criteria the Act’s wording, its genesis, its legal basis, and the context of its adoption: The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.19(p. 793) The quality of ‘decision’ does not hinge on any specific procedure of adoption. In particular, also consensus procedures, without formal voting, can lead to a (binding) decision.20 Applying these criteria, one will often find that one and the same resolution may contain different types of legal acts. Typically even, resolutions of the Security Council consist of decisions and recommendations side by side.21 10  The legal consequence is that, in the words of the Namibia opinion, when the Security Council adopts a decision under Article 25 in accordance with the Charter, it is for member States to comply with that decision…To hold otherwise

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would be to deprive this principal organ of its essential functions and powers under the Charter.22 In contrast, the legal effect of a Council recommendation is that members retain discretion whether or not to act, but that they must ‘exercise that discretion bona fide’ and ‘consider the recommendation in that sense’.23 Also, a recommendation may indirectly become quasi-binding, if non-compliance with a recommendation is considered by Security Council as a threat to the peace and the Council then takes enforcement action against the member.24

II.  Binding Decisions also outside Chapter VII, Especially under Chapter VI 11  The legal basis of a resolution adopted by the Council is one of the criteria for determining its legal quality. Resolutions adopted under Chapter VII normally contain binding elements, and thus contain decisions in the narrow sense (with binding power). It is meanwhile settled that binding decisions can also be taken in resolutions whose legal basis is not Chapter VII, namely in the context of peaceful dispute settlement (Council activity under Chapter VI). 12  In its Advisory Opinion on Namibia, the ICJ reached this conclusion through an interpretation of Art. 25 based on its wording, context, and its object and purpose. The Court stated: Article 25 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. Moreover, that Article is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council. If Art. 25 had reference solely to decisions of the Security Council concerning enforcement action under Arts. 41 and 42 of the (p. 794) Charter, that is to say, if it were only such decisions which had binding effect, then Article 25 would be superfluous, since this effect is secured by Articles 48 and 49 of the Charter.25 This interpretation of Art. 25 and its explanation is convincing and is shared by scholarship.26 13  The Security Council can notably take binding decisions under Chapter VI (dispute settlement). This had been contested in the early years of the organization. The principal argument of the contesters was that if a party to a dispute is at the same time a member of the Security Council, Art. 27 (3) mandates that it must abstain from voting in a decision taken by the Council under Chapter VI with regard to that dispute. This means that permanent members of the Security Council do not enjoy a veto with regard to disputes in which they are themselves involved. Initially, it seemed inacceptable that a binding decision should be possible against the will of a permanent member, and therefore the argument was that without the possibility of a veto, no binding decisions could be taken.27 14  However, not only the wording and systematic position of Art. 25, but also the wording of the relevant provisions in Chapter VI itself speak in favour of a power of the Council to adopt binding decisions in the context of dispute settlement. A number of provisions in Chapter VI confer different types of powers to the Council, most of which do not comprise binding measures.28 The main point of controversy is the provision of Art. 34 (2) under which the Council ‘may investigate any dispute’ in order to determine whether it is likely to endanger the peace. The question is whether such an investigation could be mandated by the Council even against the opposition of one of the parties to the disputes. Formally speaking, an investigation by the Council is not a final finding, but only a preparatory step, and not a normative act in itself.29 However, if a concerned State does not admit investigators into the country and does not cooperate with them, a binding order to prohibit From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

obstruction and to mandate cooperation might become necessary to render an investigation possible. One commentator opines that members are not obliged to open up their territory for an investigation triggered by the Security Council under Art. 34, since where the Charter has required such a concession in relation to certain actions of the UN, it has said so expressly (for example in Art. 43, mentioning the ‘rights of passage’).30 However, in the light of the general duty to cooperate, a State which closes its frontiers must at least furnish an adequate reason.31 But based on the insight that the entry of investigators is an essential precondition for the effective discharge by the SC of its functions, the preferable view would seem that members are indeed obliged to tolerate an investigation carried out in their territory.32

(p. 795) III.  Members ‘Agree to Accept and Carry out’ 15  The legally binding effect of decision can be explained in different ways. First, it can be regarded as an intrinsic element of the quality of the act as a ‘decision’ in the narrow sense, as opposed to a non-binding recommendation.33 Second, the binding effect also flows from the phrase that the members ‘agree to accept and carry out the decisions’, as Art. 25 states. 16  The verb ‘agree to accept’ refers to the overall consent given by States upon ratification of the Charter. This is technically speaking superfluous but in political terms significant. Because of the revolutionary nature of the binding quality of Security Council decisions (see MN 1) the drafters deemed it wise to remind the States that they have consented to this. That reminder underscores both the novelty and the importance of the bindingness of the Security Council decisions and forbids admitting excuses for non-implementation lightheartedly. 17  In a different reading, the introductory formula ‘The members agree’ may give rise to the idea that the members are competent whether to decide in the concrete case whether a Council decision is binding or not.34 But such an understanding should be rejected. The formula should not be understood as allowing for ad hoc agreements of the members. Allowing for a member’s competence to decide in each case whether to ‘accept’ a decision would nullify the latters’ binding character. 18  To conclude, the phrase should be read as expressing the idea that members are obliged to carry out the decisions.35 This view is corroborated by Art. 2 (5) which contains a general obligation of members to give ‘every assistance in any action’ the UN take in accordance with the Charter. 19  Non-compliance with a binding decision constitutes a violation of the Charter, as the Council itself has occasionally explicitly stressed.36 Besides, non-compliance with a binding decision is in itself apt to constitute a threat to international peace and security.37

IV.  The Binding Character of Acts of Subsidiary Organs, Especially of Sanction Committees 20  The Security Council has established subsidiary organs under Art. 29 for the performance of its functions, for example sanctions committees.38 The early sanctions (p. 796) committees were only mandated to make recommendations.39 But the newer committees managing the targeted sanctions take decisions which seem to be binding in themselves. For example, the 1267 committee designates individuals.40 Its mandate is furthermore to ‘consider listing submissions [and] delisting requests’.41 The committee takes the relevant decisions itself; for example, it decides to remove a person from its consolidated list.42

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21  It is generally accepted that subsidiary organs of the Council may adopt decisions that are legally binding on the Security Council itself, and also on members in the sense of Art. 25.43 The doctrinal explanation is that the Council possesses a general power to delegate its competences, including its power to issue binding decisions, to its subsidiary organs.44 Arguably, such a delegation is lawful only if several substantive and procedural conditions are fulfilled.45 This restriction results from the view that the Security Council is a delegate (or agent) of the members.46 From that perspective, the non-delegation doctrine is applicable. Under that doctrine, a delegate (or agent, which is in our case the SC) can, as a general rule, not endlessly further delegate its powers to a sub-delegate. The objective of the non-delegation doctrine is to secure the delegate’s accountability to the principal and to safeguard legal clarity.47 The limits of delegation are the following: first, the Security Council must act within its mandate. The delegation must be necessary to maintain or restore international peace and security. Second, the Security Council can normally only delegate powers which it itself possesses. Third, the subsidiary organ must act within its mandate as defined by the Council. Fourth, the composition of the subsidiary organ should reflect the composition of the Security Council itself. This is no problem for the sanctions committees which have so far always been established as ‘committees of the whole’, which means that every member of the Security Council is represented in the committee, too.48 Fifth, the decision-making procedure must accommodate the veto right of the P5 which is a functional corollary of the decision’s binding force. This condition is fulfilled if the subsidiary organ decides by consensus, which has been the usual practice of the sanctions committees.49 Within the consensus procedure, the possibility to raise a formal objection in fact grants a veto power to all members, including the P5. Sixth, the Security Council (p. 797) must retain a sufficient degree of authority and an effective overall control over the subsidiary organ, and the right to change or revoke the decisions taken by the organ. Overall control is guaranteed for the sanctions committees, which regularly report to the Security Council.50 Finally, it has been argued that certain core decisions in the field of maintaining international peace and security, for example the determination of an existence of a threat to the peace, cannot be delegated but are intrinsically reserved for the Security Council as a whole.51 It would seem that decisions by a subsidiary organ taken in violation of these non-delegation rules are ultra vires in a proper sense, and therefore without binding effect.52 22  A different question again is whether decisions taken by subsidiary organs also directly bind individuals under international law. This question is pertinent for the new sanctions committees which decide to list and delist individuals. The listing decisions intensely affect the listed individuals and have an impact on their fundamental rights. However, this fact alone does not automatically mean that the decisions directly bind individuals as a matter of international law, or that they have a direct effect in domestic law. These two questions will be discussed more generally with regard to Council decisions below.53 23  A sui generis case is the international criminal tribunals which were established by Security Council decisions. These are, in a formal sense, subsidiary organs. However, in a substantive sense, they are independent. Here the ‘delegation’ did not fulfil the requirement that the Council can only delegate powers which it itself possesses. The Council itself does not have the power to render binding judgments, like a court. Nevertheless it has been accepted that the Council could establish the tribunals. By definition, these must possess the power to issue binding judgments to deserve their name. It seems misleading to derive the binding effect of the judgments of those tribunals from Art. 25.54 The binding quality of the judgments is intrinsic to the tribunals being judicial bodies. Also, the composition and working methods of the tribunals do not accommodate the P5 veto power. But all these special features are owed to the fact that these tribunals

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are not ‘executive type’ bodies. It seems best not to analyse their powers through the lens of delegation.

C.  The Interpretation of Security Council Resolutions 24  Security Council resolutions must, as any other legal text, be interpreted.55

(p. 798) I.  Who? 25  The power of ‘authentic’ interpretation lies with the Council itself.56 But ‘authentic’ does not mean ‘authoritative’ in the sense that the appliers of Council decisions would not be allowed to interpret them differently. Security Council decisions are applied and carried out in a decentralized fashion. And because any application and implementation of the decisions requires their interpretation, they are by necessity interpreted in a decentralized fashion. No interpretation of one of those various law-appliers is binding in a formal sense on other actors, it can only deploy a persuasive power. Although the ‘authentic’ interpretation given by the Council itself does not strictly bind other actors, it bears more legal and political weight than interpretations pronounced by other international or domestic actors. The ICJ has frequently interpreted Council decisions, and has in its interpretation taken into account the ‘authentic’ one by the Council itself, without accepting to be bound by it.

II.  How? 26  According to the ICJ, the rules of treaty interpretation, as enshrined in Arts 31 and 32 VCLT only provide some guidance for the interpretation of Council decisions. Because resolutions have a very different drafting process from treaties, other factors must be taken into account when interpreting them, the Court said.57 But it did not specify which factors these might be. Much speaks in favour of relying on the factors laid out in the VCLT, although formally speaking, that convention is not applicable to legal acts other than treaties.58 First of all, it is hard to find other factors than those mentioned there. Second, both the treaty-making and the decision-making process involve reaching an agreement between States.59 The different nature of the binding effect of the legal acts (selfbindingness as opposed to third-party bindingness) makes only a difference in degree for the interpretation of the acts. It is generally assumed that for the interpretation of acts with a heteronomous binding effect (legislation, and also the Council decisions), the ‘objective’ factors should be more important than the ‘subjective’ will of the authors. Council decisions bind States which have not participated in that process. Because of that third-party bindingness of decisions, the ‘objective view of the neutral observer as addressee’ seems to be more important than the ‘subjective’ intention of the drafters, and also more important than the subsequent practice of the authors which establishes their agreement (cf Art. 31 (3) lit b) VCLT).60 It must however be borne in mind that multilateral treaties to which other States which did not participate in the drafting, and only later adhere to the treaty, are in a somewhat similar position to non-members of the Council which are bound by Council decisions. Finally, for Council decisions, time (p. 799) pressure and the conduct of negotiations by non-lawyers often lead to a deliberate ambiguity which renders the interpretation of the decisions more difficult.61 But these factors often play for treaties, too. To conclude, elements such as wording, context, genesis, and ‘objective’ purpose, should guide the interpretation of Council decisions, with the subjective intention of the drafters standing in the background. 27  So far, it is an open question whether the principle of effet utile is applicable to the interpretation of Security Council decisions. It is submitted that this should not be

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discarded from the outset because it is an acknowledged version of teleological interpretation. 28  Finally, any interpretation of a Council decision should operate on the basis of the presumption, first, that the Council does not intend to deviate from international law, and second, that it does not does intend to force members to violate international law when carrying out the decision.62 Additionally, it could be argued—against the background of the Security Council’s obligation of loyalty towards the members—that it presumably does not intend to force members to violate core contents of their domestic constitutional law. If however, an interpretation of the decision in the sense of respecting contrary domestic fundamental constitutional principles is not possible, no member can invoke its domestic law as a ground for not carrying out the decision.63

D.  The Addressees of Obligations Contained in Security Council Decisions I.  The Members 29  The Council decisions bind all UN members, also those who did not play any part in its adoption. The binding effect extends, as the ICJ stated to ‘those members of the Security Council which voted against it and those Members of the United Nations who are not members of the Council’.64 The binding effect is not based on consent to that concrete decision, in contradistinction to the binding effect of a treaty. 30  From the perspective of international law, the members’ obligation to carry out the Security Council decisions prevails possible contrary domestic law. The State cannot invoke the provisions of its internal law as a justification for the failure to implement.65 If an organ of the State, for reasons of domestic law, opines that it should not execute the Council decision, this does not affect the bindingness of the decision for the member as a whole, and the State’s international responsibility for failure to carry it out. Moreover, members are under an international legal obligation of good faith to (p. 800) ensure the implementation of decisions, if need be by adjusting their domestic legal order. A different question is challenges before domestic courts based on the ground that the Security Council itself or implementing acts violate international law. This will be discussed below (s E). 31  A follow-up question is whether the decisions bind not only the State as an international legal person but directly all State organs. The direct obligation of all State organs, by virtue of international law, and not only by virtue of domestic law, would strengthen the effectiveness of the Council decisions. The question will be discussed below under the heading of direct effect (see MN 45–54).

II.  Non-Member States 32  One question is whether Security Council decisions can also bind actors beyond the UN members. Potential further addresses outside the circle of members are non-member States, including entities such as Palestine, Kosovo, or Taiwan, whose statehood is more or less contested.66 The Security Council has notably in its embargo resolutions decided that ‘all States’ (implicitly including non-member States) must prohibit sales to and from the sanctioned State or its nationals.67 Article 2 (6) suggests a binding effect of these decisions also on non-UN member States. Such an effect is doubtful in a consent paradigm.68 It can be justified by pointing to the special, possibly ‘constitutional’ character of the UN Charter.69

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33  The question of a binding effect for non-member States had a historical significance for Switzerland which became a UN member only in 2002. It could be asked whether Switzerland was obligated to implement the embargoes and adopt the required measures, too. Before the end of the Cold War, Switzerland did not participate in the sanctions, invoking its legal status of permanent neutrality. Only after the end of the Cold War did the Swiss government modify its political concept of neutrality. Switzerland then started to participate in sanctions, but the government insisted that the State was not legally bound to do so, but autonomously and voluntarily chose to do so (autonomer Nachvollzug).70

III.  Non-State Actors Including Individuals 34  Another group of potential addressees of obligations are non-State actors such as armed groups, independence movements, transnational enterprises, and individuals. Can Council decisions bind individuals and other non-State actors on the international plane, and do these decisions have a direct effect in domestic law?

(p. 801) 1.  Practice 35  The practice of the Security Council clearly includes non-State actors. First of all, a number of Council resolutions state that terrorism (usually committed by natural persons) is a threat to international peace in terms of Art. 39.71 However, these resolutions do not impose any obligations on the terrorists themselves. UNSC Res 1540 on weapons of mass destruction has an as explicit objective to reduce the risk that non-State actors acquire such weapons.72 Again, the resolution specifies only obligations of States. These resolutions resemble international treaties which impose on States the obligations to punish individuals for certain crimes. It is an open question whether the resolutions could be understood, beyond their wording, as imposing international obligations on individuals directly. 36  Second, all decisions on sanctions ultimately aim at influencing the behaviour of individuals. The comprehensive economic sanction regimes seek to interrupt commercial interaction which is usually performed by private exporters and importers. Their typical effect is therefore to render impossible the execution of already existing contracts under private law; and to that extent they affect private rights. The newer resolutions on smart sanctions seek to target specific, often named individuals such as political office-holders or persons suspected of terrorism with the objective to make them comply with international law and with previous Security Council resolutions. However, both types of sanctions resolutions only oblige States to take measures under their domestic law, notably to prohibit commerce to persons under their jurisdiction, to freeze assets, and to prohibit travel of the targeted individuals.73 The Security Council regularly ‘calls upon all States to take appropriate measures to ensure that individuals and companies in their jurisdiction… act in conformity with United Nations embargoes,…and, as appropriate, take the necessary judicial and administrative action to end any illegal activities by those individuals and companies; …’.74 Technically speaking, individuals are here still mediated by their States (or, in the case of the resolutions on sanctions, in Europe by the EU). Differently from the EU decisions and regulations on sanctions,75 the Council resolutions do not directly impose obligations on natural and moral persons, neither on the traders who sell weapons or other goods to buyers in the state of concern, nor on the targeted natural persons on whom travel bans and the like shall be imposed (by the members). However, in at least one resolution the Security Council stated that a sanctions decision obligates non-State actors directly: UNSC Res 1474 (8 April 2003) UN Doc S/RES/1474 (p. 802) ‘stresses the obligation of all States and other actors’ to comply with a previous resolution which had imposed an arms embargo on Somalia.76

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37  A third type of Council resolution and presidential statement directs recommendations explicitly at non-State actors. Several times, the Council called upon private persons, NGOs, and companies to support UN-sanction policies. With regard to Sierra Leone, the Council, inter alia, asked the diamond industry to collaborate with the official government.77 With regard to Liberia, the Council called upon ‘civil society’ to contribute to peace in the region.78 Also, the president of the Security Council qualified drug-trafficking and the related transnational criminal activity as a threat to the peace and called upon civil society and the ‘stakeholders’ to combat drug trafficking.79 But, importantly, these resolutions do not impose obligations on the civil society actors, but only ‘encourage’ or ‘invite’ them to take steps. 38  So far, fourthly, decisions seem to clearly obligate private actors in non-international armed conflict.80 In that context, various resolutions have called not only upon the involved States, but also have demanded other political groups and individuals to immediately cease hostile activities, to comply with a previously agreed ceasefire, to disarm themselves, and the like.81 The functional justification for directly addressing armed groups and individuals is that in the situation of civil war the lack of State control over those groups is evident, otherwise the internal armed conflict would not exist. If a Council resolution is to have a pacifying effect, it must directly speak to the armed groups. It would not suffice, and even be clearly counterproductive if the Council only obliged the involved States to suppress the opponents’ military activities and to sanction them with the means of domestic (criminal) law, because these governmental attempts and the resistance it meets are exactly what constitute the military conflict. (p. 803) 39  A different reason for the Council’s practice of addressing armed groups is that, in armed conflict, individuals and armed groups are directly bound by international law anyway.82 In consequence, Security Council decisions do not impose new obligations on those actors but merely enforce the existing ones.83 However, these resolutions, although in a way only ‘declarative’, may—it is submitted—have an independent legal effect upon individuals, even if they merely ‘concretise’ pre-existing obligations. This will be explained next.

2.  Internationally Binding Effect 40  The question is whether Security Council decisions can bind other actors than States on the international plane. In scholarship, it has been asserted that Council resolutions can lawfully and validly directly bind individuals only if a specific justification is present.84 41  In the Kosovo opinion, the Court stated that it can ‘establish on a case-by-case basis for whom the Security Council intended to create binding legal obligations’.85 The ICJ did not, as a matter of principle, exclude a binding effect of a decision for a non-State actor. It did not even limit that possible binding effect to those non-State actors which enjoy an international legal personality. In the case of Kosovo, the ICJ only found that Res 1244 was not addressed to the authors of the declaration of independence, but to the member States and to the UN and its organs.86 42  Within a strictly consent-based paradigm of international law, any binding effect of Council decisions on non-members and non-State actors seems prima facie suspect, because from that perspective, the unilaterally binding effect of decisions ultimately flows from the members’ consent expressed through ratification of the UN Charter. This idea is underlined by the phrase ‘members agree to accept and carry out the decisions of the Security Council’ (Art. 25). 43  It is from that starting-point difficult to extend the binding force to those actors which did not express such an initial consent. A legally binding obligation can, from that perspective, only be admitted under the premises that the States have consented as

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representatives of persons and groups under their jurisdiction, so that the internationally relevant consent of those actors must be assumed, too. 44  The better view seems to be that Security Council decisions can deploy internationally binding effects on international legal subjects (States and others, such as individuals) independently of consent, because of the special quality of the UN Charter. Formally, Security Council decisions cannot internationally bind actors who do not enjoy a however limited international legal personality, because those actors are by definition not (p. 804) capable of incurring any international legal obligation. However, repeated decisions addressing non-State actors may be considered as an indication of the Security Council members’ legal opinion that these actors can indeed be saddled with international legal obligations, and thus contribute themselves to the recognition of their international legal personality.

3.  ‘Direct Effect’ or ‘Self-Executingness’ in Domestic Law? 45  The second question is whether the resolutions which address individuals have a direct effect (or are ‘directly applicable’ or ‘self-executing’) in domestic law. I use the term ‘direct effect’ to describe the legal mechanism that a domestic body (especially a court) may apply an international provision, and that this application can lead to setting aside a contrary rule of domestic law.87 That question is normally discussed with regard to international treaties which grant rights to individuals. Because their domestic application is thus favourable for concerned individuals, these individuals seek to invoke the respective provisions before domestic courts. But direct effect is also an issue for international rules which impose obligations on individuals, especially in international criminal law. Notably judgments by the ad hoc criminal tribunals established by Security Council resolutions have a direct effect for the convicted individuals, too. But these judgments are not decisions of the Council, although they emanate from a Council decision. 46  The existing scarce scholarly remarks on a possible direct effect of Security Council decisions are fairly decoupled from the usual debate on direct effect. It is basically merely asserted both in scholarship and in State practice that Council resolutions, though binding, do not have any direct effect.88 One explanation given is that members have not ‘transferred’ sovereign rights to the Security Council but only ‘limited’ the exercise of their sovereign rights in that respect.89 47  It is submitted here that the starting point for the determination of any direct effect of Security Council resolutions should be the criteria used for international treaty law, but that these need some modification. The reason for using those criteria is two-fold. Firstly, from the perspective of the domestic law-applier, the binding effect of Security Council decisions resembles that of a treaty. Secondly, it could be said that the decisions’ binding effect derives from a treaty (the Charter) and that therefore their legal nature is conventional rather than unilateral.90 Thirdly, direct effect has also become an issue with regard to judicial or quasi-judicial decisions of international courts or (p. 805) monitoring bodies.91 Security Council decisions, in their binding effect, resemble such decisions, too. 48  In practice, the domestic courts in various legal orders rely on similar criteria to grant or reject the direct effect of international (treaty) norms. These are the intentions of the authors, and the content, objective, and wording of the relevant provision. Crucially, the provision must be sufficiently precise and unconditional. Courts also ask whether an international provision is addressed to individuals or only to States. Sometimes courts pay attention to the objective and structure of the entire legal instrument.92 Security Council resolutions which address individuals and private groups should be examined under those headings, too.93

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49  Direct effect raises profound questions of a separation of powers, of the principle of legality, and of democracy. On a first level, a direct effect of a Security Council decision would mean that the resolution in question needs no implementation by the domestic legislator, but is in itself statute-like, and can therefore be applied by a court. This quality depends on the decision’s substance, especially on its abstract and general character.94 This aspect of direct effect is the justiciability aspect. It concerns the separation of powers between the law-maker and the courts. 50  A second aspect is more genuinely a problem of international law. It is the relationship between those constitutional bodies which shape the external policies of a country (ie the executive, in democratic States normally together with parliament), and the (ideally typically apolitical and technical) judiciary. The line between international acts with direct effect and those without direct effect should be drawn in a way which preserves the (political) leeway for the former branches. But that leeway granted to the political branches by the judiciary implies that not all violations of international law should deploy the full legal consequence of rendering incompatible internal law (national law or EU law) illegal, but should rather be dealt with ‘politically’, and thus conveys a ‘soft’ quality of international law—a quality which seems to run counter to the very essence of Security Council decisions. 51  The third aspect of direct effect is the principle of legality.95 This concerns the application of international law in domestic administrative and criminal procedures. Under the rule of law, especially obligations imposed on individuals must be based on a clear legal basis. The question then is whether a Security Council decision constitutes a sufficient legal basis. That question is most acute when it comes to the establishment of a crime through a rule of international law. It is currently unlikely that the Security Council (p. 806) would do so. However, after the entry into force of the Kampala amendments to the ICC Statute, any finding of the Council of an ‘aggression’ in terms of Art. 39 will also involve an, albeit nonjudicial, finding of a crime which triggers individual criminal responsibility.96 52  The fourth aspect of direct effect relates to the democratic legitimacy of international law. In the current international system, the democratic legitimacy of international treaties is only a transitive one, flowing from the participation of the parliaments of the contracting State parties, but not from any democratic procedures on the international plane. If one considers domestic courts as the gatekeepers of legitimacy of all law which is applicable in the domestic sphere, and especially as the guardians of democratic self-government, one could argue that it is incumbent on them to safeguard these constitutional principles through rejecting the direct effect of international treaty norms.97 This reasoning would a fortiori apply to Security Council resolutions, because they are adopted in a non-inclusive procedure, and are binding upon third States which did not consent to them. 53  The traditional criteria of suitability for direct application, namely unconditionality and precision of the international act normally do not pose a problem for Security Council decisions. In this constellation, the question of legitimacy stands in the foreground: should the Council decision bind the domestic institutions, as a precedence or at least as a normative guideline? It is submitted that the response should be informed by concern for national constitutional principles such as self-determination/democracy, legality, and legal certainty, but that the direct effect of the Council decision should not be ruled out as impossible from the outset. Domestic bodies which seek to reject a direct effect of a Council decision which specifically addresses individuals must justify this on the basis of constitutional principles.

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54  All these considerations seem to apply also to binding decisions issued by subsidiary organs of the Council, notably the sanctions committees which manage the targeted sanctions. For those decisions, problems of delegation additionally come into play and render the question even more complex.98

4.  Indirect Legal Effects 55  Another aspect is the indirect effects which Security Council decisions deploy in the domestic order of members, and thereby affect the legal position of natural persons.99 For example, decisions imposing economic sanctions concern transactions of private parties with business actors in the sanctioned State. The sanctions decisions typically state that they shall apply ‘notwithstanding any contract entered into or any licence granted before the date of the resolution’.100 These clauses seem apt to destroy legitimate expectations of a private actor, and thereby prevent claims for damages under domestic (p. 807) law which a private actor might seek to make on the grounds of the economic losses due to the sanction policy. Or the Security Council decision can constitute an element of ordre public in the sense of the laws of conflict of laws. It might even trigger the invalidation of private contracts under domestic law, if that law allows for such invalidation under the heading of an ordre public.101

E.  ‘[I]n Accordance with the Present Charter’ I.  The Various Readings of the Phrase 56  The sentence constituting Art. 25 can be interpreted in at least three ways. First, the phrase ‘in accordance with the present Charter’ can be understood as referring to the members. It might clarify that the members must act in accordance with the Charter when carrying out decisions.102 This interpretation would leave Security Council action itself without legal limits flowing from that phrase.103 However, because the members must anyway comply with the Charter, the phrase is in that reading at best declaratory, at worst superfluous and confusing.104 It rather seems that the phrase must be related to the decisions, not to the members. Along that line, varied readings have been suggested. The, what I call ‘radical,’ view is that only those decisions taken ‘in accordance with the Charter’ are binding and must be carried out, other decisions not. In that reading, the phrase clearly articulates legal limits on Council action. One passage of the Namibia Advisory Opinion seems to espouse that ‘radical’ interpretation: The Court has therefore reached the conclusion that the decisions made by the Security Council [with regard to the South African presence in Namibia]…were adopted in conformity with the purposes and principles of the Charter and in accordance with its Articles 24 and 25. The decisions are consequently binding on all States Members of the United Nations, which are thus under obligation to accept and carry them out.105 This statement seems to imply e contrario that a decision not in conformity with the purposes and principles of the Charter or not in accordance with the Charter is not binding and need not be carried out. The drawback of this ‘radical’ interpretation is that it would constitute an ‘invitation for members to call into question the constitutional propriety (p. 808) of the decision’, would lead to an ‘absurd result’ by erasing the difference between binding decision and recommendation, and would thus jeopardize the functioning of the Council, as Jean Combacau already warned.106

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57  The other variation is to relate the phrase ‘in accordance with the Charter’ to the Council decisions (and not the members) but in a different sense: only decisions vested by other Charter provisions with binding force must be carried out, as opposed to those ‘decisions’ (in the broad sense) which are merely recommendatory. This interpretation has been favoured by dissenting Judge Fitzmaurice in the Namibia opinion.107 Also, the early UN commentators have espoused this interpretation.108 Goodrich, Hambro, and Simons even present this interpretation as the answer to the questions prompted at the San Francisco conference by the preceding provision of the Dumbarton Oaks Proposals for a General International Organization.109 58  However, the travaux préparatoires are not conclusive. The Dumbarton Oaks Proposals, to my view, quite clearly related the requirement of being in ‘accordance with the Charter’ to the members, not to the Council.110 But already the wording of that proposal was interpreted differently by delegates at the San Francisco Conference.111 It is not documented why the provision was slightly reformulated with the result that the reference point of the phrase ‘in accordance with the present Charter’ has become even more ambiguous.112 59  Finally, a systematic reading of Art. 25, compared to Art. 24 (2) rather suggests that the phrase ‘in accordance with the present Charter’ relates to the members. Interpreting it as a legal limit to Council action creates a contradiction between that provision and Art. 24 (2) which only posits the Charter’s ‘Purposes and Principles’ as a legal limit on the Council. On the other hand, a comparison of Art. 25 with the parallel phrase in Art. 2 (5) points in the opposite direction: In Art. 2 (5), the phrase ‘in accordance with the Charter’ clearly refers to ‘it’, the Council, and not to the members. 60  Ultimately, neither a literal, nor a contextual, nor a historical interpretation of Art. 25 resolves the question of possible legal limits to Security Council action.113 That question must be answered on the basis of principled considerations.

(p. 809) II.  The Existence of Legal Limits to Security Council Decisions 61  General arguments against the possibility and existence of legal limits to Security Council decisions are ultimately not persuasive. Kelsen’s point was that the purpose of a Security Council decision (especially under Art. 39) was not to restore the law, but to maintain or to restore peace, which is not necessarily identical with the law.114 However, while peace may indeed not ‘necessarily’ be brought about through lawful behaviour, the statement can not be inversed: without compliance with the law, peace can in the long run not be maintained. More importantly, the mere fact that the purpose (end) of Security Council action is not as such to secure compliance (of States) with the law does not automatically relieve the Council from observing the law when applying specific means to that end. The means (peace) must be distinguished from the ends (Council action) to reach it. 62  Secondly, the fact that Council decisions under Chapter VII are always taken in emergency situations does not justify any move to place the decisions as such outside the law. Situations of Art. 39 are not per se an Ausnahmezustand (in the sense of Carl Schmitt) which would suspend the law. Emergencies do not create a law-free zone but must be managed within the confines of the law, although the legal standards must be adapted and possibly lowered in response to the special needs of the case.115 63  Concomitantly, the Council’s quality as the quintessential political organ of the UN does not mean that it is an extra-legal entity.116 Because law and politics are not simple opposites, but two interrelated dimensions of international relations ‘[t]he political character of an organ [such as the Security Council] cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its

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powers or criteria for its judgement’, as the ICJ stated in the Admission to UN Membership Advisory Opinion.117 64  In its Advisory Opinion on Certain Expenses of the United Nations, the ICJ again suggested that there are legal limits to the Organization’s action: The primary place ascribed to international peace and security is natural, since the fulfilment of the other purposes will be dependent upon the attainment of that basic condition. These purposes are broad indeed, but neither they nor the powers conferred to effectuate them are unlimited. Save as they have entrusted the Organization with the attainment of these common ends, the Member States retain their freedom of action.118 However, these legal limits were only defined vis-à-vis the UN members, not vis-àvis individuals, eg in form of an obligation to respect their human rights. (p. 810) 65  The view that not only the UN as a whole but specifically the Security Council is bound by law has been forcefully confirmed by the ICTY Appeals Chamber in the Tadic decision on jurisdiction: ‘It is clear…that the Security Council plays a pivotal role and exercises a very wide discretion under this Article. But this does not mean that its powers are unlimited…In any case, neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law).’119 66  Interrelated considerations of legitimacy and effectiveness suggest acknowledging legal limits for the Security Council. The Council’s behaviour is morally consistent and thus credible only if the Council itself satisfies the standards it imposes on its members. The acknowledgment of such limits helps to gain acceptance and will thus in the long run improve the effectiveness of the Council. Members are more likely to comply with what they perceive as lawful decisions. If one does not concede to the members the authority to contest a flagrantly illegal act of the Council with legal arguments, they will try to sneak out secretly, and simply obstruct Security Council resolutions.120 67  The ICTY Appeals Chamber used constitutional language in the Tadic decision on jurisdiction to bolster its conclusion: The Security Council is an organ of an international organization, established by a treaty which serves as a constitutional framework for that organization. The Security Council is thus subjected to certain constitutional limitations, however broad its powers under the constitution may be.121 The attribution of a constitutional status to the Charter in no way implies that this eclipses or overrules general international law in which the Charter Constitution is embedded. 68  The constitutionalist argument is that the more powerful the Security Council gets, and the more its decisions interfere with (human) rights of individuals, the more necessary it is to build in safeguards against the Council’s potential abuse of powers, and against the possibility of a violation of those rights.122 The basic idea here is that any increase of political power must be accompanied by incremental safeguards and checks, that, in other words, power should not go without accountability. Otherwise, any strengthening of global governance (with the Security Council being one of the most important governance bodies) will entail losses of freedom and welfare of individuals.123 69  The Tadic decision on jurisdiction additionally used the ultra vires argument124 by stating: ‘Those powers [of the Council] cannot, in any case, go beyond the limits of the (p.

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811) jurisdiction of the Organization at large, not to mention other specific limitations or those which may derive from the internal division of power within the Organization.’125 70  That case-law underlines the nowadays prevalent opinion that the Security Council is bound to act within legal limits. It is therefore tenable to interpret the phrase ‘in accordance with the present Charter’ in a dynamic fashion as applicable to the Security Council itself, although this reading is not, as stated above, the only reasonable one.126 But the question remains: which legal limits, and on which decisions? It is notably controversial whether the Council is also legally bound when acting under Chapter VII (see on this MN 133–148). Ensuing questions are: How can these legal limitations be explained doctrinally? Who is authorized to define these legal limits and to scrutinize the legality of decisions? (eg only the Security Council itself or the members and their organs, notably domestic courts)? (MN 153–174). What is the legal quality of a Council decision overstepping the legal limits? Is it illegal, or even null and void? (MN 175–187). And finally, what are the consequences for the members’ obligation to carry out impugned Council decisions? (MN 188–191). In practical terms, the most relevant of these questions seem to be that of the scope of control by members, how to organize it, and how to prevent the abusive invocation of legal flaws by members.127 71  Therefore, a balance must be struck between two antagonistic values: legal certainty, effectiveness of Council decisions, and international cooperation to maintain international peace and security (which would be achieved by accepting an unconditional bindingness of decisions irrespective of legal flaws) on the one hand, and the rule of law and legality on the other hand.

III.  Which Legal Limits? 72  Which legal yardstick applies to Security Council decisions? A reader of the Charter faces a confusing divergence of standards. Articles 2 (5) and 25 themselves refer to ‘the present Charter’. But Art. 24 (2) and Arts 1 and 2 set out different standards. The standards will be analysed one by one in this section. Article 1 (3) will be looked at in the human rights context (MN 109–123).

1.  Both Procedural and Substantive Limits 73  It has been suggested to distinguish problems of legal procedure from problems of legal substance. From that perspective, the phrase ‘in accordance with the present Charter’ in Art. 25 has a merely procedural significance. According to that view, decisions are ‘in accordance’ with the Charter when they have been taken in the correct formal procedures, eg with the necessary majority. In consequence, member States would be authorized only to scrutinize these formal aspects.128 74  However, that view does not seem to find any support in the wording, context, or history of the Charter. The wording (‘the present Charter’), does not distinguish (p. 812) between substance and procedure. That suggestion seeks to circumscribe a potential members’ right to scrutinize and resist Security Council decisions very tightly and narrowly. But this objective can hardly be achieved through an artificial distinction between procedural and substantive flaws. Both dimensions can often not be separated. The correct decision-making procedure may depend on the substance of the decision, eg whether it is an ‘other matter’ in terms of Art. 27 (3) and therefore allows for a veto or not.129 The better view is therefore that the Security Council is subject both to both to procedural and substantive limits. The follow-up question is which material standards apply.

2.  Article 24 (2): The ‘Purposes and Principles of the United Nations’

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75  Article 24 (2) prescribes that ‘the Security Council shall act in accordance with the Purposes and Principles of the United Nations’. This phrase is a reference to Chapter I of the Charter which carries the formal heading ‘Purposes and Principles’.130 That chapter consists in two Articles, Art. 1 stating the ‘purposes’, and Art. 2, setting out the ‘principles’.

(a)  Article 1: ‘Purposes of the United Nations’ 76  The ‘purposes’ of the UN, as enunciated in Art. 1, form a legal limit for Security Council decisions. The most important purpose of the United Nations is ‘to maintain international peace and security’ (Art. 1 (1)). All other objectives can be related to this purpose. 77  Decisions which do not at least aspire to reach the said principles or even obstruct them would be ‘not in accordance’ with them, and therefore inadmissible in terms of Art. 24. Doctrinally, this conclusion can also be based on the more general reasoning that acts of the Organization which are not covered by its objectives as stipulated in the founding document are ultra vires. A different explanation is that decisions taken for (hidden) purposes other than the ones for which powers had been granted to the Council, are a détournement de pouvoir and constitute an abuse of powers, which is prohibited under international law (see MN 107–108). 78  However, the ‘purposes’ as enumerated in Art. 1 are so sweeping and abstract that is hardly conceivable that the Council take any decision which cannot be said to further them. The ‘purposes’ as such therefore do not pose stable and clear limits for Council action.131 It is less the ‘purposes’, but rather the ‘principles’ enunciated in the Chapter which might be operationalized as legal limits to Security Council action;132 and to this we now turn.

(b)  Article 2: ‘Principles’ 79  The chapeau of Art. 2 expressly states that ‘the Organization [thus also the Security Council] and its Members, in pursuit of the Purposes stated in Art. 1 shall act in accordance with [certain] Principles’. The ensuing paragraphs distinguish between obligations (p. 813) of the members and of the Organization, and concomitantly apply different principles to the different addressees. For example, the obligation to act in good faith (Art. 2 (2)) is imposed only on the members, not on the Organization itself, and can therefore not be directly employed as a legal limit of Security Council decisions. 80  Formally, the most relevant paragraph seems to be Art. 2 (5) which contains a limitation clause for the Council by stating that all members must give ‘the United Nations every assistance in any action it takes in accordance with the present Charter …’. This phrase more clearly than Art. 25 (which is ambigious), posits the entire Charter (not only purposes and principles) as a legal limit to Security Council action (not to the members’ action).133

(c)  No Exclusiveness of the Purposes and Principles Limitation 81  Contemporary scholars basically agree that the purposes and principles constitute a legal limitation of Security Council decisions. The follow-up question whether this is the only legal limitation, or whether further limits exist. In doctrinal terms, it has been concluded from the explicit mentioning of the purposes and principles in Art. 24 (2) that this enumeration is meant to be exhaustive and that these are thus the only, exclusive, accepted limitations on Council decisions.134 Exclusivity of the purpose-and-principle limitation would mean that no other, more robust legal limits, which would more strictly tie the Council, were to be accepted (except for the limit of ius cogens, see MN 97–100). 82  This position finds some support in the drafting history. At the San Francisco Conference of 1945, Norway proposed two amendments to the Dumbarton Oaks Provisions which were to become Art. 24.135 Both were directed at limiting the Council’s powers, at ‘establishing rules of conduct for the Security Council’, ‘as a restraint on the Security Council and as a guarantee that it would not resort to a “politique de compensation”’, as the Norwegian delegate put it.136 The first and more minor of these amendments succeeded: the word ‘principal’ was deleted from the provision’s title which originally was ‘principal From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

functions and powers’, with the argument that the functions and powers of the Council should be exhaustively stated in the Charter.137 The more incisive amendment of these two was to add to Art. 24 (2) the phrase that the Council should act not only in accordance with the purposes and principles, but also in accordance with ‘the provisions of the Charter’.138 But this proposal was explicitly opposed, inter alia by the UK, and the relevant amendment was summarily defeated.139 Although the concern of the time was the imposition of territorial changes by the Council, and the smaller States’ concomitant fear for their very existence, the very clear rejection of (p. 814) the (proposed) Norwegian amendment shows that the majority was reluctant to tie the Council to stricter legal limits. 83  The policy consideration behind the exclusiveness view is that it would leave the Council the necessary flexibility. Positing only the purposes and principles as a legal limit attempts to strike a balance between considerations of legality and effectiveness. Along this line, the representative of the UK stated that instead of tying the organs to ‘precise and intricate codes of procedure’, the founders had preferred to lay down ‘purposes and principles’. In that view, the hope was that the organs would act in conformity with the desires of the nations, while preserving their flexibility, ‘while, at the same time, we give them freedom to accommodate their actions to circumstances which today no man can foresee’.140 84  Some subsequent practice has also insisted on the exclusivity of the principles and purposes as a legal limit of Security Council action. Back in 1947, the Secretary-General had declared: ‘The only limitations are the fundamental principles and purposes found in Chapter I of the Charter.’141 At least one member, South Africa, expressed that view in the Namibia proceedings, too.142 When weighting the relevance of that statement for an assessment of the opinio iuris of the international community, it must be taken into account that South Africa was a self-interested State in those proceedings. 85  Taken to its end, this understanding would even negate the relevance of procedural limits, and would in the end result in hardly any limits to Security Council action at all. It is therefore not plausible to consider the ‘purposes’ of Art. 1 and the ‘principles’ of Art. 2 as precluding the existence of further limitations. Doctrinally, this follows also from the provision of Art. 2 (5), which sets out one of the ‘principles’ but which itself refers to the entire Charter. This shows that ‘principles’ are an open concept. 86  The mentioning of the purposes and principles in Art. 24 should therefore not be interpreted as exhaustive but merely as highlighting these particular limits without excluding further ones.143 Some State practice supports that view. For example, in 2007, the representative of the Republic of Iran criticized Res 1747 (2007) by which the Council affirmed its decision that Iran should suspend all enrichment-related activities and imposed additional measures against the State, and maintained that the Council’s decision was ‘a gross violation of Article 25 of the Charter’. The representative further stated that ‘the Security Council cannot pressure countries into submitting either to its decisions taken in bad faith or to its demands negating the fundamental purposes and principles of the Charter of the United Nations’.144 But such a statement by a member against which the measures adopted by the Security Council decision are directed is only a weak indication of an opinio iuris, because that State is clearly self-interested. The merely highlighting character of the phrase of Art. 24 (2) was also underscored by the EU Court of First Instance which stated that the Security Council’s powers of sanction (p. 815) ‘must…be wielded in compliance with international law, particularly with the purposes and principles of the United Nations’.145 Beyond the purpose-and-principle limitation, further legal limits exist.

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3.  The Entire Charter as a Legal Limit 87  The entire Charter functions as a legal limit of Security Council decisions.146 The subjection of Security Council decisions to the entire Charter is due to the principle that international organizations are generally bound by their internal law, notably by their constituent instrument which is the basis of their existence and which poses ‘absolute limits at their action’.147 The Draft Articles on the Responsibility of International Organizations state that organizations may have obligations towards their members ‘under the rules of the organization’.148 ‘Rules of the organization’ are, according to the definition given in the Articles themselves, ‘in particular, the constituent instruments’.149 88  The same conclusion can be bolstered by a constitutionalist consideration. If the UN Charter functions as the Organization’s constitution, a normative hierarchy (with the constitution at the apex) exists, and the powers of the UN organs are derived from this constitution. The legal consequence is that secondary law produced by those organs (such as Security Council decisions) must conform to the Charter’s ‘constitutional’ precepts.150 The finding that Council decisions must respect the entire Charter can be additionally bolstered by the provision of Art. 25 if that sentence is interpreted as meaning that the Council must act ‘in accordance with the present Charter’.151 89  Secondary law does not constitute any legal limit to Security Council decisions. The Council is not bound by any other organs’ acts, and not by its previous own decisions either. Because the Council is not a judicial body, res iudicata and stare decisis do not (p. 816) apply. In the following, the most relevant Charter rules which are apt to function as a legal limit to Council action will be discussed.

(a)  Division of Competences/Prohibition of Ultra Vires Decisions 90  Charter boundaries are first of all the rules on jurisdiction or competencies (both of the entire United Nations, and of the Council). Under the principle of speciality,152 the Organization as a whole itself may exercise only those powers which have explicitly or implicitly been entrusted to it by the founding document. Second, each organ (including the Council) must stay within its jurisdiction, must not encroach upon the competencies of other organs, and must respect the internal ‘division of functions’.153 In short, the Security Council must respect the ‘institutional balance’154 within the Organization. Council decisions overstepping either the competencies of the Council, or even the competencies of the organization as a whole are ultra vires in the proper sense of the term.

(b)  Coverage by a Charter Provision and Proper Interpretation of Charter Terms 91  Council decisions must have a legal basis (in the Charter), and they must be covered by that basis. This principle is best described as a principle of legality, although many commentators discuss this problem under the heading of ultra vires.155 The principle of legality requires, for example, that coercive Council decisions must be covered by Chapter VII. It is recommended that the Council explicitly names the legal basis, although this has in practice not always been the case. 92  The issue of the ‘correct’ legal basis has been mostly discussed with regard to Art. 39ff.156 It has been asserted that the Council’s Art. 39 determination is completely free. For example, Jean Combacau wrote: ‘une menace pour la paix au sens de l’article 39 est une situation dont l’organe compétent pour déclencher une action de sanction déclare qu’elle menace effectivement la paix.’157 Such a view implies that the Security Council creates the legal fact ‘threat to the peace’ in a sovereign fashion, completely irrespective of the factual basis, and unbound by law. Although that idea seems to have motivated the drafters,158 it no longer prevails today.

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(p. 817) 93  Four operations which the Council must perform need to be distinguished: the first operation is the identification of the facts, eg which degree of violence is present. The second operation is the establishment of the meaning of the Charter terms, eg ‘threat to the peace’. The third step is the application of the law to these facts (subsumption). The fourth step is the determination of the legal consequence of that legal qualification, measures such as imposing an embargo under Art. 41. The question is whether any of these four operations can be ‘flawed’ and result in the decision not being ‘in accordance with the Charter’, and thus challengeable by members. 94  An example for a problem arising with the first operation, the establishment of the facts, is UNSC Res 1530 (11 March 2004) UN Doc S/RES/1530. In that decision, the Council (with Spain as a member at that time) attributed the terror attack of Madrid to ETA. Although this turned out to be factually wrong, no State claimed that the resolution was not binding due to this flaw.159 Generally speaking, wrong factual determinations in a Council decision do not as such relieve members from their obligation to carry out the decision,160 although the establishment of the facts normally heavily determines the legal qualification. For example, if the Council erroneously assumes that mass killings are ongoing in some region based on films and pictures, whereas these turn out to be merely fake and manipulated media, maybe the screening of a movie, any declaration of a threat to the peace on that wrong factual basis seems to be flawed. Still, no legal contestation has so far been based on such grounds. 95  From the second to the fourth operation, the concept of discretion plays a part. It is generally acknowledged that the Council enjoys wide discretion in determining the meaning of Charter terms, in qualifying facts legally (subsumption), and when choosing reactive measures.161 Discretion in this latter operation relates both to whether to authorize means at all, and which. Nevertheless, the Council’s discretion is not unfettered.162 Discretion, as a legal concept, is per definitionem subject to some outer limits.163 Discretion is the opposite of arbitrariness. As Ian Brownlie wrote on the Security Council powers: ‘[T]here is no dichotomy involving discretionary power and the Rule of law. A discretion can exist only within the law and the real question relates to the ambit of and conditions attaching to the discretionary power.’164 (p. 818) 96  The requirement of a legal basis in the Charter means, for the choice of the reaction, that the Council is, when it acts under Chapter VII, bound to choose among the measures foreseen in that Chapter, and must also respect the order prescribed here (eg measures under Art. 42 only when measures provided for in Art. 41 are considered ‘inadequate’). But this does not constitute an operational limit, first because the enumeration in Art. 41 is non-exhaustive, and second because it is again up to the Council to ‘consider’ whether the measures under Art. 42 are inadequate.

4.  Ius Cogens 97  It is generally accepted that Council decisions must respect ius cogens.165 This proposition is perfectly consistent with the traditional debate on an ostensible derogating power of the Council in the context of Chapter VII action (see MN 133–148). From that perspective, the peremptory norms of international law, which can by definition not be derogated, form a legal limit to Council action. 98  The finding can be bolstered by various additional considerations. Article 53 VCLT does not apply directly to the Charter, because the Charter has been concluded before the entry into force of the VCLT,166 and because not all UN members are also parties to the VCLT. But the underlying customary law principle applies to the Charter, being a treaty. Article 53 states that treaty provisions are void if they conflict with a peremptory norm of general international law. The underlying idea governs also secondary legal acts adopted by organizations’ organs on the basis of the founding treaties.167 Either Art. 53 is applied by analogy also with secondary acts, because they are derivatives of treaties; or it can be From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

argued that ius cogens trumps Art. 25 and is apt to undo the bindingness of decisions that is enunciated there. A different line of reasoning is that Council measures violating ius cogens are ultra vires.168 99  The limit of ius cogens is not called into question by the fact that the Council is not bound by the prohibition on the use of force. Military action authorized by the Council under Chapter VII is exempt from that prohibition. With the design of the system of collective security, the prohibition has been qualified so as not to cover this situation, and its peremptory quality emerged after the formulation of the specific powers of the Council under Chapter VII.169 The Council is simply not an addressee of the prohibition (p. 819) on the use of force. Unlike human rights, the prohibition has not evolved so as to address the Council. Such an evolution is not possible as long as the Charter is in force, because it would run counter to its very essence. 100  Independently of the doctrinal explanation, the legal consequence is that Council decisions running afoul of ius cogens are—to be consistent within the paradigm of ius cogens—‘void’ (the term of Art. 53 VCLT), or at least non-binding. (See on legal consequences MN 183–184.)

5.  International Customary Law and General Principles of Law 101  Beyond ius cogens, the Council is, it is submitted here, in principle bound by (all) customary law and by the general principles of law which are content-wise apt to address the UN as an obligee.170 This does not mean that the legal standards applicable to the Council are necessarily identical to those applying to States (see MN 149–152). 102  The Council itself, when acting under Chapter VII, has in the overwhelming majority of cases stayed within the confines of general international law, without explicitly confirming to be bound by it. In contrast, in the Lockerbie Case, the Security Council implicitly requested an extradition, although there is no general customary law obligation to extradite, and although no extradition agreement was applicable.171 So that decision was not in conformity with existing customary and conventional law on extradition. Generally speaking, the proposition that the Council is bound by general international law is controversial in scholarship and requires further explanation and defence.

(a)  Doctrinal Explanations 103  The references, by Art. 24 (2) to the ‘Purposes and Principles of the United Nations’, and in Art. 2 (5) and Art. 25, to ‘the present Charter’ do not exclude that additional legal limits can exist independently of those references.172 104  One explanation for further legal bonds is that the UN is an international organization and hence an international legal person which is, generally speaking, ‘bound by any obligations incumbent upon [it] under general rules of international law’.173 All international customary law rules and the general principles which are, in substance and function, apt to address an international legal subject such as the UN as an obligee, constitute limits to Council action.174 But this still begs the question which concrete norms indeed address the Council as an obligee and which do not. (p. 820) 105  A different explanation points to the principle of ‘nemo plus iuris transferre potest quam ipse habet’, no actor can transfer more powers than it itself possesses.175 If the States, when adopting the Charter and creating an organization on that basis, are bound by general international law, they can simply not transfer any (non-existing) powers to breach that law to the Council.176 All they can do is confer on the Council the power to derogate from general international law in their inter se relations, not to the detriment of third-party actors such as individuals.177 A companion argument is that States are not allowed to

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eschew their customary law obligations by creating an organization which would be unbound by these rules.178

(b)  Notably the Principle of Proportionality 106  One pertinent principle of general international law which limits Council decisions is the requirement of proportionality.179 Proportionality is both a part of general international law and an inherent legal principle of the Charter. Proportionality notably governs the choice of means in enforcement decisions under Chapter VII. A decision is proportionate if it is an appropriate and necessary means to serve the stated ends. The means–ends relation must be adequate. Additionally, that end must itself be legitimate. With regard to the Security Council, its ends are legitimate if the Charter allows the Council to pursue them, if they are among the ‘purposes’ of the Charter, and of the organ.180 In practice however, the proportionality limit is not very effective, because the appreciation of the means–ends relation is highly subjective, and also because the Council enjoys a broad margin of appreciation (or discretion) in this respect.

(c)  Notably the Prohibition of an Abuse of Powers 107  The Security Council must not abuse its powers.181 The concept of abuse is closely linked to the principle of good faith and implies a distinction between a competence (or right) and the circumstances in which and how it is exercised.182 The Council does not have ‘rights’ but only competences or powers. With regard to Council decisions, the potentially most relevant form of ‘abuse’ is the situation that the Council exercises its competencies for an end different from that, for which the power was given, ie for improper purposes, that is, for purposes outside the UN Charter, to the injury of another (p. 821) legal subject.183 That type of abuse resembles the French concept of ‘détournement de pouvoir’. Other relevant types of abuse are the exercise of competences in an arbitrary manner, or in a way which impedes the enjoyment of other international legal subjects of their own rights. 108  A possible example of abuse is the Lockerbie Case where Libya alleged that the Security Council had employed its powers to characterize the situation for purposes of Chapter VII simply as a pretext to avoid applying the Montreal Convention.184 Also, the Council decisions at issue in the Namibia Case have been qualified as abusive by dissenting Judge Fitzmaurice.185

6.  Human Rights 109  Security Council decisions must respect international human rights. This proposition has recently gained much support and today seems hardly deniable as a matter of principle.186 However, the doctrinal explanation, the intensity, and the scope of the relevant obligations remain unclear and controversial.

(a)  Practical Relevance and Affected Rights 110  Human rights issues have arisen with regard to sanctions. If human rights limitations are accepted, then they apply also to the Council’s sanctions committees which exercise delegated powers of the Council itself.187 Comprehensive economic sanctions, such as those against Iraq (1991–2003) have a negative impact on the enjoyment of economic, social and cultural rights of the population of the target State (such as the right to food, access to medicine, sanitation, the functioning of the basic health and education systems).188 111  The so-called smart or targeted sanctions (asset freezes and travel bans) against individuals (suspect of terrorism or politically exposed persons) which have been imposed on a large scale since 1999, notably in the course of the global fight against terror,189 are prone to affect due process rights (access to information, fair hearing, effective remedy, and notification of listing), property, freedom of movement, and privacy/reputation of (p. 822) the targeted individuals.190 With regard to these sanctions, the General Assembly in the World Summit Outcome Document of 2005 called upon the Security Council ‘to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

removing them…191 The Fassbender study commissioned by the UN Office of Legal Affairs defined the minimum standards for the required ‘fair and clear procedures’ as comprising four basic elements, namely the right to be informed, the right to be heard, the right to an effective review mechanism, and a periodical review of targeted sanctions by the Security Council.192 The Canadian Federal Court stated obiter that the 1267 regime was ‘untenable under the principles of international human rights’, because there was ‘nothing in the listing or de-listing procedure that recognizes the principles of natural justice or that provides for basic procedural fairness’.193 112  Finally, Council decisions in the context of peace operations and the transitional administration of territories are prone to affect international humanitarian law (see MN 128–132), and also the right to life, free movement, property, or housing. Territorial administration by the UN moreover often affects a concerned people’s right to selfdetermination.

(b)  Doctrinal Explanation 113  The question is which human rights bind the Council and how this operates in doctrinal terms. Obviously, the Council is not directly bound by human rights treaties, because the UN is not a party to them. The Charter itself does not explicitly impose human rights obligations on the UN. But in the Preamble, the members ‘reaffirm faith in fundamental human rights’. Article 1 (3) mentions as one of the purposes of the UN ‘promoting and encouraging respect for human rights and for fundamental freedoms’. Article 55 lit c) asks the UN to ‘promote…universal respect for, and observance of, human rights and fundamental freedoms for all’. On their face, these provisions only say that the Organization must see that members comply with international human rights law,194 but do not state that the Organization itself is bound to respect human rights. But these provisions did not intentionally exclude the UN itself from any human rights obligations. Rather, it did not occur to drafters that the UN might infringe upon human rights. Therefore the wording of these provisions, which do not address the Organization itself, is no barrier to including the Organization itself as an obligee. 114  A systemic interpretation of these provisions (and of the entire Charter) leads to the result that the UN is bound itself, too. Article 31 (3) lit c) VCLT demands that the ‘relevant rules of international law applicable in the relations between the parties’ must be taken into account. The human rights obligations which all members have incurred are (p. 823) relevant and applicable international rules, and must hence be taken into account when interpreting the Charter. Therefore the Charter must be construed so as to complement the basic legal principle that the members are not allowed to forego their human rights obligations by transferring competences to an international organization, and that members’ responsibility continues after such a transfer (‘no flight into an international organisation’).195 In order to prevent the obnoxious effects of ‘upzoning’ public functions to the UN level, the members should retain some residual responsibility. But this is not sufficient in order to prevent lacunae. For example, the ECHR refused to hold ECHR member States responsible for human rights violations occurring in the course of UNauthorized action.196 Therefore, in order to make sure that, overall, a satisfactory level of protection of human rights is maintained, there should be the legal option to responsibilize the UN itself, too. A related consideration is that the UN, in fulfilling its task to promote human rights properly, must itself live up to the aims and objectives it promotes.197 Otherwise the UN is not credible, and the loss of credibility undermines the fulfilment of its explicit mandate.198 115  Specifically with regard to sanctions (collective countermeasures imposed by the UN), additional arguments have been made. The ILC Articles on State Responsibility indicate that countermeasures shall not affect obligations for the protection of fundamental human rights, Art. 50 (1) lit b) ILC.199 The Council itself, when imposing sanctions, is not, in contrast to the implementing members, within the scope of these Articles, but it From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

nevertheless is subject to the customary law on sanctions. Although those parts of the Articles which relate to countermeasures are innovative in parts, the obligation to respect human rights when imposing countermeasures is arguably part of customary international law. 116  The Social Committee’s General comment ‘The relationship between economic sanctions and respect for economic, social and cultural rights’ first deals with the obligations of the implementing States and basically makes the ‘no flight into the UN’ argument. But it also postulates ‘obligations’ of an ‘external entity’. That ‘entity’ ‘assumes a responsibility to do all within its power to protect the economic, social and cultural rights of the affected population’.200 The ‘external entity’ also ‘has an obligation’ to take steps to respond to ‘suffering experienced by vulnerable groups within the targeted country.’201 117  Combining the systemic and teleological approach leads to acknowledging an unwritten extension of the UN’s promotional obligation enshrined in Arts 1 (3) and 55 lit c). (p. 824) The Charter itself is a living instrument apt to evolve through time, and its provisions are ‘not static, but…by definition evolutionary’, as the ICJ put it.202 Through subsequent practice of the Organization itself and of members, the meaning of the said provisions has changed, and human rights obligations of the Organization itself have, in a tacit evolution, become an integral part of the Charter. In result, the United Nations (including the Council) is bound not only to promote, but also to respect human rights itself by virtue of Arts. 1 (3) and 55 lit c). From that perspective, Council decisions violating the applicable human rights would not be ‘in accordance with the Charter’ in the sense of Art. 2 (5) and Art. 25, and also not in accordance with the purposes and principles of the UN in the sense of Art. 24 (2). 118  A second doctrinal explanation of the human rights limit on Council decisions is that the UN has bound itself to respect human rights by unilateral declarations and consistent practice. For example, the Council has, in a thematic resolution on women and armed conflict declared that it will ‘give consideration to’ the ‘potential impact on the civilian population’ when authorizing measures under Art. 41.203 In a resolution imposing economic sanctions against the Taliban it foresaw a regular reporting on ‘humanitarian implications’ and an impact assessment for ‘avoiding humanitarian consequences’.204 More recently, ‘the Council reiterate[d] the need to ensure that sanctions are…designed carefully so as to minimize possible adverse consequences’.205 But these statements have so far not displayed an explicit and fully conclusive legal opinion of the Organization itself. 119  Thirdly, it is asserted that the UN is, independently of the Charter, bound by those human rights which have passed into general international law.206 However, although numerous human rights have indeed acquired the status of customary law, it is not clear whether, additionally, their ‘direction’ has changed. The ordinary addressee of obligations flowing from those customary human rights are States. In order to address also the UN as an obligee or duty-holder, not the substance, but the structure would have to evolve so that the relevant obligations to respect, protect, and fulfil were extended to the UN (besides States). Such a normative evolution would have to be based on a practice and opinio iuris, too. 120  Which human rights are covered by either of these three types of potential binding obligations? Roughly speaking, these are the human rights which are contained in the Universal Declaration of Human Rights (UDHR), and many of which today have a customary law status. 121  In result, when a Council decision leads to a violation of core human rights of the UDHR, and when these violations can be imputed to the UN (possibly besides (p. 825)

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imputation to the implementing members) the UN breaches its own obligation not only to promote but also to respect human rights.207 122  Normally, human rights violations will not result directly from Council decisions but from the members’ implementing measures.208 But the Security Council itself directly contradicts the UN purpose of encouraging members to respect human rights (Art. 1 (3)), if it requires members to enact measures that violate international human rights. 123  Against the background of a convergence of international human rights standards and domestic constitutional standards, and with a view to the Security Council’s obligation to be loyal to the members, it has been suggested that any Council decision which requires members to violate fundamental rights under their domestic constitution also tends to run counter to the UN purposes in the sense of Art. 1 (3).209 However, finding that a Security Council decision was illegal on that ground alone goes too far and would run counter to the principle that no member can invoke contrary domestic law as a ground not to carry out a decision.

(c)  Exceptional Derogation of Human Rights 124  Specifically with regard to the human rights limits, the question is whether Council decisions can rely on an implicit general derogation from human rights in a state of emergency, such as that enshrined in Art. 4 CCPR or Art. 15 ECHR. The mere existence of a situation in the sense of Art. 39, which opens the door for decisions under Chapter VII, is no state of emergency in the sense of the said provisions (and of possible parallel unwritten law). Neither does the global terrorist threat as such create a state of emergency. In order to derogate from human rights, the formal and substantive requirements of a public emergency would still have to be fulfilled, notably a threat to the existence of nations (or of the UN) and an official proclamation of a state of emergency. And even where derogations are permissible under these strict conditions, they must always remain consistent with other rules of international law, which notably means respect for international humanitarian law (cf Art. 4 (1) CCPR). With regard to targeted sanctions, it is relevant that the UN Human Rights Committee has found those fundamental requirements of the right to fair trial which are also guaranteed in international humanitarian law to be exempt from lawful derogation, although Art. 14 CCPR is not mentioned in the list of Art. 4 (2) CCPR.210

(p. 826) (d)  Human Rights: Guideline Quality, Mere ‘Equivalent’ Protection, and Lawful Limitation of their Exercise 125  Human rights, when opposed to the Council, do not constitute a precise legal limit for decisions, but rather function as guidelines.211 Moreover, Council decisions may, just as governmental measures, lawfully limit or restrict international human rights. Roughly speaking, restrictions are permissible if they serve a legitimate objective, have a legal basis, and are proportionate to the end. The United Nations’ objectives are legitimate ends in that sense. Also, the Security Council decisions themselves normally constitute a sufficient legal basis. The requirements of (democratic) legitimacy, foreseeability, and accessibility which are demanded for the law of a State must be modified when applied to Council decisions. Finally, the very high importance of the Council decisions’ objective of securing world peace generally allows quite incisive curtailments of human rights. Council decisions will therefore normally satisfy the human rights law requirement of proportionality. 126  Moreover, the ECHR has, as a general matter, accepted that the Council need only observe a lower level of protection than States. The Court stated in Bosphorus that an international organization must only ‘protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides…By “equivalent” the Court means “comparable”.’212 But ‘any such finding of equivalence could not be final and would be susceptible to review [by the Court itself] in the light of any relevant change in fundamental rights protection.’213 That ECHR decision

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related to comparable protection on the EU level. It seems more than doubtful that a ‘comparable protection’ at the UN level exists for the time being.214 127  In conclusion, any assessment of a Council decision affecting human rights crucially involves a balancing of conflicting goods. Such an assessment will often reach the conclusion that the Council has admissibly restricted the exercise of human rights and that therefore an impugned Security Council decision was legal.

7.  International Humanitarian Law 128  IHL is only applicable in armed conflict according to its own scope ratione materiae. This body of law can be involved both by economic sanctions imposed by the Security Council, and by Peace operations. Collective economic sanctions during armed conflict or military occupation might entail a violation of some norms of IHL either directly or indirectly through their effects on the civilian population.215 A rule which is directly relevant and must be taken into account when formulating Security Council decisions on sanctions is the provision requiring the free passage of medical supplies and essential foodstuff for the civilian populations (Art. 23 (1) Geneva Convention IV). A rule which might come (p. 827) into play because of the consequences of a sanctions regime is the prohibition to starve the population (Art. 54 AP I). 129  As for the second situation, UN-authorized peace operations, State practice has incrementally come to recognize that the military actors in those operations are bound by the rules of international humanitarian law.216 The Secretary-General’s Bulletin on Observance by the United Nations forces of international humanitarian law of 1999 assumes that there are ‘principles and rules of international law binding upon military personnel’ of the UN.217 It is not clear whether it sets out the most pertinent fundamental principles and rules in a declaratory fashion or whether it establishes them constitutively. All IHL provisions on the means and methods of combat, on the protection of the civilian population, and on the treatment of detained persons, etc are relevant. However, the applicability of IHL to the personnel on the ground must be distinguished from its applicability to the Council itself. 130  The question is whether the Council itself when taking decisions in the context of armed conflict or military occupation is also bound by IHL. Following the line of reasoning drawn above, the Council is bound by those IHL norms which have a customary law status and which thus form part of general international law, notably (but not restricted to) those essential guarantees which rank as ius cogens.218 In addition, the UN’s obligation to promote and to respect human rights (Art. 1 (3), in the extended reading suggested above, MN 113–123), arguably also includes an obligation to respect fundamental guarantees of IHL which seek to protect the same goods.219 The obligation of the Council to respect IHL (and human rights) does not only relate to decisions taken under Chapter VI, but also exists when the Council acts under Chapter VII.220 131  In policy terms, the same considerations apply as with regard to respect of human rights law: first, members’ legal responsibility alone will not always suffice to avoid protection gaps, and second, the UN only remains credible if its organs observe the principles of humanity which not only underlie IHL but which simultaneously underpin the Organization’s own purposes. 132  To trigger any international responsibility of the UN, violations of IHL must be imputable to the Council and not only to the individual combatants or to members (p. 828) placing troops at the UN’s disposal.221 While it is clear that individual criminal responsibility of a natural person acting on behalf of the Council does not rule out any possible international responsibility of the Council itself (Art. 66 DARIO 2011), the lines of

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dividing or sharing international legal responsibility between members and the Council are unclear under the law as it stands.222

IV.  A Limited Power of the Council to Deviate from International Law when Acting under Chapter VII 133  It has often been claimed that the Council has, when it acts under Chapter VII, the power to derogate from international law (except for ius cogens; see MN 97–100) and is therefore unbound by it. Hans Kelsen maintained that when taking ‘enforcement action under Article 39’, the ‘decision enforced by the Security Council may create new law for the existing case’.223 Another early commentator seconded: ‘The Security Council is not a body that merely enforces agreed law. It is a law unto itself.’224 According to Alain Pellet, the founders in this context wanted to establish a ‘super-legalité internationale’.225 This broad claim must be examined in a differentiated manner, first with regard to derogation from the Charter itself, and second, with regard to derogation from general law outside the Charter.

1.  No Deviation from the Charter Itself 134  The modern view is that the Council does not have the power, not even under Chapter VII, to deviate from the Charter itself.226 This view is spearheaded by the ICTY Appeals Chamber Tadic decision on jurisdiction, which relates to a Chapter VII decision,227 and has been at least implicitly affirmed by further international and domestic case-law relating to decisions taken under Chapter VII.228 135  The proposition that the Security Council must respect the Charter is often supported with the observation that the Security Council has not, in the absence of any clear indication, been endowed by the Charter with the power to amend that text autonomously. Put differently, the Council itself does not have a ‘competence-competence’ to alter or to amend the Charter. It may interpret but not revise the founding document.229 136  The dividing line between legitimate interpretation and illegitimate law-making is determined by the general rules of interpretation. If they are respected, the hermeneutic (p. 829) act is considered to be ‘interpretation’, and thus legitimate.230 In the past, the Council has very creatively, when acting under Chapter VII, ‘interpreted’ the concept ‘threat to the peace’ as including serious human rights violations and humanitarian catastrophes. This practice has been accepted by the members. The authoritative law-interpreters (bordering law-makers) were the members, not the Council. 137  It is submitted that the Council’s lacking power of amendment is less pertinent for the problem of deviation from the Charter than it might appear at first sight. Apart from the problem of neatly distinguishing interpretation from tacit revision, a deviation from the Charter in a concrete case (leaving the Charter intact for future cases) is not the same as revising or amending the Charter with a general normative effect for the future. While the Council clearly does not possess an amending power, it might still be entitled to deviate or disregard the Charter in single cases. However, this is not true. The reason is that this body owes its existence and powers to the Charter and must therefore stay within the legal confines of that instrument as long as nothing in that instrument dispenses the Council from respecting it.

2.  No Deviation from General International Law to the Detriment of Third Parties 138  Some authors assume that the Charter has created an implicit allowance for the Council to deviate from general international law, when it acts under Chapter VII.231 The argument is that the members’ acceptance of the Charter ‘represents or replaces a general

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consent concerning resolutions of the Security Council, abrogating the dispositive rules of international law’.232 This section attempts to refute that argument.

(a)  The Historical Meaning of Article 1 (1) for Chapter VII Action 139  The ostensible power of the Council to deviate from general international law when acting under Chapter VII is usually justified by pointing to the wording and drafters’ intent of Art. 1 (1). This provision states that the UN must act ‘in conformity with the principles of justice and international law’. In this sentence (‘to bring about…adjustment or settlement of international disputes’), the ‘in conformity-clause’ is deliberately related only to dispute settlement, and not to Security Council decisions for the prevention and removal of threats to the peace. So the clause binds the Council to the ‘principles of justice and international law’ only for Chapter VI action. Many authors draw the (p. 830) conclusion that the deliberate placement of the ‘in conformity-clause’ means that the Council has been intentionally empowered to derogate general law when it acts under Chapter VII.233 140  Indeed, the omission to mention the ‘principles of justice and international law’ as a legal standard for peacemaking and peace-restoring was intentional, as borne out by the travaux préparatoires. An Egyptian proposal to alter Art. 1 (1) which would have required also the UN activity of maintaining peace and security to be ‘in conformity with the principles of justice and international law’ was unsuccessful in San Francisco.234 However, the opposition against mentioning ‘justice and international law’ directly after the UN activity of peacemaking and peacekeeping was not motivated by a desire to avoid legal limits to Security Council action.235 One concern was that ‘justice’ was too blurry a term and might in practice be used as a pretext for delaying or even preventing Council action.236 A related concern was that the Council would become too inflexible if it had to take ‘international law and justice’ into account when acting to maintain world peace and security.237 But the focus of the debate was clearly on the members’ compliance with international law.238 The idea was that the Council should not, in the policeman image, have to inquire, before taking action to maintain or restore the peace, whether one of the members had violated international law.239 So the concern was indeed to safeguard the effectiveness of the Council in the field of securing peace, but the question whether the Council itself should be allowed to violate international law (or to derogate from international law) to that end was obviously not on the minds of the delegates in that debate. 141  To conclude, it is true that the ‘in conformity’ clause is not applicable to Council action under Chapter VII. But the genesis of the ‘in conformity’ clause does not support the assertion that its deliberate placing at the end of the sentence means that Security Council action under Chapter VII was intended by the drafters to be unbound by law. There was no such intention. The historical reading of Art. 1 (1) neither supports nor rules out legal limits to Chapter VII action of the Council.

(p. 831) (b)  Doctrinal Arguments 142  Doctrinal considerations speak against a power of the Council to derogate from general international law. The starting-point is the presumption that an international legal person (the UN) created by States is subject to the general international law. Therefore the constituent document (the Charter) must normally be interpreted as taking into account all relevant rules of general international law.240 However, nothing prevents the founding States from relieving, through their agreement, the Organization from respect of dispositive general international law in the relation the Organization entertains with the members.241 The conclusion is that only if such an intention of the members can be clearly discerned, and finds its expression in the founding document itself, may the Security Council derogate from norms of general international law which have the quality of ius dispositivum. It is however disputed whether the Charter indeed does evidence such an intention of the founders or not.242 As this controversy shows, the derogating power is exactly not clear and

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obvious. Relying on the above-stated presumption that the UN (and its organs) are normally subject to general international law, the Council’s power to derogate general international law should be rejected. 143  Moreover, any (implicit) power of the Council to abrogate general international law can be contested with a formal argument drawn from Art. 2 (7). That provision specifically exempts the Council, when acting under Chapter VII, from the general prohibition on intervention. It can be concluded that e contrario the Charter does not exempt the Council, even when it acts under Chapter VII, from observing other rules of general international law.243 The special permission for the Council to intervene in matters which would normally be considered as being within the domestic jurisdiction, when acting under Chapter VII, can be read as demonstrating that, as a general matter, the Council is deemed bound by international law, also when acting under Chapter VII. But that provision could also be read as being merely exemplary, mentioning non-intervention because this principle is especially relevant, but without any implied statement as to other general legal principles. In the end, no firm conclusion can be drawn from Art. 2 (7). 144  The main problem with the derogation-thesis is that the ostensible derogations would have a third-party effect. The traditional debate on the derogative powers of the Security Council conceptualizes ‘general international law’ primarily as members’ rights, and therefore equals derogation with a self-curtailment of such rights. But this perspective eclipses the body of general law which benefits other actors. The power of the members to establish an organ with the legal power to derogate from general international law is a power to create a lex specialis by treaty. It is generally assumed that the principle ‘lex specialis derogat legi generali’ also operates in the relationship between ‘special’ treaty law and ‘general’ customary law.244 But there are constellations of ‘prohibited lex specialis’, (p. 832) as the ILC report on fragmentation put it.245 First, derogation ‘may be forbidden as it were to “disrupt the balance established under the general treaty between the rights and obligations of State parties thereto”…this would apply to constituent instruments of international organizations’.246 Second, and more importantly, there is a ‘prohibition to deviate from law benefiting third parties, including individuals or non-State entities’.247 This ‘prohibition’ can also be explained as flowing from the fact that ‘it is well understood that, in practice, rules of [general] international law can, by agreement, be derogated from in particular cases, or as between particular parties’.248 So, doctrinally speaking, the UN members are not entitled to contract away general international law which benefits, for example, individuals, such as human rights. For this reason, a power of the Security Council, acting under Chapter VII, to derogate from general international law which benefits third parties is excluded. Moreover, for the reasons stated above, there is a presumption against such a derogating power even if general law which concerns only the members inter se is at stake. In the absence of a clear indication of such a derogating power, manifest in the inconclusive drafting history, such a power should be rejected.

(c)  Practice 145  Practice is inconclusive. On the one hand, the principle of self-determination of peoples, a norm of general international law and arguably even of a peremptory quality, has frequently been touched upon by Council decisions on territorial administration. In the Kosovo proceedings, the argument that the declaration of independence was not in accordance with Res 1244 implied that the Council had the legal power to curtail the resort to self-determination. The fact that the Court examined this question249 demonstrates that the Court considered the principle of self-determination as being potentially subject to modification by the Council. However, limitations of self-determination do not inevitably violate the principle, because it can permissibly be limited and channelled. There certainly

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is space for the Council to concretize and limit principles of general international law, but this does not mean that the Council may deviate from them or is not bound to respect them. 146  The ICTY in the Tadic decision on the merits assumed the Council’s power of deviation from customary law, but mitigated it by a presumption of non-derogation: when interpreting the Council decision establishing the Criminal Tribunal for the Former Yugoslavia (more precisely, its Annex, the Statute of the tribunal), the ICTY stated: [I]t is open to the Security Council—subject to respect for peremptory norms of international law (ius cogens)—to…deviate from customary international law. Nevertheless, as a general principle, provisions of the Statute defining the crimes within the jurisdiction of the Tribunal should always be interpreted as reflecting customary international law, unless an intention to depart from customary international law is expressed in the terms of the Statute, or from other authoritative sources…250(p. 833) The ‘derogation’ at issue in the Tadic proceedings did not concern prohibitions (such as the prohibition to detain a person arbitrarily) but concerned ‘only’ the varied definition of crimes. It is no precedent for the admissibility of Council action violating, eg human rights.

3.  Interim Conclusion 147  The drafting history, doctrinal arguments, functional considerations, and recent practice can be reconciled by differentiating between the Council’s classical police function and other functions (quasi-adjudication, quasi-legislation, and administration of territories). The drafters had, for Chapter VII, contemplated preliminary and emergency measures. For such measures, a high amount of flexibility, unhampered by debates about lawfulness, is required. But even in that situation, the Security Council may not derogate from general international law if this has the effect of curtailing the legal position of third parties, especially individuals. 148  In contrast, when Council decisions impose long-term obligations and create governance structures, there is no need for swiftness and flexibility, while respect for justice and international law is much more important. These types of decisions must always, even if no third parties are affected, respect the limits of general international law.251

V.  Conclusion: Modified Application of International Legal Standards to Council Decisions 149  The most convincing view, shared by numerous scholars252 and courts253 is that the Council is bound by all applicable international law, also when it takes decisions under Chapter VII. The practice of States and of the Council is not conclusive in this regard, but a trend in the direction of an increasing acceptance of legal limits in principle, and of an increasing tightening of those legal bonds, can be noted. 150  Doctrinally speaking, the legal limits to Council decisions fall into two categories. There are ‘internal’ limits intrinsic to the Charter, and ‘external’ legal limits, flowing from international law (customary law, general principles, or treaty law) outside the Charter.254 However, in substance, the categories of ‘external’ and ‘internal’ overlap widely. Numerous principles arise from general international law but have been integrated into the Charter so as to form part of the Charter law, mostly via the transmission belt of Arts 1 and 2. For example, the Council’s obligation to respect human rights may (p. 834) be derived from customary international law, but is also reflected in Art. 1 (3). Under the law as it stands, a

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definite list of international norms which constitute a legal limit for Security Council cannot be drawn up. Such a list would be abstract and inflexible and therefore unhelpful.255 151  Holding the Council bound to respect international law does not inevitably mean that the legal standards are identical as for States.256 It is adequate to lower the standards for several reasons. First, the Council is a unique body. It has been established to maintain world peace. The relevant norms (such as human rights obligations) have not been formulated with a view to this actor. Also, the Council mostly decides in emergency situations which demand robust and flexible action. Legal limits must not unduly hamper the Council’s fulfilment of its eminently important global public function. Finally, legal certainty would be undermined if the binding force of its decisions could be too easily called into question. So the very reason for which the Organization has been established in the first place suggests that only relaxed legal standards should apply to the UN (especially to the Council). The ECHR put it thus: ‘any requirement that the organisation’s protection [of human rights] be “identical” could run counter to the interest of international cooperation pursued’.257 The question is then how the relaxation of standards should be construed. 152  The most obvious technique which accommodates, on the one hand, legitimate concerns of collective security and peace, and on the other hand, considerations of international legality, especially the need to respect human rights, is balancing.258 A balancing approach suits the operation of Charter principles as a legal limit to Council action (Art. 24 (2)). The ‘principles’ make clear that the UN may pursue its purposes only with due respect for certain principles. Ends do not justify (all) means. In that view, balancing is required and recommendable, both between means and ends, and between competing, mutually incompatible objectives (‘purposes’). Given the importance of the objective of securing and restoring peace, the means to reach it may be intrusive, but that objective must still be balanced against the partly incompatible objective of the UN itself to safeguard and promote human rights, and against the requirements of a global rule of law.259

VI.  Who Decides on the Legality of a Council Decision? 153  Probably the most important question in the context of potentially illegal Security Council decisions is who is entitled to decide authoritatively whether a critical decision (p. 835) is illegal or not.260 In Certain Expenses, the ICJ stated that ‘each organ must, in the first place at least, determine its own jurisdiction’.261 The crucial question, left open by the Court, is whether this self-assessment is definite or whether, additionally, an external legal evaluation is possible and which authority it might have.

1.  The Council Itself, but not as a Final Instance 154  The traditional view is that the Council itself may in a sovereign fashion appreciate the legality of its action.262 Along this line, it has been pointed out that the procedural device to safeguard the legal limits of Security Council decision-making is the veto. From that perspective, the veto itself functions as a counter-weight and as a (sufficient) limit to the powers of the Council.263 But the problem is, first, that the guardian of legality would not be the Security Council as a whole, but in fact each veto power for itself. Second and most importantly, the veto is mainly exercised on political grounds. It need not (and in most cases does not) comprise any legal scrutiny. The members’ voting behaviour (including the permanent members’ veto power) can only serve as a means of political control. But on the premise that the existing international legal order is based on the rule of law, the quest for some form of legal (not only political) control of political acts is well founded.

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155  The legal appreciation by the Council itself cannot be the definitive and final one, because allowing the Council to be the final judge in its own cause would render any legal limits largely meaningless. Moreover, leaving the sole power of assessing a decision’s conformity with the Charter to the Council itself would amount to granting this organ the power of an authentic interpretation of the Charter. Arguably, because of the blurry line between interpretation and amendment, the legality assessment even carries the option of giving a new meaning to some of the Charter’s provisions and thereby of tacitly amending the Charter. However, the Security Council is authorized neither to undertake an authentic interpretation nor to amend the Charter. These powers are incumbent on the members as ‘masters of the treaty’.

2.  The ICJ 156  Obviously, international institutions would be best placed to judge the Council. The ICJ is not competent to review Security Council acts directly in contentious proceedings because neither the Council nor the UN have any locus standi. But the Court can pronounce itself on the legality of a Council decision, first, in a contentious proceeding against any State, if the question of the legality of a SC decision arises. Secondly, it can give an assessment in an advisory proceeding, either when the question of the legality is directly asked, or incidentally.264 In any event such a determination by the ICJ would be binding neither on the UN nor on the SC. Judicial determination by the ICJ is not exclusive. 157  The fact that this forum exists, and even a seizure of the ICJ, in no way formally precludes a parallel judicial determination by domestic courts of members (except of member States (p. 836) who are or have been parties to a contentious proceeding and whose courts are bound by res iudicata). But the obligation of members to implement in good faith the obligations flowing from UN membership seem to require domestic courts to take into account a possible ruling of the ICJ. Should the ICJ find that a Security Council decision is illegal, the members would be relieved from their obligation to carry out that decision,265 simply because a decision declared illegal (and invalid) by the ICJ deploys no binding force.266

3.  Other International Institutions 158  Other international (quasi-)adjudicative bodies such as the Human Rights Committee,267 the Committee on Economic, Social and Cultural Rights,268 and the ECHR,269 have assessed members’ acts implementing Council decisions and have in that context incidentally pronounced themselves on the underlying Council decisions. Article 46 CCPR states that ‘[n]othing in the Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations’. The historical objective of this provision was a procedural one, namely to clarify that the functions of the UN organs dealing with civil and political rights should not become obsolete with the entry into force of the Covenant.270 The provision does not in itself prohibit the review of national implementation measures of Security Council decisions, eg by the Human Rights Committee, with a view to whether such an implementation measure violated rights enshrined in the CCPR.271 Upon an international or regional human rights monitoring body’s finding that an implementing measure constitutes a human rights violation, the concerned State must first try to find ways to carry out the Security Council decision in a way which is in conformity with the applicable legal standards. If this is not possible it must, from the human rights perspective, cease implementation of the decision. The ensuing question is whether non-implementation then necessarily constitutes a violation of the UN Charter and an internationally wrongful act, or whether the catch-22 situation in which the member finds itself is an extraordinary circumstance precluding wrongfulness. This will be discussed below (MN 190).

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159  Currently, existing bodies within the UN system itself to monitor the appropriateness of Council decisions imposing sanctions are the ombudsperson for the Al-Qaida sanctions regime,272 monitoring teams,273 and panels of experts.274 The mandates of these (p. 837) entities do not explicitly foresee any review of legality of the Council decisions, but do not exclude such assessments either.275 Possible other legal control mechanisms might be a Security Council sub-group, an advisory panel, an arbitral tribunal,276 or even judicial review, eg by a new body created within the Council.277 But such mechanisms have not been established so far. Were such mechanisms with a power to review Council decisions created, their findings could possibly lead to a rebuttal of the presumption of lawfulness and validity of a Council decision. Upon such a finding, the member State’s obligation to carry out the impugned decision would arguably cease (see on this question MN 188–191).

4.  UN Members 160  In recent years, domestic courts have reviewed members’ implementing measures. This activity partly encompassed a decentralized, incidental, indirect or ‘de facto’ assessment of Council decisions. The result of some of these reviews has been that UN members have occasionally refused to carry out the (directly or indirectly) impugned Security Council decisions, especially sanctions, either explicitly or implicitly through evasion. This section analyses both the logics and the practice of the review activity, and its legal consequences for the members’ obligation to carry out the decisions.

(a)  Object of Review and Standards of Review 161  Domestic courts can—as a rule—not directly review Council decisions because this normally does not fall within their jurisdiction.278 Therefore they normally only review the domestic implementing measures. Another legal obstacle for directly reviewing Council acts is the immunity of the UN. The intensity of judicial review is furthermore influenced by (judicial) respect for the Security Council’s special position.279 162  The legal standards the domestic courts apply to assess these implementing measures are those available to them within the confines of their jurisdiction as defined by (domestic) laws on the judiciary. This may be, eg only constitutional rights, all domestic law, or domestic law including incorporated international law. That means that the courts’ (‘domestic’) standard of review will be typically different from any substantive standard of legality of the Council decisions. Normally, however, the courts will interpret their domestic international law in the light of international law (harmonizing interpretation, ‘indirect effect’ of international law). But there still is the probability that domestic courts (and for this matter, the ECJ) emphasize the separateness of their own legal order (p. 838) and apply an unduly strict (‘superior’) legal standard. The ECJ’s Kadi decision of 2008280 can be reproached for this type of parochialism. 163  Courts have also used the domestic act by which UN membership has been approved as a yardstick for reviewing Council decisions. The line of reasoning here is the following: Council decisions are authoritative and binding ultimately only because of the previous transfer (or ‘delegation’) of powers by the members. States have expressed their consent to be bound and to implement the Charter obligations when becoming a member. Membership is gained by ratifying the UN Charter. In many member States, ratification has required passing a special domestic act, eg the UN Act 1946 in the UK, or a parliamentary and a popular referendum in Switzerland, to name only two countries which represent the ‘dualist’ and the ‘monist’ tradition. It is this initial domestic act which functions as the yardstick for legal review. That initial domestic act (making operative in the domestic legal order the transfer of powers to the UN) cannot reasonably be understood as having transferred powers which would, when exercised (in form of Council decisions) violate constitutional precepts. It can even be argued that the initial domestic act simply could not have transferred such power. Council acts manifestly transgressing the ‘original consent’ (as expressed in the initial domestic act) must therefore be considered inapplicable

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or inopposable to the member if they run counter to some internal constitutional standard.281 This means that any secondary act of that kind is not covered by the initial consenting statute, and is in that specific (domestic) sense ‘ultra vires’.282 164  A domestic court decision finding that an implementing act is, for example, unconstitutional in the domestic legal order, does not as such relieve the State from its international legal obligation to implement under Art. 25. Normally, a UN member ‘may not invoke the provisions of its internal law as justification of its failure to perform a treaty’ (Art. 27 VCLT). The question when the international, Charter-based obligation to ‘carry out’ a Council decision exceptionally ends or is suspended will be discussed below (MN 188–191).

(b)  Different Strategies of Members’ Courts 165  Members’ court decisions rendered upon (indirect) challenges of Council decisions have pursued four different strategies.283 A first group of decisions avoids any direct or indirect review through harmonizing interpretation. For example, the Federal Court of Canada in Abdelrazik284 scrutinized the State’s denial of the issuance of an emergency (p. 839) passport for the plaintiff, which the government had justified with a view to implementing Security Council Res 1267 and 1822. Here the Court avoided any indirect review of the Council decisions. It merely found the State’s denial of an emergency passport to be in breach of Abdelrazik’s constitutional fundamental right to enter Canada (s 6 of the Canadian Charter of Rights and Freedoms).285 166  In a second group of decisions, implementation measures were annulled on the ground that they infringed domestic fundamental rights or were otherwise incompatible with domestic legal standards. The ECJ in the Kadi I proceedings performed a full-fledged constitutional review of the EU’s implementing regulation, against the standard of European fundamental rights.286 The Court explicitly did not review the Council decision, but only the ‘internal’ legality of the EU regulations.287 It negated ‘that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations’.288 By a strict distinction between ‘internal’ and the ‘external’ legality, the Court denied that that its judgment amounted to a de facto review of the Council decision. The Court thus paid lip service to the primacy of UN law. 167  The EU General Court followed in Kadi II (2010) by stating that ‘once there is acceptance of the premise,…that freezing measures such as those at issue in this instance enjoy no immunity from jurisdiction merely because they are intended to give effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations, the principle of a full and rigorous judicial review of such measures is all the more justified given that such measures have a marked and long-lasting effect on the fundamental rights of the persons concerned’.289 168  Similarly, the UK Supreme Court in Ahmed partly quashed an English order which implemented the 1267 regime. The order was formally based on the UK UN Act of 1946. However, the Supreme Court found that Parliament did not anticipate and would not have appreciated that the UN Security Council would enact measures which infringed the applicant’s property rights, in combination with a lack of an effective remedy. These measures were so severe that, for reasons of democracy, they would have required ‘express authority of Parliament’. Because the UN Act of 1946 does not provide this authority, the impugned order was ultra vires that Act.290

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(p. 840) 169  In a third group, courts have not performed a full-fledged review of implementing measures but only a relaxed review. The Swiss Federal Tribunal directly applied ius cogens as a standard. It highlighted that the Security Council is bound by human rights, but that nevertheless, the members are ‘in principle’ obliged to implement all Security Council decisions (even those infringing human rights) as long as they have been taken in formally correct procedures. But the obligation to implement ends (‘Grenze der Anwendungspflicht’; ‘limite dell’obbligo di applicazione’) when a Council decision violates ius cogens.291 Also, the overruled judgment of the Court of First Instance (2005) in Kadi I directly applied ius cogens.292 A fourth group of courts has exercised judicial self-restraint and has engaged in no interpretation and no review of the Council decisions.293

(c)  Assessment: Allowance to Perform a Decentralized Legality Control as an Extraordinary Means of Last Resort—No Violation of Article 25 170  Due to the jurisdictional restraints of the national judicial systems, pronouncements on the Security Council decisions themselves by domestic courts will remain the exception. But even the members’ domestic judicial review of members’ implementing acts carries the danger of undermining the binding force of Security Council decisions. If each and every member were allowed to scrutinize fully and even pronounce itself definitely on the legality of implementing acts or even of the Council decisions themselves, the binding quality of the latter would be called into question. Article 25 would be deprived of its practical effect (effet utile).294 Given the vagueness of the putative standard of legality, the emergence of diverging views on the legality of Council decisions seem inevitable. (p. 841) Moreover, the conferral of a power of scrutiny to members could easily be used by them as a pretext to escape unwanted decisions.295 Ultimately, an unfettered review of legality by members would render the entire UN system of maintaining international peace and security inoperative. 171  The question is therefore whether the performance of a direct review of a Security Council decision, or of an ‘indirect’ review in form of a review of the implementing measures, in a State constitutes a violation by that member State of Art. 25 of the UN Charter. The government of a member whose domestic constitutional order is based on the principle of the separation of powers cannot simply prohibit its courts to engage in judicial review. But it could be argued that the members’ obligation to perform in good faith the obligations flowing from the Charter might require the member States to apply and—if need be—revise their internal laws on the judiciary so as to ensure that the domestic courts pay due respect to Security Council decisions. 172  However, against the background that the options of the ICJ and of the other international bodies mentioned above (MN 156–159) to scrutinize Council decisions are limited, the domestic courts may temporarily step in as enforcers of the international legal order (dédoublement fonctionnel). ‘As long as’296 no other effective form of legal control of the Council is available on the international plane, the domestic courts’ position to declare unlawful the domestic implementation measures is legally, morally, and politically justified as a means of last resort.297 173  The General Assembly has implicitly espoused this line of reasoning with regard to targeted sanctions. The Assembly ‘urge[d] States, while ensuring full compliance with their international obligations, to include adequate human rights guarantees in their national procedures for the listing of individuals’.298 ‘National procedures’ include court proceedings. Along that line, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism interpreted the Assembly’s statement ‘as an appeal to States to implement sanctions against (p. 842)

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persons listed by the Security Council, not blindly, but subject to adequate human rights guarantees’. The Special Rapporteur also opined that [a]s long as there is no independent review,…judicial or quasi-judicial decisions by the Security Council should be interpreted as being of preliminary rather than final character, it is essential that listed individuals and entities have access to the domestic judicial review of any measure implementing the sanctions.299 174  The decentralized character of the indirect legality control corresponds to a pervasive general feature of international law, which is made, applied and enforced mostly in a decentralized fashion. This review can lead to diverging legal assessments of one and the same Council decision when it is examined in an incidental fashion by different national and regional courts. But because of its potential for eroding the Security Council decisions’ binding force, any incidental review of a Security Council decision, or the review of an implementing measure which may result in de facto neutralizing the underlying Council decision is admissible only as a temporary and residual device when plausible indicators point to manifest and serious problems of international law which have their root cause in the Security Council decisions themselves. If these conditions are met, judicial review in member States is not in itself a violation of Art. 25 by that member.

VII.  Consequences for the Security Council Decision Itself 175  It has been shown that the ICJ can, in a contentious proceeding or in an advisory opinion, find that a Security Council decision has been overstepping the legal limits as sketched out above. What are the legal consequences of such a finding for the decision itself? The practical issue is whether the impugned decision is binding on the members or not (whether members are under an obligation to carry it out or not). In doctrinal terms, the decision itself could be illegal tout court, and possibly in addition ‘absolutely’ null (void) ab initio.300 Alternatively, two strategies exist for reconciling the antagonist requirements of legality and legal certainty, which seem in functional terms equivalent: the decision could be treated as presumably legal. Or it could be deemed illegal but prima facie valid or (used as synonyms) ‘relatively void’ or ‘voidable’ in the sense that its illegality would have to be invoked by affected actors and that only upon such invocation the decision could be declared illegal (and possibly invalid).301 These options are basically open in international law as it stands because a coherent theory of the legal effects of illegal acts of international organizations has so far not been developed.302 176  Moreover, it is necessary to distinguish material legal limits of Council action (and ensuing material legal consequences) from the procedural option to invoke them, especially before courts (justiciability). As explained above, currently only the ICJ is empowered to review Council decisions, while the international human rights monitoring bodies and domestic courts may only review the members’ implementing measures.

(p. 843) 1.  Presumption of Legality with the Procedural Consequence of a Continuing Obligation to Carry out 177  Accepting legal limits of Security Council action means to qualify Council decisions in contravention of the applicable international law as illegal. The obligation of the Council to respect the legal limits explained above is a perfect and ‘hard’ legal obligation, not simply a ‘soft’ and imperfect obligation whose non-fulfilment would not entail illegality, but at best their inopposability towards other international actors. The practice of the UN has so far not given shape to any category of ‘imperfect’ legal obligations.303 Such a category is superfluous and undesirable because it undermines the binary logic of legality/illegality.

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178  But the consequence of illegality is much tempered because Council decisions enjoy a presumption of legality (and of validity).304 The establishment of that presumption is a technique for safeguarding legal expectations and legal security, and also for weakening the impact of unilateral assertions of the illegality of a particular Council decision. In the balance image, the effect of the presumption is to tilt the balance to that side. But the concerns for legal certainty can still be outweighed by preponderant concerns of legality, when the presumption is rebutted. 179  It has been pointed out that a clear procedure for invoking the illegality of a Security Council decision and for implementing the concept of their ‘relative nullity’ (‘voidability’) or of a rebuttable presumption of legality and validity is lacking. With that argument it has been suggested that, within the UN, illegal acts could be only fully invalid (null) or fully valid. From that perspective, the concept of voidability (as known in domestic law with regard to administrative acts) is not operational on the international plane because of the absence of a machinery, time limits, and procedures.305 Therefore, so the argument runs, legally problematic Council decisions should not benefit from a presumption of legality and validity but they should rather be qualified as illegal, invalid (null) and therefore as nonbinding.306 But this view is not covered by the ICJ case-law. Moreover, although there is no specific codified procedure for invoking the illegality of a Council decision, procedures before the ICJ are available.307 (p. 844) 180  The ICJ in this context used the traditional terminology of intra and ultra vires. In the Certain Expenses opinion, the Court stated: ‘But 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.’308 As explained above, ‘ultra vires’ has been (functionally and implicitly) used, in the context of the law of international organizations, as a synonym for illegality.309 The ICJ also established a presumption of validity for UN organ’s acts. In the Namibia opinion, the Court stated: A resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ’s rules of procedure, and is declared by its President to have been so passed, must be presumed to have been validly adopted.310 In the Wall opinion, the Court scrutinized the conformity of the GA Resolution requesting the Advisory Opinion with the Uniting for Peace Resolution. The Court’s premise was that the non-fulfilment of the requirements laid out in the Uniting for Peace Resolution of 1950 could ‘render invalid’ the GA Resolution adopting the request for the Advisory Opinion.311 Again, the Court relied on a presumption of validity. It did not see any reason why that presumption was rebutted in the concrete case.312 181  The consequence of what is here called a presumption of legality is that even Council decisions suspected by some not to be in accordance with the Charter or otherwise in contravention of international law are still presumably legal. The presumption of legality has the procedural consequence that a Security Council decision is (deemed) legal (and hence binding) as long as no one formally and successfully challenges it. Even decisions which are criticized by some actors remain binding, and members remain obliged to carry them out. The presumption of legality (and thus the binding force) persists until it is rebutted. Rebuttal requires the showing of the illegality in a proper legal discourse. The presumption thus shifts the onus of the argument to the challenger.

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182  A different legal technique to reach the same result (prima facie bindingness until challenged), and to protect legal security by this, is the distinction between legality and invalidity. With help of that construct, illegality does not inevitably mean invalidity (nullity, without any legal effect ex tunc). An illegal Council decision could still be valid. In that case, the illegality would have to be invoked by an affected actor and could then lead to the annulment of the contested act (concept of ‘invocability’, ‘voidability’, or ‘relative nullity’).313(p. 845) The presumption of legality (or the distinction between illegality and prima facie validity) leaves open the crucial follow-up questions, who and how (in which procedures) would be entitled to rebut the presumption (or to challenge the validity), and which material threshold must be reached for rebuttal.

2.  Voidness (Absolute Nullity) of Decisions Violating Ius Cogens 183  An exception is made for decisions violating ius cogens. They do not enjoy any presumption of legality but are illegal tout court, and void (cf Art. 53 VCLT and MN 97– 100). According to Judge Elihu Lauterpacht, Res 713 (1991), ‘whose operation began to make Members of the United Nations accessories to genocide,…ceased to be valid and binding’ and ‘Members of the United Nations then became free to disregard it’, ‘a resolution which becomes violative of ius cogens must then become void and legally ineffective.’314 184  But still the question remains which institution can judge, and in which procedure, on an asserted serious illegality stemming from a breach of international law and on the ensuing nullity. Currently only the ICJ has the competence to declare the illegality and nullity of a Security Council decision in an authoritative fashion. The more difficult constellation is that international human rights bodies or domestic courts which scrutinize the members’ implementing measures incidentally pronounce themselves on a breach of ius cogens by a Security Council decision. It is doubtful whether such a finding can, in itself, rid the members of their obligation to carry out the decision.315 In any case a unilateral statement by a member’s government (without any judicial scrutiny) that a Security Council decision violates ius cogens cannot obliterate the member’s international obligation to carry out that decision under Art. 25.

3.  Rebuttal of the Presumption of Legality (and Validity) 185  The international legal standards applicable to the Security Council decisions are not strict. In particular, balancing against the legitimate objective of maintaining international peace and security will often lead to the finding that a Council decision can lawfully restrict the exercise or enjoyment of international human rights and is therefore legal (see MN 125). Moreover, even a ‘simple’ illegality will not suffice to rebut the presumption of legality (and validity). The prevailing view is that ‘manifestly’, ‘obviously’, ‘evidently’ or ‘flagrantly’, or ‘blatantly’ illegal Council decisions either do not enjoy the presumption of legality in the first place, or that ‘manifest illegality’ constitutes the substantive standard for rebutting the presumption of legality (and validity).316(p. 846) For example, the ECHR demanded that ‘the protection of Convention rights’ (resulting from action of the Council, or from members’ implementation action, or from both) must not be ‘manifestly deficient’ in the circumstances of a particular case.317 186  A different but overlapping aspect is not the manifestness but the seriousness of the legal flaw. Arguably, only a ‘qualified’ illegality suffices to rebut the presumption of legality (and validity) of a Council decision. A ‘qualified’ illegality turns both on the importance of the principle affected and on the intensity of the derogation from principle.318 Along that

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line, it has been asserted that decisions which infringe ‘essential’ international principles319 could be, upon challenge, declared illegal (and invalid). 187  A combination of these approaches leads to the suggestion that the presumption of legality (and of validity) of a Council decision can be rebutted if two conditions are met: when the violation of international law was manifest and when it concerned an international rule of fundamental importance.320 But when is the threshold of ‘manifest’ and ‘serious’ illegality reached? Because of the vagueness of that standard, the crucial practical question is who determines it. As stated above, this is in the first instance the Security Council itself, next the ICJ.321 Members’ courts are only as a means of last resort exceptionally allowed to review implementing measures, because any such domestic review carries the danger of undermining the binding force of Council decisions.322

VIII.  Consequences for the Members’ Obligation to Carry out Impugned Council Decisions 188  First, the practical consequence of the successful rebuttal of the presumption of legality and validity of a Council decision in a proceeding before the ICJ is that the members are entitled to ignore such a decision and may refuse to carry it out. The reason is that a Council decision properly declared illegal by the ICJ does no longer deploy a binding force. (p. 847) 189  Second, is it possible to frame members’ noncompliance—even in the absence of an international judicial or quasi-judicial proceeding—as a countermeasure against an illegal Security Council decision, which in turn would constitute a circumstance precluding the wrongfulness of the non-compliance with Art. 25 (cf Art. 22 ILC Articles on State Responsibility)?323 A Council decision infringing the applicable international law constitutes an internationally wrongful act by the UN.324 This can be invoked by any member as a breach of an obligation owed to the international community as a whole (Art. 43 lit b) DARIO 2011). However, Art. 52 (2) DARIO 2011 holds that members of an organization may not take countermeasures against the organization ‘in response to a breach of an international obligation under the rules of the organization unless such countermeasures are provided for by those rules’. The exclusion of countermeasures, as foreseen in DARIO, is appropriate in view of the special ties existing between the organization and its members.325 Council decisions ‘not in accordance with the Charter’ in the sense of Art. 2 (5) fall under this provision. Arguably, Council decisions otherwise in contravention of international law are a different matter, but only to the extent that the ‘external’ legal limits have not been integrated into the Charter. Members’ non-implementation of Council decisions which exclusively violate ‘external’ legal standards might be explained and legitimized as a countermeasure against the UN, if the further conditions for countermeasures are met. 190  Third, the more frequent constellation is that, in an international human rights proceeding or in a domestic judicial proceeding, a member has been found in violation of its human rights obligations due to its implementation of a Security Council decision. Human rights bodies or domestic courts including the ECJ cannot hold a Council decision itself illegal, because such a holding does not lie within their jurisdiction. They can at best pronounce themselves obiter on this question. Still, the result is that the concerned member will be in the catch-22 situation to either disregard the human rights body’s or court’s decision, or to violate its obligation to carry out the Security Council decision. That dilemma could be considered as a circumstance precluding the wrongfulness of the State’s refusal to carry out the Security Council decision in analogy to a force majeure. 191  Fourth, it is possible that a domestic court or similar body, depending on its jurisdiction, pronounces itself not only on a member’s implementing act but also on the legality of a Security Council decision. If this occurs in a proper judicial or quasi-judicial proceeding and in good faith, the presumption of the lawfulness and validity of the impugned decision might be rebutted. In that case, the impugned Council decision’s From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

binding force could be considered as temporarily suspended. It is probably most adequate to regard a refusal by a member to carry out a Security Council decision in that constellation as an exercise of a ‘natural right’ to resistance or as an act of civil disobedience. The refusal to implement would from that perspective be a ‘means of last resort’, an ‘ultimum refugium’ of members,326 which does not—as such—alter their obligation to implement the Security Council decision. The extraordinary, temporary, and auxiliary character of the (p. 848) licence not to implement a Council decision corresponds to the very limited grounds for rebutting the presumption of legality as sketched out above. Only a ‘manifest’ and ‘serious’ illegality leads to rebuttal, and concomitantly triggers the allowance not to carry out.327

IX.  Consequences of an Illegal Council Decision for the UN: International Legal Responsibility 1.  The Security Council Decision as an Internationally Wrongful Act 192  The adoption of a decision by the Council which disregards the legal limits as sketched out above has been taken by an organ of the UN and is therefore attributable to that organization (Art. 4 and 6 DARIO 2011).328 It is ‘a breach of an international obligation’, because it is ‘an act of that international organization’ which is ‘not in conformity with what is required of it by that obligation, regardless of the origin and character of that obligation’ (Art. 10 DARIO 2011). The obligation may result ‘from any source of international law applicable to the organization’, it ‘may be established by a customary rule of international law, by a treaty or by a general principle applicable within the international legal order’.329 A Council decision which in itself oversteps the legal limits as explained above is therefore an internationally wrongful act which entails the international responsibility of the UN (cf Art. 3 DARIO 2011). 193  A different situation is present if the Council decision as such does not overstep the legal limits, but when only the members’ implementing measures affect, and possibly violate, international law. Then the Council decision could be illegal only under a specific heading, namely for the breach of the Council’s obligation of loyalty towards the members. Because the Council is a trustee of the members’ interests, it is prohibited from acting disloyally against them. That obligation of loyalty includes a prohibition to compel members to breach international law.330 A breach of that obligation could constitute an internationally wrongful act by the Council. However, such a compelling order from the side of the Security Council seems extremely unlikely. In the absence of explicit terms, it should be presumed that the Security Council does not intend to impose any obligation on members to breach international law.331

2.  The Members’ Implementing Measures as Internationally Wrongful Acts Attributable to the UN 194  The most frequent situation is that not the Council decision itself affects international legal prescripts, notably human rights, but rather the members’ implementing measures. (p. 849) In terms of legal policy, members should in principle remain responsible for violations of international law, especially for human rights violations, because they are not allowed to shed off responsibility by transferring powers to the UN and joining an international regime. It is however important also to look at the root cause. Then the doctrinal question arises whether and under which conditions the members’ wrongful acts should be attributed to members, to the UN, or to both.332 195  Two basic constellations must be distinguished conceptually, although in reality they flow into each other. The first constellation is that the Council leaves a leeway to the members as to whether and in which specific manner they should carry out the decision.

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The second constellation is that the Security Council adopts a ‘strict’ decision which leaves the members no choice in implementation. 196  The first constellation is normally given when the Council authorizes the use of military force under Chapter VII and in peacekeeping under Chapters VI and/or VII. When the Council authorizes the deployment of national contingents in a peacekeeping force and when members concomitantly place their troops at the disposal of the UN, violations of human rights and IHL are most often neither inscribed in the Council resolutions themselves nor are they their necessary consequence. Interference with human rights and breaches of IHL mainly or even exclusively result from conduct performed by members during the implementation. The second constellation is given for sanctions, including targeted sanctions. Here the relevant Council decisions themselves strictly obligate members eg to prohibit trade or to freeze assets. The human rights problems seem to root directly in the decisions. Members’ implementing measures realize those violations, but they are not their actual cause. Normatively, attribution of members’ conduct to the Security Council seems more appropriate in the second constellation, when members have no leeway, but it should not be excluded from the outset even in the first constellation. 197  Attribution of the members’ wrongful conduct is possible under the heading that members, when implementing binding decisions of the UNSC act as ‘an organ or agent’ of the UN (Art. 6 DARIO 2011), but this seems to overstretch the functionality of the members. Attribution could be further made under the heading that State organs are placed at the disposal of the UN (Art. 7 DARIO 2011). But such disposal will rarely or never lead to an attribution of conduct to the UN (and thus to the Council) because the Council will in most cases lack ‘effective control’.333 198  The more appropriate option is the derivative or ancillary responsibility of the UN for an implementing act of a member which constitutes an international wrongful act of the latter. The ILC Draft calls this responsibility ‘in connection’ with an act of a State.334 Such an ancillary responsibility of the UN can be established if the UN could be said to aid or assist (Art. 14 DARIO 2011), to direct and control (Art. 15 DARIO 2011), or to (p. 850) coerce a member (Art. 16 DARIO 2011) in the commission of a wrongful act. Indeed, the ILC commentary states that ‘the adoption of a binding decision on the part of the international organization could constitute, under certain circumstances, a form of direction or control in the commission of an internationally wrongful act’.335 This strategy of responsibilizing the UN seems adequate to face the danger of ‘double evasion’,336 namely the problem that the Council will try to evade responsibility by pointing to the members on which it must rely for implementation, while the members will attempt to rid themselves from responsibility by claiming that they are bound to implement a Security Council decision with no choice.337

3.  So far no International Legal Responsibility for Council Inaction 199  A follow-up question is whether legal limits also apply to Council inaction. If the Council is—as a matter of principle—bound to respect international law, especially human rights, this obligation may, under certain conditions, require its positive action in that direction, not only abstention. This view is supported by the term ‘responsibility’ in Art. 24 which can be read as implying an ‘obligation’ of the Council to take action.338 Both considerations lead to the insight that the Council may, in certain circumstances, have a legal obligation to act. Consequently, its inaction could constitute a legally relevant omission. However, under the lex lata, passivity of the Council has not given rise to its international legal responsibility.

F.  The Significance of Article 103 for Council Decisions

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I.  The Principle: Prevailing Effect of Council Decisions 200  Council decisions may partake in the prevailing effect of the Charter over conflicting international obligations by virtue of Art. 103.339 The obligation to carry out Council decisions is an ‘obligation of the members…under the present Charter’ in terms of Art. 103. The Charter ‘obligations’ mentioned in Art. 103 include those directly stated in the Charter as well as those flowing from binding decisions of the Security Council.340 Anyway, the obligation to carry out such decisions is at the same time an obligation flowing from Art. 25. The legal consequence is that, in the event of a conflict with an incompatible obligation of a member, the obligation to carry out the Council decision under Art. 25 will prevail. 201  Article 103 only applies if there is a ‘conflict’. A conflict cannot be negated on the ground that the Council typically pronounces an ‘authorization-delegation’, without imposing an ‘obligation’ on members in a strict sense of the word. Put differently, a (p. 851) ‘conflict’ in the sense of Art. 103 also exists where there is an incompatibility between a permission (or authorization) by the Council and by an obligation of a member (eg to respect human rights).341 This broad notion of ‘conflict’ is adequate especially in the context of Chapter VII decisions. In the absence of special agreements on armed forces, the Council cannot ‘obligate’ but only authorize members to use military force. Also with regard to non-military sanctions, the Council is dependent on the willingness of the members to contribute, and therefore normally uses the language of authorization (permission) as opposed to mandate (obligation). But these authorizations are stronger than mere hortatory recommendations. If Art. 103 were not applicable to such decisions, it would hardly find application at all—a result which does not do justice to the provision’s purpose of securing the effective operation of the Charter. 202  Article 103 grants a prevailing effect to Council decisions only over ‘obligations of the members’. Council decisions might therefore, at first sight, not prevail over obligations of the EU which is not a UN member. However, the EU Treaty is an ‘international agreement’ concluded by UN members. That agreement does fall within the ambit of Art. 103, and the Charter prevails over it. In result, the EU itself at least de facto has to accept the prevalence of the Charter.342

II.  Narrowing or Neutralizing the Prevailing Effect 203  The members’ obligations to respect human rights at first sight appear to be conflicting international obligations which must give way, under Art. 103, to binding Council decisions. This would, then, indirectly mean that human rights do not function as an effective legal limit to Council decisions. However, the prevailing effect granted to Council decisions by of Art. 103 only operates if the legal conditions for the application of that provision are fulfilled. This is not the case in various constellations which have given rise to human rights problems.

1.  No Application of Article 103 to Obligations of the Security Council Itself 204  Article 103 grants precedence to Council decisions over members’ obligations, but not over possibly conflicting legal obligations of the Council itself. Article 103 does not really ‘fit’ as a tool for identifying legal limits of Security Council action. The provision regulates the catch-22 situation in which a member finds itself when it has to implement a binding Security Council decision on the one hand, and honour a treaty on the other hand, and resolves that conflict in favour of the former obligation. Article 103 complements Art. 25, but does not extend the provision. 205  Another aspect is that Art. 103 can only take effect for decisions which are ‘in accordance with Charter’ in the sense of Art. 25.343 The reason is that ‘a conflict between (p. 852) different Charter provisions…renders Article 103 UN Charter inapplicable’.344 To the extent that human rights obligations have been, especially via Art. 1 (3), incorporated into the Charter itself and thus bind the Council as an intrinsic part of the Charter, any From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

Council decision violating human rights will not partake in the prevailing effect foreseen by Art. 103.

2.  Presumption against the Creation of a Conflict 206  A strategy to minimize the occurrence of a conflict between Council decisions (both military authorizations and obligations to impose targeted sanctions) and contrary human rights obligations of members is reliance on a presumption. Pointing out that the Council must act in accordance with the purpose of the Charter which is to achieve international cooperation in promoting and encouraging the protection of human rights (Arts 24 (2) and 1 (3)), the ECHR established ‘a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights’.345 Unless the Council uses ‘clear and explicit language’ intending States to take particular measures, for example, infinite internment without charge and without judicial guarantees, it must be presumed that the Council does not impose such measures.346 In his Concurring Opinion to Sayadi and Vinck, Sir Nigel Rodley favoured such a presumption, too: ‘[T]he Charter strongly suggests…that there should be a presumption that the Security Council did not intend that actions taken pursuant to its decision should violate international human rights.’347 On the basis of this presumption, if it is not rebutted, no conflict between the members’ obligations under the Council resolution and between their obligations under human rights treaties arises. Then, in the absence of a conflict of obligations, the prevailing clause of Art. 103 is not applicable, which means that members remain fully bound by their human rights obligations. This line of reasoning does not undermine the Security Council decisions’ substance or their binding force because it is precisely based on the idea that, presumably, these decisions can be fully complied with under due respect for human rights.

3.  No Prevalence of UNSC Decisions over Ius Cogens 207  Even where a real conflict exits, the prevailing effect which Art. 103 grants to Council decisions is limited in various respects. First, ius cogens is an intrinsic limit (or exception) to the prevailing effect of the Charter itself and of Council decisions.348 It cannot be argued that the provision of Art. 53 VCLT is itself a treaty obligation which must give way under Art. 103. The reason is, first, that Art. 53 VCLT does not stipulate any (p. 853) specific ‘obligations’ (in the sense of Art. 103) and second that the effect of nullity is a principle of customary international law (possibly itself with the status of ius cogens) which is not within the scope of Art. 103 in the first place. 208  Because peremptory norms of international law are by definition non-derogatory, and superior to both customary law and treaty, ‘[t]he 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’, as Judge Elihu Lauterpacht put it.349

4.  Prevalence over Contrary Customary Law is Unclear 209  A second, but controversial limitation of the scope of Art. 103 is that this provision grants a prevailing effect to Council decisions only over conflicting obligations stemming from ‘any other agreement’. It is far from clear whether, beyond this wording, the Charter obligations prevail over obligations arising from other sources of international law, eg customary obligations. First, if the Charter is the constitution of the international community not only in a substantive but also in a formal sense (equipped with ‘constitutional’ supremacy), then it must prevail also over other types of international norms, not only over ‘agreements’. The second argument in favour of an extended scope of Art. 103350 is that numerous obligations stem simultaneously from agreements and from parallel customary law; many treaties reflect customary law and vice versa. For that reason,

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it seems artificial and unfeasible to limit the applicability of Art. 103 to ‘pure’ conflicting treaty law. 210  On the other side, the wording, the drafters’ intent, and subsequent practice rather counsel against extending the scope of the prevailing effect of the Charter also over contrary customary law.351 To conclude, it seems not yet settled whether Council decisions also prevail over pre-existing contrary customary obligations of members, which include numerous human rights obligations. Still, it would be strange if members were allowed to create, through a new practice and opinio iuris, customary law which could then derogate a pre-existing Security Council decision, while they are not allowed to create such contrary rules explicitly by treaty. 211  The non-extension of the precedence principle is particularly pertinent for the members’ obligation to respect human rights. These might be something else from simple ‘obligations under any other agreement’, which are, under Art. 103, overridden by the (p. 854) members’ obligation to carry out Council decisions under Art. 25. From that perspective, human rights ‘go beyond providing merely treaty obligations and lay down the obligations of a public order profile’.352 Because of this quality, they are—so the argument runs—not, or at least not completely, eclipsed by the precedence rule of Art. 103 (independently of whether Art. 103 applies to contrary customary law in the first place). But this reasoning has not been accepted in practice so far.353

Footnotes: *  I thank Jost Delbrück, author of the commentary in the previous edition, for handing over this piece of the commentary and for allowing me to use his work. I am also indebted to Thore Neumann for outstanding research assistance and helpful comments on previous versions of this piece, and Antonios Tzanakopoulos for lucid coments on parts of this piece. 1

  The historical account draws on Delbrück on Art. 25 (2nd edn) MN 1–3.

2

  Covenant of the League of Nations, Part I of the Treaty of Versailles (Treaty of Peace with Germany) (adopted 28 June 1919) in (1919) 13 AJIL Supp 151–386. 3

  Summary of the ‘United Nations Conference on International Organization’ (25 April to 24 October 1945) (1946/47) UNYB 12–34, 25. 4

  ‘The Charter of the United Nations: Draft’ (14 August 1943) in US Dept of State (ed), Postwar Foreign Policy Preparation 1939–1945 (Publication 3580, 1950) 526. 5

  See Art. III (3) and IV (1) of the ‘Plan for the Establishment of an International Organization for the Maintenance of International Peace and Security’ (23 December 1943) 1944 1 Foreign Relations of the United States 614. 6

  ibid, 620.

7

  ‘Tentative Proposals for a General International Organisation’ (18 July 1944) in US Dept of State (ed), Postwar Foreign Policy Preparation 1939–1945 (Publication 3580, 1950) 595. 8

  ibid, 601.

9

  The text of the ‘Dumbarton Oaks Proposals for the Establishment of a General International Organization’ is reprinted in (1946/47) UNYB 4-9 and in UNCIO III, Doc 1 (G/ P) 2–23. 10

  Delbrück on Art. 25 (2nd edn) MN 3.

11

  See for explicit references to Art. 25 the resolutions adopted against Southern Rhodesia: UNSC Res 232 (16 December 1966) UN Doc S/RES/232 paras 3 and 6; UNSC Res 253 (29 May 1968) UN Doc S/RES/253 preamb para 5 and op 11, 12; UNSC Res 314 (28 February 1972) UN Doc S/RES/314 preamb para 3 and op 5; UNSC Res 318 (of 28 July 1972) UN Doc

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S/RES/318 preamb para 5; UNSC Res 320 (of 29 September 1972) UN Doc/S/RES/320 preamb para 3 and op 2; UNSC Res 333 (22 May 1973) UN Doc S/RES/333 preamb para 3; UNSC Res 437 (10 October 1978) UN Doc S/RES/437 op 2; UNSC Res 460 (21 December 1979) UN Doc S/RES/460 para 4. See further UNSC Res 667 (16 September 1990) UN Doc S/RES/667 preamb para 8; UNSC Res 670 (25 September 1990) UN Doc S/RES/670 preamb paras 7 and 8; UNSC Res 686 (2 March 1991) UN Doc S/RES/686 preamb para 2, all on the situation between Iraq and Kuwait. See UNSC Res 743 (21 February 1992) UN Doc S/RES/ 743 preamb para 7 on the situation in Yugoslavia. 12

  See for analytical summaries of the explicit and implicit references made to Art. 25 in the Council practice the Repertoire of the Practice of the Security Council, regularly published by the UN Department of Political and Security Council Affairs, the last available covering the period of 2004–07 (as of 19 February 2010). 13

  For example, the binding nature of Council decisions was reaffirmed in UNSC Res 1193 (28 August 1998) UN Doc S/RES/1193, para 16, reminding all parties ‘of the obligation to abide strictly by the decisions of the Security Council’. 14

  The word can be translated into German as ‘Entscheidung’ or as ‘Beschluss’.

15

  The Council ‘decides’ or takes ‘decisions’ under Arts 15 (1), 25; 27 (2) and (3); 37 (2); 39; 40; 41; 44; 48; 49, and 94 (2). According to Kelsen, ‘decide’ in Art. 37 (2) means to ‘consider’ (H Kelsen, The Law of the United Nations: a Critical Analysis of its Fundamental Problems (Stevens 1950) 446 with note 7). 16

  A ‘recommendation’ by the Council or the verb ‘recommend’ are mentioned in Arts 4 (2); 5; 6; 36 (1), (3); 37 (2); 38; 39; 40; 93 (2); 94 (2) and 97. Under Art. 34 (1), the Council may ‘investigate’. Under Art. 33 (2), the Council may ‘call’. Besides, it shall formulate ‘plans’ under Art. 26. 17

  Delbrück on Art. 25 (2nd edn) MN 3.

18

  CPF/Suy/Angelet, 909–18, 915: the absence of the term ‘decision’ does not automatically mean that act is non-binding. 19

  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, para 114 (emphasis added). Also according to Judge Fitzmaurice, dissenting to the Namibia Advisory Opinion, ‘the question whether any given resolution of the Security Council is binding or merely recommendatory in effect, must be a matter for objective determination in each individual case…according to the terms of the chapter or article of the Charter on the basis of which the Council is, or must be deemed to be, acting’ (Dissenting Opinion Fitzmaurice in Namibia (Advisory Opinion) para 114). However, Judge Fitzmaurice’s understanding differed from that of the majority in that he emphasized what the majority left obscure, namely that the binding force of a decision must stem from some other legal provision in the Charter (ibid, para 113). 20

  Delbrück on Art. 25 (2nd edn) MN 15.

21

  M Akram and S Haider Shah, ‘The Legislative Powers of the United Nations Security Council’ in RSJ Macdonald and DM Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Nijhoff 2005) 431–55, 431, 437. 22

  Namibia (Advisory Opinion) (n 19) para 116. In that opinion, the Court concluded that the legal effect of UNSC Res 276 (30 January 1970) UN Doc S/RES/276 was that South Africa was ‘under obligation’ to withdraw its administration from Namibia immediately and thus put an end to its occupation of the territory (para 133).

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23

  JA Frowein, ‘Implementation of Security Council Resolutions Taken under Chapter VII in Germany’ in V Gowlland-Debbas (ed), United Nations Sanctions and International Law (Kluwer 2001) 253, 263. 24

  Kelsen (n 15) 293. In that case, it is still only the second decision which is legally binding. 25

  Namibia (Advisory Opinion) (n 19) para 113.

26

  See already Kelsen (n 15) 98.

27

  See on this idea during the drafting history Delbrück on Art. 25 (2nd edn) MN 12.

28

  Under Art. 33 (2), the Council may ‘call upon the parties to settle their dispute’ peacefully. This is just a power to remind the parties of the obligation which anyway falls on them already by virtue of Art. 33 (1) (GHS, 205). Under Art. 36, the Council may ‘recommend appropriate procedures’. Under Art. 37, the Council ‘shall decide whether to take action’ with a view to setting in motion a dispute settlement procedure or ‘to recommend’ appropriate terms of settlement. Finally, under Art. 38, the Council may ‘make recommendations’ with a view to a peaceful settlement. 29

  B Conforti and C Focarelli, The Law and Practice of the United Nations (4th edn, Martinus Nijhoff 2010) 187. 30

  ibid, 188.

31

  ibid.

32

  Already Kelsen (n 15) 445 opined that decisions according to Art. 34 referring to an investigation are binding. See for the teleological argument Delbrück on Art. 25 (2nd edn) MN 13. 33

  See MN 8.

34

  Kelsen (n 15) 96.

35

  ibid, 95. See on the exceptional situation that a decision which has been found, in a proper proceeding, to be manifestly illegal, need not be carried out, MN 188–191. 36

  For example, in a resolution on Somalia the Council ‘reaffirms that non-compliance [with Res 733 (1992) on an arms embargo] constitutes a violation of the provisions of the Charter of the United Nations’, (UNSC Res 1474 (8 April 2003) UN Doc S/RES/1474 para 1). Repeated in UNSC Res 1519 (16 December 2003) UN Doc S/RES/1519 para 1. At other occasions, the SC merely reacted to the non-compliance with its previous resolutions (see eg UNSC Res 748 (31 March 1992) UN Doc S/RES/748 para 1: ‘Decides that the Libyan government must now comply without any further with paragraph 3 of Res 731 (1992) …’. 37

  UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267 preamb para 8: ‘Determining that the failure of the Taliban authorities to respond to the demands in paragraph 13 of resolution 1214 (1998) constitutes a threat to international peace and security.’ See likewise UNSC Res 1054 (26 April 1996) UN Doc S/RES/1054 preamb para 10 (on noncompliance with UNSC Res 1044). 38

  The sanction committees are subsidiary organs of the Security Council. See eg Guidelines of the Security Council Al-Qaida and Taliban Sanctions Committee (the so-called 1267 committee) (7 November 2002) last amended on 22 July 2010, para 1 (b). 39

  See on the practice and procedures of the older sanction committees SD Bailey and S Daws, The Procedure of the UN Security Council (3rd edn, Clarendon 1998) 263–73, 365– 74.

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40

  UNSC Res 1333 (19 December 2000) UN Doc S/RES/1333 para 8 (c).

41

  See eg Guidelines of the 1267-committee (7 November 2002) last amended on 22 July 2010, para 2 (a). 42

  See eg SC/10282, press release (15 June 2011) decision taken by the Security Council Al-Qaida and Taliban Sanctions Committee following review of delisting request submitted through the office of the ombudsperson, on 14 June 2011. 43

  B Rudolf, ‘United Nations Committees and Subsidiary Bodies, System of’ MPEPIL (online edn) MN 9, speaks of ‘decision-making bodies’. 44

  D Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (OUP 1999) 106–07. 45

  ibid, 40–42.

46

  See on the question who the Council’s principals are Peters on Art. 24 MN 41–47.

47

  Sarooshi has transferred this rationale to the Security Council (Sarooshi (n 44) 25). Another rationale of the domestic principles on delegation from parliament to executive bodies is the concern for democracy. 48

  See for the 1267 committee the Guidelines (7 November 2002) last amended on 22 July 2010, para 1 (b)). 49

  ibid, para 4(a).

50

  ibid, para 14.

51

  Sarooshi (n 44) 32–33.

52

  Suy and Angelet (n 18) 915–16. Critically on the delegation of far-reaching powers to the 1267 committee A Hudson, ‘Not a Great Asset: The UN Security Council’s CounterTerrorism Regime: Violating Human Rights’ (2007) 25 Berk J Intl L 203, 209 (with further references), but without concluding that its decisions are non-binding on the ground that they violate the non-delegation principles. 53

  See on the binding effect of Security Council decisions for non-State actors and individuals MN 34–44. 54

  But see in that sense S Lamb, ‘Legal Limits to United Nations Security Council Powers’ in GS Goodwill-Gill (ed), The Reality of International Law: Essays in Honour of Ian Brownlie (Clarendon 1999) 361–88, 379. 55

  See on this issue MC Wood, ‘The Interpretation of Security Council Resolutions’ (1998) 2 Max Planck YB UN L 73–95; A Orakhelashivili, Collective Security (OUP 2011) 39–45. 56

  Wood (n 55) 82–84.

57

  Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion of 22 July 2010) para 94. 58

  A Orakhelashvili, ‘The Acts of the Security Council: Meaning and Standards of Review’ (2007) 11 Max Planck YB UN L 143–95, 156–57: The Vienna Convention rules should be followed, possibly by analogy. See in that sense also Wood (n 55) 85–95. 59

  Orakhelashivili (n 55) 41 therefore opines that there is ‘no authority justifying deviation from the sequence of interpretation methods specified under the Vienna Convention’. 60

  Frowein (n 23) 255. ‘Subjective intentions of some members of the Security Council, particularly intentions covered by the formulation or hidden in specific wording can, at least in principle, not be seen as in any way decisive’ (ibid).

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61

  Wood (n 55) 82.

62

  cf ECHR in Al-Jedda: ‘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.’ (ECHR (7 July 2011) Al-Jedda v UK, Appl No 27021/08, para 102). 63

  See also MN 30.

64

  Namibia (Advisory Opinion) (n 19) para 116; Kosovo (Advisory Opinion) (n 57) para 94. GHS, 202. 65

  With regard to the execution of international treaties, this principle is enshrined in Art. 27 VCLT. 66

  See K Widdows, ‘Security Council Resolutions and Non-members of the United Nations’ (1978) 27 ICLQ 459–62 67

  UNSC Res 418 (4 November 1977) UN Doc S/RES/418 (general embargo on South Africa); UNSC Res 661 (6 August 1990) UN Doc S/RES/661 (general embargo on Iraq); UNSC Res 748 (31 March 1992) UN Doc S/RES/748 (arms embargo on Libya). 68

  The ICJ’s statement in Namibia (Advisory Opinion) (n 19) para 126 on the effects of decisions for non-member States is obscure. See on the problem of the lacking consent MN 42–43. 69

  B Fassbender, The United Nations Charter as the Constitution of the International Community (Nijhoff 2009) 147–48. 70

  See MC Krafft, D Thürer, and JA Stadelhofer, ‘Switzerland’ in V Gowlland-Debbas (ed), National Implementation of United Nations Sanctions: A Comparative Study (Nijhoff 2004) 523, 525–26. 71

  See eg UNSC Res 1368 (12 September 2001) UN Doc S/RES/1368; UNSC Res 1377 (12 November 2001) UN Doc S/RES/1377; UNSC Res 1735 (22 December 2006) UN Doc S/RES/ 1735; 1757 (30 May 2007) UN Doc S/RES/1757. 72

  UNSC Res 1540 (28 April 2004) UN Doc S/RES/1540 preamb para 8.

73

  See eg UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267 against the Taliban; UNSC Res 1390 (28 January 2002) UN Doc S/RES/1390 against the Taliban and Al-Qaida; UNSC Res 1591 (29 March 2005) UN Doc S/RES/1591; UNSC Res 1672 (25 April 2006) UN Doc S/RES/1672 against Sudanese officials. 74

  UNSC Res 1343 (7 March 2001) UN Doc S/RES/1343 para 21 on Sierra Leone (emphasis added). See also UNSC Res 1408 (6 May 2002) UN Doc S/RES/1408 para 18. 75

  See eg Council Decision 2011/782/CFSP (1 December 2011) concerning restrictive measures against Syria and repealing Decision 2011/273/CFSP (OJ 2011/L 319/56). That decision, inter alia, prohibits the sale of arms and matériel to Syria by ‘nationals of Member States’ (Art. 1), and freezes all funds ‘belonging to, or owned held or controlled by persons responsible for the violent repression against the civilian population in Syria’ (Art. 19). See in that sense also Arts. 2 and 4 of Council Reg (EU) No 442/2011 (9 May 2011) concerning restrictive measures in view of the situation in Syria (OJ 2011/L121/1). 76

  UNSC Res 1474 (8 April 2003) UN Doc S/RES/1474 para 1 (emphasis added); identical in UNSC Res 1519 (16 December 2003) UN Doc S/RES/1519 para 1. The arms embargo had been imposed in Res 733 (1992).

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77

  UNSC Res 1306 (5 July 2000) UN Doc S/1306 para 10: ‘Encourages the International Diamond Manufacturers Association, the World Federation of Diamond Bourse, the Diamond High Council and all other representatives of the diamond industry to work with the Government of Sierra Leone.’ Para 11: ‘Invites States, international organizations, members of the diamonds industry and other relevant entities in a position to do so to offer assistance to the Government of Sierra Leone’. Para 13: ‘Welcomes the commitments made by certain members of the diamond industry not to trade in diamonds originating from conflict zones, including in Sierra Leone, urges all other companies and individuals involved in trading in rough diamonds to make similar declarations in respect of Sierra Leone diamonds, and underlines the importance of relevant financial institutions encouraging such companies to do so; …’ (emphases added). See also UNSC Res 1343 (7 March 2001) UN Doc S/RES/1343 para B.16. 78

  UNSC Res 1408 (6 May 2002) UN Doc S/RES/1408 Preamble: ‘Encouraging civil society initiatives in the region,…to continue their contribution towards regional peace’ (emphasis added). 79

  UN Doc S/PRST/2009/32 (8 December 2009).

80

  cf Kosovo (Advisory Opinion) (n 57) para 115.

81

  The Council did this several times in the Kosovo conflict, and also in other internal armed conflicts. UNSC Res 1160 (31 March 1998) UN Doc S/RES/1160 para 2 ‘calls also upon the Kosovar Albanian leadership to condemn all terrorist action’. UNSC Res 1199 (23 September 1998) UN Doc S/RES/1199 para 1, ‘demands that all parties, groups, and individuals immediately cease hostilities and maintain a ceasefire’. UNSC Res 1203 (24 October 1998) UN Doc S/RES/1203 para 4, ‘demands that the Kosovar leadership and all other elements of the Kosovo Albanian community comply’ with previous resolutions. UNSC Res 814 (26 March 1993) UN Doc S/RES/814 para 8 ‘demands that all Somali parties, including movements and factions’, comply with their previous commitments on a ceasefire and disarmament. UNSC Res 1010 (10 August 1995) UN Doc S/RES/1010 paras 1 and 2 ‘demands that the Bosnian Serb party’ gives access to UN and ICRC personnel and respects their rights. UNSC Res 1127 (28 August 1997) UN Doc S/RES/1127 paras 2 and 3 ‘demands’ that the UNITA (the independence movement of Angola) complies with its obligations on demilitarization and to provide information on disarmament. 82

  A Cassese, ‘The Status of Rebels under the 1977 Geneva Protocol in Non-International Armed Conflict’ (1981) 30 ICLQ 416–39; S Sivakumaran, ‘Binding Armed Opposition Groups’ (2006) 55 ICLQ 369–94. 83

  M Herdegen, Die Befugnisse des UN-Sicherheitsrates: Aufgeklärter Absolutismus im Völkerrecht? (CF Müller 1998) 32. 84

  ibid, 32–33.

85

  Kosovo (Advisory Opinion) (n 57) para 117.

86

  The Court opined that there was no indication that the Council intended to impose a specific obligation to act or a prohibition from acting, addressed to such other actors (ibid, para 115). 87

  I distinguish the question of direct effect from the question of the incorporation of the decision into the domestic legal order. Notably in the Anglo-American constitutional tradition, direct effect is often regarded as a precondition of the incorporation of the international legal act (normally a treaty) into the domestic legal order. In the continental European tradition, in contrast, the incorporation of international law is considered as the first step, with direct effect being an ensuing, secondary question.

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88

  See eg A Nollkaemper, ‘Introduction’ (2009) 20 EJIL 853, 864. See for a summary assessment of State practice V Gowlland-Debbas, ‘The Domestic Implementation of UN Sanctions’ in E de Wet and PA Nollkaemper (eds), Review of the Security Council by Member States (Intersentia 2003) 63, 70. See from case-law German Federal Court in Criminal Matters, BGHSt 41, 127, 129 (Judgment of 21 April 1995). 89

  See eg Frowein (n 23) 258; N Weiss, Kompetenzlehre internationaler Organisationen (Springer 2009) 185 with further references. 90

  EJ Cárdenas and M Garcia-Rubio, ‘Argentina’ in V Gowlland-Debbas (ed), National Implementation of United Nations Sanctions: A Comparative Study (Nijhoff 2004) 81, 85. 91

  See on the direct effect of a decision issued by the WTO Dispute Settlement Body: CFI, case T-174/00, Biret International SA v Council, ECR 2002 II-17, paras 60–71; ECJ, Case C-93/02, Biret International SA v Council (Judgment of 30 September 2003) 2003 ECR I 10497, paras 55–58 (identical case C-94/02 P, Etablissement Biret et Cie SA v Rat, same date); for the direct effect of a decision of the ECHR: German Constitutional Court, BVerfGE 111, 307 (2004)—Görgülü. See for a negation of a direct effect of a decision of the of the ICJ: US S Ct, Medellín v Texas (Judgment of 25 March 2008) (552 US 491 (2008)). 92

  A further criterion which, however, does not fit for the identification of a direct effect of Security Council decisions are the intentions of the domestic bodies participating in the ratification process. 93

  cf Cárdenas and Garcia-Rubio (n 90) 89–92: the need for complementary legislation and the addressees of the resolutions should be the decisive test. 94

  See for Security Council decisions Cárdenas and Garcia-Rubio (n 90) 89–91; for treaties US S Ct, Foster & Elam v. Neilson, 27 US 253, 314 (1829), Chief Justice Marshall. 95

  See for international criminal law treaties and customary law KS Gallant, The Principle of Legality in International and Comparative Criminal Law (CUP 2009). 96

  Concern for the principle of legality in its strict form (nullum crimen sine lege, nulla poena sine lege) has led some domestic courts to reject international rules, especially customary rules, as a sufficient basis for criminal responsibility, and to demand an implementing domestic statute. 97

  A von Bogdandy, ‘Pluralism, Direct Effect, and the Ultimate Say’ (2008) 6 ICON 397– 413, esp 401–12. 98

  See on the binding decisions of subsidiary organs and bodies and on the doctrine of nondelegation MN 20–23. 99

  Herdegen (n 83) 36–37.

100

  V Gowlland-Debbas, ‘Sanction Regimes under Article 41 of the UN Charter’ in V V Gowlland-Debbas (ed), National Implementation of United Nations Sanctions: A Comparative Study (Nijhoff 2004) 3, 52. 101

  For example, under § 138 of the German Civil Code, private contracts are invalid if they are contrary to public policy. The same legal effects are possible in common law systems, see eg for English contract law (AS Burrow, Chitty on Contracts, vol I, General Principles (30th edn, Sweet & Maxwell 2008) 16.001 on ‘illegality and public policy’. 102

  This seems to be the reading of the Court. Namibia (Advisory Opinion) (n 19) para 116; Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Provisional Measures) (Order of 14 April 1992) [1992] ICJ Rep 3, para 39. However, in both cases the Court basically merely repeated the wording of Art. 25, which makes it difficult to determine the Court’s precise understanding of the phrase. Suy and Angelet (n 18) 917 also favour this interpretation and refine it as follows: Art. 25 specifies From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the ‘manner’ in which the members must fulfil their obligation, and because of that specification it is not redundant. 103

  This leaves unaffected possible legal limits flowing from Art. 24 (2) and from general international law. See MN 75–86 and 101–108. 104

  Namibia (Advisory Opinion) (n 19) (Dissenting Opinion Judge Fitzmaurice) para 113.

105

  ibid, para 115 (emphases added).

106

  J Combacau, Le pouvoir de sanction de l’O.N.U.: étude théorique de la coercition non militaire (Pedone 1974) 259. See also A Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (OUP 2011) 164: ‘an open licence for disobedience’ by the members. 107

  See in that sense Judge Fitzmaurice, Namibia (Advisory Opinion) (n 19) para 113: ‘If, under the relevant chapter or article of the Charter, the decision is not binding, Article 25 cannot make it so. If the effect of that Article were automatically to make all decisions of the Security Council binding, then the words “in accordance with the present Charter” would be quite superfluous.’ 108

  Kelsen (n 15) 95–96; GHS, 208; Combacau (n 106) 260.

109

  GHS, 208 write: ‘The text was therefore redrafted to make it clear that members were obligated to carry out only those decisions of the Council that were legally mandatory’ (emphasis added). 110

  Dumbarton Oaks Proposals for a General International Organization, ch VI ‘The Security Council’, s B ‘Principal Functions and Powers’, no 4: ‘All members of the Organization should obligate themselves to accept the decisions of the Security Council and to carry them out in accordance with the provisions of the Charter’ (reprinted in UNCIO III, 8). 111

  With regard to the provision ch VI s B no 4 (corresponding to Art. 25), the Australian delegate suggested that the language was unsatisfactory, because it ‘was not clear whether the phrase “in accordance with the provisions of the Charter” referred only to the obligation to carry out the Council’s decision or referred to the decisions as well’ (UNCIO XI, 395 (Doc 597)). The delegate of the Soviet Union stated that the provision ‘did not give unlimited powers to the Security Council’ (ibid, 394 (Doc 597)). 112

  See for a good analysis of the genesis B Martenczuk, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrats (Duncker & Humblot 1996) 132–33. 113

  This seems to be the prevailing view among contemporary interpreters of Art. 25. See Martenczuk (n 112) 133; Suy and Angelet (n 18) 917; Tzanakopoulos (n 106) 166. 114

  Kelsen (n 15) 294.

115

  Against the ‘state of emergency analogy’ A Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-Terrorism Measures: The Quest for Legitimacy and Cohesion’ (2006) 17 EJIL 881, 891–92. See on derogations from human rights MN 124. 116

  But see Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) (Dissenting Opinion Judge Schwebel) [1986] ICJ Rep 290: ‘In short, the Security Council is a political organ which acts for political reasons. It may take legal considerations into account but, unlike a court, it is not bound to apply them.’ In scholarship G Arangio-Ruiz, ‘On the Security Council’s Law-Making’, Riv Dir Internaz 83 (2000) 609–725.

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117

  Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) (28 May 1948) [1948] ICJ Rep 57, 64. 118

  Certain Expenses of the United Nations (Advisory Opinion of 20 July 1962) [1962] ICJ Rep 151, 168 (emphasis added). 119

  ICTY, Case No IT-94-1-AR72, Prosecutor v Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber of 2 October 1995) para 28. 120

  Suy and Angelet (n 18) 917.

121

  ICTY, Tadic Jurisdiction (n 119) para 28 (emphasis added).

122

  This idea is reflected in State practice, as domestic court reactions to such incremental (and creeping) increases of powers of international institutions have demonstrated (A Tzanakopoulos, ‘Judicial Dialogue in Multi-level Governance: The Impact of the Solange Argument’ in OK Fauchald and A Nollkaemper (eds), The Practice of International and National Courts and the (De-)Fragmentation of International Law (Hart 2012) 185–215). 123

  A Peters, ‘The Constitutionalisation of International Organisations’ in N Walker, J Shaw, and S Tierney (eds), Europe’s Constitutional Mosaic (Hart 2011) 253–85. 124

  See on ultra vires MN 90 and n 155. The ‘constitutionalist’ and the ‘ultra vires’ argument are interlinked, because both the institutional balance (concerning the distribution of competencies among the Organization’s organs) and the principle of speciality (concerning the distribution of competencies between the entire Organization and its members) are determined by the founding document and are in that sense ‘constitutional’ principles. 125

  ICTY, Tadic Jurisdiction (n 119) para 28.

126

  See MN 56–60.

127

  Suy and Angelet (n 18) 917.

128

  This was the position of the previous edition of this commentary (Delbrück on Art. 25 (2nd edn) MN 18). Following Delbrück: Decision of the Swiss Federal Tribunal (Bundesgericht; BGer), BGE 133 II 450 (2007)—Nada v Seco, E.5.3: ‘Die Mitgliedstaaten sind jedoch grundsätzlich nicht befugt, sich einer Verpflichtung mit der Begründung zu entziehen, ein (formell rechtsmässiger) Beschluss des Sicherheitsrats stehe materiell nicht im Einklang mit der Charta’ (emphasis added). 129

  Suy and Angelet (n 18) 918.

130

  Kelsen (n 15) 282: When Art. 24 provides that the Council must act in accordance with the purposes and principles, ‘that means: in accordance with the provisions of articles 1 and 2 of the Charter’. 131

  CPF/Degni Segui/Cassan, 879–907, 899.

132

  Only the ‘purpose’ of encouraging respect for human rights functions at the same time as limitation in the pursuit of other purposes (see MN 109 –127). 133

  See MN 56–60.

134

  Lockerbie, Order on provisional measures UK (n 102) (Dissenting Opinion Judge Weeramantry) 61 and 65: The ‘limitation on the plenitude of the Security Council’s powers…must be restrictively interpreted and is confined only to the principles and objects which appear in Chapter I of the Charter’. In scholarship N Meyer-Ohlendorf, Gerichtliche Kontrolle des Sicherheitsrates der Vereinten Nationen durch den internationalen Gerichtshof (vwf 2000) 138, 147 (for ch VII decisions).

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135

  ch VI s B nos 1–3 of the Dumbarton Oaks Proposals (reprinted in UNCIO III, 7–8) was already very similar in its wording to Art. 24 UN Charter. 136

  UNCIO XI, 378 (statement of Norway).

137

  UNCIO XI, 767; UNCIO III, 368.

138

  UNCIO XI, 770. The reason given by Norway for this proposed amendment was that ‘[t]he rules of conduct [for the Council] otherwise determined by the purposes and principles’ should ‘be specified in a direction where doubts might arise’ (UNCIO III, 368). 139

  UNCIO XI, 380; vote in Commission III/1, defeated with a vote of 10 to one.

140

  San Francisco Conference, committee I, UNCIO VI, 26.

141

  SG, statement to the Council, of 10 January 1947 (91st meeting of the Council) Rep SC 1946–51, 483. That statement was referred to by the representative of the United Nations in the Namibia proceedings in Pleadings, oral arguments, documents, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), vol II, 46–47. 142

  See statement by the representative of South Africa in Pleadings, oral arguments, documents (n 141) 155. 143

  Martenczuk (n 112) 158.

144

  UN Doc S/PV.5647, 16 (emphases added).

145

  EU Court of First Instance (now General Court) (21 September 2005) Case T-315/01, Kadi v Council of the EU & Commission of the EC, ECR II-3649, para 229 (emphasis added) (in the following: ‘Kadi I 2005’). 146

  See only D Bowett, ‘The Impact of Security Council Decisions on Dispute Settlement Procedures’ (1994) 5 EJIL 89–101, 95; Martenczuk (n 112) 163; Conforti and Focarelli (n 29) 418. For reasons set out (MN 134–137), the Council does not have the power to deviate from the Charter. 147

  A Pellet, ‘Rapport introductif: Peut-on et doit-on contrôler les actions du Conseil de sécurité?’ in Société française pour le droit international (ed), Le Chapitre VII de la Charte des Nations Unies—Colloque de Rennes (Paris 1995) 221, 233, 237. 148

  Art. 10 of the Draft Articles on the Responsibility of International Organizations (in the following ‘DARIO 2011’): ‘Existence of a breach of an international obligation: 1. There is a breach of an international obligation by an international organization when an act of that international organization is not in conformity with what is required of it by that obligation, regardless of the origin or character of the obligation concerned. 2. Paragraph 1 includes the breach of an international obligation that may arise for an international organization towards its members under the rules of the organization’ (Report of the ILC, 63rd Session, GAOR 66th Session Supp No 10 (A/66/10); emphasis added). 149

  Art. 2 (b) DARIO 2011, see commentary on Art. 10 DARIO 2011, para 4 (UN Doc A/ 66/10, 97). Art. 2 (b) further mentions the ‘decisions, resolutions and other acts of the organization adopted in accordance with those instruments, and established practice of the organization’. However, these do not constitute a limit to Council decisions. 150

  cf generally for international organizations F Seyersted, Common Law of International Organizations (Nijhoff 2008) 72–77. See on the specific issue of deviations from the UN Charter by decisions based on Chapter VII MN 133–137.

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151

  This interpretation is however not compelling as has been explained above (MN 56–60). Art. 24—in contrast—mentions only the ‘purposes and principles of the United Nations’ as a legal limit. The facial contradiction between Art. 25 (read as tying the Council) and Art. 24 would be eliminated by interpreting Art. 25 only as a reference to members. But that interpretation is not fully conclusive either, as explained above. 152

  Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, para 25. 153

  cf Certain Expenses (Advisory Opinion) (n 118) 168, mentioning action ‘initiated or carried out in a manner not in conformity with the division of functions among the several organs which the Charter prescribes’. If ‘an action was taken by the wrong organ, it was irregular as a matter of that internal structure’. 154

  ECJ (22 May 1990) Case 70/88, European Parliament v Council of the European Community, ECR 1990, I-02041—‘Tschernobyl’. 155

  The broad concept of ultra vires does not only relate the principle to the overstepping of competencies, but also to the transgression of other Charter rules which have nothing to do with the distribution of formal competencies. The conflation of the concepts of ultra vires and legality probably stems from the fact that an international organization’s competences are from the outset on considered as being ‘derived’ or ‘delegated’ powers. The idea of delegation (of powers from the members) has as a consequence that these powers are per se limited, and overstepping these limits means acting ultra vires; and ultra vires acts are deemed void or nul. See E Cannizzaro and P Palchetti, ‘Ultra Vires acts of International Organizations’ in J Klabbers and Å Wallendahl (eds), Research Handbook on the Law of International Organizations (Edward Elgar 2011) 365. 156

  See in detail Tzanakopoulos (n 106) 60f.

157

  Combacau (n 106) 100. See also Lockerbie (Order on provisional measures UK) (n 102) (Dissenting Opinion Judge Weeramantry) 66. 158

  Report of M Paul-Boncour, Rapporteur, on ch VIII s B (UNCIO XII, 503–04, 505, Doc 881): Committee 3 of the Third Commission dealing with the provisions in ch VIII s B of the Dumbarton Oaks draft (containing the provisions which later became Arts. 24 and 25) decided ‘to leave to the Council the entire decision as to what constitutes a threat to the peace, a breach of the peace, or an act of aggression’ (emphasis added). 159

  T O’Donnell, ‘Naming and Shaming: The Sorry Tale of Security Council Resolution 1530 (2004)’ (2006) 17 EJIL 954–68. 160

  Suy and Angelet (n 18) 918.

161

  Some commentators prefer the term ‘margin of appreciation’ to characterise the leeway in operation three. M Bothe, ‘Les limites des pouvoirs du Conseil de Sécurité’ in RJ Dupuy, The Development of the Role of the Security Council (Nijhoff 1993) 67–81, 70. 162

  Judge Jennings, Lockerbie Libyan Arab Jamahiriya v United Kingdom (Judgment of 27 February 1998) (Preliminary Objections) (Dissenting Opinion) [1998] ICJ Rep, 110: ‘The first principle of the applicable law is this: that all discretionary powers of lawful decisionmaking are necessarily derived from the law, and are therefore governed and qualified by the law. This must be so if only because the sole authority of such decisions flows itself from the law. It is not logically possible to claim to represent the power and authority of the law and, at the same time, claim to be above the law.’ 163

  Bothe (n 161) 70. See also G Cahin, ‘La notion de pouvoir discrétionnaire appliquée aux organisations internationales’ (2003) 107 RGDIP 535–600.

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164

  I Brownlie, ‘International Law at the Fiftieth Anniversary of the United Nations: General Course on Public International Law’ (1995) 255 Recs de Cours 9, 217. 165

  Scholarship is unanimous in that regard. See in the case-law EU Court of First Instance, Kadi I 2005 (n 145) paras 226, 230; Swiss Federal Supreme Court, Nada (n 128) para 7; Swiss Federal Supreme Court A v Seco, case 1A.48/2007 (22 April 2008) para 5.2. 166

  See Art. 4 VCLT on non-retro-activity.

167

  cf only Arts. 26 and 41 DARIO 2011 (n 148) which clarify that any act of international organizations must respect ius cogens. The commentary states that ‘[t]he breach of an obligation under a peremptory norm of general international law may be less likely on the part of international organizations than on the part of States,’ but that ‘[i]t is not inconceivable, for example, that an international organization…infringes an obligation under a peremptory norm of general international law relating to the protection of human rights’ (UN Doc A 66/10, 132). 168

  UK Supreme Court, Mohammed Jabar Ahmed and others v Her Majesty’s Treasury and Jani el Sayed Sabaei Youssef v Her Majesty’s Treasury (27 January 2010) [2010] UKSC 2, Lord Phillips: ‘[A]t the very least the powers conferred by section 1 [of the 1946 UN Act of the UK] must be limited to measures imposed by the Security Council that are intra vires. The general, albeit not universal view, is that this would exclude measures that violated ius cogens…The implication of this would seem to be that it must be open to the domestic courts in this country to review the vires of Security Council resolutions in order to rule on the validity of orders made under the 1946 Act …’ (para 151, references omitted, emphasis added). 169

  cf Krisch in Introduction to Chapter VII MN 46.

170

  See for supporting authority the references in n 252 and n 253.

171

  UNSC Res 748 (31 March 1992) UN Doc S/RES/748, para 1 decided that the Libyan government must comply with UNSC Res 731 (21 January 1992) UN Doc S/RES/731, para 3, which in turn urged the Libyan government to provide a full and effective response to governmental requests for legal cooperation. 172

  Although the documents on the drafting convey some intention of the drafters to posit the Charter or even only the Charter purposes and principles as a definite yardstick for assessing the legality of Council action, it has been explained that Art. 24 (2) is today rather interpreted as a highlight and not as being an exclusive standard (see MN 81–86). 173

  Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 72, para 37. 174

  See eg Judge Fitzmaurice: ‘Even when acting under Chapter VII of the Charter itself, the Security Council has no more power to abrogate or alter territorial rights,…This is a principle of international law that is as well established as any there can be,—and the Security Council is as much subject to it (for the United Nations is itself subject of international law) as any of its individual member States are …’ (Dissenting Opinion, Namibia (Advisory Opinion) (n 19) para 115). See on human rights obligations to the extent that they form part of customary international law MN 119. 175

  The former explanation (the UN as an international legal person) tends to highlight the autonomous (independent) character of the United Nations, whereas the second explanation rather focuses on its derived character. Because the UN, as all international organizations, is both derived (and dependent) and to a certain extent socially and legally independent, both explanations have their merit.

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176

  This reasoning once more relies on the issue of competencies. The idea is that the Council simply does not possess the legal power to violate general (customary) rules. In that perspective, decisions violating customary law, are, again, ultra vires. 177

  See MN 144.

178

  A Reinisch, ‘Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions’ (2001) 95 AJIL 851–72, 858. 179

  See on ‘proportionality’ as a legal limit, eg N Angelet, ‘International Law Limits to the Security Council’ in V Gowlland-Debbas (ed), United Nations Sanctions and International Law (Kluwer 2001) 71–82, 72–74. 180

  Tzanakopoulos (n 106) 64–66.

181

  See in scholarship only V Gowlland-Debbas, ‘The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’ (1994) 88 AJIL 643–77, 663. ‘Abusiveness’ has historically often been conceptualized as a distinct category besides ‘illegality’ in the sense that an act performed in abuse of powers is not illegal but (merely) abusive. 182

  cf A Kiss, ‘Abuse of Rights’ MPEPIL (online edn).

183

  cf Kiss, ibid, paras 1, 4, and 5.

184

  Libyan memorial presented to the ICJ. Here Libya stated that the Council relied on ch VII in order to arrogate itself powers (‘le Conseil a recouru au Chapitre VII dans le seul but de s’arroger les pouvoirs y conférés’ (Grande Jamahiriya arabe libyenne populaire socialiste, memorial (20 December 1993) s 4, heading before para 6.108); see also Lockerbie, Order on provisional measures UK (n 102) para 36. However, a unilateral statement claiming abuse by the targeted state itself does not relieve that state from its obligation to carry out. The OAU refusal to implement the relevant Council decision (see below n 295) would have had to be based on a proper legal examination finding manifest illegality to be tolerable. 185

  Namibia (Advisory Opinion) (n 19) (Dissenting Opinion Judge Fitzmaurice) para 116: ‘These limitations on the powers of the Security Council are necessary because of the all too great ease with which any acutely controversial international situation can be represented as involving a latent threat to peace and security, even where it is really too remote genuinely to constitute one. Without these limitations, the functions of the Security Council could be used for purposes never originally intended, […] not only was there no threat to peace and security other than such as might be artificially created as a pretext for the realization of ulterior purposes, …’ (emphasis added). 186

  See the references in n 207.

187

  cf Rule 28 of the Provisional Rules of Procedure of the Council. In scholarship D Sarooshi, The United Nations and the Development of Collective Security (Clarendon 1999) 42. 188

  cf Art. 22 UDHR.

189

  The most elaborate and far-reaching decision being the so-called ‘Taliban’ UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267. 190

  Arts. 8, 10, 11, 12, 13, 17 UDHR.

191

  UN Doc A 60/1 (16 September 2005) para 109 (emphasis added).

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192

  B Fassbender, ‘Targeted Sanctions Imposed by the UN Security Council and Due Process Rights: A Study Commissioned by the UN Office of Legal Affairs and Follow-Up Action by the United Nations’ reprinted in (2006) 3 IO 437–85. 193

  Federal Court of Canada, Abdelrazik v The Minister of Foreign Affairs and the Attorney General of Canada (4 June 2009) 2009 FC 580 para 51. 194

  cf Namibia (Advisory Opinion) (n 19) para 131, finding that the apartheid system established by South Africa in its mandate territory violated human rights and that ‘a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter’. Here the Court stated that by violating human rights, Namibia at the same time violated the Charter. 195

  cf ECHR (18 February 1999) Matthews v UK, Appl No 24833/94 para 32 with regard to ECHR member States’ ‘flight’ from obligations under the ECHR. 196

  ECHR (2 May 2007) Behrami und Saramati v France, Germany and Norway, Appl No 78166/01. For the very specific case of the interim administration of Kosovo, the Court found that action of the international civil and security presence did not occur not within the ‘jurisdiction’ of Convention states in terms of Art. 1, and the Court therefore considered the complaints inadmissible ratione personae (para 152). 197

  Reinisch (n 178) 857, referring to Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (Advisory Opinion) (13 July 1954) [1954] ICJ Rep 47, 57: ‘It would, in the opinion of the Court, hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations Organization to promote this aim that it should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them.’ 198

  But see critically on this argument Tzanakopoulos (n 122) 213–15.

199

  See for this argument Tzanakopoulos (n 106) 80.

200

  ICSCR, General Comment No 8 (1997) ‘The relationship between economic sanctions and respect for economic, social and cultural rights’ (UN Doc E/C.12/1997/8) para 13. 201

  ibid, para 14.

202

  Namibia (Advisory Opinion) (n 19) para 53 (with regard to the Covenant of the League of Nations). 203

  UNSC Res 1325 (31 October 2000) UN Doc S/RES/1325 para 14.

204

  UNSC Res 1333 (19 December 2000) UN Doc S/RES/1333 paras 15 d) and 25.

205

  Statement by the President of the Security Council, on behalf of the Council (UN Doc S/ PRST/2010/11 of 29 June 2010). 206

  I Cameron, ‘The European Convention on Human Rights, Due Process, and the United Nations Security Council Counter-terrorism Sanctions, Report commissioned by the Council of Europe’ (2006) 21. 207

  cf Dissenting Opinion Judge Lauterpacht, in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro) (Provisional Measures) (Order of 8 April 1993) [1993] ICJ Rep 3, paras 101–02. See for support in scholarship, eg Akande (n 252) 323; Reinisch (n 178) 857, 869; F Megret and F Hoffmann, ‘The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibility’ (2003) 25 HRQ 314, 341 (at least for situations where the UN exercises ‘control’ over populations, notably when administering territory); G Thallinger, ‘Sense and Sensibility of the Human Rights Obligations of the United Nations Security Council’ (2007)

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67 ZaöRV 1015–40, 1026; F Magnussen, ‘Targeted Sanctions and Accountability of the United Nations Security Council’ (2008) 13 ARIEL 35–78, 77. 208

  See on the attribution of implementing measures to the UN MN 194–198. See on the maxim of interpretation of Security Council decisions in a way which does not require members to violate international human rights, starting from the presumption that the Security Council normally does not intend to do so MN 28. 209

  cf Lord Mance in UK Ct, Ahmed (n 168) para 245.

210

  Human Rights Council, General Comment No 29 ‘States of emergency’ (CCPR/C/21/ Rev.1/Add.11 (31 August 2001) para 16. 211

  Krisch in Introduction to Chapter VII MN 43.

212

  ECHR (30 June 2005) Bosphorus v Ireland, Appl No 45036/98 para 155.

213

  ibid, para 155.

214

  This question will be at issue in ECHR, Nada v Switzerland, Appl No 10593/08, pending at the Grand Chamber. See in scholarship A Tzanakopoulos ‘Collective Security and Human Rights’ in E de Wet and J Vidmar (eds), Hierarchy in International Law: The Place of Human Rights (OUP 2012) 42–70. 215

  See on tensions between economic sanctions and the guarantees of IHL the study commissioned by UN bodies: L Minear, D Cortright, J Wagler, GA Lopez, and T Weiss, Toward More Humane and Effective Sanctions Managment: Enhancing the Capacity of the United Nations System, Report for the UN DHA (6 October 1997). See in scholarship notably D Starck, Die Rechtmässigkeit von UNO-Wirtschaftssanktionen in Anbetracht ihrer Auswirkungen auf die Zivilbevölkerung (Duncker & Humblot 2000); HP Gasser, ‘Collective Economic Sanctions and International Humanitarian Law: An Enforcement Measure under United Nations Charter and the Right of Civilians to Immunity: an Unavoidable Clash of Policy Goals?’ (1996) 56 ZaöRV 871. 216

  According to M Zwanenburg, Accountability of Peace Support Operations (Martinus Nijhoff 2005) 205 this recognition relates only to operations under Chapter VI, not under Chapter VII. 217

  Secretary-General’s Bulletin, Observance by the United Nations forces of international humanitarian law (6 August 1999) ST/SGB/1999/13, s 2. An argument can also be drawn from Art. 8 (2) (b) (iii) ICC Statute. Intentional attack against UN personnel is a war crime, but only if the attacked ‘are entitled to the protection given to civilians’. This implies e contrario that UN personnel can also be combatants, and as such they are bound by rules of IHL. Zwanenburg (n 216) 206. 218

  See BD Tittemore, ‘Belligerents in Blue Helmets: Applying International Humanitarian Law to United Nations Peace Operations’ (1997) 33 Stanford J Intl L 61–117; Zwanenburg (n 216); G Schotten, Wirtschaftssanktionen der Vereinten Nationen im Umfeld bewaffneter Konflikte—Zur Bindung des Sicherheitsrates an individualschützende Normen (Berliner Wissenschaftsverlag 2007) esp 247 and 269. 219

  Zwanenburg (n 216) 205.

220

  ‘Decisions’ in the sense of Art. 25 can be taken not only under Chapter VII, but also under Chapter VI which is often a legal basis for peace operations (see MN 11–14). See for the discussion whether the Council is empowered to deviate from general international law when it acts under Chapter VII, MN 142–144. 221

  cf Arts. 6–9 DARIO 2011 (n 148).

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222

  See on attribution MN 194–198.

223

  Kelsen (n 15) 295. There is a difference between derogating the law in one specific case and between creating new law for the future, but this difference is not material in our context. See on the Council as a law-maker Peters on Art. 24 MN 66–80. 224

  J Foster Dulles, War or Peace (MacMillan Company 1950) 194.

225

  Pellet (n 147) 235.

226

  See generally on the Charter as a legal limit to Council action MN 87–96.

227

  See MN 67–69.

228

  Special Court for Sierra Leone, Appeals Chamber, Prosecutor v Fofana (Case No SCSL-2004-14-AR72(E)), decision on preliminary motion on lack of jurisdiction materiae (25 May 2004) para 22; Swiss Federal Supreme Court, Nada (n 128) para 5.3. The Fofana decision has been criticized, inter alia on the ground that the constitutional set-up of the SCSL differs from that of the ICTY. 229

  The term ‘competence-competence’ is often used in this context, but with different meanings: either in the sense of an amending power, or in the sense of a derogating power, or in the sense of a power of ‘authoritative’ or ‘authentic’ interpretation. See on the organs’ power to interpret the Charter the report of special sub-committee of committee IV/2 on the interpretation of the Charter, commissioned in San Francisco, which implicitly found that the organs themselves cannot amend the Charter (UNCIO XIII, 831-32, Doc 750). 230

  In reality however, the line between interpreting the existing law and creating new law is not bright but blurry, because every interpretation is necessarily creative, and because the ‘methods’ of interpretation do not offer a real guideline. Therefore, the attribution to the Council of the status of an ‘authoritative interpreter’ of the Charter would simultaneously amount to granting it the power to (tacitly) amend it. Conclusively against the position of the Council as an authoritative interpreter Martenczuk (n 112) 143–48. 231

  Specifically for the Council’s enforcement powers under Chapter VII see eg T 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 Neth YB Intl L 33, 67– 68; GH Oosthuizen, ‘Playing the Devil’s Advocate: The Security Council is Unbound by Law’ (1999) 12 Leiden J Intl L 549–63, 562. 232

  K Doehring, ‘Unlawful Resolutions of the Security Council and their Legal Consequences’ (1997) 1 Max Planck YB UN L 91–110, 108, also 104. See also Conforti and Focarelli (n 29) 419. 233

  See eg R Hofmann, ‘Die Rechtskontrolle von Organen der Staatengemeinschaft’ (2007) 42 BDGVR 1–41, 22. 234

  UNCIO VI, 34 (commission I, session of 14 June 1945); ibid, 318 (committee 1, session of 1 June 1946). 235

  The delegates’ decision (a 21–21 decision which lost the amendment because a twothirds majority was needed), was, according to the sponsor of the defeated amendment, also motivated by the strategical consideration that a shift of the phrase to the top of the provision bore the risk that it would be dropped altogether. The opponents therefore preferred to have the reference where it was, in the context of dispute settlement action, rather than not at all (UNCIO VI, 23, Egypt). 236

  UNCIO VI, 24 (Egypt); UNCIO VI, 702 (sub-committee I/1/A, 1 June 1945).

237

  UNCIO VI, 24 (Egypt); 26 (UK).

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238

  See eg comments and amendments by Ecuador (UNCIO III, 393 (Doc 2, G/7 (p)), 398), criticising that no reference had been made, in the provision on the UN’s purposes to ‘the rule of justice and law among states’, and suggesting a preliminary paragraph to that end. 239

  The US delegate famously put it thus: ‘It is our view that the people of the world wish to establish a Security Council, that is, a policeman who will say, when anyone starts to fight, “stop fighting”. Period. And then it will say, when anyone is all ready to begin to fight, “You must not fight”. Period. That is the function of a policeman, and it must be just as short and that abrupt; that is unless at that place we add any more, then we would say “Stop fighting unless you claim international law is on your side”. That would lead to a weakening and a confusion in our interpretation.’ (UNCIO VI, 29; US delegate Stassen; emphasis added). See also UNCIO VI, 22 (Rapporteur of committee 1); UNCIO VI, 318 (committee 1, 1 June 1945); UNCIO VI, 453–54 (Rapporteur of committee 1, 13 June 1945). 240

  E Lagrange, ‘Le Conseil de Sécurité peut-il violer le droit international?’ (2004) 37 RBDI 568, 571; cf also P Klein, ‘International Law and Rules’ MPEPIL (online edn) MN 9. 241

  Lagrange (n 240) 572.

242

  See in favour of that reading of the Charter ibid, 574–85. But see for the contrary position Tzanakopoulos (n 106) 72–74. 243

  ibid, 73.

244

  M Koskenniemi, ‘Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission’ (UN Doc A/CN.4/L.682 of 13 April 2006) para 66. 245

  ibid, para 108.

246

  ibid, internal reference omitted.

247

  ibid, para 109.

248

  North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) [1969] ICJ Rep 3, para 72 (emphasis added). 249

  Kosovo (Advisory Opinion) (n 57) paras 101–21.

250

  See only ICTY, Tadic, ICTY-94-1, (Appeals Chamber Judgment on the merits of 15 July 1999) para 296 (emphasis added). 251

  According to Lagrange (n 240) 578, the Charter empowers the Security Council to derogate from general international law ‘ponctuellement’ through concrete decisions, but not through quasi-legislative resolutions. See further Krisch in Introduction to Chapter VII MN 41; cf also Wolfrum on Art. 1 MN 19: it is ‘doubtful whether the SC may take permanent measures, for example, concerning the territorial situation of a State, which are not in conformity with international law.’ 252

  See in this sense M Bedjaoui, Nouvel ordre mondial et contrôle de la légalité des actes du Conseil de Sécurité (Bruylant 1994) 47; J Gardam, ‘Legal Restraints on Security Council Military Enforcement Action’ (1996) 17 Mich J Intl L 285, 294, and 303; D 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 ICLQ 309–43, 317–21; Reinisch (n 178) 85; Conforti and Focarelli (n 29) 419 (only under Chapter VI); M Payandeh, ‘Rechtskontrolle des UN-Sicherheitsrats durch staatliche und überstaatliche Gerichte’ (2006) 66 ZaöRV 41–71, 46. 253

  EU Court of First Instance, Kadi I 2005 (n 145) para 229.

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254

  Megret and Hoffmann (n 207) 316f (with regard to human rights), Tzanakopoulos (n 106) 69. The latter author suggests that different legal consequences apply to both types of legal limits (ibid, 83), cf also 167. 255

  G Nolte, ‘The Limits of the Security Council’s Power and its Functions in the International Legal System—Some Reflections’ in M Byers (ed), The Role of Law in International Politics (OUP 2000) 315, 321. 256

  This approach differs from binding the Council only to ius cogens. The peremptory norms of international law are only a very small circle of norms. In contrast, the idea to apply in principle all international law, but with somewhat lowered exigencies, does not leave large areas of law a limine irrelevant. 257

  ECHR, Bosphorus (n 212) para 155.

258

  See for a good discussion of the need for balancing Payandeh (n 252) 58–65. See also ECJ (3 September 2008) Kadi and Al Barakaat, Joined Cases C-402/05 P and C-415/05 P, ECR 2008, I-6351, para 344 (in the following ‘ECJ, Kadi I (2008)’). 259

  Third Annual Report on strengthening and coordinating United Nations’ rule of law activities: Report of the Secretary-General, ‘Strengthening the rule of law in the Organization’ (8 August 2011) (UN Doc A/66/133, paras 67–68). See also the United Nations Security Council Open Debate on Justice and Rule of Law; concept note (29 June 2010); Record of the Security Council’s Open Thematic Debate (2010) on the Rule of Law, Part 1 and Part 2; Statement by the President of the Security Council (UN Doc S/PRST/2010/11 of 29 June 2010): ‘The Security Council expresses its commitment to ensure that all UN efforts to restore peace and security themselves respect and promote the rule of law.’ 260

  As will be shown in s E. VII, MN 185–187, a finding of illegality will require a rebuttal of the presumption of legality (and validity) in the concrete case. 261

  cf also Certain Expenses (Advisory Opinion) (n 118) 168 (emphasis added).

262

  Degni-Segui and Cassan (n 131) 899.

263

  ibid, 900.

264

  See Peters on Art. 24 MN 28–31. See also Tzanakopoulos (n 106) ch 4.

265

  Herdegen (n 83) 38.

266

  See on the consequences of illegality for the binding force of the Security Council decision MN 175–191. 267

  UN Human Rights Committee, Sayadi and Vinck v Belgium (Communication No 1472/2006) (final views of 22 October 2008) reviewed the national implementation measure (transmission of names to the sanctions committee) and found a violation of Arts 12 and 17 CCPR. 268

  ICSCR, General Comment No 8 (1997) (n 200).

269

  ECHR, Nada v Switzerland, Appl No 10593/08, pending at the Grand Chamber.

270

  M Nowak, UN Covenant on Civil and Political Rights (2nd edn, NP Engel 2005) Art. 46 MN 3. 271

  UN Human Rights Committee, Sayadi and Vinck (n 267) para 10.3.

272

  Office established with UNSC Res 1904 (17 December 2009) UN Doc S/RES/1904 paras 20–27, first ombudsperson appointed by the SG with UN Doc S/2010/282 of 4 June 2010. The ombudsperson has the competence to make recommendations to the sanctions

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committee on the retention or removal of listed persons (mandate last renewed and extended by UNSC Res 1989 (17 June 2011) UN Doc S/RES/1989). 273

  See for UNSC Res 1267 the ‘Analytical Support and Sanctions Monitoring Team’, established by Res 1526 (30 January 2004) UN Doc S/RES/1526, para 6. The members of the monitoring teams have been appointed by the SG through successive letters of appointment. 274

  For example UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973 on sanctions against Libya, foresees a ‘panel of experts’. The panel’s mandate is, inter alia, to ‘make recommendations on actions the Council…may consider to improve implementation of the relevant measures’ (para 24 lit c). The Secretary-General successively appointed the experts through letters of appointment. 275

  See for the 1267 monitoring team the mandate in Annex to UNSC Res 1526 (30 January 2004) UN Doc S/RES/1526 prolongated and extended by UNSC Res 1904 (17 December 2009) UN Doc S/RES/1904 Annex I. The enumerated tasks are not exhaustive. The main task of the 1267 team, as of similar bodies within other sanction regimes, is to improve compliance. Arguably, addressing and removing concerns of legality furthers this overall objective. 276

  Bowett (n 146) 99 suggested an ‘arbitral tribunal, or even a Commission of Jurists, to act as a kind of “constitutional court”’. 277

  See for review mechanism options on the national, regional, or UN level TJ Biersteker, Addressing Challenges to Targeted Sanctions: An Update of the ‘Watson Report’ (UN Academia 2009) 25–29. 278

  See eg UK S Ct, Ahmed (n 168) Lord Mance: ‘217. The appellants did not challenge— indeed they said expressly that they accepted—the legitimacy of Resolution 1373 under article 41 of the United Nations Charter. In any event, the legitimacy of such measures is not as such justiciable at a domestic level.’ 279

  Most courts have shown at least ‘nominal’ respect (Watson report (n 277) 18.

280

  ECJ, Kadi I (2008) (n 258).

281

  cf the German Constitutional Court with regard to EU acts, using the German ‘constitution’s identity’ as the ultimate limit for transferring competences to the EU (BVerfG, 2BvR 2661/06, 6 July 2010, paras 55–56—Honeywell). 282

  See UK S Ct, Ahmed (n 168), Lord Phillips, paras 152–55: The English Parliament in 1946 did not anticipate that the Security Council would decide on measures which seriously interfere with the rights of individuals in the UK without providing them with a means of effective challenge before a court. Because Parliament has neither foreseen nor would have appreciated such a possibility, the impugned Security Council resolutions on targeted sanctions ‘fall outside’ the scope of the UK Act of 1946 (paras 152–55, citation in para 155). See also Lord Mance para 244: ‘Nevertheless, the issue remains, whether section 1(1) [of the UK Act 1946] covers any and every Security Council Resolution that might be passed, including even a Resolution directed at what would otherwise be regarded as basic constitutional rights under domestic law.’ 283

  This typology closely follows A Tzanakopoulos ‘Domestic Court Reactions to UN Security Council Sanctions’, in A Reinisch, Challenging Acts of International Organizations Before National Courts (OUP 2010) 54–76. 284

  Federal Court of Canada, Abdelrazik (n 193).

285

  ibid, para 156.

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286

  ECJ, Kadi I (2008) (n 258) para 326.

287

  ‘287. With more particular regard to a Community act which, like the contested regulation, is intended to give effect to a resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations, it is not, therefore, for the Community judicature, under the exclusive jurisdiction provided for by Article 220 EC, to review the lawfulness of such a resolution adopted by an international body, even if that review were to be limited to examination of the compatibility of that resolution with ius cogens. 288. However, any judgment given by the Community judicature deciding that a Community measure intended to give effect to such a resolution is contrary to a higher rule of law in the Community legal order would not entail any challenge to the primacy of that resolution in international law’ (emphases added). 288

  ibid, para 299 (emphasis added).

289

  EU General Court, Case T-85/09, Kadi v Commission (30 September 2010) para 151, see also para 126 (‘Kadi II’). 290

  UK S Ct, Ahmed (n 168) esp paras 76 and 83 (Lord Hope); para 156 (Lord Phillips) paras 184–87 (Lord Rodger). 291

  Swiss Federal Supreme Court Nada (n 128) paras 5.3 and 7. Similarly, Swiss Federal Supreme Court, A v Seco (n 165) para 7: ‘Il limite dell’obbligo di applicazione delle risoluzioni del Consiglio di sicurezza è tuttavia costituito dalle norme imperative del diritto internazionale pubblico, la cui eventuale violazione deve essere esaminata nella fattispecie’ (emphasis added); Swiss Federal Supreme Court, A v Seco (n 165): ‘[L]a mise en oeuvre de la résolution 1483 (2003) exige de la Suisse qu’elle se tienne strictement aux mesures instaurées et aux décisions du Comité des sanctions 1518, qui, sous réserve d’une éventuelle violation du jus cogens par le Conseil de sécurité, ne laisse aucune place, même sous couvert du respect des garanties de procédure de la Convention européenne de droits de l’homme, du Pacte international des droits civils et politiques ainsi que de la Constitution suisse, à un examen de la procédure d’inscription de la recourante sur la liste publiée par le Comité des sanctions 1518, ou encore à la vérification du bien-fondé de l’inscription.’ Reliance on international ius cogens as a standard of review of a domestic implementing act is consistent with Switzerland’s ‘monist’ view of the relationship between international and domestic law. 292

  EU Court of First Instance, Kadi I 2005 (n 145) para 225: ‘It must therefore be considered that the resolutions of the Security Council at issue fall, in principle, outside the ambit of the Court’s judicial review and that the Court has no authority to call in question, even indirectly, their lawfulness in the light of Community law …’ para 226: ‘None the less, the Court is empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible.’ The relation between EU law and international law has in practice, before Kadi (2008), been generally monist, not dualist. 293

  See eg German Federal Court in Criminal Matters, BGHSt 41, 127, 130 (Judgment of 21 April 1995): the strictly binding force of a Council decisions under Art. 41 does not depend on what the Council was allowed to decide, but merely on what it in fact decided. In the ‘Bobetko Report’, concerning an order of surrender by the ICTY, the Constitutional Court of Croatia stated that it did not have the jurisdiction to render decisions against any individual decision passed by any United Nations body. Constitutional Court of Croatia (Decision of 12 November 2002) quoted after the English translation in OUP reference ILDC 383) para 3. High Court of Ireland, Dubsky v Government of Ireland (Judgment of 13 December 2005)

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[2005] IEHC 442 para 91: ‘it is neither permissible nor appropriate for this court to seek to interpret a resolution of the Security Council’. 294

  See eg Swiss Federal Supreme Court, A v Seco (n 165) para 10.1.

295

  It might be asked whether the reaction of the Assembly of Heads of State and Government of the Organization of African Unity, in the course of the Lockerbie affair, was in some regards pretextual. The Assembly in 1998 formally decided ‘not to comply any longer with the Security Council Res 748 (1992) and 883 (1993) on sanctions’ against Libya, if the United States of America and the United Kingdom refused to permit that the two suspects of the terrorist crime of Lockerbie be tried in a third neutral country (Organization of African Unity, Doc AHG/Dec.127(XXXIV) (10 June 1998)). The legal reasons given were ‘that the said resolutions violate Article 27 paragraph 3, Article 33 and Article 36 paragraph 6 of the United Nations Charter, and the considerable human and economic losses suffered by Libya and a number of other African peoples as a result of the sanctions’ (para 2). Besides, the OAU stated ‘moral and religious grounds’ (para 3) for noncompliance. 296

  The formula ‘as long as’ implies that this is a temporary strategy which must come to an end as soon as appropriate safeguards (in substance and procedure) have been installed on the international level (see German Constitutional Court (BVerfGE 73, 339 (1986) ‘Solange I’). See for ‘as long as’ formulas in the case-law: ECHR, Bosphorus (n 212), para 155; ECJ, Kadi I (2008) (n 258) only in the submissions of Mr Kadi and Commission (paras 255–56 and 319); General Court, Kadi II (2010) para 127. See also Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc A765/258 (6 August 2010) (‘Scheinin report 2010’) para 58. In scholarship A Tzanakopoulos, ‘Judicial Dialogue’ (n 122). 297

  Payandeh (n 252) 63: ‘Reservekompetenz’.

298

  UNGA Res 63/185 ‘Protection of human rights and fundamental freedoms while countering terrorism’ (3 March 2009) UN Doc A/RES/63/185 para 20 (emphasis added). 299

  Scheinin report 2010 (n 296) ibid, para 58.

300

  Because the illegality of a normative act does not logically entail its invalidity/nullity (lack of binding force), the two aspects are distinct. 301

  cf for the law of treaties Arts 48–50 VCLT. It would theoretically be possible to hold illegal decisions valid tout court (not even voidable), but this would deprive the verdict of illegality of any practical effect. 302

  Seminally but still fragmented, E Lauterpacht, ‘The Legal Effect of Illegal Acts of International Organisations’ in Cambridge Essays in International Law: Essays in Honour of Lord McNair (Stevens & Sons 1965) 88; Judge Morelli (Separate Opinion) Certain Expenses (Advisory Opinion) (n 118) 216. 303

  Such a category might however come into being in the context of the responsibility to protect, which is often depicted as not engendering a ‘full’ legal obligation (but only a ‘responsibility’) to act. 304

  E Lauterpacht (n 302) 116; Bowett (n 146) 93; Akande (n 252) 545; Thallinger (n 207) 1027; Payandeh (n 252) 62. In the scholarship quoted, the terms ‘illegality’ and ‘invalidity’ are often used interchangeably, and the presumption is sometimes called a presumption of legality or of validity. The following passage is based on the idea that illegality goes hand in hand with invalidity. The alternative construct, validity despite illegality, will be discussed in MN 182.

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305

  Seminally Judge Morelli (Separate Opinion) Certain Expenses (Advisory Opinion) (n 118) 216 para 8. 306

  See for that argument Certain Expenses (Advisory Opinion) (n 118), Dissenting Opinion Judge Winiarski 232. In scholarship in favour of an (‘absolute’) nullity of illegal Council decisions Martenczuk (n 112) 124; Meyer-Ohlendof (n 134), 151. Others have suggested further nuances. According to Judge Morelli, a distinction should be made between serious flaws which render a legal act invalid, and slighter flaws, especially those which relate only to competencies, which are mere ‘irregularities’ and which therefore leave the impugned legal act fully valid (Judge Morelli (Separate Opinion) Certain Expenses (Advisory Opinion) (n 118) 216 esp para 8). Antonios Tzanakopoulos has suggested a different dualist scheme. Any breach of Charter-based (‘internal’) legal limits results in ultra vires action which is presumably legal. In contrast, any breach of ‘external’ standards should not enjoy the presumption of legality (Tzanakopoulos (n 106) 83, cf also 167). 307

  cf the critique against Judge Morelli’s argument by E Lauterpacht (n 302) 113, who deemed the procedure of an advisory opinion ‘a sufficient mode of review’. See on review by the ICJ MN 156–157. 308

  Certain Expenses (Advisory Opinion) (n 118) 168 (emphases added). See for a presumption of validity also Separate Opinion Judge Shahabuddeen, in Lockerbie (Order on provisional measures UK) (n 102) 140. cf also ECHR, Bosphorus (n 212) para 156 where the Court stated: ‘the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.’ That presumption relates to the legality of the implementing State action, not to the legality of the international organization’s decision. 309

  The traditional approach for assessing activities of international organizations has concentrated on their competencies, starting from the idea that their powers are derived from the member States, and that therefore the principle of speciality is the most important yardstick for their activities. See also MN 90 and n 155. It seems more appropriate to replace the vocabulary of ultra vires by the vocabulary of legality. 310

  Namibia (Advisory Opinion) (n 19) para 20 (emphasis added).

311

  Legal Consequences of the Construction of a Wall in the Occupied Territory (Advisory Opinion of 9 July 2004) [2004] ICJ Rep 136, paras 24–35 esp para 34. 312

  ibid, para 35.

313

  Gowlland-Debbas (n 181) 673. She considers this technique to pursue a ‘middle path between no review at all and some review’. 314

  Dissenting Opinion Judge Lauterpacht, in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro) (Provisional Measures) (Order of 8 April 1993) [1993] ICJ Rep 3, paras 103–04 (with regard to para 6 of UNSC Res 713 (25 September 1991) UN Doc S/RES/713). 315

  The Swiss Federal Tribunal indeed stated that the member’s obligation to carry out ends when the Tribunal itself finds that a Security Council decision violates ius cogens. Swiss Federal Supreme Court, Nada (n 128) paras 5.3 and 7. 316

  Often, this position is formulated without clarifying whether manifest illegality renders decisions ab initio invalid or not binding (which would mean that members were from the outset not obliged to carry them out), or whether manifest illegality merely serves to rebut the presumption of legality (and/or validity). Also, the position is often formulated in terms of the ultra vires yardstick, and not in terms of illegality. See, in different shades, eg Gowlland-Debbas 1992 (n 181) 671 (‘manifest irregularity or abuse of power’); Lamb (n 54) 370: ‘[P]roblems of legality are entailed’ if a decision is ‘on its face incompatible with From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

general international law or the normal application of multilateral standard-setting treaties’ (emphasis added). See also Herdegen (n 83) 38; B Lorinser, Bindende Resolutionen des Sicherheitsrates der Vereinten Nationen zur Friendenssicherung und deren Überprüfung durch den Internationalen Gerichtshof (Baden-Baden: Nomos 1996) 133–34; Payandeh (n 252) 62–63; Tzanakopoulos (n 106) 120–21; Krisch in Introduction to Chapter VII MN 47 (with regard to the principle of proportionality). Critically Martenczuk (n 112) 160. It will be remembered that violations of ius cogens render a Security Council decision void in any case (MN 97–100). But that verdict too, must be pronounced in some kind of proceeding. 317

  ECHR, Bosphorus (n 212) para 156. The Bosphorus approach leads to accepting, temporarily (‘as long as’ …) a general unwritten, prima facie justification of State action taken in compliance with legal obligations ‘flowing from its membership of an international organisation to which it has transferred part of its sovereignty’, but only ‘when it [the State] does no more than implement legal obligations flowing from its membership of the organisation’ (paras 154–55). This applies to UN members’ action implementing Council decisions: members are obliged to implement due to Art. 25 so that the implementation is ‘required by international legal obligations’ in the sense of the Bosphorus judgment and not ‘freely entered into’ by the member (para 157). The ‘presumptive’, ie the prima facie justification leading to the finding ‘that a State has not departed from the requirements of the [European Human Rights] Convention’ is rebuttable in the circumstances of a particular case in the event of manifest deficiency of protection (para 156). 318

  cf in a different context, ECJ, Case 5/71, Zuckerfabrik Schöppenstedt v Council, 2 December 1971, ECR 975 984, para 11: only when ‘a sufficiently flagrant violation of a superior rule of law for the protection of the individual’ has occurred, the European Union incurs non-contractual liability for damages suffered as a consequence of legislative action involving measures of economic policy. 319

  Payandeh (n 252) 63 and 65.

320

  cf the two conditions of invoking the lacking consent to be bound by a treaty under Art. 46 VCLT. 321

  See MN 153–157.

322

  See MN 160–174.

323

  Tzanakopoulos (n 106) 174–90.

324

  See MN 192–193.

325

  However, this DARIO provision (n 148) is not based on practice.

326

  B Elberling, ‘The Ultra Vires Character of Legislative Action by the Security Council’ (2005) 2 Intl Org L Rev 337–60, 354 fn 68; Payandeh (n 252) 66; Tzanakopoulos (n 106) 157. See also E Katselli, ‘Holding the Security Council Accountable for Human Rights Violations’ (2007) 1 Human Rights and International Legal Discourse 301, 329–30: the right to refuse compliance is a corollary to the absence of other reliable checks and balances upon the Security Council. 327

  See MN 185– 187.

328

  UN Doc A/66/10 (n 148).

329

  DARIO 2011 commentary (UN Doc A 66/10, 67) 79 and 97.

330

  cf Payandeh (n 252) 62. It should also be presumed that the Council does not intend to compel members to breach core principles of their constitutional law (see MN 28).

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Ultimately however, the illegality of implementing acts under domestic law cannot as such be held against a Council decision (cf Art. 27 VCLT). 331

  See for this presumption with regard to the breach of fundamental rights by the members, ECHR, Al-Jedda (n 62) para 102. 332

  See on the attribution of member State conduct to the UNSC the excellent analysis by Tzanakopoulos (n 106) 33–53. See against the attribution to the involved states of human rights violations committed by UNMIK and UNPROFOR in Kosovo, installed on the basis of UNSC Res 1244, ECHR, Behrami (n 196). In favour of attributing detention measures taken by British troops in Iraq, which were present there on the basis of various Council decisions, esp UNSC Res 1546, to the UK: ECHR, Al-Jedda (n 62) paras 80–84. 333

  Under Art. 7 DARIO 2011 (n 148), the conduct of an organ of a State that is placed at the disposal of an international organization will be attributed to the organization if the organization exercises ‘effective control’ over that conduct. 334

  Title of Chapter IV DARIO 2011 (n 148).

335

  DARIO 2011, commentary (n 149) on Art. 15 para 4.

336

  Tzanakopoulos (n 106) 50.

337

  This problem has been much discussed with regard to UN peace operations, where the peacekeeping operation is under the command of the UN SC and/or the UN SG, and the entire operation qualifies as a subsidiary organ of the UN. The difference to the adoption of Security Council decisions is that in the latter case, there is no action of the UN or any of its bodies on the ground; the UN act remains ‘purely juridical’ (Tzanakopoulos (n 106) 53). 338

  This is discussed in Peters on Art. 24 MN 11–14.

339

  Art. 103 is a lex specialis to the general rule of conflict stipulated in Art. 30 VCLT.

340

  Lockerbie (Order on provisional measures UK) (n 102) para 39. The Council itself has adopted this view, see eg UNSC Res 670 (25 September 1990) UN Doc S/RES/670 on sanctions against Iraq, ‘recalling the provisions of Article 103 of the Charter’ in the Preamble. See in domestic case-law eg Swiss Federal Supreme Court Nada (n 128) para 5.2; UK S Ct, Ahmed (n 168) (Lord Hope para 74); District Court of the Netherlands, civil law section, A and others v Netherlands (3 February 2010) para 4.6. In scholarship, Paulus on Art. 103 MN 41 with further references. 341

  R Kolb, ‘Does Article 103 of the Charter of the United Nations Apply only to Decisions or also to Authorizations Adopted by the Security Council?’ (2004) 64 ZaöRV 21, 34; Paulus on Art. 103 MN 36–37, 43–46; Krisch in Introduction to Chapter VII MN 50. Against the applicability of Art. 103 in the situation of authorizations Gardam (n 252) 320. 342

  The commentary on DARIO 2011 (n 149) 170 simply states: ‘the Charter has a prevailing effect also with regard to international organizations’. 343

  Seminally W Jenks, ‘The Conflict of Law-Making Treaties’ (1951) 30 BYIL 401–53, 439: ‘Article 103 cannot be invoked as giving the United Nations an overriding authority which would be inconsistent with the Charter itself.’ Jenks limits this statement to Security Council action outside Chapter VII. See also Orakhelashvili (n 58) 149. This is sometimes formulated in the ultra vires terminology, see eg Paulus on Art. 103 MN 48: ultra vires decisions of the Council are not covered by Art. 103. 344

  Thallinger (n 207) 1028.

345

  The Court went on to say: ‘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

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harmony with the requirements of the Convention and which avoids any conflict of obligations.’ ECHR, Al-Jedda (n 62) para 102. 346

  ibid.

347

  UN HR Committee, Sayadi and Vinck (n 267), Indiviual Opinion Sir Nigel Rodley (concurring) 36. In favour of such a presumption also Paulus on Art. 103 MN 47. 348

  Swiss Federal Supreme Court, Nada (n 128) para 6.2. In scholarship, Paulus on Art. 103 MN 20. 349

  Dissenting Opinion Judge Lauterpacht, in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro) (Provisional Measures) (Order of 8 April 1993) [1993] ICJ Rep 3, para 100. 350

  In favour of a prevailing effect of Council decisions over contrary customary law-based obligations of members: EU Commission and Council submissions in EU Court of First Instance, Kadi I 2005 (n 145) paras 156 and 207. See in scholarship M Koskenniemi, ‘Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission’ (UN Doc A/CN.4/L.682 of 13 April 2006) para 345; Paulus on Art. 103 MN 1 and 63 with further references; Krisch in Introduction to Chapter VII MN 51. 351

  See for an excellent analysis R Liivoja, ‘The Scope of the Supremacy Clause of the United Nations Charter’ (2008) 57 ICLQ 583–612. Further scholars against any prevalence over customary law obligations; Bowett (n 146) 92; Gardam (n 252) 297, 304; Payandeh (n 252) 45; Orakhelashvili (n 58) 149f. 352

  Orakhelashvili (n 58) 189.

353

  UK House of Lords, R (on the application of Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, para 35 (Lord Bingham); UK S Ct, Ahmed (n 168) para 74 (Lord Hope). See in scholarship Paulus on Art. 103 MN 51–52: the only exceptional category of law which cannot be overridden by Art. 103 is ius cogens.

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Ch.V The Security Council, Functions and Powers, Article 26 Hans-Joachim Schütz From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): UN Charter — International peace and security — Disarmament

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(p. 855) Article 26 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 referred to in Article 47, plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments. A.  Introduction 1–6 I.  The Systematic Position of Article 26 1–4 II.  Legislative History 5–6 B.  Analytical Interpretation 7–36 I.  The Functions and Powers of the Security Council 7–26 1.  Formulation of Plans for the Regulation of Armaments and Submission of Plans to Member States 7–15 2.  The Term ‘Regulation of Armaments’ 16–25 (a)  Regulation of Armaments versus Disarmament 17–21 (b)  Individual Components of the Concept of the Regulation of Armaments 22–25 3.  ‘System’ for the Regulation of Armaments 26 II.  Goals and Standards of the Work of the Security Council 27–32 1.  The Promotion of the Establishment and Maintenance of International Peace and Security 27–30 2.  Least Diversion of Human and Economic Resources 31 3.  Correlation of Goals 32 III.  Assistance of the Security Council by the Military Staff Committee and Other Organs 33–36 1.  The Military Staff Committee 33 2.  Other Auxiliary Organs 34–36 C.  Practice 37–42

Select Bibliography Bechhoefer BG, Postwar Negotiations for Arms Control (Brookings Institution 1961). Bogdanov OV, ‘Outlawry of War and Disarmament’(1971-II) 133 Rec des Cours 15. Chappuis F, La limitation des armements en droit international public (Université de Lausanne 1975).

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Cheever D, ‘The UN and Disarmament’(1965) 19 IO 463. Colard D, Le désarmement (Colin 1973). Goldblat J, ‘The Role of the United Nations in Arms Control: An Assessment’(1986) 7 Arms Control 115. Goodrich LM, ‘The UN Security Council’ (1958) 12 IO 273. Ross A, De Forenede Nationer: Fred og Fremskridt (Nyt Nordisk Forlag 1963). Schulz J, Völkerrecht und Abrüstung (Staatsverlag der DDR 1967).(p. 856) Volle H and Duisberg CJ, Probleme der internationalen Abrüstung: Die Bemühungen der Vereinten Nationen um internationale Abrüstung und Sicherheit 1945–1961 (Metzner 1964).

A.  Introduction I.  The Systematic Position of Article 26 1  Article 26 is one of three Articles in the UN Charter which deal with armaments and their possible limitation, the other two Articles being Arts 11 (1) and 47 (1). The UN’s competence in the field of the limitation of armaments is therefore based first and foremost on these three provisions.1 2  Article 26 is located in the chapter of the UN Charter devoted to the SC, and more specifically in the section of that chapter that describes the functions and powers of the SC. The primary function of the SC is described in this section, in Art. 24, as the maintenance of international peace and security. Accordingly, it can be concluded that the functions and powers of the SC according to Art. 26 constitute special functions and powers in relation to Art. 24, which serve to implement and give concrete form to the primary function established therein. 3  In addition, Art. 26 stands in the context of other regulations in the Charter serving the same purpose. These can be found in Chapters VI (Arts 33 (2), 34, and 36–38); VII (Arts 39– 47); VIII (Arts 52 (3), 53 (1), and 54); and XII (Art. 83 (1) and (3)). In contrast to these special functions and powers of the SC (the pacific settlement of disputes, action with respect to threats to the peace, regional security arrangements, and provisions relating to strategic trusteeship agreements), which have each been given a place in separate sections of the UN Charter especially reserved for them, no separate section was created in the Charter for the special function of the limitation of armaments. Rather, the provision relating to this function was placed in the section of the Charter which simply describes the functions and powers, together with the structural and organizational arrangement, of the SC in general terms.2 4  Taken as a whole, the UN Charter gives little priority to the limitation of armaments. This is particularly true in comparison to the Covenant of the League of Nations. The idea of the limitation of armaments was included there—in Art. 8 para 1—in the form of a principle of international law (‘The Members of the League recognize that the maintenance of peace requires the reduction of national armaments to the lowest point…); whereas in Art. 26 of the UN Charter (as well as in Arts 11 and 47), it is simply taken into consideration within the framework of some procedural regulations. The reason for the low status attributed to the limitation of armaments in the UN Charter can be found in the Charter’s history.

II.  Legislative History 5  The concept of the limitation of armaments or disarmament was virtually irrelevant during the preparations for the San Francisco Conference and at the conference itself. The Dumbarton Oaks Proposals contained a provision on the limitation of armaments (p. 857) which later became Art. 26 in an almost identical version, with the exception of a few

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linguistic modifications.3 The text was soon passed without any extensive discussion;4 changes were occasionally proposed, only to be quickly dropped again.5 6  The reason for the obscurity of the concept of the limitation of armaments during the preparatory stage of the UN Charter was that the States intending to found the UN were at war at the time. Thus they were not so concerned with doing away with armaments, but rather, on the contrary, with producing them, in order to bring the war to a victorious conclusion. Insofar as any limitation of armaments was envisaged for the time after the war, it was always in terms of the necessity of having available, as the need might arise, adequate troop contingents for the maintenance of peace. Thus the authors of the Charter certainly intended on the one hand to achieve a certain reduction of armaments, or to ensure that certain ceilings would not be exceeded, for economic reasons; and also for the reason that an excessive stockpiling of armaments was regarded as a threat to the peace. At the same time, however, it was always deemed to be necessary to maintain that level of armaments and armed forces which is sufficient to guarantee the security of individual States and the performance of duties which these States must assume to help secure international peace, particularly in the form of putting troop contingents on the alert for the enforcement of peace. Thus, the concept of securing the peace, by military means, within the framework of a system of collective security has always had priority over the concept of the limitation of armaments. This view also reflects the lesson that statesmen had learned from the mistakes made between the two World Wars, when they proceeded with arms reduction despite the needs of international security, enabling aggressors to build up excessive armaments and then to launch aggression.6

B.  Analytical Interpretation I.  The Functions and Powers of the Security Council 1.  Formulation of Plans for the Regulation of Armaments and Submission of Plans to Member States 7  We may first derive from Art. 26 the function and power of the SC to formulate plans for a system for the regulation of armaments. (p. 858) 8  These plans must possess a certain degree of concreteness and must contain specific practical measures.7 Plans merely containing abstract principles and statements do not satisfy the requirements of Art. 26. In this respect, there exists a considerable difference between the functions and powers of the SC and those of the GA, as the latter is entitled, under Art. 11 (1), to discuss general principles for the regulation of armaments as well as disarmament and to make recommendations with regard to them.8 In this sense, therefore, the ‘programme of action’ passed by the first UN GA’s Special Session on Disarmament,9 for instance, which does not contain any concrete measures or plans for limiting armaments, could not, even if passed by the SC, have been viewed as a ‘plan’ in the meaning of Art. 26.10 However, some of the comprehensive, elaborated, and relatively concrete plans for ‘general and complete disarmament’ drawn up in the 1950s and 1960s11 could indeed be viewed as ‘plans’ in this sense. According to the criterion of concreteness postulated above, the Commission on Conventional Armaments,12 established as a subsidiary organ by the SC, has consequently defined its own mandate as being, apart from the ‘consideration and determination of general principles for the regulation and reduction of armaments and armed forces’, the ‘[c]onsideration of practical and effective safeguards by means of an international system of control’ and the formulation ‘[of] practical proposals for the regulation and reduction of armaments and armed forces’.13

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9  The adoption of the plans which the SC has to formulate is subject to the voting rules of Art. 27.14 This implies in particular the application of Art. 27 (3) which states that for a decision to be adopted by the SC, the approval of all its permanent members, as well as a majority of votes in favour, is required.15 10  After the SC has formulated plans for a system for the regulation of armaments, it submits the plans to the members of the UN, as they are responsible for the practical implementation of the plans. 11  The question could be raised whether the members of the UN are legally obligated to accept and to implement plans for the regulation of armaments which may be submitted to them by the SC. One could assume such an obligation in the light of Art. 25.16 (p. 859) The literature on this question holds that, on the one hand, there are certainly decisions of the SC that are binding on the member States and that they must implement. On the other hand, there are also decisions of the SC that apparently could be interpreted as non-binding in nature. Concrete examples of the latter would be ‘recommendations’ of the SC,17 or those ‘plans’ mentioned in Art. 26.18 Support for this interpretation of Art. 26 can definitely be found in the practice of the UN organs, as well as in the travaux préparatoires for the Charter. Thus, a GA resolution19 envisaged that the plans for the regulation of armaments worked out by the SC were first to be submitted to the members of the UN, who would then discuss them at a special session of the GA. Provided that, on the basis of those plans, agreements were concluded at this special session of the GA, these would subsequently have to be submitted to the States concerned for ratification ‘according to Art. 26’ in order to create a binding obligation.20 Here it becomes clear that the plans which the SC formulates according to Art. 26 do not become binding on the member States merely by being passed on to them. Rather, further steps on the part of the States concerned are first necessary. This interpretation is further supported by the legislative history of the Charter. In connection with the Dumbarton Oaks Proposals, there were efforts to change Draft Art. 26 so that plans submitted to the member States by the SC would have been binding on them.21 Clearly, such proposals for change would not have been necessary had Art. 26 already provided for such a binding nature in its original form. It can thus be concluded that the plans for a regulation of armaments possibly submitted to the member States by the SC are not eo ipso binding on them; rather, it is up to them whether or not to accept the plans.22 At best, if the member States were explicitly to accept a plan submitted to them by the SC as an agreement that they wished to conclude among themselves, this plan, subject to the ratification of the agreement, would be binding on them. This also implies that no concrete obligation on the member States as to arms limitation flows from Art. 26.23 12  A somewhat far-fetched, but nonetheless theoretically tenable, argument for a possible binding nature of SC plans for the regulation of armaments was developed by Kelsen on the basis of Art. 39.24 A refusal by member States to accept a SC plan for the regulation of armaments could be judged by the SC to be a threat to the peace according to Art. 39. The SC could then decide on enforcement measures, binding on the member States, by means of which the plan would be enforced and so also the threat to the peace (p. 860) removed. Thus, by declaring the non-acceptance of a plan for the regulation of armaments to be a threat to the peace, the implementation of such a plan could indirectly be made obligatory for the member States. 13  At first glance, it is unclear whether the SC not only has the power, but also the duty to formulate plans for the regulation of armaments. No information on this is offered by the legislative history of Art. 26. It may be asked, however, whether the ordinary meaning of the term ‘responsible’ would suggest an obligation on the part of the SC.25 In the practice of UN organs, a ‘responsibility’ on the part of the members of the SC in the sense of such an obligation is indeed occasionally referred to.26 In this context, one certainly has to attach particular significance to the SC Res of 13 February 1947, in which the SC formally ‘accepted’ UNGA Res 41 (I) and simultaneously recognized that the general regulation and From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

reduction of armaments and armed forces constituted an extremely important measure for strengthening international peace and security and that the implementation of the GA resolution was one of the SC’s most urgent and important tasks. Subsequently it decided to formulate practical measures to this end.27 In that resolution, the GA had recommended, inter alia, that the SC give prompt consideration to formulating the practical measures essential to the general regulation and reduction of armaments and armed forces.28 The readiness of the SC, expressed in Res 41 (I), to comply with the GA recommendation and to work out plans for the regulation of armaments, and particularly the manner in which this readiness was expressed, could be taken as evidence that the SC itself obviously also understood the responsibility laid upon it by Art. 26 in the sense of an obligation. Thus, considering the ordinary meaning of the term ‘responsible’, on the one hand, and the pertinent practice of UN organs, on the other, one can draw the conclusion that the SC does have the obligation to work out plans for the regulation of armaments. This obligation then applies not only to the five permanent members,29 but to all the members of the SC. (p. 861) 14  According to the wording of Art. 26, the function (and the obligation) of formulating plans for the regulation of armaments is unequivocally assigned to the SC and its members, and not to the members of the UN in general.30 15  In view of the possibility that the SC might not adequately perform the tasks assigned to it by Art. 26 (a possibility which became reality from 1949 on, or at the latest from 1952 onwards),31 the question could be raised whether the GA could, in a subsidiary manner, assume the functions of the SC. According to Art. 11 (1), the GA is entitled to consider the general principles of cooperation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and to make recommendations thereon. The GA is not entitled, according to this provision, to formulate concrete plans for the regulation of armaments. It seems possible, however, in compensation for the non-fulfilment of functions by the SC, to confer such competence on the GA by analogy with the subsidiary competence of the GA in other matters concerning the maintenance of international peace and security,32 provided that the situation created by the non-compliance of the SC amounts to a threat to or even a breach of the peace.

2.  The Term ‘Regulation of Armaments’ 16  Neither the wording of Art. 26 nor that of any other provision of the UN Charter gives any indication as to the concrete meaning of the phrase ‘regulation of armaments’. In particular, the Charter does not contain any statutory definition of the term.

(a)  Regulation of Armaments versus Disarmament 17  During the preparatory work on the UN Charter the term ‘regulation of armaments’ was used as an express antithesis to the term ‘disarmament’. In so doing, the founders of the UN wished to document their intention to dissociate themselves from concepts of arms limitation that pursue the reduction of armaments primarily for economic reasons without proper regard for security considerations, and which were held responsible for the developments leading up to the outbreak of World War II. In contrast, the arms limitation concept of the Charter was primarily intended to be oriented towards, and to contribute to, the goal of security.33 The view was held that under certain conditions it could become necessary, in order to create the conditions of security, not to reduce, but rather to increase armaments.34 This view was intimately connected with the consideration that it could be necessary that, in order to maintain international peace and security, the UN have a certain number of troops at its disposal for it to be able to fulfil its tasks in the pursuit of that goal.35 This was the rationale which underlay the wish to avoid terms that too clearly implied a reduction of armaments, and in particular to avoid the term ‘disarmament’, which conveyed that meaning in a particularly strong manner. Instead, the founders of the (p. 862) UN decided to choose the term ‘regulation of armaments’, which is neutral in this respect.36 Later on, the term ‘disarmament’ appears to have been used chiefly with regard to the

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eventual disarmament of the Axis powers only.37 Beyond that, it was the Soviet Union which propagated the term in a general manner, characterizing it as ‘a useful slogan’.38 Ultimately, however, the term ‘disarmament’ did not find its way into Art. 26.39 18  The understanding of the term ‘regulation of armaments’ just mentioned comes very close to the meaning of the concept of arms control.40 This concept is to be understood as one element of a greater and more comprehensive design for the maintenance of international peace and security: by regulating the military factor in international relations, especially armaments and armed forces, the stability of these relations will be enhanced; this stability will increase international security, which in turn will lead to the securing of international peace. Primary aims of the concept of arms control are, accordingly, war prevention and the securing of peace. Beyond that, the concept of arms control pursues as secondary objectives two further goals; first, damage control (should the concept fail to achieve its first and primary goal of war prevention), and second, if possible, reducing the costs of armaments and armed forces. In concrete terms, the concept of arms control undertakes to achieve its aims, inter alia, by limiting armaments and armed forces, ie reducing them, ‘freezing’ them at a certain level, or even increasing them, though in a controlled manner, up to a certain level; by the avoidance and abandonment of destabilizing weapons systems and corresponding operational doctrines, and by the introduction of rules and mechanisms for crisis management. In contrast, the concept of disarmament, which is less elaborate and less clearly defined than the concept of arms control, is concerned only with the reduction or even the complete abolition of armaments and armed forces. The central motif underlying this concept is that of the saving of resources; stability or security aspects are secondary.41 19  The linguistic usage of the organs of the UN sometimes deviates from the wording given in Art. 26; it is also non-uniform and does not follow any regular pattern. Different terms are used alternately, even side by side, and without any critical differentiation. Thus, the term ‘regulation of armaments’ is used, mostly when Art. 26 is quoted literally.42 But, (p. 863) on the other hand, reference is also often made43 to reduction,44 limitation,45 or elimination46 of arms, armaments, and armed forces, as well as to disarmament.47 The use of the latter terms is clearly a contravention of the wording of Art. 26, which is unequivocal in this respect. It should not be assumed, however, that at the core of this divergent linguistic usage there lies an intention to change the scope and meaning of Art. 26 by way of customary practice contra legem. Rather, it can be assumed that it is inattention and semantic laxity which have led to this inexactitude.48 In any case, the term ‘regulation of armaments’ seems to be wide enough to embrace all those other terms within its scope; it therefore seems acceptable, in the interest of a harmonizing interpretation, to interpret those expressions as still falling within the wider orbit of the term ‘regulation of armaments’ and consequently to proceed from the assumption of the continuing and undiminished validity of that term. 20  Hence, in conclusion, it can be said—while also taking into account in particular the legal history of Art. 26, which is unambiguous in this respect—that the term ‘regulation of armaments’ denotes a comprehensive concept of arms limitation that by and large corresponds to the concept of arms control and that, on the one hand, covers the reduction of armaments and armed forces (‘disarmament’), and, on the other hand, also includes the freeze and the (controlled) build-up of armaments and armed forces.49 21  A certain discrepancy concerning linguistic usage arises, however, with regard to Art. 47 (1). This provision states that the Military Staff Committee shall advise and assist the SC, inter alia, on questions relating to the ‘regulation of armaments, and possible disarmament’. This is only a superficial discrepancy, however, and is easily resolved by returning to Art. 11 (1). In this provision, the GA is granted the right to make recommendations with regard to the regulation of armaments and disarmament. Such recommendations may also be addressed to the SC. Thus, in this way, the necessity may arise (p. 864) for the SC also to From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

discuss questions of ‘disarmament’.50 It is to this possibility that the abovementioned phrase of Art. 47 (1) refers.51

(b)  Individual Components of the Concept of the Regulation of Armaments 22  Article 26 only speaks of the regulation of armaments. It is clear, however, from the object and purpose, as well as from the rationale, of the system envisaged in Art. 26 that any plans for the regulation of armaments must also cover the relevant armed forces. Correspondingly, the practice of UN organs is characterized by the continuous use of the words ‘regulation of armaments and armed forces’.52 23  There can be no doubt that plans for the regulation of armaments and armed forces could tackle the problem not only in a direct way, ie by establishing quantitative thresholds for concretely defined units of armaments and armed forces, but also indirectly by limiting the relevant military budgets.53 24  Furthermore, it is clear from the broad scope of the concept that any plans for the regulation of armaments could envisage not only substantive measures for the regulation of armaments and armed forces, but also non-substantive measures, such as constraints on the use of armed forces or certain weapons systems, confidence-building measures, or measures and mechanisms for crisis management.54 25  Finally, the comprehensive design of the concept of the regulation of armaments permits the conclusion that the SC, in formulating plans for the regulation of armaments, should also have the competence to devise regulations on limiting the production of and trade in armaments. During the preparatory work on the UN Charter, consideration was occasionally given to this problem,55 which recurs in certain provisions of Art. 8 (5) and Art. 23 (d) of the Covenant of the League of Nations (which did tackle that problem). At San Francisco, the issue did not arouse much interest.56 Consequently, no corresponding provision was inserted into the Charter. This must not, however, be understood to mean (p. 865) that the SC is now barred from taking up that topic when formulating plans according to Art. 26. The travaux préparatoires do not give any hint that the non-insertion into the Charter of regulations on arms production and trade was intended to curtail the competence of the SC in this respect.57

3.  ‘System’ for the Regulation of Armaments 26  The use of the term ‘system’ with regard to plans for the regulation of armaments indicates that any plans that might be formulated by the SC under Art. 26 must be in the nature of a rather comprehensive, multifactor programme. Individual, scattered measures for the regulation of armaments would not meet the requirements of the term ‘system’, or of Art. 26 generally, unless they could be composed or integrated into a system. In the sense just illustrated, however, the SC might, on the basis of Art. 26, formulate individual proposals for the regulation of armaments, for instance of a regional nature, if there were at the same time an overall context or plan integrating them into a comprehensive whole or system. Furthermore, it may be deduced from the use of the term ‘system’ that those plans constituting a comprehensive and multifactor whole or system must be marked by a certain inner coherence.

II.  Goals and Standards of the Work of the Security Council 1.  The Promotion of the Establishment and Maintenance of International Peace and Security 27  Article 26 mentions as the first goal of the work of the SC, when formulating plans for the regulation of armaments, the promotion of the establishment and maintenance of international peace and security. Any plans that might be formulated must contribute to the realization of this aim. At the same time, it denotes the standard which those plans would have to live up to. The practice of the organs of the UN has repeatedly confirmed this

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connection between the regulation of armaments on the one hand and the establishment and maintenance of international peace and security on the other.58 28  That goal statement corresponds fully with the notion of the concept of the regulation of armaments as part of a comprehensive concept for the preservation of peace as developed above.59 This formulation of that function of the SC fits perfectly into the (p. 866) functions assigned to the SC for the establishment and maintenance of international peace and security in general.60 29  Article 26 mentions the establishment as well as the maintenance of international peace and security. The first goal is met when plans for the regulation of armaments are able to contribute to the restoration of international peace and security if it has been disturbed by, for instance, an armed conflict, as was the case at the time of the drafting of the Charter (and which of course could recur at any time in the future). The second goal mentioned above is characterized by a preserving and simultaneously preventive momentum. Plans for the regulation of armaments therefore have to be designed in such a way as to be suitable for contributing to the preventive securing of peace. 30  It is appropriate to make a distinction between the separate goals of international peace and international security.61 In most instances, these two situations will coincide; but this would not be the case in a state of hegemonic peace. In such a situation, there would undoubtedly be ‘peace’ (in the sense of an absence of open physical, military violence), guaranteed by the hegemon. Security (in the sense that one is safe against a violent, armed attack), however, would exist only for the hegemon, but not, or only to a limited extent, for the other States. Therefore, plans for the regulation of armaments which are devoted, according to Art. 26, to both goals must not be construed in such a way as to serve the state of hegemonic peace only, thereby frustrating the goal of security.

2.  Least Diversion of Human and Economic Resources 31  Article 26 mentions a second goal and standard of the work of the SC when formulating plans for the regulation of armaments: the least diversion of the world’s human and economic resources (for armaments). Here, Art. 26 introduces an economic rationale, ie the saving of resources. This, contrary to the genuine direction of Art. 26, causes the intrusion of the concept of disarmament into Art. 26.62 This concept has been increasingly advanced in the practice of UN organs, gaining to a large degree some weight of its own or being connected with the idea of ‘positive peace’.63 Indeed, an increased or even exclusive use of the term ‘disarmament’ can be observed in the practice of the UN organs.64

3.  Correlation of Goals 32  At first sight, it is not quite clear what kind of relation exists between the two goals above (ie the establishment and maintenance of international peace and security, and the least diversion of human and economic resources). In particular, the question may be raised whether they are of equal rank, or whether one goal is superior to the other and (p. 867) should eventually take precedence as the standard in making plans for the regulation of armaments. The wording of Art. 26 is not very enlightening on this point. An indication of the possible precedence of the aim of securing peace lies in the nature of Art. 26 as a special rule developing Art. 24 and its position in that section of the UN Charter devoted to the description of the main function of the SC, ie the establishment and maintenance of international peace and security.65 This view finds further support in the legislative history of the Charter.66 It is possible, therefore, to interpret Art. 26 in such a way that the establishment and maintenance of international peace and security forms the main goal and standard, whereas the least diversion of resources is to be considered as a subsidiary goal. This idea could also be formulated so that, if possible, plans for the regulation of armaments should be designed to achieve the least diversion of resources,67 and in the event that two plans are equally suited to serving the goal of establishing and maintaining international

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peace and security, the cheaper plan should prevail. In case of doubt, however, the goal of securing peace has precedence.68

III.  Assistance of the Security Council by the Military Staff Committee and Other Organs 1.  The Military Staff Committee 33  When formulating plans for the regulation of armaments, the SC is to be assisted by the Military Staff Committee, as a subsidiary organ69 referred to in Art. 47.70 The rationale of this provision is to provide the SC with the greatest possible military expertise for the accomplishment of its task.71

2.  Other Auxiliary Organs 34  In 1947, at the recommendation of the GA,72 the SC established, as an additional subsidiary or auxiliary organ under Art. 29,73 the Commission on Conventional Armaments (CCA).74 This organ was composed of representatives of the members of the SC; it was under the direction of the SC and was obliged to report periodically to the SC on its work. With regard to the substantive work to be carried out, the founding resolution provided that the CCA should prepare and submit to the SC proposals ‘(a) for the general regulation and reduction of armaments and armed forces; (b) for practical and effective safeguards in connexion with the general regulation and reduction of armaments’. In this context, the founding resolution also provided for a certain collaboration (p. 868) between the CCA and the Military Staff Committee. The mandate of the CCA was further specified by the CCA itself in a working plan as follows: 1. Consider and make recommendations to the SC concerning armaments and armed forces which fall within the jurisdiction of the CCA. 2. Consideration and determination of general principles in connexion with the regulation and reduction of armaments and armed forces. 3. Consideration of practical and effective safeguards by means of an international system of control operating through special organs (and by other means) to protect complying states against the hazards of violations and evasions. 4. Formulate practical proposals for the regulation and reduction of armaments and armed forces…6. Submission of a report or reports to the SC including, if possible, a draft convention.75 In 1952 the CCA was dissolved.76 35  As early as 1946, the GA had established the Atomic Energy Commission (AEC).77 This Commission was composed of the representatives of the members of the SC and of Canada when that State was not a member of the SC. According to the founding resolution, the AEC had the task of considering and making recommendations on all problems in connection with the use of nuclear energy, especially nuclear weapons. In matters affecting security, the AEC was to carry out its work under the direction of the SC and be accountable to the SC for such work. The AEC was to submit its relevant reports and recommendations to the SC, which in turn was to transmit them, where appropriate, to the GA and the member States of the UN, as well as to ECOSOC and other organs of the UN. The GA’s establishment of the AEC could be viewed as an encroachment upon the competences of the SC.78 A proposal made by the Soviet Union that the AEC should be established by the SC was rejected.79 A justification for its establishment by the GA can be found, however, in the fact that the AEC was to be concerned not only with security matters and nuclear weapons but also with matters concerning the peaceful use of nuclear energy.80 In 1952 the AEC, together with the CCA,81 was dissolved.82

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36  In 1952 the GA replaced the AEC and CCA83 with the Disarmament Commission (DC).84 This body was under the control of the SC, but also received instructions (p. 869) from the GA and was required to submit its periodical reports to the GA as well as to the SC.

C.  Practice 37  In practice, the SC has not fulfilled the tasks assigned to it by Art. 26. The same holds true, by and large, for the auxiliary organs established to assist the SC. There has of course been scant practice coming under Art. 26, but what practice there has been has produced hardly any results worth mentioning. Essentially, Art. 26 has remained a dead letter. The main reason for this has been the lack of unity among the major powers.85 38  Until 1949, there was at least some practice in the SC with regard to Art. 26.86 However, the deep-rooted, insurmountable disagreement between the Western powers on the one hand and the Soviet Union on the other led to a blockage of the work of the SC and prevented that work from materializing in concrete results. Symptomatic of the circumstances prevailing within the SC at that time was the treatment of the working reports of the AEC and CCA: when the United States submitted the reports for approval to the SC, the Soviet Union made approval impossible by casting its veto.87 Subsequently, in order to circumvent the opposition of the communist States, the SC decided on the alternative—against the votes of the communist States88—to submit the reports for approval to the GA,89 which ultimately complied with the request of the SC and approved the reports by a majority vote.90 39  Whereas the Military Staff Committee has until now played no practical role at all with regard to Art. 26,91 the CCA and AEC did accomplish at least some concrete work.92 Worth mentioning, for example, is the report of the CCA that documents the efforts of the Commission to contribute to the elucidation of certain basic problems of the regulation of armaments.93 Another working paper of the CCA elaborates on some essential elements of an international system of verification and control.94 However, the basic disagreement between the Great Powers was also felt in the two Commissions. Consequently, they were dissolved in 1952.95 This event also marked the end of the substantive work of the SC in the field of the regulation of armaments on the basis of Art. 26. (p. 870) 40  After 1952, some occasional discussions on proposals for the regulation of armaments did take place within the SC.96 These proposals, however, did not constitute plans within the meaning of Art. 26, or even parts of such plans. Apart from that, questions of the regulation of armaments and disarmament have been discussed in the context of other matters of security;97 yet all these discussions ultimately failed to produce concrete results in terms of the regulation of armaments. 41  The emphasis of efforts in the field of the regulation of armaments (and later ‘disarmament’) shifted after 1952 from the SC, first to the GA98 and the DC, and later on to bodies outside the UN System.99 A series of arms control agreements were concluded in these bodies.100 These agreements, however, were not concluded under Art. 26.101 Article 26 and/or the SC lapsed into almost complete oblivion. Only occasionally was reference made to Art. 26 and/or the SC in the work of those bodies and in relevant documents.102 Yet again, some important documents on matters of security and disarmament do not mention Art. 26 or the SC in its role under Art. 26 at all.103 42  Even so, demands have sometimes been voiced in the last few years for the revitalization of the SC under the regime of Art. 26, possibly even in the course of a reform of Art. 26.104

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Footnotes: 1

  F Chappuis, La limitation des armements en droit international public (Université de Lausanne 1975) 47. 2

  See RM, 476.

3

  See UNCIO III, 9.

4

  ibid, XI, 558.

5

  See eg the proposals made by Chile and Mexico to include in the catalogue of Principles of the UN Charter a principle of arms limitation or at least a declaration of principles as was contained in Art. 8 (1) of the Covenant of the League of Nations: UNCIO III, 294, 113; and the proposals made by Uruguay and Chile to include in the Charter provisions on arms limitation and on the limitation of arms production and arms trade: ibid, 47, 294. Other proposals were made by Mexico, Panama, and the Netherlands: ibid, 114, 270, 329. 6

  See RM, 208–10, 238–40, 243–44, 249–50, 264–71, 685; CP (2nd edn)/Gros Espiell, Art. 26, Nos 3–4; GHS, 211–13; BG Bechhoefer, Postwar Negotiations for Arms Control (Brookings Institution 1961) 14–24. 7

  See UNGA Res 41 (I) (14 December 1946) UN Doc A/RES/41(I); N Bentwich and A Martin, A Commentary on the Charter of the United Nations (Routledge & Paul 1951) 64; OV Bogdanov, ‘Outlawry of War and Disarmament’ (1971-II) 133 Rec des Cours 25. 8

  RM, 477; CP (2nd edn)/Gros Espiell, 485; Bentwich and Martin (n 7) 64; Bogdanov (n 7) 25; see also Klein and Schmahl on Art. 11 MN 9–17. 9

  UNGA Res S-10/2 (13 July 1978) UN Doc A/RES/S-10/2.

10

  Contra CP (2nd edn)/Gros Espiell, 486.

11

  For example, ENDC/2, ENDC/30.

12

  See MN 34.

13

  UN Doc S/387 (25 June 1947), SCOR 2nd Year Supp No 14, Annex 37, 142–43.

14

  CP (2nd edn)/Gros Espiell, 485.

15

  This rule is reaffirmed by the pertinent practice of the UNSC. See eg the opposition of the Soviet Union to the adoption of the three working reports of the AEC and its veto against the US draft resolution suggesting approval of those reports by the UNSC: UN Doc S/836, SCOR 3rd Year 325th meeting (22 June 1948) 11–12; the veto of the Soviet Union against the US draft resolution suggesting approval of two reports of the CCA, as well as two resolutions included therein by the UNSC: UN Doc S/1398, SCOR 4th Year 450th mtg (11 October 1949) 2–3; see also UNGA Res 191 (III) (4 November 1948) UN Doc A/RES/ 191(III); UNGA Res 300 (IV) (5 December 1949) UN Doc A/RES/300(IV); H Volle and CJ Duisberg, Probleme der internationalenAbrüstung. Die Bemühungen der Vereinten Nationen um internationale Abrüstung und Sicherheit 1945–1961 (Metzner 1964) 7–27. 16

  See Peters on Art. 25.

17

  See eg Giegerich on Art. 36 MN 41–48.

18

  Kelsen, 95–96.

19

  UNGA Res 41 (I) (14 December 1946) UN Doc A/RES/41(I).

20

  Indirectly, inter alia, also UNGA Res 496 (V) (13 December 1950) UN Doc A/RES/496(V), indicates that it is the agreement of the States concerned which makes a plan for the

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regulation of armaments obligatory for them, saying ‘that the regulation and reduction of armaments…must be based on unanimous agreement’. 21

  See the Mexican proposal: UNCIO III, 114; the proposals made by Panama and the Netherlands with a view to the elaboration of a corresponding catalogue of principles: ibid, 270, 329. 22

  Kelsen, 104, 201; CP (2nd edn)/Gros Espiell, 485; Bogdanov (n 7) 25; contra J Schulz, Völkerrecht und Abrüstung (Staatsverlag der DDR 1967) 94, who, however, concludes (in complete disregard of the wording of Art. 26, which he erroneously quotes as saying that the UNSC was obliged ‘to submit to all members for ratification the plan jointly formulated’) that the member States of the UN have assumed the obligation to ratify and finally to implement a plan for the regulation of armaments formulated under Art. 26. 23

  Bentwich and Martin (n 7) 64; Schulz (n 22) 90.

24

  Kelsen, 106.

25

  The French version of Art. 26 is even stronger than the English version in connoting an obligation, using the phrase ‘le Conseil de Sécurité est chargé’. 26

  RP I, 290, para 26; Venezuela: GAOR 1st Committee, 1953rd mtg (8 November 1973) para 29, though referring only to the five permanent members of the UNSC (but see also below at the end of this paragraph). 27

  UN Doc S/268/Rev. 1, SCOR 2nd Year Supp No 5, Annex 13, 58–9; UN Doc S/231, SCOR 2nd Year 90th meeting 42. The relevant passages of UNSC Res 18 (13 February 1947) UN Doc S/RES/18 read: ‘The Security Council, Having accepted the resolution of the General Assembly of 14 December 1946 and recognizing that the general regulation and reduction of armaments and armed forces constitute a most important measure for strengthening international peace and security, and that the implementation of the resolution of the General Assembly on this subject is one of the most urgent and important tasks before the Security Council, Resolves: 1. To work out the practical measures for giving effect to the resolutions of the General Assembly of 14 December 1946 concerning…the general regulation and reduction of armaments …’. 28

  UNGA Res 41 (I) (14 December 1946) UN Doc A/RES/41(I). The relevant passages of the UNGA Res read: ‘The General Assembly, Recognizes the necessity of an early general regulation and reduction of armaments and armed forces. Accordingly, The General Assembly, Recommends that the Security Council give prompt consideration to formulating the practical measures…which are essential to provide for the general regulation and reduction of armaments.’ 29

  Contra, albeit not correct, Schulz (n 22) 93. But cf also Venezuela: GAOR 1st Committee, 1953rd meeting (8 November 1973) para 29: ‘While the responsibility devolves on the Security Council as a whole, we must admit that, given their position, the five nuclear Powers permanent members of the Security Council bear a special responsibility.’ 30

  Contra Schulz (n 22) 93–94.

31

  See MN 37–40.

32

  See Klein and Schmahl on Art. 11 MN 31.

33

  RM, 209–10, 238–39, 243–44, 249–50, 264–65; GHS 118–19, 211–13; LM Goodrich, ‘The UN Security Council’ (1958) 12 IO 274; D Cheever, ‘The UN and Disarmament’ (1965) 19 IO 467; A Ross, De Forenede Nationer: Fred og Fremskridt (Nyt Nordisk Forlag 1963) 274; and MN 6.

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34

  RM, 442 fn 4.

35

  See MN 6.

36

  RM, 239; GHS, 213.

37

  See RM, 262, 265–67. But even there the term ‘disarmament’ was sometimes replaced by the term ‘regulation of armaments’. See Foreign Relations of the United States, vol 4 (Italy) (1945) 1036. 38

  RM, 441–2.

39

  But see Art. 10 (1) and Art. 47 (1).

40

  See HJ Schütz, ‘Arms Control’ EPIL I, 259–67; H Bull, The Control of the Arms Race: Disarmament and Arms Control in the Missile Age (2nd edn, Praeger 1965) 1–37; JE Dougherty, Arms Control and Disarmament: The Critical Issues (Georgetown University 1966) 11–22; G Krell, ‘The Problems and Achievements of Arms Control’ (1981) 2 Arms Control 247–52; H Vetschera, ‘International Law and International Security: The Case of Force Control’ (1981) 24 GYIL 150–55. 41

  For references cf n 40.

42

  See UNGA Res 41 (I) (14 December 1946) UN Doc A/RES/41(I); UNSC Res 18 (13 February 1947) UN Doc S/RES/18, S/268/Rev. 1, SCOR 2nd Year Supp No 5, Annex 13, 58– 59; S/387 (25 June 1947), SCOR 2nd Year Supp No 14, Annex 37, 142–43; UN Doc S/C.3/32/ Rev. 1 (Second Report of the CCA) (12 August 1948) 3–4; UN Doc A/C.1/SC.12/1 (21 October 1948); UNGA Res 192 (III) (19 November 1948) UN Doc A/RES/192(III); UNGA Res 502 (VI) (11 January 1952) UN Doc A/RES/502(VI); Relationship between Disarmament and International Security (Expert Study) UN Doc A/36/597 para 37; UNGA Res 39/63 K (12 December 1984) UN Doc A/RES/39/63K; India: S/PV. 2608 (26 September 1985) 66; Madagascar, ibid, 58; Burkina Faso, ibid, 107. 43

  See UNGA Res 41 (I) (14 December 1946) UN Doc A/RES/41(I); UNSC Res 18 (13 February 1947) UN Doc S/RES/18, S/268/Rev. 1, SCOR 2nd Year Supp No 5, Annex 13, 58– 59; S/387 (25 June 1947), SCOR 2nd Year Supp No 14, Annex 37, 142–43; S/C.3/32/Rev. 1 (Second Report of the CCA) (12 August 1948) 3–4; A/C.1/325 (13 October 1948); UNGA Res 192 (III) (19 November 1948) UN Doc A/RES/192(III); UNGA Res 502 (VI) (11 January 1952) UN Doc A/RES/502(VI); UNGA Res 41/59 O (3 December 1986) UN Doc A/RES/41/59 O. 44

  UNGA Res 502 (VI) (11 January 1952) UN Doc A/RES/502(VI); Report of the SG on the Work of the Organization, A/40/1, 2. 45

  UNGA Res 1 (I) (24 January 1946) UN Doc A/RES/1(I).

46

  Venezuela: GAOR 1st Committee, 1953rd meeting (8 November 1973) para 29; Relationship between Disarmament and International Security (Expert Study), A/36/597, para 50; St Lucia: A/C.1/39/PV. 12 (24 October 1984) 17–18; Report of the UNSG on the Work of the Organization, A/40/1, 2; Review of the Role of the UN in the field of disarmament. Findings, recommendations, and proposals (working paper of the Chairman of Working Group II of the DC), A/CN.10/84 (25 June 1986) para 23; UNGA Res 41/59 O (3 December 1986) UN Doc/RES/41/59 O. 47

  Further references in RP.

48

  cf the same observations regarding the use of the term ‘disarmament’ by W Epstein, Disarmament: Twenty-five Years of Effort (Canadian Institute of International Affairs 1971) 3–4, note 1; cf also D Colard, Le désarmement (Colin 1973) 15–17.

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49

  Contra Schulz (n 22) 95; Bogdanov (n 7) 25–27.

50

  According to the comprehensive notion of ‘regulation of armaments’ developed in MN 17–20, that competence of the UNSC may already be derived from the concept of the regulation of armaments as such. On the basis of the observations just made, it is now possible to differentiate further with regard to the functions of the UNSC concerning arms limitation as follows: according to Art. 26, the UNSC has the direct competence for formulating plans for the regulation of armaments (and, if one is willing to follow the deduction developed in MN 17–20, even for formulating plans for ‘disarmament’); and, according to Art. 11 (1) and subject to a recommendation of the UNGA to this effect, the indirect competence of considering principles of disarmament (CP (2nd edn)/Gros Espiell, 487). 51

  See CP (2nd edn)/Gros Espiell, 486.

52

  See eg UNGA Res 41 (I) (14 December 1946) UN Doc A/RES/41(I); UNSC Res 18 (13 February 1947) UN Doc S/RES/18, S/268/Rev. 1, SCOR 2nd Year Supp No 5, Annex, 13, 58– 9; S/387 (25 June 1947), SCOR 2nd Year Supp No 14, Annex 37, 142–43; S/C.3/32/Rev. 1 (Second Report of the CCA) (12 August 1948) 3–4; UNGA Res 192 (III) (19 November 1948) UN Doc A/RES/192(III); UNGA Res 502 (VI) (11 January 1952) UN Doc A/RES/502(VI); see also the numerous plans for ‘general and complete disarmament (GCD)’ which likewise always include armaments and armed forces. 53

  See Mali: GAOR 2180th Plen mtg (27 November 1973) paras 84–85; Relationship between Disarmament and International Security (Expert Study), A/36/597, para 46. 54

  See MN 18.

55

  See eg the considerations by the US administration preparing for the Conference at San Francisco, quoted in RM, 267, 269; a proposal for amendment of the Dumbarton Oaks Proposals with regard to arms production made by Uruguay: UNCIO III, 47, and XI, 404; and a proposal made by Chile to insert into the UN Charter’s catalogue of Principles some statements on arms production and arms trade: UNCIO III, 294. 56

  See eg with regard to the defeat of the Uruguayan proposal mentioned (n 55), UNCIO XI, 115, 395; RM, 685, fn 78. 57

  A consideration which played a certain role during the discussions was that the relevant provisions should not be overloaded with too many details. 58

  See UNGA Res 1 (I) (24 January 1946) UN Doc A/RES/1(I); UNGA Res 41 (I) (14 December 1946) UN Doc A/RES/41(I); UNSC Res 18 (13 February 1947) UN Doc S/RES/18, S/268/Rev. 1, SCOR 2nd Year Supp No 5, Annex 13, 58–9; S/C.3/32/Rev. 1 (Second Report of the CCA) 3–4; UNGA Res 192 (III) (19 November 1948) UN Doc A/RES/192(III); UNGA Res 502 (VI) (11 January 1952) UN Doc A/RES/502(VI); UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625(XXV); UNGA Res 2734 (XXV) (16 December 1970) UN Doc A/ RES/2734(XXV); UNGA Res 32/154 (19 December 1977) UN Doc A/RES/32/154; UNGA Res S-10/2 (13 July 1978) UN Doc A/RES/S-10/2, paras 1 and 5; UNGA Res 35/46 (3 December 1980) UN Doc A/RES/35/46, Annex para 18; Relationship between Disarmament and International Security (Expert Study), A/36/597, para 39; A/S-12/32 (9 July 1982); Report of the SG on the Work of the Organization, A/40/1, 2; UNGA Res 41/59 O (3 December 1986) UN Doc A/RES/41/59 O. 59

  See MN 17–20. See also CP (2nd edn)/Gros Espiell, 480, 482, 489; Bentwich and Martin (n 7) 64; Goodrich (n 33) 274; MF Furet, Le Désarmement nucléaire (Pedone 1973) 12; Bogdanov (n 7) 27; Schulz (n 22) 88. 60

  See MN 2.

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61

  See also S Verosta, ‘Der Begriff “Internationale Sicherheit” in der Satzung der Vereinten Nationen’ in R Marcic and others (eds), Festschrift Verdross (Fink 1971) 533–47. 62

  See MN 17–19. It must be borne in mind, however, that that economic motive also plays a certain role, if only secondarily, within the framework of the concept of arms control (see MN 18). 63

  See, generally, J Galtung, ‘Violence, Peace, and Peace Research’ (1969) 6 JPR 167–91.

64

  See eg India: A/C.1/PV. 1667 (28 October 1969) para 146; UNGA Res 2734 (XXV) (16 December 1970) UN Doc A/RES/2734(XXV) para 19; Mali: GAOR 2180th Plen mtg (27 November 1973) paras 84–85; E/CN.4/RES/1986/29 (11 March 1986), ESCOR (1986) Supp No 2, 89; A/CONF. 130/39 (22 September 1987). 65

  See MN 2.

66

  See MN 6 and 17.

67

  This interpretation is supported by the (authentic) Spanish version of Art. 26, which reads: ‘con la menor desviación posible de los recursos humanos y económicos …’. 68

  cf Bentwich and Martin (n 7) 64; contra Schulz (n 22) 95; Bogdanov (n 7) 25.

69

  Bentwich and Martin (n 7) 64.

70

  See also Reinisch and Novak on Art. 47 MN 5.

71

  (1946–7) UNYB 422.

72

  UNGA Res 41 (I) (14 December 1946) UN Doc A/RES/41(I).

73

  CP (2nd edn)/Gros Espiell, 484; see also RP I, Art. 11, para 28; Bentwich and Martin (n 7) 64. 74

  UNSC Res 18 (13 February 1947) UN Doc S/RES/18, S/268/Rev. 1, SCOR 2nd Year Supp No 5, Annex 13, 58–59. 75

  S/387 (15 June 1974), SCOR 2nd Year Supp No 14, Annex 37, 142–43.

76

  S/2506, SCOR 7th Year 571st meeting (30 January 1952) para 4. As regards the practice of the CCA, see MN 39. The dissolution of the CCA took place together with the dissolution of the AEC. Both were replaced by the DC. See MN 39. 77

  UNGA Res 1 (I) (24 January 1946) UN Doc A/RES/1(I). See also Klein and Schmahl on Art. 11 MN 12–13. 78

  GHS, 213.

79

  ibid. See also Moscow Meeting of Foreign Ministers (16–26 December 1945). Report by JF Byrnes, Secretary of State, and Soviet-Anglo-American Communiqué, US Dept of State Publication No 2448, Conference Ser 79, 1946, 7; GAOR 1st Committee, 2nd mtg (21 January 1946) 10–11. 80

  GHS, 213.

81

  See n 76.

82

  UNGA Res 502 (VI) (11 January 1952) UN Doc A/RES/502(VI).

83

  See MN 34 and 35.

84

  UNGA Res 502 (VI) (11 January 1952) UN Doc A/RES/502(VI). See also Klein and Schmahl on Art. 11 MN 13. The membership of the DC was initially identical to that of the AEC and CCA, respectively; later on, membership was extended to all members of the UN: UNGA Res 1252 (XIII) (4 November 1958) UN Doc A/RES/1252(XIII). In 1965, the DC, for all practical purposes, ceased to work. It was the first UNGA Special Session on

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Disarmament which re-established the DC: UNGA Res S-10/2 (13 July 1978) UN Doc A/RES/ S-10/2, para 118. 85

  See Report of the SG on the Work of the Organization, A/40/1, 2; CP (2nd edn)/Gros Espiell, 487; GHS, 214; Goodrich (n 33) 280–81; Cheever (n 33) 479. 86

  See RP I, Art. 26, Annex.

87

  SCOR 3rd Year 325th meeting (22 June 1948) 11–12; SCOR 4thYear 450th meeting (11 October 1949) 2–3. 88

  Since the question of the transmission of the reports of the CCA to the UNGA was regarded as a procedural matter according to Art. 27 (2) the Soviet Union was unable to prevent the decision of the UNSC by veto. 89

  SCOR 3rd Year 325th meeting (22 June 1948) 19–20; SCOR 4th Year 450th meeting (11 October 1949) 15. 90

  UNGA Res 191 (III) (4 November 1948) UN Doc A/RES/191 (III); UNGA Res 300 (IV) (5 December 1949) UN Doc A/RES/300 (IV). 91

  RP II, 56, para 6; GHS 214; see also Reinisch and Novak on Art. 47 MN 5.

92

  See generally Volle and Duisberg (n 15) 12–27.

93

  UN Doc S/C.3/32/Rev. 1 (12 August 1948).

94

  S/1372 (9 August 1949) Annex.

95

  See MN 34 and 35.

96

  See RP 1-5, Art. 26.

97

  ibid.

98

  See Klein and Schmahl on Art. 11 MN 10–11.

99

  For instance, to the Geneva Disarmament Committee (Conference); or to other regional or bilateral bodies unconnected with the UN, such as eg CSCE, Mutual and Balanced Force Reduction Talks (MBFR), Comisión Preparatoria para la Desnuclearización de la América Latina (COPREDAL), SALT, START, etc. With regard to activities within the UN System, see the most recent account in (2006) 60 UNYB 609–94. 100

  See a list of the more important agreements in: (2009) 34 UNDYB, pt II, 237–44; (1979) SIPRI Yearbook 637–47; (1980) 469–78; (1988) 395–489; (2010) 481–506. 101

  Contra, albeit not correct, CP (2nd edn)/Gros Espiell, 491–92.

102

  See India: A/C.1/PV. 1667 (28 October 1969) para 146; Austria: A/8847/Add. 1 (12 December 1972) 6–7; Mali: GAOR 2180th Plen mtg (27 November 1973) paras 84–85; Spain: A/C.1/31/PV. 23 (4 November 1976) 28; Italy: A/AC.187/110 (18 April 1978) 2; A/ S-10/AC.1/37 (27 June 1978) para 179; Study on all aspects of Regional Disarmament, A/ 35/416, para 159; St Lucia: A/C.1/39/PV. 12 (24 October 1984) 17–18; UNGA Res 39/63 K (12 December 1984) UN Doc A/RES/39/63K; India: S/PV.2608 (26 September 1985) 66; Report of the SG on the Work of the Organization, A/40/1, 2; Review of the Role of the UN in the Field of Disarmament: Findings, Recommendations and Proposals (working paper of the Chairman of Working Group II of the DC), A/CN.10/84 (25 June 1986) para 23; Costa Rica: S/2008/697; S/PV. 6017 (19 November 2008). 103

  UNGA Res 2734 (XXV) (16 December 1970) (Declaration on the Strengthening of International Security) UN Doc A/RES/2734(XXV); UNGA Res S-10/2 (13 July 1978)UN Doc A/RES/S-10/2; UNGA Res 35/46 (3 December 1980) UN Doc A/RES/35/46, Annex (Declaration of the 1980s as the second Disarmament Decade); Institutional arrangements relating to the process of disarmament (Expert Study), A/40/553; E/CN.4/RES/1986/29

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(relationship between disarmament, peace and development) (1 March 1986), ESCOR (1986), Supp No 2, 89. 104

  See Austria: A/8847/Add. 1 (12 December 1972) 6–7; Spain: A/C.1/31/PV. 23 (4 November 1976) 28; Italy: A/AC. 187/110 (18 April 1978), 2; A/S-10/AC. 1/37 (27 June 1978) para 179; UNGA Res 39/63 K (12 December 1984) UN Doc A/RES/39/63K; India: S/PV. 2608 (26 September 1985) 66; Madagascar: ibid, 58; Burkina Faso: ibid, 107; Report of the SG on the Work of the Organization, A/40/1, 3; UNGA Res 40/151 A (16 December 1985) UN Doc A/RES/40/151A; Review of the Role of the UN in the Field of Disarmament: Findings, Recommendations and Proposals (working paper of the Chairman of Working Group II of the DC), A/CN.10/84 (25 June 1986) para 23; Costa Rica: S/2008/697.

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Ch.V The Security Council, Voting, Article 27 Andreas Zimmermann From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition) Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor) Content type: Book content Product: Oxford Scholarly Authorities on International Law [OSAIL] Series: Oxford Commentaries on International Law Published in print: 22 November 2012 ISBN: 9780199639762

Subject(s): Subsidiary organs of international organizations

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Article 27 (1) Each member of the Security Council shall have one vote. (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. A.  Development of the Voting System in the Security Council 1–52 I.  League of Nations 1–12 1.  General Majority Requirements in the Council of the League 1–4 2.  Notion of ‘Decisions’ 5 3.  Majority Requirements Concerning ‘Matters of Procedure’ 6–7 4.  Voting by Council Members, Parties to a Dispute 8–10 5.  Absent and Abstaining Members of the Council of the League 11–12 II.  Drafting History of the Charter 13–48 1.  Article 27 13–41 (a)  General Majority Requirements 13–16 (b)  ‘Veto’ System 17–20 (c)  Notion of ‘Decisions’ 21–23 (d)  Majority Requirements Concerning ‘Matters of Procedure’ 24– 25 (e)  Procedural versus Non-Procedural Matters 26–30 (f)  Voting by Council Members, Parties to a Dispute 31–34 (g)  Absent and Abstaining Members of the Security Council 35–37 (h)  Excursus: Legal Relevance of the San Francisco Declaration 38– 41 2.  Articles 108 and 109 (2) and (3) 42–43 3.  Article 10 ICJ Statute 44–48 III.  Subsequent Amendments to Articles 27 and 109 (1) 49–52 B.  Article 27 (1) 53–66 I.  ‘Each member of the Security Council …’ 53–56 II.  ‘… shall have one vote.’ 57

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III.  Voting in the Security Council and Substantive Obligations of Members of the Security Council 58–66 C.  Article 27 (2) 67–171 I.  ‘Decisions of the Security Council …’ 67–72 II.  ‘Decisions of the Security Council …’ 73–75 1.  Presidential statements 73 2.  ‘Statements to the Press’ by the President of the Security Council 74 3.  Decisions by Sanctions Committees and Other Subsidiary Organs of the Security Council 75 III.  ‘… on procedural matters …’ 76–160 1.  General Questions 76–80 2.  Wording 81 (p. 872) 3.  Object and Purpose 82–84 4.  Contextual Interpretation 85 5.  Drafting History 86–89 6.  Proposals to Distinguish Procedural from Substantive Matters 90–94 7.  Categories of Matters and Subsequent Security Council Practice 95– 131 (a)  General Considerations 95–100 (b)  Agenda/Conduct of Business 101 (c)  Invitations to Participate in the Proceedings of the Security Council 102–105 (d)  Establishment of Subsidiary Organs 106–114 (aa)  General Questions 106–108 (bb)  Fact-finding and On-site Visits 109–110 (cc)  Sanction Committees and Similar Bodies 111 (dd)  Ad hoc Criminal Tribunals 112 (ee)  Peacebuilding Commission, Peacekeeping Operations, and Territorial Administrations 113 (ff)  Standing Committee and Working Groups 114 (e)  Decisions under Chapter II 115–117 (f)  Decisions Related to Chapter IV 118–121 (aa)  Requests to the General Assembly under Article 12 (1) in fine 118 (bb)  Convocation of a Special Session of the General Assembly 119

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(cc)  Convocation of a Special Emergency Session of the General Assembly 120 (dd)  Seizing the General Assembly with a Question Pursuant to Article 11 (2) 121 (g)  Decisions under Chapter VI 122 (h)  Decisions under Chapter VII 123 (i)  Decisions under Chapter VIII 124 (j)  Decisions under Chapter XIV 125–129 (aa)  Article 93 (2) and Article 35 (2) Statute International Court of Justice 125–126 (bb)  Article 94 (2) 127–128 (cc)  Article 96 (1) 129 (k)  Decisions under Article 97, 2nd sentence 130–131 8.  Decisions Consisting of Procedural and Substantive Elements 132–134 9.  Determination of the Procedural or Non-Procedural Character of a Matter 135–160 (a)  General Issues 135–141 (b)  Scope of Application of the ‘Double Veto’ 142–145 (c)  Issues of Procedure Related to the ‘Double Veto’ 146–154 (aa)  Wording of the Preliminary Question 146 (bb)  Role of the President of the Security Council 147–150 (cc)  Non-admission of the Preliminary Question 151 (dd)  Order of the Substantive Matter and the Preliminary Question 152–154 (d)  Judicial Determination of the Procedural/ Non-Procedural Character of a Matter 155–158 (e)  Evaluation and Continued Relevance of the ‘Double Veto’ 159– 160 IV.  ‘… shall be made by an affirmative vote …’ 161–165 V.  ‘… shall be made by an affirmative vote …’ 166–169 VI.  ‘… of nine members’ 170–171 D.  Article 27 para 3 172–247 I.  ‘Decisions of the Security Council on all other matters …’ 172 II.  ‘… shall be made by an affirmative vote of nine members …’ 173–174

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III.  ‘… including the concurring votes of the permanent members …’ 175–202 1.  Abstention by Permanent Members 176–190 (p. 873) (a)  Wording 176–178 (b)  Object and Purpose 179–180 (c)  Drafting History 181 (d)  Subsequent State Practice 182–190 2.  Non-participation in the Vote by a Permanent Member Present 191– 192 3.  Absence of a Permanent Member 193–200 (a)  Subsequent Practice 193–195 (b)  Relevance of a Possible Violation of Article 28 (1)? 196 (c)  Voluntary Absence as Implied Abstention 197–200 4.  Obligation to Justify the Exercise of the Veto? 201–202 IV.  ‘… provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.’ 203–247 1.  ‘… in decisions under Chapter VI …’ 207–221 (a)  General Considerations 207–209 (b)  Chapter VI versus Chapter VII 210–212 (c)  Security Council Decisions Related to Proceedings before the International Court of Justice 213–220 (aa)  Decisions under Article 36 (3) 214 (bb)  Decisions under Article 94 (2) 215 (cc)  Security Council Decisions related to International Court of Justice Proceedings beyond Article 94 (2) 216–217 (dd)  Requests for Advisory Opinions under Article 96 (1) 218– 220 (d)  Measures under Articles 5 and 6 221 2.  ‘… and under paragraph 3 of Article 52 …’ 222 3.  ‘… a party to a dispute …’ 223–230 (a)  Relevance of the Distinction between ‘Disputes’ and ‘Situations’ 224– 229 (b)  Notion of ‘Dispute’ 230 4.  ‘… a party to a dispute’ 231–237

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5.  Determination of the Procedural or Non-procedural Character of a Matter in the Context of Article 27 (3), cl 2 238–244 (a)  Determination of the Existence of a Dispute 240 (b)  Determination of the Parties to a Dispute 241–242 (c)  Determination of the Legal Basis of a Given Security Council Decision 243–244 6.  ‘… shall abstain from voting.’ 245–247 E.  Exercise of the Veto as ‘abus de droit’? 248–252 F.  Possible Reform of Article 27 253–264 I.  Veto 254–261 II.  Majority Requirements 262–264 G.  Evaluation of Article 27 265–287 I.  Relevance of the ‘Veto’ 265–275 II.  Continued Significance of the Voting System underlying Article 27 276–278 III.  Article 27 and Developments Beyond the Charter 279–286 1.  Creation of Informal Fora 280 2.  Developments with Regard to the International Criminal Court 281– 286 (a)  Security Council Deferrals under Article 16 Rome Statute 282– 283 (b)  International Criminal Court and the Crime of Aggression 284– 286 (aa)  Rome Statute 284–285 (bb)  Kampala Review Conference 286 IV.  Outlook 287 Annex: San Francisco Declaration of 7 June 1945

Select Bibliography For further literature prior to 2002 see Simma, Brunner, and Kaul on Art. 27 (2nd edn).

(p. 874) A.  Development and General Literature Bailey SD, Voting in the Security Council (1969). ——— and Daws S, The Procedure of the UN Security Council (3rd edn, Clarendon Press 1998). Brugière PF, La règle de l’unanimité des membres permanents au Conseil de Sécurité, Droit de Veto (Pedone 1952).

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Conforti B, Le Nazioni Unite (5th edn, CEDAM 1994). Day G, Le droit de veto dans l’Organisation des Nations Unies (Pedone 1952). de Preux J, Droit de Veto dans la Charte des Nations Unies (Université Paris 1949). Engelhardt H, ‘Das Vetorecht im Sicherheitsrat der Vereinten Nationen’ (1962/3) 10 AVR 377. Jiménez de Aréchaga E, Voting and the Handling of Disputes in the Security Council (United Nations Studies 1950). Koo W, Voting Procedures in International Organizations (Columbia UP 1947). Liang Y, ‘The Settlement of Disputes in the Security Council: The Yalta Voting Formula’ (1947) 24 BYIL 330. Riches CA, The Unanimity Rule and the League of Nations (John Hopkins Press 1933). Ross A, Constitution of the United Nations. Analysis of Structure and Function (Munksgaard 1950). Stone J, ‘The Rule of Unanimity: The Practice of the Council and Assembly of the League of Nations’ (1933) 14 BYIL 18. ——— Legal Controls of International Conflict (1954) 201. Wilcox F, ‘The Yalta Voting Formula’ (1945) 39 Am Polit Sci Rev 943.

B.  Delimitation between Procedural and Other Matters Gross L, ‘The Double Veto and the Four Power-Statement on Voting in the Security Council’ (1953/4) 67 Harv L Rev 251. ——— ‘The Question of Laos and the Double Veto in the Security Council’ (1960) 54 AJIL 118. ——— ‘Voting in the Security Council and the PLO’ (1976) 70 AJIL 470. Przetacznik F, ‘The Double Veto in the Security Council of the United Nations: A New Appraisal’ (1980) 58 RDI 153. Talmon S, ‘Statements by the President of the Security Council’ (2003) 2 Chinese JIL 419.

C.  Application of Article 27 (3), Voluntary and Obligatory Abstention, Absence Bailey SD, ‘New Light on Abstentions in the UN Security Council’ (1974) 50 Intl Aff 554. Doe J and Hopkins E, ‘International Law: Korea—United Nations—Validity of Resolutions of the Security Council: Two Views’ (1950) 28 Can Bar Rev 902. Gentile FC, ‘Astensione ed assenza voluntaria di un membro del Consiglio di Sicurezza’ (1954) 37 Riv Dir Internaz 547. Gross L, ‘Voting in the Security Council: Abstention from Voting and Absence from Meetings’ (1951) 60 Yale LJ 209. ——— ‘Voting in the Security Council: Abstention in the Post-1965 Amendment Phase and its Impact on Article 25 of the Charter’ (1968) 62 AJIL 315. Kunz JL, ‘Legality of the Security Council Resolutions of June 25 and 27, 1950’ (1951) 45 AJIL 137. McDougal MS and Gardner RN, ‘The Veto and the Charter: An Interpretation for Survival’ (1951) 60 Yale LJ 258. Reisman WM, ‘The Case of Non-Permanent Vacancy’ (1980) 74 AJIL 907.

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Tanzi A, ‘Diritto di veto ed esecuzione della sentenza della Corte internazionale di giustizia tra Nicaragua e Stati Uniti’ (1987) 70 Riv Dir Internaz 70 (1987) 293.

(p. 875) D.  Reform Fassbender B, UN Security Council Reform and the Right of Veto (Kluwer Law International 1998). ———‘All Illusions Shattered? Looking Back on a Decade of Failed Attempts to Reform the UN Security Council’ (2004) 7 Max Planck UNYB 183. Nafey A, ‘Permanent Membership in the UN Security Council: India’s Diplomatic Initiatives and Strategies’ (2005) 61 India Q 1. Wouters J and Ruys T, ‘Security Council reform: a new veto for a new century?’ (2005) 44 Rev de Droit Mil et de Droit de la Guerre 139.

A.  Development of the Voting System in the Security Council* I.  League of Nations 1.  General Majority Requirements in the Council of the League 1  Article 5 of the League of Nations Covenant had already provided for the possibility of individual members of the organization hindering the organization in adopting decisions. Article 5 (1) of the Covenant read: Except where otherwise expressly provided in this Covenant or by the terms of the present Treaty, decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting. 2  It is particularly noteworthy that this right applied not only to permanent members of the League’s Council under Art. 4 (1) of the Covenant, but equally to all members of the organization and, besides, covered both main organs, ie the League’s Assembly and its Council. 3  Indeed, non-permanent members of the League’s Council often blocked or at least postponed Council action1 which, in 1926, led to an Assembly resolution of September 1926 according to which the Assembly could at any time proceed to a new election of the nonpermanent members of the League’s Council.2 4  Article 27 must thus be understood as a deliberate attempt to limit such ability, both as far as the organ that is covered by such ‘veto’ is concerned, as well as, and even more importantly, relating to its scope of application ratione personae, ie as being limited to permanent members of the Security Council only. The San Francisco Declaration (Statement of the Four Sponsoring Powers on Voting Procedure in the Security Council)3 stressed in its para 7 that the ‘[t]he Yalta voting formula substitute[d] for the rule of complete unanimity of the League Council a system of qualified majority voting in the Security Council’ under which, contrary to the system of the League, ‘non-permanent members of the Security Council individually would have no “veto”’ anymore thus ‘mak[ing] the operation of the Council less subject to obstruction than was the case under the League of Nations rule of complete unanimity’.

(p. 876) 2.  Notion of ‘Decisions’

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5  Moreover, and just like in the case of the current Art. 27 of the Charter, the ability of individual members of the League to prevent measures being taken only applied to ‘decisions’. The Assembly of the League interpreted this term narrowly, ie it did not consider recommendations and other proposals to be covered by the unanimity principle.4 The Council of the League in turn made no such distinction between decisions and recommendations.5 The Council’s more liberal interpretation of what constituted a ‘decision’ was justified not only by the desire to enhance the authority of the League’s executive organ, but also on the basis of that organ’s smaller size, which—purportedly at least—made unanimity easier to achieve.6

3.  Majority Requirements Concerning ‘Matters of Procedure’ 6  Furthermore, and again in line with the general set-up of the current Art. 27, Art. 5 (1) of the Covenant of the League provided that, while substantive questions had to be decided by a unanimous vote of the respective organ of the League, all ‘matters of procedure’ could be decided by a majority: All matters of procedure at meetings of the Assembly or of the Council, including the appointment of Committees to investigate particular matters, shall be regulated by the Assembly or by the Council and may be decided by a majority of the Members of the League represented at the meeting. 7  Under the text of Art. 5 (2) of the Covenant of the League and the ensuing practice of the League’s organs, such procedural questions included not only the decision to set up a factfinding committee, but also the composition of any such committee.7

4.  Voting by Council Members, Parties to a Dispute 8  The Covenant, unlike Art. 27 of the Charter, did not contain any general rule as to the voting by member States involved in a given dispute as a party. This is true in particular for Art. 11 of the Covenant, which empowered the Council of the League to deal with any war or threat of war. While in the absence of an express regulation, it remained controversial whether under this Article the votes of the parties to a dispute ought to be counted or not,8 ‘the unanimity rule was invariably interpreted to include even the votes of the parties to the disputes’.9 (p. 877) 9  In contrast thereto, Art. 15 (6) of the Covenant10 stipulated that whenever, in accordance with Art. 15 (4), a report of the Council of the League on the settlement of disputes was to be deliberated on, the votes of the parties to the dispute would not be counted. 10  Finally, pursuant to Art. 16 (4) of the Covenant, the exclusion of any member of the League which had violated the Covenant could be decided by a vote of the Council concurred in by the Representatives of all the other members of the League represented thereon, ie, it was to be decided without the vote of the State concerned.

5.  Absent and Abstaining Members of the Council of the League 11  With regard to the majority requirement, both Art. 5 (1) and (2) of the Covenant of the League referred to those members ‘represented at the meeting’. Accordingly, the mere absence of one or more members of the Council did not, at least as a matter of principle, hinder the Council from adopting decisions. Yet, Art. 16 (4) of the Covenant provided that with regard to the exclusion of a member from the League of Nations ‘a vote of the Council concurred in by the Representatives of all the other Members of the League represented thereon’ was necessary, and, accordingly, not just a vote of all those members present.

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12  As to abstaining members, under Art. 9 (3) of the Rules of Procedure of the Council of the League of Nations which provided that ‘[i]n counting the votes, abstentions from voting shall be disregarded’, representatives who decided to abstain from voting were considered not to be present, so that abstentions would, again as a matter of principle and subject to Art. 16 (4) of the Covenant, not prevent unanimity either.

II.  Drafting History of the Charter 1.  Article 27 (a)  General Majority Requirements 13  During the Dumbarton Oaks talks no formal agreement was reached on the voting procedure of the Security Council. Section C of the Dumbarton Oaks ‘Proposals for the Establishment of a General International Organization’ merely stated that ‘[t]he question of voting procedure in the Security Council is still under consideration’.11 Yet it has to be noted that there seems to have been, given the experience with the unanimity requirement under the Covenant of the League of Nations, general agreement that, as a matter of principle, and subject to the issue of specific voting powers of the future permanent members of the SC, the treaty should provide for majority voting in the Council. 14  This general agreement was also reflected in the conclusions of the Crimea (Yalta) Conference between the United States, the United Kingdom and the USSR (‘Yalta Conference’) in which the three governments suggested that the founding conference of the future organization should consider the Dumbarton Oaks Proposals as a basis, supplemented by a provision contained in what was then Section C of draft Chapter VI (p. 878) of the Charter which provided that ‘[e]ach member of the Security Council should have one vote’ and that, once again subject to the veto power as to non-procedural matters, ‘[d]ecisions of the Security Council should be made by an affirmative vote of seven members’.12 15  During the San Francisco Conference, several proposals were put forward according to which the necessary number of votes in order to reach a majority should be eight (Ecuador), nine (with the concurring vote of four permanent members for important decisions) (Egypt), or a simple majority for procedural and a two-thirds majority (including two-thirds of the permanent members) for substantive questions (Cuba).13 16  In San Francisco the issue was finally solved in favour of a required majority of seven votes, as had already been proposed by the four ‘Sponsoring Powers’.

(b)  ‘Veto’ System 17  As mentioned,14 during the Dumbarton Oaks conference no solution had been agreed upon as to the voting procedure in the Security Council at large, and even less with regard to a possible ‘veto’ of the permanent members. 18  Thereafter, the conclusions of the Yalta Conference proposed, almost verbatim, the wording of what is now the current text of Art. 27, a proposal which then formed part of the invitation for the San Francisco Conference. In particular, it provided that decisions of the Security Council on all non-procedural matters required an affirmative vote of (at that time) seven members including the concurring votes of the permanent members. 19  Questions concerning voting procedures were then dealt with at the San Francisco Conference by Committee III/1.15 A specific sub-committee was set up in order to clarify the remaining legal questions concerning the ‘Yalta Formula’.16 It drew up a list of specific questions17 which, on 7 June 1945, led the four sponsoring governments to produce a general statement on voting in the SC in which, by way of an announcement of 8 June 1945, the French government concurred and in which the future five permanent members

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attempted to clarify the outstanding issues on the veto—without, however, providing specific answers to the questions posed.18 20  On 12 June 1945 Australia formally submitted a proposal which would have excluded from the veto all decisions in respect to peaceful settlement (ie the current Chapter VI). This proposal was, however, defeated by a vote of ten for to twenty against, with fifteen delegations abstaining.19 Thereafter, further proposals even further removed from the ‘Yalta formula’ were not even submitted for a vote.20 On 13 June 1945, the ‘Yalta formula’ was approved by the conference by a vote of thirty to two, with fifteen delegations abstaining.21

(p. 879) (c)  Notion of ‘Decisions’ 21  During the Dumbarton Oaks Conference, the question of what was to be understood by the notion of ‘decisions’ was not squarely addressed. The ‘Yalta formula’ in turn, while attempting to solve the issue of procedural versus non-procedural matters, did not deal with the interpretation of the term ‘decision’ either. 22  It has to be noted, however, that at San Francisco, a French proposal to provide for a narrow interpretation of the term ‘decision’ in line with the abovementioned practice of the Assembly of the League of Nations22 was formally discarded.23 23  Instead, the San Francisco Declaration took a rather broad view of what ought to be understood by the term ‘decision’. The four sponsoring powers took the view, inter alia, that a ‘decision’ encompassed not only the decision whether or not to take measures related to the settlement of disputes,24 but also the adoption or altering of the rules of procedure of the SC, the selection of the times and places of its regular and special meetings, the creation of subsidiary bodies, and even the invitation of a State to participate in the discussions of the Council.25 Furthermore, recommendations by the SC were considered ‘decisions’,26 as was the decision whether a particular matter is a procedural one or not.27

(d)  Majority Requirements concerning ‘Matters of Procedure’ 24  The same considerations apply, mutatis mutandis, to the question which majority requirements apply to matters of procedure. 25  Again it was the Yalta formula which proposed a requirement of an affirmative vote of seven members with regard to procedural matters and which found broad support in San Francisco; the main focus of the discussion, however, was the issue of the veto and the distinction to be drawn between procedural and non-procedural matters.

(e)  Procedural versus Non-Procedural Matters 26  The Dumbarton Oaks Proposal, containing as it did no provisions on voting procedure, did not address the issue of distinguishing between procedural and non-procedural issues. 27  The Yalta formula in turn, starting from the premise of a veto right for the permanent members of the SC, drew a distinction between ‘[d]ecisions of the Security Council on procedural matters’ and on ‘all other matters’, the veto only applying to the former group of questions. 28  The issue of the veto having been raised at San Francisco, the four sponsoring powers addressed the issue in extenso in their San Francisco Declaration. They took the position that a procedural vote will govern for the Council: decisions on the adoption or alteration of its rules of procedure and on the method of selecting its President; issues of organization (‘in such a way as to be able to function continuously’); selecting the times and places of its regular and special meetings; establishing such bodies or agencies as it may deem necessary for the performance of its functions; inviting a member of the (p. 880) Organization not represented on the Council to participate in its discussions when that member’s interests are specially affected; and inviting any State when it is a party to a

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dispute being considered by the Council to participate in the discussion relating to that dispute. 29  Yet this rule was said to be subject to a ‘chain of events’ theory according to which even the decision ‘to make an investigation, or determine that the time has come to call upon States to settle their differences, or make recommendations to the parties…might, in the end, require the Council under its responsibilities to invoke measures of enforcement’, which meant that such decisions were even at this stage to be subjected to the unanimity requirement among the permanent members. 30  Furthermore, and perhaps even more importantly, while the sponsoring powers took the position that it would be unlikely that there would arise any matters of great importance on which a decision will have to be made as to whether or not a procedural vote would apply, they claimed that ‘[s]hould, however, such a matter arise, the decision regarding the preliminary question as to whether or not such a matter is procedural must be taken by a vote of seven members of the Security Council, including the concurring votes of the permanent members’,28 thus already predicting the system of the ‘double veto’.

(f)  Voting by Council Members, Parties to a Dispute 31  During the first round of the Dumbarton Oaks Conference from 21 August to 28 September 1944, differences of opinion arose concerning the conduct of members involved as a party to a given dispute. These differences related in particular to the conduct of permanent members which were possible parties to a dispute. 32  In that regard, the United Kingdom favoured a general obligation to abstain, while the USSR took the position that the principle of unanimity should be strictly observed.29 After the conference, the US State Department drew up a compromise proposal which, while strictly adhering to the principle of unanimity with regard to enforcement action, provided for obligatory abstention by the parties involved in the case of a peaceful settlement of disputes, ie under what is now Chapter VI. At the Yalta Conference, this compromise was then included in the ‘Yalta formula’ and submitted to the San Francisco conference. It is worth noting, however, that the Yalta formula still provided that ‘a party to a dispute should [rather than ‘shall’] abstain from voting’30. 33  In March 1945 the US State Department took the position that no party to a dispute is entitled to vote on certain questions such as (a) whether a matter should be investigated; (b) whether the continuation of a situation or dispute is likely to threaten the peace; (c) whether the parties should be called upon to settle the dispute by means of their own choice; (d) whether recommendations should be made as to methods and procedures of settlement; (e) whether the legal aspect of the dispute should be referred to the International Court of Justice and, finally, (f) whether the dispute should be referred to the GA or to a regional agency.31 34  The San Francisco Declaration in turn only briefly touched upon the issue by stating that the exercise of the veto power would be ‘subject to the proviso that in decisions (p. 881) under Section A and a part of Section C of Chapter VIII [now: Chapter VI and Art. 52 (3)] parties to a dispute shall abstain from voting’. It is against that background that the San Francisco Conference decided to adopt Art. 27 (3) as it currently stands.

(g)  Absent and Abstaining Members of the Security Council 35  Neither the conference at Dumbarton Oaks nor the one at San Francisco definitively decided the issue as to the relevance of the absence or abstention of permanent or nonpermanent members of the SC, the Yalta formula already using the term ‘affirmative vote’ in

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what is now Art. 27 (2) and ‘concurring votes of the permanent members’ in what is now Art. 27 (3) of the Charter. 36  At San Francisco, a formal proposal submitted by Canada to provide in what is now Art. 27 (3) for a two-thirds majority of the votes cast including the ‘concurring votes of the permanent members present and voting’,32 which, if adopted, would have specifically ensured that the absence and/or abstention by one or more of the permanent members of the Council would not hinder the adoption of decisions by the SC, did not meet with much approval and was withdrawn.33 37  The San Francisco Declaration in turn solely employs the term ‘concurring votes’, using it synonymously with the notion of ‘unanimity’.34 Indeed, it seems to have been the common view of the representatives of the sponsoring powers at the San Francisco Conference that voluntary abstention by a permanent member of the SC ought to prevent a decision under what is now Art. 27 (3), although this position was not expressed in a formal manner.35

(h)  Excursus: Legal Relevance of the San Francisco Declaration36 38  As previously indicated, the San Francisco Declaration constituted, formally speaking, nothing but a reply by the States in question to a list of questions on the voting procedure in the future SC describing what they called their ‘general attitude towards the whole question of unanimity of permanent members in the decisions of the Security Council’.37 It was annexed to the report of one of the committees of the San Francisco Conference.38 39  It therefore forms part of the drafting history of the Charter generally, in particular of Art. 27 within the meaning of Art. 32 VCLT, thus serving at the very least as a subsidiary means of interpretation.39 It does not, however, constitute either an agreement within the meaning of Art. 31 (2) (a) VCLT, nor an instrument made in connection with the conclusion of the Charter and accepted by the other parties. 40  Nor does it constitute, given its wording and non-binding character—it is solely referred to by its authors as a ‘statement of…general attitude’—an inter se agreement between the States making the declaration, the legality of such an inter se agreement in (p. 882) any case being doubtful given the character of the Charter as a founding instrument of an international organization.40 41  Notwithstanding this limited formal standing of the ‘Yalta formula’ and the ensuing San Francisco Declaration, it must be still noted that the four sponsoring governments had made it abundantly clear that an acceptance of the ‘Yalta formula’, as enshrined and explained in this four-party statement, formed a conditio sine qua non for their acceptance of the Charter,41 an acceptance which in turn constituted a conditio sine qua non for the Organization to become a reality. It is not surprising then that the position of the future permanent members of the SC on the ‘double veto’, as contained in their statement, has been of fundamental importance, has shaped the practice of the SC and the Organization at large, and, moreover, has never seriously been questioned ever since and has thus, at least indirectly, exercised a significant influence on the interpretation of Art. 27.

2.  Articles 108 and 109 (2) and (3) 42  While an analysis of Arts 108 and 109 is not the focus of this commentary on Art. 27,42 it is first worth noting that under Art. 109 (1) a review conference may be called by a cumulative decision of the GA and by a vote of any nine members of the SC, thus excluding the applicability of the veto. 43  When it comes, however, to amendments recommended by such a review conference under Art. 109 (2), the privileged position of the permanent members of the SC, in particular their ‘veto’ power, is protected against revision since any amendment to the Charter, be it by way of a ‘regular’ amendment under Art. 108, or be it by way of a review conference under Art. 109, requires a ratification by the parliaments of all of the five permanent members before it can enter into force. During the drafting of the Charter this From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

‘petrification’ of the veto power triggered even stronger—albeit equally unfruitful— opposition than the veto as such, as contained in Art. 27.43

3.  Article 10 ICJ Statute 44  The ICJ Statute contains a specific provision on voting which deviates from the general rule of Art. 27. In accordance with Art. 10 (1),44 the election of judges to the Court requires an absolute majority of votes in both the GA and the SC, ie, as far as the SC is concerned, a majority of eight instead of the usual nine (before 1966 by six instead of seven) votes. 45  Article 10 (1) and (3) of the Statute of the ICJ are mutatis mutandis identical to Art. 10 (1) and (2) PCIJ Statute. After some discussion as to whether or not the GA alone should be entrusted with the task of electing the judges of the ICJ so as to avoid a double voting right of States represented in both the GA and in the SC, a compromise was reached which, while requiring a double majority in both organs, limited (p. 883) the required majority, as compared to Art. 27, and excluded any veto power of the permanent members of the SC.45 46  Under Art. 10 (2) of the Statute of the ICJ,46 no distinction is made between permanent and non-permanent members of the SC when it comes to the election of judges of the ICJ. 47  Article 10 (2) of the Statute of the ICJ formed part of a compromise leading to the participation of both the GA and the SC in the election of ICJ judges, albeit not subject, as far as the SC is concerned, to the veto power of its permanent members. This came about not least due to the pressure of Latin American countries,47 which had wanted the election to be exclusively decided by the GA, and which generally disliked the veto of the permanent members of the SC,48 even more so since a system of majority voting had already been introduced in the League of Nations not providing for any distinction to be made between the permanent and the non-permanent members of the League’s Council when it came to the election of judges of the PCIJ. 48  It is worth noting however that Art. 35 (2) of the ICJ Statute, as well as Art. 93 (2) of the Charter, in contrast to Art. 10 (2) of the ICJ Statute, both retain the regular voting system of the SC including the veto power of the permanent members.

III.  Subsequent Amendments to Articles 27 and 109 (1) 49  UNGA Res 1991 A (XVII) of 17 December 1963 had proposed an increase in the number of the non-permanent members of the SC by four, bringing the total number of SC members to fifteen,49 and ensuing amendments to Art. 27 (2) and (3) increasing the required number of votes to reach a majority within the SC from seven to nine. The draft GA resolution was adopted with ninety-six votes in favour, eleven against, and four abstentions. It is particularly noteworthy in light of Art. 108 that two permanent members of the SC, namely France and the USSR, had voted against the proposed amendment while two others, namely the United Kingdom and the United States, had abstained. Nonetheless, by 31 August 1965 the required number of ratifications including the ratification by all five permanent members of the SC had been reached. Accordingly, the amendment as to Art. 27 came into force on 31 August 1965, and was effected on 1 January 1966.50 50  A second Charter amendment related to Art. 109 (1)51 raised the majority required in the SC in order to convene a review conference from seven to nine, thus bringing the majority requirements prescribed by Art. 109 (1) in line with the previously amended Art. 27 (2) and (3) and the new set-up of the SC. It entered into force on 12 June 1968.52 (p. 884) 51  Article 109 (3), which has in any case become obsolete,53 was not amended.

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52  Thereafter, no further Charter amendments or amendments to the Statute of the ICJ related to the voting of the SC, or indeed any Charter amendments at all, have ever taken place.54

B.  Article 27 (1) I.  ‘Each member of the Security Council …’ 53  The exercise of the voting right in the SC depends on membership in the SC, as defined in Art. 23, which in turn depends on membership in the Organization at large. The right of members of the SC to vote in the SC is thus subject to continued membership within the Organization. The right under Art. 27 (1) is thus automatically brought to an end where the State concerned loses its membership in the Organization as such by virtue of Art. 6 or otherwise.55 54  The same is true, mutatis mutandis, where the State concerned is subject to measures being taken under Art. 5. Once such measures are taken (either generally concerning all membership rights or specifically aimed at suspending voting rights in the SC) the State concerned loses its right to vote in the SC, given that such right forms part of the ‘rights and privileges’ referred to in Art. 5.56 55  Yet, since the member concerned is merely suspended from exercising its rights and privileges, ie, in the case at hand its rights as a member of the SC under Art. 27, it still formally remains de iure a member of the Organization at large and of the SC, unless the GA and the SC were to specifically suspend not only the rights attached to membership in the SC, but also the right to be a member of the SC as such.57 Accordingly, in the case of a non-permanent member of the SC, a suspension under Art. 5 ought not, as a matter of principle, give rise to a by-election of a new member under Rule 140 of the Rules of Procedure of the GA.58 56  Given that Art. 27 (3) specifically limits the obligation to abstain to decisions taken under Chapter VI and under Art. 52 (3),59 a member of the SC against which a measure under Art. 5 or Art. 6 is to be taken is not under an obligation to abstain regardless of whether one considers the underlying issue as a dispute to which the State concerned is a party or not.60 Given that a recommendation by the SC for a suspension (p. 885) to be decided upon by the GA is not a procedural matter either,61 the suspension of a permanent member of the SC will not be possible.62

II.  ‘… shall have one vote.’ 57  Article 27 (1) provides that, subject to the veto power enshrined in Art. 27 (3), each member of the SC has equal voting rights within the SC and thus excludes any (other) form of weighted voting.

III.  Voting in the Security Council and Substantive Obligations of Members of the Security Council 58  Today, it is no longer open to serious doubt that genocidal acts and war crimes, as well as the commission of crimes against humanity, might amount to a situation covered by Art. 3963 triggering the ability of the SC, acting under Chapter VII, to take action64 or possibly also make recommendations under Chapter VI.65 59  At the same time, and regardless of whether one considers the concept of a ‘Responsibility to Protect’66 to have now developed into a norm of customary international law,67 it is important to note that all of the contracting parties of the Genocide Convention, and of the four Geneva Conventions, are subject to treaty-based obligations aiming at the

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prevention of violations, by other States, of the respective treaties to which they themselves are parties. 60  With regard to genocide, the situation is, given both the wording of Art. 1 of the Genocide Convention, as well as the 2007 judgment of the ICJ,68 relatively clear-cut. In particular, the ICJ has determined that the obligation to prevent, which the Court perceived as a due diligence obligation amounting to the use of any means ‘as the circumstances permit’,69 does not presuppose any territorial link of the State obliged to (p. 886) take measures to prevent genocide.70 Rather all States, depending on their capacity to effectively influence the actual perpetrators of genocide, have, according to the ICJ, to employ all means reasonably available—both de facto and de iure—to them, so as to prevent genocide as far as possible.71 The Court also stated explicitly that ‘a State’s obligation to prevent, and the corresponding duty to act, arise[s] at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed’, ie well before acts of genocide are actually committed, entailing a duty to employ all ‘means likely to have a deterrent effect on those suspected of preparing genocide’.72 61  With regard to war crimes, it is particularly apt to refer to common Art. 1 of the four Geneva Conventions73 under which ‘[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances’ (‘à faire respecter la présente Convention en toutes circonstances’). This obligation was also underlined and confirmed by the ICJ in its Advisory Opinion on the Legality of the Israeli Security Wall in the Occupied Palestinian Territories74 in finding that all contracting parties to the four Geneva Conventions are, given common Art. 1 of these instruments, ‘under an obligation to ensure that the requirements of the instruments in question are complied with’,75 this obligation not being limited to grave breaches of the four Conventions, but also extending to other violations of international armed conflicts not constituting grave breaches, as well as to violations of common Art. 3 committed in non-international armed conflicts. 62  Today, all of the current non-permanent members of the SC, as well as all of the permanent members thereof, are contracting parties to these abovementioned instruments and thus subject to the treaty-based obligations to prevent the commission of the violations of international law outlined above. This raises the question whether individual members of the SC, when exercising their membership rights therein, must, by the same token, fulfil their obligations under these instruments, obligations which are owed, given their erga omnes character, to all other contracting parties of the respective treaties. 63  In the Behrami and Saramati Cases before the European Court of Human Rights,76 however, the Court took the position that the voting behaviour of States within the SC, (p. 887) being crucial to the effective fulfilment by the SC of its mandate and, consequently, to the fulfilment by the UN as a whole of its paramount peace and security aim, is not subject to control by the European Court of Human Rights.77 The European Court of Human Rights thus, at least implicitly, also took the position that any such voting would also not be subject to the substantive obligations a State otherwise has under the European Convention. Transposing this holding to positive treaty obligations arising under other treaties such as the Genocide Convention or the Geneva Conventions would mean that both permanent and non-permanent members of the SC could, therefore, disregard obligations such as their obligations to prevent genocide, as well as their obligation to ensure respect for the Geneva Conventions, when voting in the SC. 64  Yet, any such assumption—apart from not being supported by any legal argument but rather by some broad assumptions about the effectiveness of the system of collective security under the Charter only—seems to be misleading. On the one hand, it would contradict the idea that the UN as such, and even more so individual members of the Council, are bound at least by fundamental human rights. Besides, the judgment of the

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European Court of Human Rights disregards Art. 103 which deliberately limits the overriding character of the Charter of the United Nations to obligations arising thereunder.78 Yet, there are no obligations whatsoever arising under the Charter prior to the adoption of a legally binding SC resolution. In particular, there are no such obligations for members of the SC, be they permanent or non-permanent members.79 There is no reason to assume, therefore, that individual members of the SC are not bound by positive obligations to prevent certain violations of international law by third actors such as, inter alia, the obligation to prevent genocide or to ensure respect for the Geneva Conventions when voting in the SC. This does not mean, however, that members of the SC would have to vote for a certain resolution. Rather, to paraphrase the ICJ’s holding in the Bosnian Genocide Case, the obligation of members of the SC and the SC as a whole is to consider and eventually employ all means reasonably available so as to prevent, inter alia, the occurrence of acts of genocide and violations of the Geneva Conventions.80 65  It also entails an obligation for permanent members to only exercise their veto on a draft resolution aimed at preventing genocide and/or ensuring respect for the Geneva Convention if they believe that any such resolution is unable to pursue that goal, but not for any other political reasons given that they would thereby violate their obligation to prevent genocide and war crimes. 66  Accordingly, responsibility under international law is incurred if a State, as a member of the SC, manifestly fails to support or even delays possible SC measures aimed at preventing genocide and ensuring respect for the Geneva Conventions, which might have contributed to preventing such acts.81 This is particularly true in a situation where (p. 888) a regional organization within the meaning of Chapter VIII of the Charter is willing and able to act, and requests the permission of the SC under Art. 53 (1) to take enforcement measures82 required by obligations such as the ones to prevent genocide or war crimes.83

C.  Article 27 (2) I.  ‘Decisions of the Security Council …’ 67  The term ‘decision’ appears once in Art. 27 (2) and twice in Art. 27 (3) relating, respectively, to ‘[d]ecisions…on procedural questions’, ‘decisions…on all other matters’, and, finally to ‘decisions under Chapter VI, and under paragraph 3 of Article 52’. It is however also used in various other provisions of the Charter such as, inter alia, Art. 18 (2) (relating to ‘[d]ecisions of the General Assembly on important questions’), Art. 25, and Art. 48 (relating to ‘decisions for the maintenance of international peace and security’). 68  The various uses of the term ‘decision’ throughout the Charter and in various contexts are the first indication that it does not constitute a terminus technicus with an ex ante fixed content. These uses, however, do nevertheless shed light on the notion. Thus, in the understanding of the Charter, as confirmed by the wording of Art. 18 (2), ‘decisions’ may encompass ‘recommendations’, action as to membership in the Organization, as well as budgetary questions. Moreover, since Art. 48 refers to ‘decisions for the maintenance of international peace and security’, it presupposes that decisions are not necessarily linked with this purpose, as otherwise the addition of the words ‘for the maintenance of international peace and security’ in Art. 48 would be redundant. 69  Such result is also specifically confirmed by the wording and structure of Art. 27 itself. For one, the reference to Chapter VI (which, unlike Chapter VII, only deals with measures of a recommendatory nature) in Art. 27 (3) confirms that the notion of ‘decisions’, as used in Art. 27, encompasses mere recommendations, despite the fact that such recommendations are not legally binding.

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70  Moreover, since Art. 27 (2) presupposes the existence of ‘decisions on procedural matters’, SC action taken with regard to such procedural questions must necessarily be able to fall within the scope of application of Art. 27 and thus, accordingly, be governed by the majority requirements contained therein, since otherwise this phrase would be nonsensical. 71  Accordingly, the notion of ‘decision’, as used in Art. 27, is a broad term encompassing more than just legally binding decisions contemplated by Art. 25, or measures taken under Chapter VII of the Charter. This broad understanding of the notion of ‘decisions’ is further confirmed by the drafting history of Art. 27: an attempt during the drafting to narrow down the notion of ‘decision’ was rejected,84 and the San Francisco Declaration, too, used an extensive concept of ‘decisions’.85 (p. 889) 72  Subsequent practice further confirms this reading of the term. Indeed it was a UN report prepared in 1950 which had used a very general and comprehensive concept of decisions when stating that ‘[t]he term “decisions of the Security Council” in Article 27 of the Charter refers to all types of action which the Security Council may take, whether it does so under Chapter V on procedure and organization or under Chapter VI in relation to the pacific settlement of disputes, or whether it makes “recommendations” or “decisions” under Chapter VII’, concluding that accordingly ‘the term “decisions” in the Charter articles relating to voting is used in a broad sense to cover all types of action by United Nations organs’.86 Similarly, the most recent Repertoire of the Practice of the Security Council on Art. 2787 refers to ‘[t]he texts of all resolutions, presidential statements, procedural decisions taken at Security Council meetings, as well as decisions contained in notes or letters by the President’ all of which are then reported in the series ‘Resolutions and Decisions of the Security Council’.88

II.  ‘Decisions of the Security Council …’ 1.  Presidential Statements 73  Presidential Statements have gained in significance in recent years as part of the SC’s decision-making process.89 Since 1994 these statements are issued as ‘S/PRST/YEAR/ NUMBER’ after being read out by the President on behalf of the SC in a formal meeting of the Council, the text of the statement having previously been agreed by all the members of the Council in informal consultations of the whole. In that regard it is particularly worth noting that when issuing such a statement, the President represents the SC in its capacity as an organ of the UN.90 Accordingly such Presidential Statements constitute ‘decisions of the Security Council’ within the meaning of Art. 27.91

2.  ‘Statements to the Press’ by the President of the Security Council 74  In contrast to ‘Presidential Statements’, ‘Statements to the Press’ issued by the President of the SC are made by the President not on behalf of the SC but rather on behalf of ‘the members of the Security Council’.92 Therefore these statements do not—unlike Presidential Statements—represent decisions of the SC within the meaning of Art. 27.93

(p. 890) 3.  Decisions by Sanctions Committees and Other Subsidiary Organs of the Security Council 75  Almost since its creation, the SC has set up subsidiary organs within the meaning of Art. 2994 such as sanctions committees, ad hoc criminal tribunals, or boundary demarcation commissions which are then empowered to exercise, under the supervision of the SC, certain functions of the SC including, potentially, the rendering of decisions. Their determinations ought to be considered ‘decisions’ of the SC provided the SC, when creating them, wished such subsidiary organs to act on its behalf. This intention might be derived, in

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particular, from the fact that such subsidiary organs are endowed by the SC with the power to even adopt legally binding ‘decisions’.95

III.  ‘… on procedural matters …’ 1.  General Questions 76  Article 27 (2) and (3) distinguish between ‘procedural matters’ and ‘all other matters’. Accordingly, ‘all other matters’ are those issues which are not procedural in nature, the former category being the decisive one. 77  Decisions on ‘procedural matters’ require an affirmative vote of nine out of fifteen members, while with regard to decisions on ‘all other matters’ those nine affirmative votes must additionally include the concurring votes of the five permanent members.96 78  Neither the Charter itself nor the Rules of Procedure of the SC contain a definition of what is to be understood by ‘procedural matters’. This stands in contrast to Art. 18 (2) and (3) of the Charter, which define certain categories constituting important questions when it comes to voting in the GA and further provides how other issues can be designated as important questions. With regard to the Rules of Procedure of the SC, Art. 40 thereof merely states that ‘[v]oting in the Security Council shall be in accordance with the relevant Articles of the Charter and of the Statute of the International Court of Justice’. 79  The exact term ‘procedure’ is used by the Charter in Art. 36 (1) and (2). Yet it is mentioned with regard to procedures for the pacific settlement of disputes among States. Thus, these references do not refer to the procedure of the SC, but rather to interstate procedures. Accordingly, Art. 36 (1) and (2) do not shed light on the notion of what is meant by ‘procedural matters’ in Art. 27. Moreover, there is broad agreement that whenever the SC acts under Chapter VI pursuant to Art. 36 (1) and (2), these are not procedural matters in the sense of Art. 27 (2).97 This understanding is further confirmed e contrario by Art. 27 (3) and its reference to Chapter VI, a reference which would be largely redundant if such decisions were already covered by Art. 27 (2). 80  More relevant is the fact that the text of the Charter itself uses the word ‘[p]rocedure’ as a heading for Arts 28–32, which regulate the organization of the SC, representation (p. 891) within the SC, its meeting places, the creation of subsidiary organs, its rules of procedure, and participation by non-members in meetings of the SC.

2.  Wording 81  The wording ‘procedural matters’/‘questions de procédure’ does not provide any real guidance as to what is meant by the notion. Indeed, even questions which might be considered as rather procedural in nature are considered to be ‘important’ for the purposes of Art. 18 and it seems to be natural to assume that matters of a similarly important nature should be subjected to the specific majority provided for in Art. 27 (3).

3.  Object and Purpose 82  Under Art. 24 the SC has the primary responsibility for the maintenance of international peace and security.98 This responsibility is exercised by the SC either by taking enforcement measures or by making recommendations under Chapter VI. It is conferred upon the SC by the UN membership at large in order to ensure prompt and effective action so as to, as contemplated by Art. 1 (1), maintain international peace and security, and take effective action to prevent and remove threats to the peace, breaches of the peace and acts of aggression, as well as to adjust or settle international disputes which might lead to breaches of the peace. It is against this overarching object and purpose of the

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Charter that one must also interpret the more technical notion of ‘procedural matters’ as contained in Art. 27 (2). 83  On the one hand, these purposes militate in favour of reducing, as far as possible, the scope of application of Art. 27 (3) since—to state the obvious—the wider the scope of application of Art. 27 (2), the less the permanent members will be in a position to exercise their veto power and thus restrict the SC from taking action and fulfilling its responsibility under Art. 24. 84  On the other hand, one must also balance this quest for a more effective SC— underlying Art. 24 read in conjunction with Art. 1 (1) (and thus also its procedural counterpart, ie Art. 27)—with the countervailing danger that a decision taken by the SC against the will of one or more of its permanent members might, if only in the long term, create tensions between the permanent members. These tensions may, instead of preventing and removing threats to the peace, lead to an escalation, and possibly themselves then lead to international disputes or situations, which could subsequently lead to a breach of the peace. It is against this background (and against this background only) that the ‘chain-of-events’ theory, as contained in the San Francisco Declaration,99 finds backing in a teleological interpretation of Art. 27. To put it in another way, it is only to the extent that the ‘chain of events’ might plausibly lead to situations where the permanent members come into confrontation with each other that under a teleological interpretation of Art. 27 (3), this theory comes into play.

4.  Contextual Interpretation 85  Moreover, in line with Art. 31 (1) VCLT (which has codified customary law on the matter), Art. 27 (2) has also to be interpreted in the context of the overall system of the Charter, notably its system of collective security, as it has developed over time and by way of subsequent practice. Accordingly, the distinction between procedural and (p. 892) nonprocedural matters ought not to be interpreted in a manner so as to undercut the secondary responsibility of the GA under the ‘Uniting for Peace’ Resolution100 in cases where the SC is blocked by a veto. Thus, Art. 27 (2) must be interpreted in a way that a decision by the SC to call an emergency special session of the GA under the ‘Uniting for Peace’ Resolution constitutes a procedural matter subject only to the affirmative vote of any nine members. This is confirmed not only by the very text of the ‘Uniting for Peace’ Resolution, but also by the subsequent practice of the SC where emergency special sessions of the GA have been called by the SC on several occasions with one or more of the permanent members voting against such referral.101

5.  Drafting History 86  The distinction between procedural versus substantive matters had been mentioned in the Yalta formula without then being further elaborated. This led to the San Francisco Declaration taking a narrow position on the issue of what is to be understood as constituting ‘procedural matters’,102 as well as stressing the need for the ‘double veto’.103 87  More specifically, and apart from positively circumscribing a limited list of procedural matters,104 the said Declaration relied on a ‘chain-of-events’ theory according to which ‘decisions and actions by the Security Council may well have major political consequences and may even initiate a chain of events which might, in the end, require the Council under its responsibilities to invoke measures of enforcement …’. This chain of events was said to begin ‘when the Council decides to make an investigation, or determines that the time has come to call upon States to settle their differences, or makes recommendations to the parties’. Accordingly, the Sponsoring Powers claimed that ‘[i]t is to such decisions and actions that unanimity of the permanent members applies’.105

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88  It must be noted that the San Francisco Declaration was made in light of the perceived direct and mandatory connection between measures for the peaceful settlement of disputes and enforcement measures to be taken where there was a threat to international peace, which in the end was not included in the Charter. Accordingly, it might be argued that the alleged ‘chain-of-events’ theory, even if taken at face value, no longer exists under the Charter, as adopted.106 Yet, it must be noted that the San Francisco Declaration was not based on the legal interrelationship between what are now Chapter VI measures and the taking of enforcement measures under the current Chapter VII. Rather it focused on a broader political context stating that any measures not strictly of a procedural character ‘may well have major political consequences’ regardless of their possible legal consequences and should, for that reason, be considered non-procedural in character. (p. 893) 89  Finally, it should be also be noted that the San Francisco Declaration seems to, at least primarily, address measures to be taken by the SC when dealing with a specific situation or dispute, be it either under what is now Chapter VI, or under Chapter VII. It does not, therefore, seem to deal with issues related to the admission of a State to the Organization (unlike measures to be taken under Art. 5 or 6 which possess an obvious linkage with a specific situation or dispute), or the election of the SG, while a request for an Advisory Opinion under Art. 96 (1) might, again, very well—and indeed as often confirmed by practice—be situation-specific.

6.  Proposals to Distinguish Procedural from Substantive Matters 90  As early as 1947 the GA had asked its Interim Committee107 to study the problem of voting in the SC. The ensuing report108 listed certain groups of decisions as either constituting procedural matters or at least recommended them to be subject to a majority of any seven (nine) members of the SC, namely, (a) decisions to be adopted in application of provisions that appear in the Charter under the heading ‘Procedure’;109 (b) decisions concerning the relationship between the SC and other UN organs, and therefore the internal procedures of the UN; (c) decisions relating to the internal functioning and conduct of business of the SC; (d) decisions in closely analogous cases, and, finally, (e) decisions instrumental in arriving at or following up a procedural decision. 91  Subsequently, the GA adopted UNGA Res 267 (III), recommending to the members of the SC that the decisions set forth in an annex attached to the resolution be deemed procedural and that the members of the SC conduct their business accordingly, the annexed list being, mutatis mutandis, identical to the one already contained in the report of the Interim Committee. 92  The issue arose again during the debate on SC reform which began in the early 1990s. During the debate within 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’110 the following broad range of issues had then been suggested by one or more member States to be deemed procedural, in addition to the instances already contained in the annex to UNGA Res 267 (III), namely (a) all decisions taken by the SC under Chapter VI, including (i) decisions to call upon the parties to a conflict to resort to peaceful means of conflict resolution; (ii) decisions on mediation efforts and measures of preventive diplomacy; and (iii) decisions calling for gathering of information or for the dispatch of observers to ascertain facts; (b) decisions to call upon the parties to a conflict to abide by the rules of international humanitarian law; (c) decisions on procedural matters related to consultations with troop-contributing countries; (d) decisions on the timing and modalities of submitting the report of the SC to the GA; (e) recommendations of the SC made in accordance with Arts 4, 5, 6, and 97; (f) decisions taken under Art. 40 relating to provisional measures and, finally, (g) decisions adopted on the basis of implementing Art. 50,111 thus even including matters falling (p. 894) within the purview of Chapter VII and legally binding upon member States112 which, even under an

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extensive reading of the notion of ‘procedural matters’ ought not to be considered procedural in nature. Hence, this list is to be understood more as a proposal de lege ferenda than as an attempt to describe the current legal situation under Art. 27 (2). Such proposals do not, then, shed any further light on the situation as it currently exists under Art. 27 (2). 93  In its 2002 and 2003 reports113 the Working Group simply stated 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’; since then the matter has not been further addressed. 94  Ever since, the reform debate has not looked into the delimitation de lege lata of procedural versus non-procedural matters, but has rather aimed at limiting the veto de lege ferenda. In particular, the three rounds of the ‘Third Round of Intergovernmental Negotiations on UN Security Council Reform’ that have taken place so far focused on five key issues, namely categories of membership of the SC, the question of the veto generally, regional representation, size of an enlarged Security Council, and finally the working methods of the Council and the relationship between the Council and the GA; the definition of procedural matters, however, was no longer addressed.

7.  Categories of Matters and Subsequent Security Council Practice (a)  General Considerations 95  There are significant difficulties in determining relevant subsequent State practice within the meaning of Art. 31 (3) (b) VCLT when it comes to distinguishing procedural from non-procedural questions, ie the delimitation of the respective scope of the application of Art. 27 (2) and (3). 96  For one, as noted by the Repertoire of Practice of the SC, most votes in the Council do not themselves indicate whether the Council considered the matter voted upon as procedural or substantive. This is particularly the case when a proposal is adopted by a unanimous vote or by consensus; when all permanent members vote in favour of a proposal; or when a proposal fails to obtain the necessary nine votes in its favour. It is only in instances whereby a proposal obtains nine or more votes, with one or more permanent members casting a negative vote, and if the proposal is nonetheless considered to have been validly adopted, that such a vote indicates that the matter considered by the Council was perceived as having been procedural,114 or alternatively as having been substantive in nature. 97  Furthermore, the relevant practice dates back to the early years of the practice of the SC, while in recent years the distinction has not given rise to any relevant practice, as proven, inter alia, by the fact that the latest Repertoire of Practice of the SC currently available covering the period 2008/09 recorded no instances of voting on procedural matters.115 98  Moreover, any interpretation of the practice of the SC as to the distinction between procedural and non-procedural matters is overshadowed by the practice of the ‘double (p. 895) veto’116 by which permanent members may have a specific matter qualified as a nonprocedural one. 99  Finally, any subsequent practice, in order to be relevant, must, under Art. 31 VCLT, establish ‘the agreement of the parties regarding its interpretation’. Yet, given the limited number of members of the SC, any practice of the SC mainly represents the practice of its permanent members and of the relatively limited number of other contracting parties that during the relevant years had been non-permanent members of the SC, taking into account that it is in particular the exercise of the veto by the permanent members and its

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repercussions that are taken as an indication of the procedural or non-procedural character of a given matter. 100  Notwithstanding these inherent limitations, the practice of the SC does shed some light as to what the SC and its members have, over the years, perceived as being procedural versus non-procedural matters.

(b)  Agenda/Conduct of Business 101  It is standing and undisputed practice of the SC ever since 1946 to decide the following matters notwithstanding the negative vote of a permanent member: including items on the agenda of the SC,117 setting the agenda of the SC and deciding upon its order,118 deferring the consideration of items,119 removing an item from the list of matters of which the SC is seized,120 deciding upon rulings of the president of the SC,121 suspending a meeting122 or adjourning it123 and, finally, deciding upon issues related to the conduct of business.124

(c)  Invitations to Participate in the Proceedings of the Security Council 102  Articles 31 and 32, relating to the invitation of non-members of the SC, constitute part of the section of Chapter V entitled ‘Procedure’. Moreover, the San Francisco Declaration expressly stated that ‘under the Yalta formula, a procedural vote will govern the decisions under the entire Section D of Chapter VI [now Arts 28–32 of Chapter V]’ including the decision on invitations provided for in Arts 31 and 32. Nonetheless, as early as 1946, the USSR representative considered this issue to be non-procedural but did not subsequently challenge the ruling of the President that Canada be invited to participate in the SC debate,125 Australia having explicitly referred to the San Francisco Declaration.126 (p. 896) In 1950, China (Taiwan) argued that the decision to invite representatives of the PRC was non-procedural since the San Francisco Declaration had referred to members of the Organization not represented in the SC while, as China (Taiwan) claimed, it was already represented; yet this attempt too was unsuccessful.127 103  Accordingly the SC, when deciding on such invitations under either Art. 31 or Art. 32, acts under Art. 27 (2), notwithstanding the fact that it thereby makes an implicit determination that ‘the interests of that Member are specially affected’ or that ‘it is a party to a dispute’.128 104  The same procedural qualification applies, mutatis mutandis, to invitations to members of the Secretariat, representatives of UN organs, subsidiary bodies and agencies, as well as to invitations to other persons to supply information or to render assistance in any other way under Art. 39 of the Rules of Procedure, given that these do not (yet) constitute an investigation.129 This covers cases such as representatives of regional and other international organizations, representatives of transitional governments, representatives of non-governmental organizations, invitations extended to joint appointees of the UN and regional organizations, as well as invitations extended to representatives of the Holy See and the Sovereign Military Order of Malta,130 and those of stabilized de facto regimes131 or entities of unsettled status,132 even if these cases have not given rise to practice that is instructive of the Council members’ position on the matter. 105  This also applies to situations where neither the Charter itself nor the SC’s Rules of Procedure provide an explicit basis for such decisions, namely when extending invitations to a non-member State when its application for admission to membership is being discussed;133 to a non-member State when a question or situation is being discussed without it having been previously established whether the respective non-member State is a party to a dispute or not;134 to other legal entities such as national liberation movements135 or other entities the status of which as a State is disputed; or finally States the (p. 897) status of which as member States or non-member States was unsettled.136 In the latter cases, while the Charter does not contain an explicit basis for such invitations, Art. 30 empowers the SC to regulate its procedure (this itself constituting a procedural question) From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

and thus also empowers the SC to decide with the very same majority the preliminary question whether its competence under Art. 30 also entails the abovementioned right to extend invitations beyond those categories specifically listed in Arts 31 and 32, even if such decisions might involve, albeit only implicitly, important political questions or categorizations.137

(d)  Establishment of Subsidiary Organs (aa)  General Questions

106  As mentioned, the fact that Art. 29 forms part of the section of Chapter IV called ‘Procedure’ militates in favour of categorizing decisions creating subsidiary organs as being procedural in nature, even more so since the San Francisco Declaration had also considered the ‘establish[ment of] such bodies or agencies as it may deem necessary for the performance of its functions’ to be governed by a procedural vote. On the other hand, the competences and character of such subsidiary organs vary enormously; some of them deal exclusively with questions which if they were to be handled and decided by the SC itself would clearly constitute substantive matters, while others have mere procedural tasks and competences. 107  It is against this background that one has to decide the question whether the creation of a given subsidiary organ is a procedural or a substantive matter. Otherwise, the creation of a subsidiary organ by way of a procedural vote which would be enabled to render substantive questions could eventually (subject to the application of the ‘double veto’) serve as a way to circumvent the mandatory voting requirements contained in Art. 27 (3), ie the veto. 108  Accordingly, the issue whether the setting up of a subsidiary organ under Art. 29 constitutes a procedural or non-procedural matter depends on the character of the organ to be created and the powers to be exercised by the subsidiary organ to be created, namely whether it in turn will be able to render substantive decisions or merely procedural decisions. It is against this background that one may now evaluate the procedural/ substantive character of the various subsidiary organs created thus far by the SC. (bb)  Fact-finding and On-site Visits

109  Fact-finding missions of the SC have on most occasions been created during informal consultations or been decided upon by way of a Presidential Statement, ie not subject to a formal vote. Only very rarely have such missions been decided as part of a formal SC resolution,138 and where this was the case, it was mainly done unanimously which, (p. 898) again, does not provide any insight as to the view of the SC on whether such decisions were considered to be procedural or substantive. 110  Yet, the very fact alone that an investigation in a third country is to be conducted carries substantive elements in that the SC must circumscribe the terms of reference of its mission, and by doing so, implicitly evaluates and potentially qualifies, legally, the situation or dispute to be investigated. It is in view of this consideration that one must view the conduct of an investigation by the SC in whatever form as constituting a non-procedural matter even where it is done by way of creating a subsidiary organ established for the purpose of implementation or not. While, as mentioned, SC practice on the matter shedding light on the views of the SC’s and its members is scarce, it is worth noting that the SC decided along these lines with regard to the Czechoslovakia question,139 but took a contrary position in the case of Laos.140 (cc)  Sanction Committees and Similar Bodies

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111  A fortiori, the same non-procedural categorization applies to the creation of subsidiary organs that are endowed with the ability to render legally binding decisions, such as sanctions committees or the UNCC, and regardless of the voting procedure within this subsidiary body, ie even where permanent members can prevent decisions by the respective body or where the decision needs confirmation by the SC (or yet another subsidiary body such as the UNCC’s Governing Council). (dd)  Ad hoc Criminal Tribunals

112  Identical considerations apply, mutatis mutandis, to the creation of ad hoc criminal tribunals such as the ICTY, the ICTR, or the STL under Chapter VII which, under their respective founding resolutions, may not only render binding judgments against individuals, but may also issue legally binding orders against States.141 (ee)  Peacebuilding Commission, Peacekeeping Operations, and Territorial Administrations

113  Where the SC establishes (either on its own or, as in the case of the Peacebuilding Commission, jointly with the GA) a subsidiary body, particularly in or with regard to a specific situation, to exercise Chapter VI or Chapter VII powers on its behalf, such decisions are clearly non-procedural in character and thus subject to the veto under Art. 27 (3). (ff)  Standing Committee and Working Groups

114  In contrast thereto, SC decisions on the creation of standing committees and working groups merely preparing the work of the SC, providing guidance on its working methods, and not possessing the competence to make binding decisions142, such as the SC Committee of Experts, the SC Committee on Admission of New Members, the SC Committee on Council meetings away from Headquarters or the SC Working Group on Peacekeeping Operations, the Ad Hoc Working Group on Conflict Prevention and (p. 899) Resolution in Africa or the SC Informal Working Group on Documentation and Other Procedural Questions, are to be characterized as procedural and thus not subject to the voting requirements of Art. 27 (3).

(e)  Decisions under Chapter II 115  Despite some individual member States taking a different position,143 consistent SC practice since 1946 confirms that Art. 27 (3) applies to applications for membership given that it is not merely an issue of procedure but necessarily entails a determination of whether a given entity does or does not possess the qualifications required by Art. 4 (2).144 In turn, the suspension of Rule 59 of the SC’s Rules of Procedure with regard to the application of Fiji for membership in the Organization was rightly considered to constitute a procedural decision.145 116  While Art. 5 has never formed the subject of a SC resolution indicating its nonprocedural character, a request to exclude South Africa from the Organization was rejected owing to the negative vote of three permanent members of the Council.146 117  Indeed, while Art. 5 is closely linked with the taking of preventive or enforcement action against a member State, Art. 6 involves a determination that the State concerned has persistently violated the principles contained in the Charter.

(f)  Decisions Related to Chapter IV (aa)  Requests to the General Assembly under Article 12 (1) in fine

118  On two occasions, namely when dealing with the Spanish Question in 1946 and when considering the Greek Frontier Incidents Case in 1947, a request under Art. 12 (1) in fine was rejected due to a negative vote by a permanent member,147 the United States claiming that the resolution merely ‘request[ed] another organ of the United Nations to consider and take action’ and that it only ‘relates to the internal procedure of the United Nations’148 without ‘indicat[ing] a view with regard to the merits of the dispute’.149 Yet, a SC resolution under Art. 12(1) in fine, if adopted, positively requests the GA to eventually make a recommendation with regard to a specific situation. This enables the GA to take a From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

substantive decision which in turn renders the underlying SC resolution itself substantive in nature. This stands in contrast to a situation where the SC simply deletes an item from its own agenda (subject to a procedural vote only)150 even if, under the first part of Art. 12 (1), it similarly enables the GA to act by way of a recommendation, the difference being that in the latter case the SC exclusively regulates its own agenda and business. (bb)  Convocation of a Special Session of the General Assembly

119  Special sessions of the GA are convoked, inter alia, at the request of the SC by the SG. This right of the SC is provided for and regulated in Art. 20 which forms part of the section on the GA’s procedure, a fact which—just like the parallel heading of (p. 900) Arts 28–32151 —indicates the procedural character of such a decision.152 Moreover, it would seem to run counter to the structure of Art. 20 to enable the majority of the overall UN membership to convoke such a special session which the SC’s permanent members could not block, while at the same time providing for such a possibility when it comes to a similar request to be made by the SC itself. (cc)  Convocation of a Special Emergency Session of the General Assembly

120  On the same basis, the convocation of an emergency special session according to UNGA Res 377A (V) (‘Uniting for Peace’) similarly requires only a simple majority according to Art. 27 (2). Indeed, under the rationale underlying UNGA Res 377A (V) the convocation of an emergency special session de facto corresponds and coincides with the termination of the SC’s consideration of the matter due to its blockade.153 This result is not only confirmed by the very wording of UNGA Res 377A (V), para 1, sentence 3, but also by the fact that on various occasions such Special Emergency Sessions have been convoked by the SC despite the negative vote of one or more of its permanent members.154 (dd)  Seizing the General Assembly with a Question Pursuant to Article 11 (2)

121  So far, the SC has never made use of Art. 11 (2) in order to bring a matter before the GA.155 Yet, any such referrals merely ‘trigger’ a pre-existing right of the GA to discuss a question, and given that any single member of the GA (and even non-member States of the Organization) may do so, it would, just like in the case of Art. 20, seem to run counter to the very structure of the overall Charter to, on the one hand, empower every single member of the SC (as member of the GA), be it a permanent or a non-permanent member, to bring a matter before the GA, but by the same token enable the permanent members of the SC to block the SC’s non-permanent members from doing so collectively.

(g)  Decisions under Chapter VI 122  Decisions made by the SC under Chapter VI relate to disputes under Art. 33 and/or to situations under Art. 34 and are thus substantive in nature subject to the voting requirements provided for in Art. 27 (3). This is confirmed by Art. 27 (3), last phrase (‘provided that, in decisions under Chapter VI …’), which otherwise would be largely redundant.156

(h)  Decisions under Chapter VII 123  Decisions of the SC exercising its prerogatives under Chapter VII are at the core of the system of collective security provided for in the Charter and are, therefore, clearly subject to the veto. Indeed, even during the ongoing debate as to a possible reform of the veto as part of an overall reform of the SC, the vast majority of member States seems to have accepted that Chapter VII measures should remain subject to the veto (albeit eventually subject to certain formal or substantive conditions).157

(p. 901) (i)  Decisions under Chapter VIII

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124  The encouragement of the development of pacific settlement of local disputes under Art. 52 (3),158 and thus especially the authorization of enforcement action under Art. 53 (1), is covered by Art. 27 (3) given that in both scenarios the SC delegates some of its powers to such regional organizations, the exercise of which would otherwise itself be subject to the veto.

(j)  Decisions under Chapter XIV (aa)  Article 93 (2) and Article 35 (2) Statute International Court of Justice

125  Article 10 (2) ICJ Statute, in contrast to Art. 35 (2) ICJ Statute, as well as to Art. 93 (2) of the Charter, expressly provides that any vote of the SC with regard to the composition of the ICJ ‘shall be taken without any distinction between permanent and non-permanent members of the Security Council’.159 E contrario it becomes obvious that both Art. 35 (2) ICJ Statute and Art. 93 (2) presuppose that the veto applies. 126  As to both Art. 93 (2) and Art. 35 (2) ICJ Statute, this conclusion is supported by the fact that becoming a party to the Court’s Statute entails significant legal consequences and, in particular, the possibility of a non-member State accepting the Court’s jurisdiction and thus eventually bringing cases against member States.160 (bb)  Article 94 (2)

127  As in the case of Art. 93 (2) and Art. 35 (2) ICJ Statute, the Charter does not explicitly lay down the voting requirements when it comes to the enforcement of decisions of the ICJ which, once again, invites an argumentum e contrario based on Art. 10 (2) ICJ Statute.161 128  This argument is further buttressed by the practice of the SC, which, after Nicaragua had requested it to act under Art. 94 (2) in order to enforce the ICJ judgment rendered in the case it had successfully brought against the United States,162 did not adopt a resolution after the United States had vetoed it, notwithstanding eleven affirmative votes within the SC.163 (cc)  Article 96 (1)

129  Once again the wording of Art. 96 (1) invites an argumentum e contrario as compared to Art. 10 (1) ICJ Statute. Moreover, an advisory opinion by the Court, even if not legally binding as such, may very well have the effect of determining a substantive legal question and ought therefore, similar in kind to an investigation which determines a substantive factual question,164 be considered to constitute a substantive issue subject to Art. 27 (3) and thus to the veto.165

(p. 902) (k)  Decisions under Article 97, 2nd sentence 130  Under Art. 97, 2nd sentence, the SG is appointed by the GA upon recommendation of the SC.166 The substantive character of the recommendation to be made and, accordingly, the applicability of Art. 27 (3), are confirmed particularly by the fact that he or she can bring to the attention of the SC any matter which, in his or her opinion, may threaten the maintenance of international peace and security. 131  This understanding of Art. 97 is further confirmed by the SC’s subsequent practice. Thus, the official communiqué issued at the close of the 513th meeting of the Security Council held on 20 and 21 October 1950 stated that the SC ‘had requested the five permanent members to hold private consultations and to report the result of these conversations to the Security Council’167 which confirms the requirement of a consensus among the permanent members in order to bring about the necessary recommendation. On another occasion several representatives of member States in the GA had referred to prolonged private consultations between the permanent members of the Security Council which had preceded the nomination of the candidate for the post of SG.168 Finally, in 1981 a candidate for the post proposed by the African Group and the NAM confirmed his continued

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availability ‘in the event that the Council is able to realize the concurrence of all the permanent members in this regard’.169

8.  Decisions Consisting of Procedural and Substantive Elements 132  When considering the character of draft resolutions which contain both procedural and substantive elements, one must differentiate between several situations. 133  First, where an otherwise procedural decision necessarily contains, by way of implication, a substantive element it must still be considered a procedural question. Thus, when deciding upon an invitation to a non-member of the SC under Art. 31, or upon the invitation of a State which is not a member of the Organization under Art. 32, Art. 27 (2) also governs the decision on the implied preconditions for such invitations, namely whether ‘the interests of that Member are specially affected’ under Art. 32, as well as whether the entity to be invited is a State and whether it is ‘a party to a dispute under consideration by the Security Council’ under Art. 32. 134  Where, however, the decision (within the meaning of Art. 27170) of a substantive issue is not implied in the procedural decision but instead combines procedural and substantive elements, the whole decision is rendered a substantive one. This applies to both substantive statements made in the operative part of a draft resolution, as well as to such statements contained in the Preamble.171 Otherwise, a majority of the members of the SC could circumvent the special rights of the five permanent members by simply adding on substantive elements and determinations to procedural draft resolutions.

(p. 903) 9.  Determination of the Procedural or Non-Procedural Character of a Matter (a)  General Issues 135  As seen, the distinction between ‘procedural matters’ and ‘all other matters’ might not be easy to draw. This raises the question of who is in a position to decide the question, ie whether it is the SC at large or its President, and if the former is the case, by what majority this preliminary question ought to be decided (ie under Art. 27 (2) or under Art. 27 (3)). 136  In that regard it must be noted that neither the Charter as such nor the SC’s Rules of Procedure contain specific provisions addressing this question since the latter’s Art. 40 only refers back to the provisions of the Charter, ie its Art. 27. This stands in contrast to Art. 18 which, with regard to voting in the GA, apart from distinguishing between important and other questions in Art. 18 (2), also provides in Art. 18 (3) for a mechanism by which a simple majority of the GA may decide that other questions are also to be considered important questions.172 137  During the drafting of what was to become Art. 27, Argentina took the position that with regard to the SC mutatis mutandis the same principle should apply, ie that the majority referred to in Art. 27 (2) (or even a simple majority of members of the SC) should decide as to whether, with regard to a given matter, Art. 27 (3) would apply or not.173 Yet, Art. 18 (3) in fact invites an argumentum e contrario, namely that the regular voting procedure also applies to the preliminary question of which voting procedure applies whenever this question is disputed. 138  This in turn leads to the further question as to the rule/exception-relationship between Art. 27 (2) on the one hand and Art. 27 (3) on the other. At first glance and given the structure of Art. 27, it might seem that the voting procedure first referred to in Art. 27 (2) constitutes the rule, while the one mentioned in para 3 is the exception. This is contradicted, however, by the wording, which in Art. 27 (3) refers to ‘all other matters’/‘toutes autres questions’ which encompasses all questions except for those situations mentioned in Art. 27 (2), which are thus carved out from the applicability of the general rule. Accordingly it is Art. 27 (3) that, at least as a matter of principle, governs the

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voting on the preliminary question as to whether a matter is a procedural one (governed by Art. 27 (2)) or a substantive one (governed by Art. 27 (3)). 139  One might also attempt to support this interpretation by a teleological interpretation of Art. 27 (3), namely by hinting at the danger involved when qualifying the preliminary question to be a procedural one. If this were the case, a simple majority within the SC could then classify a substantive matter as a procedural one and could thereby circumvent Art. 27 (3) and the right of the permanent members guaranteed therein. Yet, this argument works both ways since applying Art. 27 (3) to the preliminary question runs the risk, in reverse, that one or more permanent members might prevent a majority of nine member States of the SC from classifying a procedural question as such and thereby undercut the former’s right to have a procedural question decided under Art. 27 (2). 140  It is the drafting history that confirms that the preliminary question (ie whether a matter is a procedural one or not) is subject to Art. 27 (3). The San Francisco Declaration (p. 904) already took the position that ‘the preliminary question as to whether or not…a matter is procedural must be taken by a vote of seven [nine] members of the Security Council, including the concurring votes of the permanent members’.174 During the San Francisco Conference a report by the Interim Committee similarly considered such preliminary question to be a non-procedural matter, and merely recommended moderation in using the veto enshrined in Art. 27 (3).175 141  Taking these arguments together leads to the conclusion that Art. 27 (3) applies to the ‘preliminary question’ and the ensuing practice of what has, ever since 1946, been called the system of the ‘double veto’.

(b)  Scope of Application of the ‘Double Veto’ 142  It has been argued that this ‘double veto’ only applies to borderline cases, ie such matters for which the demarcation line between the respective scopes of application of Art. 27 (2) and (3) is not neatly drawn.176 The United States took the position that the reference to the system of the ‘double veto’ did not apply ‘to matters which were clearly procedural’.177 Indeed, Art. 27 (2) would be rendered meaningless if it were possible for any of the permanent members to prevent reliance on said provision on any question, regardless of the usual meaning of the word ‘procedure’ and the indications within the Charter itself as to what is to be understood as procedural questions.178 143  Moreover, it was the San Francisco Declaration which confirms such approach. This statement took it for granted that the application of the ‘double veto’ would constitute an exception when stating in its Part II that ‘it will be unlikely that there will arise in the future any matters of great importance on which a decision will have to be made as to whether a procedural vote would apply’. This in turn presupposes that there are areas which are, beyond doubt, procedural in nature, which therefore limits the applicability of the ‘double veto’ as only applying to situations where genuine doubts exist as to whether a matter was procedural or substantive.179 Finally, admitting that each permanent member had an unlimited discretion to qualify a matter to be non-procedural by each vote on the preliminary question to take place subject to the veto would completely void Part I of the San Francisco Declaration of any relevance. 144  The subsequent practice of the SC itself seems, by and large, to confirm that approach. In 1948, the preliminary question as to whether a draft resolution to appoint a SC sub-committee to receive or hear evidence, statements, and testimony (a decision which, as outlined above, is a substantive matter180) was procedural was decided in the negative due to a negative vote of a permanent member.181 In a similar case (again involving the setting up of a SC sub-committee with the right, inter alia, to ‘conduct inquiries as it may determine’),182 the President of the SC even ruled, after a vote had been taken on the preliminary question (with ten votes in favour of the procedural character of the (p. 905) draft and one permanent member taking the position that the draft resolution was nonFrom: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

procedural), that the draft resolution should be considered procedural.183 Finally, a draft resolution to invite a representative of the PRC to participate in the discussion of the SC was considered by the SC to be procedural despite the negative vote of the representative of China (Taiwan) on the preliminary question.184 145  It is also worth noting that the issue of the ‘double veto’ and its limitations has not given rise to any debate within the SC since the mid 1960s. This is telling since, during the same period, there have been instances of voting by the SC (with negative votes of permanent members) where attempts had no longer been made to bring the ‘double veto’ into play. This might be interpreted as relevant subsequent practice further confirming the acceptance by the SC’s membership (including its permanent members) of the existence of limits to the system of ‘double veto’.

(c)  Issues of Procedure Related to the ‘Double Veto’ (aa)  Wording of the Preliminary Question

146  The system of the ‘double veto’ presupposes that the permanent members may prevent the majority of the SC deciding a matter, the negative vote of one or more of the permanent members notwithstanding, provided a permanent member has genuine doubts that the question is of a procedural character.185 Accordingly, the preliminary question must necessarily require the SC to decide that the main motion tabled is a procedural matter (ie not, vice versa, that it constitutes a substantive question), the substantive character of a question being in any case the rule and a ‘procedural vote’ the exception. This approach is also confirmed by the very wording of the San Francisco Declaration which, in its part dealing with the ‘double veto’, referred to the decision ‘whether a procedural vote would apply’ and not ‘whether a substantive vote would apply’.186 (bb)  Role of the President of the Security Council

147  With regard to the ‘double veto’, the President of the SC plays a prominent role since it is the President who formulates the preliminary question and who interprets any result of a vote. Such interpretation takes place by way of a ‘presidential ruling’ under Rule 30 of the provisional SC’s Rules of Procedure. 148  Regardless of the question whether it is the ruling of the President that is voted upon or rather the challenge to his or her ruling,187 it might be argued that in any case a majority of the members of the SC may decide this pre-preliminary question, notwithstanding a negative vote of a permanent member, given that this ruling (and the voting on its validity) constitutes a procedural question within the meaning of Art. 27 (2). Accordingly, even if the President were to take the position that a motion to determine a question to be procedural was not adopted due to the negative vote of a permanent member, a simple (p. 906) majority within the SC would then be considered to be able to overturn his or her ruling or to confirm a challenge to such ruling.188 149  This approach was taken on two occasions, where the President declared a motion (of establishing a subsidiary fact-finding organ and of conducting an investigation/of inviting a representative of the PRC to participate in a session of the SC) to constitute a procedural matter when interpreting the result of the vote on the preliminary question, despite the fact that a permanent member of the SC had voted against the attempt to qualify the matter as being procedural.189 150  Yet any such approach runs the risk of circumventing the majority requirements laid down in Art. 27 (3). Indeed, as shown above,190 Art. 27 (3) implicitly provides that the preliminary question of whether a matter is procedural or non-procedural itself constitutes, at least as a matter of principle, a non-procedural matter subject to the veto. If that is the case the permanent members ought to be in a position, under the Charter, to prevent the SC from making a determination that a matter is procedural. This right would be curtailed if the President could rule that a matter is procedural and that therefore a given resolution

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was adopted, regardless of a negative vote of a permanent member, without this member then being in a position to prevent the ruling from standing. Indeed, not even all of the five permanent members could unanimously challenge such a ruling if the ten non-permanent members supported the President’s ruling. It is for that reason that neither the prepreliminary question as to the validity of the President’s ruling nor the preliminary question as such constitute mere points of order not subject to Art. 27 (3).191 Rather, if the President rules that a given question is a procedural matter with the ensuing consequence that it could then be decided by the majority provided for in Art. 27 (2), such ruling, if challenged (typically by one or more of the permanent members), ought to require, in order to be upheld, a majority of ten votes including the vote of the permanent members under Art. 27 (3). (cc)  Non-admission of the Preliminary Question

151  It has been argued that the President ought to have the right, by way of a ruling, to exclude the vote on a preliminary question in matters that are, in his or her opinion, ‘clearly procedural’,192 which could then be overturned by a majority of the SC, thereby precluding a permanent member from raising, in such circumstances, the preliminary question in the first place. While this would indeed have significant legal advantages as compared to a ruling of the President on the matter as to the procedural/non-procedural character of a matter,193 it would still face the very same problem, namely that the right of permanent members to have the preliminary question decided under Art. 27 (3), ie the veto right, might be similarly circumvented. In fact, any such approach vesting the President (and as a result a numerical majority within the SC) with the power to decide whether a matter is either ‘clearly procedural’ or ‘simply’ procedural or even non-procedural would merely shift the demarcation line; it would not avoid the problem (p. 907) that cases may arise that cannot be classified without any doubt as ‘clearly procedural’, thus potentially leading to cases that are in conflict with the requirements of Art. 27 (3). Moreover, it would also run counter to the obligation of the President to put a motion to a vote (ie in casu the motion to vote on the preliminary question as to the procedural character of a matter) implicitly confirmed in Rule 35 of the SC’s Rules of Procedure. (dd)  Order of the Substantive Matter and the Preliminary Question

152  As to the question whether in case of a dispute among members of the SC the SC should first vote on the preliminary question or rather on the principal motion, the SC’s Rules of Procedure do not provide an answer, Rule 30 simply stating that any point of order (including the precedence of motions) shall be decided by the President by way of a challengeable ruling. The subsequent practice of the SC also provides no further guidance, such practice being rare and inconsistent.194 153  The view that a decision ought to be made first on the principal question is based on the argument that the preliminary question becomes redundant if the principal question is rejected, or if it is adopted by a majority including the concurring votes of the permanent members. 154  On the other hand it seems to be logical to first vote on the preliminary question so as for the SC (and its President) to only then be able to determine the voting requirements for the principal motion. Moreover, this sequence of voting is supported by the wording of the San Francisco Declaration, which not only explicitly refers to the ‘preliminary question’ as to whether a matter is procedural or non-procedural, but also to the necessity to decide such question once ‘such a matter arises’, ie once the preliminary question has been raised by a permanent member.195 Finally, a permanent member might vote differently on the principal motion depending on the matter having been characterized as procedural or nonprocedural. Accordingly, provided the SC was indeed to vote on the principal motion first, it

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would be necessary to allow for an ‘alternative’ vote to be cast.196 On the whole, therefore, it seems that the preliminary question must indeed be voted on first.

(d)  Judicial Determination of the Procedural/Non-Procedural Character of a Matter 155  At the San Francisco Conference,197 as well as later in the Interim Committee of the GA198 and during the discussion of the Taiwan case,199 proposals were made to (either ad hoc or generally) provide for a role for the ICJ in determining the procedural or nonprocedural character of a given matter. (p. 908) 156  The SC itself could request an advisory opinion on this question. Yet, any such request is itself—given its implications for the activity of the SC and bearing in mind the practice as it has developed within the SC—to be considered a substantive question subject to the veto, or, at least, itself subject to the double veto since it might otherwise undercut the double veto which in turn is inherent in Art. 27 (3).200 157  Given this situation, the question arises whether the GA could request such an advisory opinion. Indeed, as noted in the recent Kosovo Advisory Opinion, ‘the purpose of the advisory jurisdiction [of the ICJ] is to enable organs of the United Nations and other authorized bodies to obtain opinions from the Court which will assist them in the future exercise of their functions’.201 Yet, one might wonder, at least at first glance, what impact such an advisory opinion by the Court might have on the GA’s role and function. However, any such opinion might influence the GA when considering convening a conference under Art. 109, or when exercising its secondary responsibility for the maintenance of international peace and security under UNGA Res 377(V) (‘Uniting for Peace’). Moreover, the fact that the Court would necessarily have to interpret a SC resolution and the voting procedure of the SC in the course of answering the question to be put by the GA does not constitute a compelling reason not to respond to such question.202 It is also worth noting in that regard that in its Advisory Opinion on Certain Expenses of the United Nations the ICJ responded to the question then posed by the GA, even though this necessarily required it to interpret a number of SC resolutions and even though the request at the time had referred to statements made in a meeting of the SC.203 158  Finally, the question of the procedural or non-procedural character of a given matter might also become relevant in a contentious case before the ICJ provided one party were to challenge the legality of a certain decision adopted by the SC under Art. 27 (2) (as allegedly constituting a procedural matter) despite one or more of the permanent members having cast a negative vote, and having invoked the double veto mechanism.

(e)  Evaluation and Continued Relevance of the ‘Double Veto’ 159  While the ‘double veto’ was of major importance in the early years of the UN, it has not been used since 1959 due to an informal agreement among the permanent members (and beyond) specifying certain issues to be qualified as being procedural in character, while others would in turn be considered as non-procedural (and thus subject to the veto) regardless of who is currently chairing the SC. 160  Should the issue of the double veto re-surface it must be said that much depends on the role to be played by the President at the time and his or her ability and willingness to apply the standards, as they have developed, in a non-arbitrary manner.204

(p. 909) IV.  ‘… shall be made by an affirmative vote …’ 161  If taken literally, both Art. 27 (2) and (3) require a formal ‘vote’ in order for a decision of the SC to be adopted. It is against that background that some authors had originally taken the position that the adoption of decisions by the SC by way of consensus (ie without

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such a formal vote) was not covered by Art. 27, thus eventually requiring an amendment of the Charter providing for such an informal decision-making process.205 162  It must first be noted, however, that other organs of the UN, including the GA, have developed the practice of adopting decisions by consensus despite the fact, for example, that Art. 18, just like Art. 27, requires a vote.206 163  Moreover, an interpretation of Art. 27 both in line with its object and purpose and with relevant subsequent practice of the SC confirms that the adoption of SC decisions by way of consensus is in conformity with Art. 27.207 164  Article 27 (2) and (3) contain certain majority requirements in order to ensure that the decisions of the SC have the backing of a broad range of member States and that they are not opposed by one or more of its permanent members. Yet, decision-making by consensus presupposes that all States concerned, ie both the permanent members of the SC as well as its non-permanent members at a given time, agree that the decision is made by consensus rather than by a formal vote, and, furthermore, also agree on the substance of the decision to be rendered (or at least do not wish to stand in the way of this decision). Accordingly, the requirement that at least nine members of the SC (including all permanent members when it comes to decisions on non-procedural matters) concur in a given decision, is clearly fulfilled despite the fact that no formal vote is being taken. Indeed, when a decision is taken by way of consensus, the decision is made by an affirmative vote of all of the members of the SC.208 165  This result is confirmed by extensive, long-standing and undisputed SC decisionmaking practice. This includes questions relating to the agenda, the suspension or adjournment of meetings, invitations to participate, reference of matters to subsidiary organs, the composition of such organs, requests for information, but also formal resolutions such as the date of an election to fill a vacancy in the ICJ, resolutions concerning admissions of new members, resolutions concerning the recommendation for the appointment of the SG, as well as SC decisions which took the form of statements by the President on behalf of the Council (after having been agreed upon by members of the SC during consultations), and, finally, SC decisions of a procedural or operative nature recorded in letters and notes by the President of the SC.

(p. 910) V.  ‘… shall be made by an affirmative vote …’ 166  While the abstention and absence of permanent members has given rise to significant debate,209 the abstention, absence, or non-participation in the vote by non-permanent members (either under Art. 27 (2) or (3)) has not led to any such discussion given that such abstention, non-participation in a complete SC meeting, or in a particular vote has so far never led to the necessary quorum of nine affirmative votes stricto sensu not being reached. 167  In 1946 Australia was the first non-permanent member not to take part in a vote of the SC210 and since then non-permanent members have routinely abstained from the voting without such abstentions leading to any further debates. From 14 July to 2 September 1994 Rwanda (which was then a non-permanent member of the SC) was not represented on the SC while the Council adopted four resolutions with only fourteen members present. 168  The wording of both Art. 27 (2) and (3), which refer to the ‘affirmative vote’/‘vote affirmatif’ of nine members, implies that at least nine members must vote ‘yes’ in order to bring about the adoption of a decision by the SC. In that regard it is particularly important to note that with regard to the abstention/absence of non-permanent members of the SC there is no subsequent State practice which could have led—in clear contrast to the abstention or absence of permanent members211—to any change as to the meaning of the phrase ‘affirmative vote’. Rather, such strict understanding of the notion of ‘affirmative vote’ in Art. 27 (2) is confirmed by the practice of non-permanent members which have sometimes made their abstention on a given resolution dependent on whether, regardless of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

their abstention, nine ‘yes’ votes would be achieved anyway and thus the resolution be adopted.212 169  Moreover, Art. 27—unlike Arts 18 (2) and 67 (2) which both refer to members present and voting, and where accordingly abstentions are not counted as either ‘yes’ or ‘no’ votes —positively requires an affirmative vote which e contrario precludes an abstention by or absence of a member being counted towards the required number of votes. Accordingly, the votes of permanent members abstaining or absent are not counted towards the required nine votes either. Thus, in cases where the votes of the permanent members are required to reach the threshold of nine ‘yes’ votes, their abstention (or absence)—unlike in regular cases213—prevents the SC from adopting a draft resolution, a practice which has sometimes been referred to as a ‘concealed veto’.

VI.  ‘… of nine members’ 170  Originally, the Charter had provided that decisions of the SC, in order to be adopted, require seven affirmative votes, the SC then consisting of ten members. Thus, originally, any vote by the SC, even when dealing with procedural matters, required the concurring vote of at least two permanent members. In contrast thereto ever since the 1965 Charter (p. 911) amendment,214 the non-permanent members may, at least when it comes to procedural questions, outvote the permanent members. Indeed, in at least one case a SC resolution was adopted by an affirmative vote of the ten non-permanent members only with four permanent members abstaining and the fifth permanent member not participating in the vote.215 171  Moreover, the required percentage of votes in order for a resolution to be adopted has decreased from 70 per cent to 60 per cent thus somewhat facilitating the decision-making process. Nowadays, a group of any seven (as compared to four until the 1965 Charter amendment) members may prevent the SC from adopting any kind of decision (be it procedural or substantive in character) and thus such groups of non-permanent members are endowed with some form of ‘group veto’, which is particularly relevant in view of the geographic distribution of seats among the various regional groups.216

D.  Article 27 para 3 I.  ‘Decisions of the Security Council on all other matters …’ 172  The phrase ‘on all other matters’ in Art. 27 (3) refers back to the notion of procedural matters as used in Art. 27 (2).217 Accordingly, ‘all other matters’ are those which are not ‘procedural matters’ within the meaning of Art. 27 (2).

II.  ‘… shall be made by an affirmative vote of nine members …’ 173  Like Art. 27 (2) on procedural matters, Art. 27 (3) requires a positive acceptance (by way of a ‘yes’ vote) by at least any of the nine members of the SC, as one of two requirements for a resolution on non-procedural matters218 while neither the Charter itself nor the SC’s Rules of Procedure mention the quorum necessary for decisions to be taken. Nonetheless, it has been argued that the SC may only make a decision if all its members, whether permanent or non-permanent, are present.219 This is contradicted, however, by the generally accepted subsequent practice of the SC whereby in early January 1980 the SC held several sessions with one seat being vacant from 31 December 1979 until 7 January 1980, and when Rwanda was not represented on the Council from 14 July to 2 September 1994 and where the Council adopted four resolutions with only fourteen members, one of them being adopted by twelve votes to none with two abstentions.220

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174  It seems that the only numerical requirement is contained in Art. 27 (2) and (3) in that any decision, in order to be adopted, requires nine positive votes which in turn requires that at least nine member States are represented when the voting occurs.221 Thus (theoretically) as many as six member States may be absent when a vote is being taken222 (p. 912) provided the remaining SC members present all vote in favour of a draft resolution.223 In other words, whenever seven or more members of the SC abstain or do not participate in the vote a resolution is not adopted.

III.  ‘… including the concurring votes of the permanent members …’ 175  Apart from the requirement that a resolution ought to be adopted by an affirmative vote of nine members of the SC, in order for a non-procedural draft resolution to be adopted, Art. 27 (3) additionally requires that this affirmative vote include ‘the concurring votes of the permanent members’, with the French text stipulating that in such an affirmative vote (‘vote affirmatif’) ‘sont comprises les voix de tous les membres permanents’. This raises the question of what legal effect either an abstention or the absence by one or more of the permanent members has on the validity of a draft resolution which otherwise has gathered nine or more affirmative votes.

1.  Abstention by Permanent Members (a)  Wording 176  The English version, at least, of Art. 27 (3) hints at the possibility of a SC resolution being adopted with one or more of the permanent members abstaining, given that the text— in contrast to Arts 108 and 109 (2), which specifically contain the requirement that ‘all the permanent members’224 must agree—merely refers to the ‘concurring votes of the permanent members’.225 Yet, the other, equally authentic versions of Art. 27 (3), and similarly Arts 108 and 109 (2), do not contain such a difference, with the French text, for example, on all three occasions referring to ‘tous les membres permanents’. 177  It must be noted, however, that Art. 27 (3) itself clearly distinguishes between an affirmative vote on the one hand in Art. 27 (3) cl 1, and an abstention on the other in Art. 27 (3) cl 2. This distinction made by the very text of Art. 27 (3) itself runs somewhat counter to the idea of perceiving an abstention as an affirmative vote. At the same time, it must be noted that Art. 27 (3) cl 2 contemplates the idea that a SC resolution might be adopted with not all permanent members casting a ‘yes’ vote. 178  Finally, it might be also worth noting that Art. 27 (3) cl 1 distinguishes between the ‘affirmative vote’ of any nine members and the ‘concurring votes’ of the permanent members. Yet, once again this difference only appears in the English text of Art. 27; the French text, for example, speaks of ‘un vote affirmatif de neuf de ses membres dans lequel sont comprises les voix de tous les membres permanents’. It thus not only requires that the permanent members concur in the affirmative votes of other SC members, but that they themselves cast an affirmative vote. The same is true for the Spanish version where the term ‘voto afirmativo’ is used twice while the Russian and Chinese versions—similar to the English version—each use two different terms.226

(p. 913) (b)  Object and Purpose 179  The fundamental object and purpose of the veto system underlying Art. 27 (3) is to prevent SC decisions from being taken against the will of one or more of the permanent members since such a decision might eventually lead to a confrontation between the permanent members perceived in 1945 to constitute the major powers, or between the Organization as such and one or more of the permanent members. Yet understanding an abstention by a permanent member as an ‘affirmative vote’ is fully in line with such a

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teleological interpretation since a permanent member could at any time cast a negative vote (instead of abstaining), thereby avoiding such a confrontation. 180  Moreover, the San Francisco Declaration, in describing the envisaged veto system, frequently refers to the concept of unanimity.227 Yet, traditionally the requirement of unanimity was perceived as permitting abstentions.228 Accordingly, abstention by a permanent member amounts to what might be described as a disguised form of consent.229

(c)  Drafting History 181  During the drafting of what was to become Art. 27 (3), Canada submitted a proposal to provide in Art. 27 (3) for a requirement of a two-thirds majority of the votes cast in each case including the ‘concurring votes of the permanent members present and voting’.230 If adopted, Art. 27 (3) would accordingly have expressis verbis permitted abstentions by permanent members of the SC. Yet, the proposal did not meet with sufficient approval and was thus withdrawn.231 It must be noted, however, that the Canadian proposal would have also reduced the necessary majority within the SC, with this eventually being the main reason (or at least one of several reasons) for the proposal being unacceptable. Moreover, the Rapporteur of Committee III/1 specifically stated that ‘no interpretation was given as to the effects of such an abstention [by a permanent member]’232 which leaves the drafting history of Art. 27 inconclusive.

(d)  Subsequent State Practice 182  Almost ever since the SC started its work, one or more of its permanent members have abstained in voting without such abstentions being considered a bar for a resolution to be adopted. While some permanent members initially formally stated that their ‘abstention from voting on this matter may in no way be regarded as a precedent capable of influencing in any way the question of the abstention of permanent members of the Security Council’,233 the practice of abstentions not constituting the exercise of the veto was soon thereafter considered ‘a practice which has grown in the Security Council, by usage, to constitute a very good practical construction of Article 27 of the Charter’,234 (p. 914) and settled ‘jurisprudence in the Security Council…accepted for a long time’,235 while others stated that ‘by practice and precedent in the Security Council [an abstention by a permanent member ought not to be] considered a negative vote by that member’,236 and that they ‘had always maintained that abstention did not constitute a negative vote’.237 183  Apart from the practice of the SC and its members, it is also worth noting that UNGA Res 267 (III), adopted on 14 April 1949, by forty-three votes to six, with two abstentions, recommended that if there was ‘no unanimity’, the permanent members of the SC should ‘only exercise the veto’ if they considered the question to be of vital importance. The very formula ‘no unanimity’ and ‘exercise the veto’ confirm that the general membership of the Organization wanted to thereby implicitly recognize the practice of abstention as not amounting to such exercise of the veto. While the USSR voted against UNGA Res 267 (III), it did so only on other grounds and not because the resolution accepted the principle that abstentions are not to be considered the exercise of the veto.238 Moreover, soon thereafter the President of the SC stated that, while the permanent members of the SC were in disagreement as to para 2 of UNGA Res 267 (III), it confirmed a shared understanding with regard to para 3 thereof.239 184  Finally, it must also be noted that Art. 27 was subject to a revision in 1965. Despite the fact that all members of the Organization were fully aware of the by then well-established practice of abstentions by permanent members not preventing a SC resolution from passing, no effort whatsoever was made to change this understanding by amending Art. 27. E contrario this amending process must be taken to have further confirmed the practice of counting abstentions by permanent members as ‘affirmative votes’ as it had developed by the time of the 1965 amendment. Moreover, it is also worth noting that the practice of accepting the abstention of permanent members as not constituting the exercise of the From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

‘veto’ has not changed ever since the 1965 amendment. As a matter of fact, on at least one occasion the SC passed a resolution with four permanent members abstaining and with one permanent member absent240 without anybody questioning the validity of this resolution. 185  During the current debate on a possible SC reform, which has been ongoing since the early 1990s,241 no attempt has been made to clarify the content of Art. 27 (3). This can be seen as further proof of the acceptance of the interpretation of Art. 27 (3), as outlined above, even if such a clarification might be desirable.242 (p. 915) 186  It was the practice of the SC, its permanent members and also of the general UN membership within the meaning of Art. 31 (3) (c) of VCLT, pointing to a general agreement among the contracting parties of the Charter which, as early as 1971, led the ICJ to state that: … the 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. 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. 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 of the United Nations and evidences a general practice of that Organization.243 187  It follows that this accepted interpretation of Art. 27 (3) has become binding upon all member States of the Organization, whether they are permanent or non-permanent members. 188  There is therefore no need to further consider the possibility of a customary law norm having superseded Art. 27 (3);244 such a line of argument would in any case run into insurmountable legal problems given the characteristics of the Charter and its amendment process.245 189  The same is true, mutatis mutandis, for the position taken by Judge Bustamante y Rivero in his Dissenting Opinion in the Certain Expenses Case246 and by Judge de Castro in his Separate Opinion in the Namibia Case247 regarding the practice of abstentions by permanent members as amounting to a permanent (or temporary) renunciation of the right of veto (or the exercise thereof). Once the subsequent practice had been accepted by the UN membership at large as an agreement on the interpretation of Art. 27 (3) within the meaning of Art. 31 VCLT this interpretation became binding upon all contracting parties, be they permanent members of the SC or not. 190  Accordingly, once the requirements of Art. 27 (3) are fulfilled, ie any nine SC members having positively voted in favour of a resolution and no permanent member having cast a negative vote, even where one or more of the permanent members have abstained (p. 916) (or indeed have been absent),248 such a resolution249 is validly adopted and is thus legally binding within the meaning of Art. 25250 on all member States including those (permanent or non-permanent) members of the SC that have voted against the resolution, have abstained, or were absent251 regardless of whether it is adopted under Chapter VI or under Chapter VII of the Charter. If a permanent member wishes to exclude the binding force of a Chapter VII resolution vis-à-vis itself, the only options available to such a member accordingly consist of either trying to limit the effect ratione personae of the draft

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resolution252 or simply voting against the draft resolution under consideration, ie casting a veto.

2.  Non-participation in the Vote by a Permanent Member Present 191  Non-participation in the vote means that a permanent member of the SC is present during the session in question but that it does not take part in the ballot. On 9 April 1947, the United Kingdom was the first permanent member not to take part in a vote of the SC.253 This practice has been followed by other permanent members of the SC and has overall been used most frequently by the People’s Republic of China,254 the last example to date being France deciding not to participate in the vote on Draft Res S/1999/1215, which was adopted as Res 1280 (1999).255 192  The very same considerations that apply to the abstention of a permanent member also apply mutatis mutandis to the non-vote by a permanent member. Again, each permanent member is free to cast a negative vote at any given moment, and not doing so indicates its willingness to have the resolution adopted. Moreover, even if the practice as to the non-vote by a permanent member is less common than instances of abstention,256 there still is consensus among the overall membership that this non-vote shall not bar the SC from adopting a given draft resolution regardless of whether one qualifies such behaviour as de facto abstention or as de facto absence.257

3.  Absence of a Permanent Member (a)  Subsequent Practice 193  In the early practice of the SC one of the permanent members, the USSR, was absent from the proceedings of the SC, namely in 1946 and in 1950, ie did not take part in a SC session at all, or left it before the actual voting occurred. In the first instance the then President (China) took the position that the resolution could be validly adopted since it was ‘a purely procedural question [where] a decision can be taken even in the absence of (p. 917) the USSR representative’258 and no objection was raised to this interpretation which was however based on Art. 27 (2) rather than on Art. 27 (3). Somewhat similarly the Dutch representative in the SC took the position that the absence by the USSR could not amount to a veto since, in his view, the USSR had been under an obligation to abstain under Art. 27 (3) cl 2259, or because the matter had been a procedural one.260 194  Later, and namely following the return of the USSR representative to the SC after the Korea Crisis, some members in turn took the position that, regardless of the character of the matter to be decided, the absence of a permanent member does not affect the ability of the SC to adopt legally binding decisions. The USSR in turn took the position that ‘[t]he Security Council is not the Security Council when it fails to act in strict conformity with the Charter and, in particular, with Article 27 of the Charter; when it acts in the absence of two of the five permanent members of the Security Council whose participation and unanimity are an essential prerequisite’.261 195  Taking this scarce practice into consideration, one has to note that—unlike in the case of abstaining permanent members—no consistent subsequent practice has evolved that would represent the agreement of the parties of the Charter regarding the interpretation of Art. 27 (3) in the case of the absence of a permanent member of the SC.

(b)  Relevance of a Possible Violation of Article 28 (1)? 196  Under Art. 28 (1) members of the SC are under an obligation to participate in sessions of the Council so as to secure its ability to function continuously as confirmed by an argumentum e contrario based on Art. 18 (2) (‘Members present and voting’)262 which— unlike Art. 28 (1)—implies a right of member States not to participate in sessions of the GA.263 Accordingly, a permanent member of the SC, by deliberately not participating in a meeting of the SC, violates an obligation arising under the Charter.264 Yet, Art. 28 (1) does not provide for specific sanctions in cases of non-participation, nor does such absence From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

amount to a situation of estoppel barring the permanent member concerned from claiming an alleged invalidity of possible decisions having been taken.

(p. 918) (c)  Voluntary Absence as Implied Abstention 197  Originally, in the practice of the Organization an absent State had been listed as having ‘abstained’ when the vote was taken,265 but later an additional category of ‘absence’ was created for the purpose of the records of the SC.266 198  Nonetheless, similar, if not identical, considerations that govern the legal qualification of abstentions267 may also be relevant for cases of absence even if some authors have claimed that, unlike in the case of abstention by a permanent member present at the voting, there is no ‘positive act’ by which the respective permanent member acknowledges the decision and thus establishes the minimum requirements of unanimity.268 Yet, even in the case of an abstaining permanent member there is no ‘positive act’ accepting the resolution under consideration, the situation thus being mutatis mutandis identical to the absence of a permanent member 199  Indeed, a permanent member voluntarily absent thereby indicates its wish not to prevent substantive decisions being taken by the SC which it could otherwise prevent by simply participating in the meeting and casting a negative vote.269 As a matter of fact, Art. 27 merely grants permanent members the right to ‘veto’ individual decisions of a substantive character by casting a negative vote and at the same time implies that the SC is able to ‘make decisions’ and thus excludes the possibility to block the work of the SC in toto. This interpretation is also confirmed by the San Francisco Declaration which provides270 that ‘[i]t is not to be assumed…that the permanent members…would use their “veto” power willfully to obstruct the operation of the Council’ which would be the case, however, if a permanent member could block the overall work of the SC simply by being absent. 200  Accordingly, voluntary absence by a permanent member is tantamount to an abstention and does not hinder the SC from making decisions, be they procedural or substantive in nature.271 At the same time an involuntary absence by a permanent member, eg when its representatives are delayed or prevented from attending (which in any case is hardly imaginable), ought not to be interpreted as an abstention and would thus prevent the SC from making decisions under Art. 27 (3).

4.  Obligation to Justify the Exercise of the Veto? 201  In 2006, as part of the reform debate, a group of States proposed that the GA invites the SC to consider that ‘[a] permanent member of the Security Council using its veto should (p. 919) explain the reason for doing so at the time the relevant draft resolution is rejected in the Council’.272 There is no hint, however, either in the Charter itself or in the SC’s Rules of Procedure that would oblige member States, be they permanent or non-permanent members of the SC, to explain the reasons for their voting, nor has there been any relevant subsequent practice by the SC that would confirm such obligation even if ‘explanations of vote’ are regularly given by both, permanent and non-permanent members of the SC after the vote. 202  Neither may such a procedural obligation be de lege lata derived from substantive obligations arising under either specific treaties or customary law.273

IV.  ‘… provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.’

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203  As outlined in further detail above274 the last phrase of Art. 27 (3) forms the result of a compromise, in particular between the positions of the United Kingdom and that of the USSR. 204  Its object and purpose is to strike a balance between, on the one hand, avoiding the SC taking enforcement measures against one or more of the five permanent members, while at the same time applying—at least when it comes to non-coercive methods of peaceful settlement of disputes—the principle of nemo iudex in re sua. 205  Given the wording of Art. 27 (3), the obligation to abstain equally applies to both permanent and non-permanent members of the SC, yet, obviously, is of much greater relevance with regard to permanent members given their veto power. 206  Article 27 (3), cl 2 raises various questions, namely (a) what is its scope of application ratione materiae, ie what is the range of the decisions on which a member must abstain as a party to a dispute,275 (b) whether the matter under consideration constitutes a dispute within the meaning of the provision (or rather a situation);276 (c) what is its scope of application ratione personae, ie whether a given member of the SC is a party to such dispute;277 (d) whether the decision to determine whether a question is a dispute or not, and whether, in case of the existence of a dispute, a member of the SC is a party to said dispute, constitute procedural matters or not;278 and, finally, (e) what is the ensuing obligation under Art. 27 (3) cl 2 for a party to a dispute if it applies.279

1.  ‘… in decisions under Chapter VI …’ (a)  General Considerations 207  Given the context of the last clause of Art. 27 (3), the term ‘decision’,280 as used here, must refer to substantive decisions, since decisions concerning procedural matters per se cannot constitute decisions ‘under Chapter VI’. (p. 920) 208  The obligation to abstain applies, first and foremost, to all measures expressly provided for in Arts 33, 34, 36, and 38. De facto, however, it is of no relevance as far as Art. 38 is concerned since SC action to be taken under that latter provision itself requires the consent of all the parties to a given dispute. 209  The obligation to abstain is also triggered with regard to preliminary questions that are inherent in decisions based on Chapter VI such as, eg, the question whether a draft decision is compatible with Art. 2 (7)281 particularly since Chapter VIII, s A, no 7 of the Dumbarton Oaks Proposals had dealt with the issue now contained in Art. 2 (7) as part of what was to become the current Chapter VI of the Charter.

(b)  Chapter VI versus Chapter VII 210  In particular, and given its main object and purpose,282 the obligation of (permanent and non-permanent) members which are party to a dispute to abstain does not apply to any measures taken by the SC under Chapter VII, and thus also does not apply to recommendations under Art. 39, nor to provisional measures under Art. 40. 211  This makes it necessary to eventually determine whether a given SC decision was indeed taken under Chapter VII, or rather under Chapter VI, which might prove difficult where the SC has not made a formal determination under Art. 39 at all, or has made one only coming close to the formula used in Art. 39, eg by referring to the fact that certain actions ‘jeopardize peace, stability and security in the region and beyond’,283 or where the SC has not formally invoked Chapter VII, but has, for example, acted ‘under its special responsibility for the maintenance of international peace and security’.284

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212  A similar question arises with regard to decisions relating to the authorization of peacekeeping missions which are formally covered by neither Chapter VI nor Chapter VII.285 Yet, at least where such peacekeeping forces are to be enabled to use force under a Chapter VII mandate, Art. 27 (3) final clause comes into play. Moreover, it has to be taken into account that any deployment of peacekeeping operations presupposes the agreement of the varying parties anyhow, rendering the question whether such decision entails the obligation to abstain by and large academic.

(c)  Security Council Decisions Related to Proceedings before the International Court of Justice 213  With regard to the obligation of parties to a dispute to abstain under Art. 27 (3) concerning proceedings before the ICJ, various situations must be distinguished. (aa)  Decisions under Article 36 (3)

214  For one, this obligation clearly applies to recommendations to refer a legal dispute to the ICJ under Art. 36 (3),286 with this provision obviously forming part of Chapter VI. (p. 921) (bb)  Decisions under Article 94 (2)

215  On the other hand, recommendations and decisions by the SC on the basis of Art. 94 (2) are not included in Art. 27 (3) cl 2 since they do not form part of Chapter VI, and thus are not subject to the obligation to abstain, particularly since Art. 94 (2) shows striking parallels with Chapter VII generally, and Art. 39 in particular. Indeed, enforcing an ICJ judgment against a permanent member of the SC entails exactly the kind of risks of a confrontation between the Organization and one of the SC’s five permanent members that Art. 27 (3) cl 2 was meant to avoid.287 (cc)  Security Council Decisions related to International Court of Justice Proceedings beyond Article 94 (2)

216  This raises the question whether, apart from the formal enforcement procedure under Art. 94 (2), Art. 27 (3) cl 2 also encompasses decisions by the SC dealing with such judgments pursuant to Chapter VI. In that regard it has to be first noted that, as long as the dispute underlying the proceedings that led to the ICJ judgment has not been settled, the SC retains the competence to deal with the matter pursuant to Chapter VI even if the ICJ has already rendered a judgment. To the extent, therefore, that the SC were to solely exercise its Chapter VI powers without making a recommendation as to how to implement the decision of the ICJ, and without deciding upon measures to give effect to the judgment, Art. 27 (3) cl 2 applies, ie any party to the underlying dispute has to abstain.288 217  Otherwise, ie if the Council were to make recommendations so as to give effect to the judgment, it would act under Art. 94 (2) and thus under Chapter XIV. Accordingly Art. 27 (3), cl 2 would no longer be applicable. This is confirmed by the fact that Chapter VI contains one specific reference to the ICJ, namely Art. 36 (3), which e contrario confirms that where the Council specifically acts a postiori an ICJ decision it does not do so on the basis of Chapter VI (even if it does act outside Chapter VII) with the ensuing consequences as far as its voting procedure is concerned. This interpretation is further confirmed by the practice of the Council where a draft resolution ‘call[ing] for full compliance’ with the judgment of the ICJ in the Nicaragua Case289 was not adopted due to a veto by the United States and where the ruling by the SC President to that effect was not challenged. (dd)  Requests for Advisory Opinions under Article 96 (1)

218  The Dumbarton Oaks Proposals had provided in Chapter VI, s C, no 3 that ‘in decisions under Chapter VIII, Section A…a party to a dispute should abstain from voting’. Chapter VIII, s A, no 6 thereof had in turn foreseen that ‘[j]usticiable disputes should normally be referred to the international court of justice’ and that, furthermore ‘[t]he Security Council should be empowered to refer to the court, for advice, legal questions connected with other disputes’. Accordingly, under the Dumbarton Oaks Proposal the (p. 922) decision of the SC to request an advisory opinion from the ICJ for the peaceful settlement of a dispute would From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

have been subject to the obligation of the parties to the dispute to abstain. Yet, given that the power of the SC to request advisory opinions was deliberately moved to Chapter XIV and without any ensuing changes in the text of what is now Art. 27 (3), requests under Art. 96 (1) are not covered by the wording of Art. 27 (3) cl 2 particularly since Art. 36 (3) only authorizes the SC to recommend to the parties of a dispute to refer it to the ICJ. 219  Nonetheless it has been argued that if the SC itself decides to request an advisory opinion from the ICJ, the obligation to abstain would apply provided the underlying legal problem put before the ICJ is relevant for the peaceful settlement of a dispute pursuant to Chapter VI, in particular where it involves the ‘terms of settlement’ according to Art. 37 (2).290 220  Yet, any such argument (apart from being contradicted by the drafting history of the Charter just mentioned) may hardly be reconciled with both the very clear wording of Art. 27 (3) and its overall structure, given that requests under Art. 96 (1), even if connected with Chapter VI activities of the Council, rely on a separate legal basis under the Charter. Moreover, it is settled jurisprudence of the ICJ291 that requests for advisory opinions serve to help the Organization in its work but do not aim at settling interstate disputes. Accordingly, one might wonder whether—if indeed one were to accept that Art. 27 (3), cl 2 would, be it only as a matter of principle, apply to requests for an advisory opinion—the obligation to abstain would at any rate ever become relevant.

(d)  Measures under Articles 5 and 6 221  Finally, decisions as to possible measures to be taken under Arts 5 or 6 do not trigger the obligation to abstain either since, once again, they find a separate basis in the Charter outside Chapter VI and, besides, are also, at the very least, closely linked to enforcement measures to be taken under Chapter VII.

2.  ‘… and under paragraph 3 of Article 52 …’ 222  Parallel to measures under Chapter VI, Art. 27 (3) cl 2 further provides that in decisions under Art. 52 (3) a party to a dispute shall similarly abstain292 since such decisions, while being based on Art. 52 (3) and limited to ‘local disputes’, entail the range of measures provided for in Art. 36 (3). Accordingly, mutatis mutandis, the very same considerations apply as to measures taken exclusively under Chapter VI (rather than under Chapter VI in conjunction with Art. 52 (3)).

(p. 923) 3.  ‘… a party to a dispute …’ 223  Article 27 (3) cl 2 ‘requires for its application a prior twofold determination by the SC, namely that a dispute exists and that one or more of its members are involved as parties to such a dispute’.293

(a)  Relevance of the Distinction between ‘Disputes’ and ‘Situations’ 224  The distinction between ‘disputes’ and ‘situations’ is crucial since it is only members of the SC that are parties to a ‘dispute’ that must abstain under Art. 27 (3) cl 2. Moreover, is also worth noting that this distinction is also relevant under Arts 32, 33, 34, 35, 36, 37, and 38,294 ie the very structure of Chapter VI confirms that the notions of ‘dispute’ and ‘situations’ are mutually exclusive, since otherwise those provisions of Chapter VI which presuppose the existence of a dispute (rather than a mere ‘situation’) would be redundant. 225  Notwithstanding the clear terminology used in Art. 27 (3) cl 2, it has been argued that the omission of the term ‘situation’ in Art. 27 (3)—in contrast to Arts 32, 33, 34, 35, 36, 37, and 38—is a mere technical oversight which, if not corrected by way of interpretation, would lead to an unintended contradiction with Chapter VI.295 One of the arguments made is that Chapter VIII (A) (5) of the Dumbarton Oaks Proposals had—just like the current Art. 27 (3) cl 2—only referred to disputes; yet there the term ‘situation’ was added later to what is now Art. 36 (1) during the San Francisco Conference so as to bring it in line with the

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overall structure of Chapter VI296 while, allegedly, the same oversight was not corrected as to Art. 27 (3) cl 2. 226  Even if that were the case, however, it should nevertheless be noted that the wording is unambiguous which leaves little room, if any, for relying on the drafting history, which in turn is not unambiguous either. Besides, it ought to be also noted that the extension of the applicability of Art. 27 (3) cl 2 to ‘situations’ (either expressly or by way of an extensive travaux préparatoires-based interpretation) would be somewhat nonsensical since there can be no ‘parties to a situation’. 227  Moreover, any such attempt to blur the distinction between disputes and situations by way of an extensive interpretation of the term ‘disputes’ in Art. 27 (3) cl 2 would also have repercussions for those other Charter provisions where either only the term ‘dispute’ or both terms ‘dispute’ and ‘situation’ are used. 228  An extensive interpretation of the term ‘dispute’ so as to also include ‘situations’ would also oblige all member States of the SC which are involved in a situation to be dealt with by the Council under Chapter VI to abstain. This in turn could eventually force more than six Council members to abstain and thus lead to a situation where the necessary quorum for SC decisions297 can no longer be reached. Accordingly, if one were to follow the broad understanding of the term ‘dispute’ so as to also cover ‘situations’ (p. 924) it might even become impossible for the SC to adopt any Chapter VI decisions, while it could at the same time still adopt enforcement measures under Chapter VII (where Art. 27 (3) cl 2 does not apply), a result which runs counter to the overall set-up of the Charter and the relationship between Chapter VI and VII. 229  Finally, the limitation of the obligation to abstain in disputes only is also confirmed by a comparison involving Art. 36 (1) and Art. 37 (2). It is only under the latter provision, and thus only where there is a dispute (to which Art. 37 (2) makes reference), but not in a ‘situation of like nature’ (to which Art. 36 (1) refers), that the Council may recommend the terms of a settlement. Yet, the principle of nemo esto iudex in re sua which underlies Art. 27 (3) cl 2298 only applies to proposals for substantive decisions (ie to recommendations as to terms of settlement within the meaning of Art. 37 (2)), but not to procedural decisions on possible methods of settlement.

(b)  Notion of ‘Dispute’ 230  As previously mentioned the notion of ‘dispute’ forms a core element of Chapter VI of the Charter. The term ‘dispute’, as used in Art. 27 (3) cl 2, constitutes, as far as the voting in the SC is concerned, the procedural counterpart of the very same term used in Arts 33, 34, 35, 36, 37, and 38 and, accordingly, possesses the very same content.299

4.  ‘… a party to a dispute’ 231  The obligation to abstain only applies to those members of the SC which are parties to the dispute under consideration. As mentioned,300 it was the United Kingdom that had tried to restrict the scope of application of the veto by proposing an unlimited obligation to abstain whenever a member was a party to a dispute regardless of whether the SC was to take measures under Chapter VI or Chapter VII, which finally led to the compromise contained in Art. 27 (3) cl 2. In the same vein, once the compromise as to Art. 27 (3) cl 2 had been agreed on, the United Kingdom proposed a definition of the term ‘dispute’ which by the same token, however, also made reference to the notion of a ‘party to a dispute’, in order to rule out any evasion of the already somewhat limited obligation to abstain. 232  According to this proposal, as submitted to the Interim Committee, the SC was supposed to hold that States were parties to a dispute where either (a) the State or States bringing the matter before the Security Council, and the State or States whose conduct is impugned, agree that there is a dispute; (b) whenever a State or States bringing the matter before the Security Council allege that the actions of another State or States in respect of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the first State or States violate international law or are endangering or are likely to endanger the maintenance of international peace and security, provided the State or States which are the subject of these allegations contest or deny them; and, finally, (c) where the SC decides that a dispute exists even in circumstances not covered by the definition.301 (p. 925) 233  Yet, the practice of the SC, ever since its coming into existence, demonstrates that it is the SC that not only decides whether a dispute has arisen but also, ultimately, who the parties to the dispute are with the ensuing consequence foreseen in Art. 27 (3) cl 2.302 234  It seems that the very wording of Art. 27 (3) cl 2 presupposes that the issue of the existence (or not) of a dispute has to be separated from the question of who the parties to such a potential dispute are. If, however, the question of whether a dispute exists is logically separated from the problem of determining who is a party to that dispute, the problem arises that Art. 27 (3) cl 2 might lose all of its effects, at least for the SC’s permanent members, since a decision on the existence of a dispute would then have to be taken subject to the veto without mandatory abstention. This result would necessarily undercut the compromise underlying Art. 27 (3) cl 2 given that a permanent member could then always veto a qualification of a situation as amounting to a dispute (to which it is a party itself). It could thereby not only set aside the obligation to abstain which otherwise would arise, but could further also bar the SC from taking action under Chapter VI. 235  On the other hand, however, both permanent and non-members of the SC ought to be protected against attempts to falsely qualify a situation as a dispute and portray them as parties thereto in order to bar them from exercising an otherwise existing voting right. 236  In that regard, one must however distinguish between the substantive question of who is a party to a given dispute, and the method by which such status is being determined, and it is the latter question that has to be solved in a manner that avoids the problem just laid out.303 237  In any event, and in order to avoid the danger of a possible abuse of the notion of ‘dispute’ under Art. 27 (3) cl 2, it seems that—somewhat parallel to the definition of a dispute as developed in the jurisprudence of the ICJ—the existence of a dispute between two States is a matter for objective determination,304 and, accordingly, it is not sufficient for one party to assert that there is a dispute in which another State is involved.305 Rather, it must be shown that a disagreement on a point of law or fact, a conflict of legal views or of interests exists between the two (or more) members of the SC which are supposed to be under an obligation to abstain.306

(p. 926) 5.  Determination of the Procedural or Non-procedural Character of a Matter in the Context of Article 27 (3) cl 2 238  As is obvious from the very text of Art. 27 (3), the obligation to abstain is limited to the categories of decisions listed in Art. 27 (3) cl 2, ie decisions under Chapter VI and those made under Art. 52 (3). This obligation, therefore, does not per se apply to procedural matters.307 This constitutes a logical corollary to Art. 27 (2): to the extent permanent members may not block a decision by their veto, the necessity to provide for an obligation to abstain does not arise since, with regard to such procedural matters, they may (just like non-permanent members generally) be outvoted by a majority of the members of the SC. 239  Accordingly three issues arise, namely whether: (a) the decision to determine whether a question is a dispute or not, and (b) (provided a dispute exists) the determination whether a member of the SC was a party to said dispute, and, finally, (c) the decision whether a decision is to be made under Chapter VI/Art. 52 (3) or not, constitute procedural matters or not.

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(a)  Determination of the Existence of a Dispute 240  If the decision whether a certain set of circumstances constitutes a ‘situation’ rather than a ‘dispute’ were to be considered a substantive issue within the meaning of Art. 27 (3) cl 2, any of the permanent members of the SC could block a decision that it is a dispute (involving the obligation to abstain). Once qualified as a mere ‘situation’ they would then not have to abstain and could thus veto any further substantive decisions. Accordingly, qualifying the decision on the dispute versus situation character of given circumstances as a non-procedural matter would make Art. 27 (3) cl 2 a dead letter as far as the SC’s permanent members are concerned, since the veto could be applied in every case regardless of it being a ‘situation’ or a ‘dispute’. It is for this reason that the system of the ‘double veto’ must find its inherent limit with regard to Art. 27 (3) cl 2.

(b)  Determination of the Parties to a Dispute 241  Similar considerations must apply, mutatis mutandis, to the determination of the parties to a given dispute. Otherwise, ie if such determination were to be qualified as a nonprocedural matter, any permanent member of the SC could prevent the determination that it itself is a party to a dispute and would then not be under an obligation to abstain. It could then subsequently veto any decision to be taken under Chapter VI even those concerning disputes in which it is involved as a party once again rendering Art. 27 (3) cl 2 meaningless. 242  In regard to those two issues it is also worth noting that the San Francisco Declaration had explicitly referred to the obligation of parties to a dispute to abstain from voting.308 Moreover, and more importantly, the very same statement, while referring to the system of the ‘double veto’ generally,309 had not claimed that the very same system would apply to the distinct ‘pre-preliminary’ question whether certain circumstances amount to a dispute, and who the parties to such a dispute are.

(p. 927) (c)  Determination of the Legal Basis of a Given Security Council Decision 243  It was a deliberate decision made during the drafting process that the obligation to abstain was to apply only to measures under Chapter VI (as well as under Art. 52 (3)), but not to other measures, and, in particular not to enforcement measures under Chapter VII, the underlying idea being that no enforcement measures ought to be taken against any one of the permanent members against its will. 244  This fundamental decision underlying the system of collective security enshrined in the Charter would be set aside provided a majority of the members of the SC could formally take measures under Chapter VI against a permanent member involved in a dispute (which would then be forced to abstain) which de facto would constitute enforcement measures. Accordingly, the system of the double veto must apply to the question whether or not the SC is in a given situation acting within the context of Chapter VI or not with the permanent members not being obliged to abstain on this preliminary question.

6.  ‘… shall abstain from voting.’ 245  It is first beyond doubt that, regardless of how one qualifies the legal effects of voluntary abstentions by permanent members of the SC,310 the obligatory abstention by a permanent member, party to a dispute, does not prevent the SC from taking a valid decision since otherwise Art. 27 (3) cl 2 would be rendered completely useless and nonsensical. 246  Moreover, it constitutes permanent practice of the SC to consider members of the SC having ‘abstained’ under Art. 27 (3) cl 2 as not having participated in the vote,311 as compared to a situation where they have voluntarily abstained stricto sensu in a situation where they could have cast a positive or negative vote.

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247  This distinction becomes relevant, in particular, with regard to permanent members. In situations where they abstain voluntarily (ie not under Art. 27 (3) cl 2) their voting behaviour must be perceived as demonstrating their political will not to block the adoption of the draft resolution under consideration, which they could at any time by casting a negative vote. In contrast thereto, where the abstention is mandatory, ie is required by Art. 27 (3) cl 2, any such abstention will not indicate any opinion whatsoever as to the subjectmatter on which the SC is called upon to vote.

E.  Exercise of the Veto as ‘abus de droit’? 248  Not infrequently, attempts have been made to limit the use of the veto by claiming that its usage might, under certain circumstances amount to ‘abuse’ or an ‘abus de droit’.312 In particular, it has been claimed that the reliance on the ‘double veto’,313 the voluntary absence of a permanent member,314 the exercise of the veto by a permanent member party to a dispute to be dealt with by the SC under Chapter VI,315 or finally the obligation of (p. 928) a SC member to vote in a certain manner by virtue of other legally binding, substantive obligations represent abuses of the veto power.316 249  It has to be noted, however, that with regard to the issue of the double veto, whenever the issue concerned clearly constitutes a procedural matter, the preliminary question itself is inadmissible and the issue of the double veto does not arise.317 250  Similarly, in the case of voluntary absence by a permanent member of the SC, the SC is not prevented from adopting valid decisions, the absence being considered as amounting to an abstention but in a form which makes it impossible for a permanent member to abuse its position in this regard.318 251  As to Art. 27 (3) cl 2, the issue of an alleged ‘abus du veto’ does not arise either provided one shares the view that the double veto does not apply to the ‘pre-preliminary’ questions of whether certain circumstances amount to a dispute, and who the parties to such a dispute are.319 252  Finally, as to substantive obligations which oblige (permanent and non-permanent) members to exercise their voting rights in a certain manner so as to not violate inter alia the obligation to prevent genocide arising under Art. I of the Genocide Convention,320 it is the general rules of State responsibility that govern the effects of any such violation of the relevant primary norm unless the respective treaty contains a lex specialis. Yet, given that the veto and its exercise for political or other reasons was deliberately built into the Charter, the Charter does not contain any specific rules on what the effect might be of an exercise of the veto which runs counter not to the Charter itself, but rather to other primary norms. This contradicts the idea that the Charter considers the exercise of the veto in such circumstances as an ‘abus de droit’ resulting in it being ineffective.

F.  Possible Reform of Article 27 253  The question as to a possible reform of Art. 27 focuses mainly on the issue of the veto of current and, possibly, future permanent members, and the modalities of the exercise thereof, but also, as a necessary consequence of an envisaged enlargement of the SC, on the necessary majority.

I.  Veto 254  The privileged position of the veto power has often been described as a ‘relic of the post war era’321 and calls for its abolition are frequent. Recognizing that the permanent members of the SC are unlikely to voluntarily relinquish this right, proposals for reform tend to focus instead on limiting the effect of the veto power. Suggestions in this respect include limiting the scope of the veto to decisions made under Chapter VII of the Charter and nullifying the effect of a veto by one single permanent member of the SC. The latter could either be pursued by introducing a minimum number of two or (p. 929) more vetoes From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

that must be reached before a decision can be blocked, or by introducing a mechanism for overruling a veto cast by just one member.322 255  Other more recent suggestions from member States include the introduction of an obligation to give reasons for the exercise of the veto, as well as a prohibition of the use of the veto in the event of genocide, crimes against humanity, and serious violations of international humanitarian law.323 Even these less ambitious suggestions for reform seem, however, unlikely to be realized, given the express opposition of the five permanent members to any changes to the current veto structure.324 256  Today the issue of reform of the veto is discussed mainly in the context of the expansion of the SC, and in terms of whether any new permanent members should have the power of veto. In 2004 the SG’s High-Level Panel on Threats, Challenges and Changes highlighted the urgency of the enlargement of the SC, but stressed that the veto was unsuitable for the institution in an increasingly modern age, recommending that there be no expansion of the veto under any reform proposal.325 257  In July 2005 the group of States known as ‘Uniting for Consensus’326 introduced a text on SC reform endorsing the idea of twenty new non-permanent members, with no new permanent members, avoiding the need to address the veto issue.327 In a Draft Framework Resolution of 2005 the G-4 group of Brazil, Germany, India, and Japan, in their pursuit of a permanent seat, set out a proposal for expansion, stating that the new permanent members ‘should’ have the same responsibilities and obligations as the current permanent members,328 the language indicating a potential willingness to settle for less.329 258  In the lead-up to the World Summit in 2005, hopes had grown of a breakthrough in SC reform. A compromise leading to a draft resolution between the G-4 and the nations of the African Union on expansion of membership proved elusive, however, when the latter adhered to its position that the veto right must be extended to any new permanent members.330 In the absence of an agreement the issue was not even put up for negotiation at the World Summit in New York,331 and the momentum gathering behind SC reform ground to a halt. (p. 930) 259  The following years saw the issue being resurrected in various forms and, in 2008, the GA decided to begin intergovernmental negotiations on SC reform,332 building on the work 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’. A negotiation text presented by the chair of the negotiations in 2010 included a myriad of proposals from member States on the veto issue among other questions.333 260  The Non-Aligned Movement submitted that any reform of the SC ‘should aim at limiting and curtailing the use of the veto with a view to its elimination’, with the African Group of States insisting that, as long as it exists, the veto right should be extended to all new permanent members of the SC, and with the United States reaffirming its opposition to any change in the veto structure.334 261  There is an indication, however, that the reform deadlock could be broken by postponing dealing with the question of the veto. In 2009 the President of the GA hinted that member States might be prepared to ‘bypass’ substantial veto reform at this stage, in order to facilitate development in other reform areas.335 This was deemed necessary in view of the ‘limited span’ between what the current holders of the veto could accept and what the wider membership was seeking.336

II.  Majority Requirements

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262  For all the discussion on the expansion of the SC, relatively little reference is made to the voting requirements of such an enlarged SC.337 When the membership of the SC was expanded for the first and so far only time in 1965,338 the majority requirement was reduced slightly, from roughly 64 per cent (seven out of eleven members, pre-amendment), to the current 60 per cent (nine out of fifteen). 263  One concrete contemporary proposal for adjusting Art. 27 vis-à-vis an expanded membership was put forward in the 2005 ‘Uniting for Consensus’ Draft Resolution on SC Reform.339 This draft, co-sponsored by twelve States,340 suggested an expanded SC of twenty-five members, with twenty non-permanent members, and an amendment to Art. 27 (2) and (3), and Art. 109 (1), to require the affirmative vote of fifteen of the twenty-five members of the SC, thereby retaining the current three-fifths majority requirement. (p. 931) 264  This suggested amendment was repeated by two of the proposing States of the ‘Uniting for Consensus’ draft, Canada and Mexico, during the preparation of a negotiation text in 2010.341 Two more of these States, namely Italy and Columbia, submitted that the majority required for the adoption of substantive decisions in an enlarged SC should be either the present ratio of 60 per cent, or a greater ratio.342 Any proposal to raise this ratio might however be dissuaded by the position set out in the 2004 High-level Panel on Threats, Challenges and Change, namely that any reforms should not impair the effectiveness of the SC.343

G.  Evaluation of Article 27 I.  Relevance of the ‘Veto’ 265  The voting system underlying Art. 27 continues to form the procedural bedrock of the system of collective security enshrined in the Charter. While one could debate the extent to which the current five permanent members still represent the major powers of the world, it remains the case that they are endowed with a very significant formal position which enables them individually (and even more so when acting collectively) to exercise a decisive influence on the decision-making process in the SC in both a positive and a negative manner. 266  Based on their individual veto power, in particular when combined with the system of the ‘double veto’ as outlined above,344 they may block almost any action to be taken by the SC when decisions under either Chapter VI or Chapter VII are being contemplated. 267  Furthermore, and probably even more importantly, is the function of the veto as a ‘sword of Damocles’, ie the fact that the explicit or implied threat of using the veto by a permanent member strongly influences the decision-making in the SC as a whole, in that the other permanent members, as well as those non-permanent members striving to have the SC adopt a given draft resolution, have to sail between Scylla and Charybdis, ie between having their draft resolution vetoed and thus not adopted (or indeed not even submitted to a formal vote), or amending their draft to an extent that it accommodates the political wishes of the one or more of the permanent members threatening to exercise the veto. 268  Article 27 thus comprehensively affects the whole decision-making process of the SC from the first exchange of views on a certain issue through the whole process of consultations until the time a vote on a resolution is taken. Thus, the actual exercise of the veto by a permanent member constitutes only the tip of the iceberg; it plays a much more fundamental and important role when the SC is looking for or negotiating a decision, in that if a majority of the SC wants to reach a negotiated solution it must necessarily accommodate the interests of all of the five permanent members in some way. (p. 932) In

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contrast thereto, where a group of non-permanent members of the SC wants to exercise a ‘group veto’, they need to gather seven votes which is, to say the least, not an easy task. 269  It should be stressed, however, that by formally submitting a draft resolution to the SC, the other members of the SC forming a numerical majority of nine or more members thereof may at least force the permanent member(s) concerned to cast their negative vote(s) and thereby reveal their political isolation within the overall SC—the political price they must pay for making use of their privileged position. 270  It ought also to be mentioned that under the ‘Uniting for Peace’ Resolution of the GA, any nine members of the SC may seize the GA with a matter in cases in which the SC is blocked due to the veto, and have the GA take action including, potentially, recommending military action in case of a threat of the peace, breach of the peace or act of aggression. Yet such ‘threat’ to make use of the Uniting for Peace Resolution seems to be realistic only where the majority within the SC can make a plausible claim that it would eventually be able to gather the necessary two-thirds majority within the GA required by the ‘Uniting for Peace’ Resolution. 271  Finally, when it comes to a permanent member of the SC exercising its veto in a situation falling within the scope of application of Art. 39, that permanent member is also faced with the possible ‘sanction’ of unilateral action being taken by either individual SC members or by a group of them (possibly including other permanent members) without the SC later being able to condemn such unilateral action as being illegal due to a ‘reverse veto’, the 1999 NATO Operation ‘Allied Force’ against the Federal Republic of Yugoslavia being a telling example. 272  Apart from the veto being decisive in blocking decisions to be taken by the SC, it also empowers the five permanent members to positively influence the outcome of SC decisions: once the five permanent members have reached an agreement on a certain question they only need to persuade four other members of the SC to bring about the adoption of a decision by the Council. In that regard it is particularly relevant that—due to the equitable geographic distribution within the SC—the Council usually contains a sufficient number of non-permanent members closely affiliated to one or more of the five permanent members so as to enable them, as a group, to secure the necessary nine affirmative votes. 273  Finally, it must also be noted that, when it comes to questioning the voting system as such and thus endangering or limiting the ‘veto’, be it only marginally (eg by limiting the double veto, by adopting more detailed rules of procedure, or even by merely codifying the practice of the SC), the five permanent members have a common interest in protecting the existing status quo, as enshrined in Art. 27. They will thus normally stand united against any such attempts. 274  The veto also plays a significant role in determining the applicable scope of application ratione temporis of SC resolutions, in particular, but not limited to, those adopted under Chapter VII and providing for sanctions or related regimes. Thus, where, such as in the case of SC Res 1244 (1999) relating to the international administration of Kosovo, the respective resolution does not contain a temporal limitation, or provides for its automatic prolongation,345 any of the five permanent members may ensure that (p. 933) the regime, once established, continues sine die by vetoing any resolution terminating it. In contrast, where the original resolution is limited in time, the veto enables any of the permanent members to prevent a prolongation. It is thus the voting system underlying Art. 27 and the perception of the current and future political power balance within the SC by the SC’s permanent members, rather than reasons related to the concrete issue at hand, that influence, also in this regard, the content of SC resolutions.

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275  Finally, the disinclination of permanent members to explicitly make reference to Chapter VII, combined with their veto power, have led in the past to formulae being used in SC resolutions that caused significant uncertainties as to the content and legal effect of these resolutions, eg where the SC either omitted to determine the existence of a situation under Art. 39, or acted under its ‘special responsibilities for the maintenance of international peace and security’, rather than ‘under Chapter VII’.

II.  Continued Significance of the Voting System underlying Article 27 276  The question as to the continued significance of the voting system underlying Art. 27 is two-fold. 277  First of all, the Charter requires a majority of nine votes for a SC decision to be adopted, the underlying assumption being that such a majority provides a broad basis for the SC to take action on behalf of the overall UN membership. The question of whether this requirement enables the SC to truly represent the overall UN membership on whose behalf it is acting is however not so much answered by Art. 27, but rather by Art. 23 and, possibly, in the quest for a reform of the latter provision.346 278  On the other hand, it is mainly the veto power as such, as laid down in Art. 27 (3), as well as the actual exercise of the veto, that have often been denounced and heavily criticized. It has to be noted, however, that Art. 27 (3) provides a firm and indeed explicit legal basis for the veto and the exercise thereof. Significantly, the veto avoids a conflict between the Organization and one or more of the major powers of the world as they were then perceived in 1945, a conflict which could—were it not for the veto—eventually cause the system of collective security embodied in the Charter to collapse. Yet one might still wonder whether the five permanent members, as chosen in 1945, continue to represent the same balance of power today.

III.  Article 27 and Developments Beyond the Charter 279  Given the inability, so far, of the members of the UN to provide for a meaningful reform of the SC, including of Art. 27, one has to face the challenge that States increasingly attempt to circumvent the limitations inherent in the voting system underlying Art. 27 by either choosing different fora for decision-making, or by concluding treaties that attempt, in one way or another, to get around the limitations inherent in the veto.

1.  Creation of Informal Fora 280  Thus, for example, one might refer to the attempt to strengthen the role of the G-20, currently consisting of Argentina, France, Japan, South Africa, Australia, Germany, (p. 934) Mexico, Turkey, Brazil, India, the Republic of Korea, the United Kingdom, Canada, Indonesia, Russia, the United States, China, Italy, Saudi Arabia, and the European Union. Even setting aside the fact the G-20 has to date mainly focused on economic issues, it must be noted that this group is not in a position to adopt legally binding measures; to do this, States would still be required to come back to the SC.

2.  Developments with Regard to the International Criminal Court 281  It is worth noting that the Rome Statute creating the International Criminal Court, and the Kampala amendment thereto relating to the crime of aggression, both display features that demonstrate the unwillingness of large parts of the international community of States to continue to accept the veto power underlying Art. 27.

(a)  Security Council Deferrals under Article 16 Rome Statute

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282  As to the Rome Statute, it was the ILC which had provided in its Draft Statute that the proposed International Criminal Court be barred from exercising its jurisdiction in regard to all matters which are concurrently being dealt with by the SC under Chapter VII as a threat to the peace, breach of the peace, or act of aggression, unless the Council decides otherwise.347 Given the voting procedure of Art. 27, any of the five permanent members could then have, under the original ILC proposal, prevented the adoption of a SC decision enabling the International Criminal Court to take action; a situation which would have seriously endangered the effectiveness of the Court. Singapore therefore proposed a compromise which found support among a large number of States. This proposal, now contained in Art. 16 of the Rome Statute, provided that the jurisdiction of the International Criminal Court, other than in regard to the crime of aggression, would only be considered to have been suspended if the SC, apart from generally exercising its functions under Chapter VII, additionally and expressis verbis requested the International Criminal Court not to start or continue certain specific proceedings. 283  The inclusion of this provision, which aimed at ‘reversing’ the veto, means that the consensus of all permanent members plus the consent of at least four more members of the SC is needed in order to prevent the International Criminal Court from exercising its treatybased jurisdiction. Thus, the possibility for each of the five permanent members to suspend the exercise of the treaty-based jurisdiction of the International Criminal Court by exercising their veto power—as would have been the case had the ILC proposal been adopted—was excluded. Instead, any of the five permanent members, as well as seven nonpermanent members, can now prevent the SC from temporarily barring the International Criminal Court from exercising its jurisdiction, a reversal which became crucial when the United States considered seeking a renewal of SC Res 1422 (2002)/1487 (2003), which had barred the prosecution, by the International Criminal Court, of personnel acting under a UN peacekeeping or peace-enforcement mandate.348

(p. 935) (b)  International Criminal Court and the Crime of Aggression (aa)  Rome Statute

284  Similar issues arose as to the inclusion, in the Rome Statute, of the crime of aggression. Originally, the ILC had proposed to include in the future statute a provision under which any proceeding dealing with an act of aggression or connected therewith shall not be taken up unless the SC had previously made a determination that the State in question had committed an act of aggression, while the United States proposed to include in the definition of the crime itself a formula according to which the illegality of the act under consideration would be determined by the SC.349 Yet, this approach was unacceptable for many States for two reasons. 285  First, it would have seriously limited the ability of the International Criminal Court to deal with instances where the crime of aggression had allegedly been committed. Moreover, given Art. 27, it would have also de facto prevented the International Criminal Court from ever dealing with acts of aggression allegedly committed by nationals of one of the five permanent members or of States which are allies to a permanent member. In this way it was, indirectly, Art. 27 which ultimately led to the situation de lege lata in which the crime of aggression is excluded from the list of crimes with regard to which the International Criminal Court may exercise its jurisdiction.350 (bb)  Kampala Review Conference

286  Finally, the Kampala review conference, for the reasons set out above, and thus mainly due to the voting system provided for in Art. 27 and the ensuing veto of the permanent members, decided to include a new Art. 15 bis into the Rome Statute dealing with the exercise of jurisdiction over the crime of aggression. Under the new Art. 15 bis (6) of the Rome Statute, once it has entered into force, the Prosecutor shall first ascertain whether the SC has made a determination of an act of aggression committed by the State concerned.

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Yet, even where the SC has not made any such determination within six months, the Prosecutor may still proceed with the investigation in respect of a crime of aggression subject solely to an authorization by the International Criminal Court’s Pre-Trial Division, while the SC is limited to the option of interrupting the proceedings for a period of twelve months in accordance with Art. 16 of the Rome Statute, which again ‘reverses’ the veto system, even on a matter which goes to the core of the SC’s powers under Chapter VII of the Charter. It is only in case of a possible SC referral under Art. 15 ter of the Rome Statute that the voting system of Art. 27 continues to play its full role.

IV.  Outlook 287  On the whole, and given the bleak prospects for a relevant reform of the SC—both as to its composition and its voting procedure—taking place in the next few years, there is a growing danger that emerging States not appropriately represented in the SC will increasingly attempt to bring about a chain of events which could, in the long run, reduce the relevance of the SC. It is thus in the interests of all of the members of the SC, (p. 936) especially its permanent members, to demonstrate that even under the current Art. 27, the SC is in a position to act responsibly. In that regard Art. 27 (2), (3) cl 2, and relevant obligations under general international law are important parameters when voting in the SC, and, in particular, when exercising the veto.

Annex:  San Francisco Declaration of 7 June 1945351

Statement by the Delegations of the Four Sponsoring Powers on Voting Procedure in the Security Council Specific questions covering the voting procedure in the Security Council have been submitted by a Subcommittee of the Conference Committee on Structure and Procedures of the Security Council to the Delegations of the four Governments sponsoring the Conference —the United States of America, the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics, and the Republic of China. In dealing with these questions, the four Delegations desire to make the following statement of their general attitude towards the whole question of unanimity of permanent members in the decisions of the Security Council.

I 1. The Yalta voting formula recognizes that the Security Council, in discharging its responsibilities of the maintenance of international peace and security, will have two broad groups of functions. Under Chapter VIII the Council will have to make decisions which involve its taking direct measures in connection with settlement of disputes, adjustment of situations likely to lead to disputes, determination of threats to the peace, removal of threats to the peace, and suppression of breaches of the peace. It will also have to make decisions which do not involve the taking of such measures. The Yalta formula provides that the second of these two groups of decisions will be governed by a procedural vote—that is, the vote of any seven members. The first group of decisions will be governed by a qualified vote—that is, the vote of seven members, including the concurring votes of the five permanent members, subject to the proviso that in decisions under Section A and a part of Section C of Chapter VIII parties to a dispute shall abstain from voting. 2. For example, under the Yalta formula a procedural vote will govern the decisions made under the entire Section D of Chapter VI. This means that the Council will, by a vote of any seven of its members, adopt or alter its rules of procedure; determine the method of selecting its President; organize itself in such a way as to be able to function continuously; select the times and places of its regular and special meetings; establish such bodies or agencies as it may deem necessary for the performance of its functions; invite a member of From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

the Organization not represented on the Council to participate in its discussions when that member’s interests are specially affected; and invite any State when it is a party to a dispute being considered by the Council to participate in the discussion relating to that dispute. 3. Further, no individual member of the Council can alone prevent consideration and discussion by the Council of a dispute or situation brought to its attention under (p. 937) paragraph 2, Section A, Chapter VIII. Nor can parties to such dispute be prevented by these means from being heard by the Council. Likewise, the requirement for unanimity of the permanent members cannot prevent any member of the Council from reminding the members of the Organization of their general obligations assumed under the Charter as regards peaceful settlement of international disputes. 4. Beyond this point, decisions and actions by the Security Council may well have major political consequences and may even initiate a chain of events which might, in the end, require the Council under its responsibilities to invoke measures of enforcement under Section B, Chapter VIII. This chain of events begins when the Council decides to make an investigation, or determines that the time has come to call upon States to settle their differences, or makes recommendations to the parties. It is to such decisions and actions that unanimity of the permanent members applies, with the important proviso, referred to above, for abstention from voting by parties to a dispute. 5. To illustrate: in ordering an investigation, the Council has to consider whether the investigation—which may involve calling for reports, hearing witnesses, dispatching a commission of inquiry, or other means— might not further aggravate the situation. After investigation, the Council must determine whether the continuance of the situation or dispute would be likely to endanger international peace and security. If it so determines, the Council would be under obligation to take further steps. Similarly, the decision to make recommendations, even when all parties request it to do so, or to call upon parties to a dispute to fulfil their obligations under the Charter, might be the first step on a course of action from which the Security Council could withdraw only at the risk of failing to discharge its responsibilities. 6. In appraising the significance of the vote required to take such decisions or actions, it is useful to make comparison with the requirements of the League Covenant with reference to decisions of the League Council. Substantive decisions of the League of Nations Council could be taken only by the unanimous vote of all its members, whether permanent or not, with the exception of parties to a dispute under Article XV of the League Covenant. Under Article XI, under which most of the disputes brought before the League were dealt with and decisions to make investigations taken, the unanimity rule was invariably interpreted to include even the votes of the parties to a dispute. 7. The Yalta voting formula substitutes for the rule of complete unanimity of the League Council a system of qualified majority voting in the Security Council. Under this system non-permanent members of the Security Council individually would have no ‘veto’. As regards the permanent members, there is no question under the Yalta formula of investing them with a new right, namely, the right to veto, a right which the permanent members of the League Council always had. The formula proposed for the taking of action in the Security Council by a majority of seven would make the operation of the Council less subject to obstruction than was the case under the League of Nations rule of complete unanimity. 8. It should also be remembered that under the Yalta formula the five major powers could not act by themselves, since even under the unanimity requirement any decisions of the Council would have to include the concurring votes of at least two of the non-permanent members. In other words, it would be possible for five non-permanent members as a group to exercise a ‘veto’. It is not to be assumed, however, that the permanent members, any From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Gujarat National Law University; date: 28 December 2020

more than the non-permanent members, would use their ‘veto’ power willfully to obstruct the operation of the Council.(p. 938) 9. In view of the primary responsibilities of the permanent members, they could not be expected, in the present condition of the world, 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. Therefore, if a majority voting in the Security Council is to be made possible, the only practicable method is to provide, in respect of nonprocedural decisions, for unanimity of the permanent members plus the concurring votes of at least two of the non-permanent members. 10. For all these reasons, the four sponsoring Governments agreed on the Yalta formula and have presented it to this Conference as essential if an international organization is to be created through which all peace-loving nations can effectively discharge their common responsibilities for the maintenance of international peace and security.

II In the light of the considerations set forth in Part I of this statement, it is clear what the answers to the questions submitted by the Subcommittee should be, with the exception of Question 19. The answer to that question is as follows: 1. In the opinion of the Delegations of the Sponsoring Governments, the Draft Charter itself contains an indication of the application of the voting procedures to the various functions of the Council. 2. In this case, it will be unlikely that there will arise in the future any matters of great importance on which a decision will have to be made as to whether a procedural vote would apply. Should, however, such a matter arise, the decision regarding the preliminary question as to whether or not such a matter is procedural must be taken by a vote of seven members of the Security Council, including the concurring votes of the permanent members.

Footnotes: *  I thank Fiona Nelson for her extremely valuable assistance during the preparing and finalizing of the manuscript. 1

  In 1926 Brazil and Spain blocked the admission of Germany as a permanent member of the Council; in 1923, and again in 1928, Romania refused to request an advisory opinion from the PCIJ, and, again in 1928, Lithuania, blocked the acceptance of a report on a Lithuanian–Polish controversy, Wilcox, 950. 2

  Wilcox, 950; cf also generally Riches, ch VIII, passim; cf Geiger on Art. 23.

3

  For details cf MN 19; text reproduced in Annex.

4

  Riches, 91ff; Day, 32. The Council, on the other hand, interpreted decisions broadly as any legal act directed towards the member States irrespective of any binding effect; cf Riches, 107ff, with further references regarding the background. 5

  ibid, 107.

6

  ibid, citing the opinion of the Committee on Amendments to the Covenant, First Report to the Council (League Doc A.24.1921.V.) 12. 7

  Riches, 59ff; Stone, ‘The Rule of Unanimity’, 18, 39; precedent is the Polish–Lithuanian Dispute (LNOJ (1922) 549–52); on the other hand, the Committee to investigate the Chinese–Japanese Dispute (LNOJ (1931) 2374–78) was appointed by a unanimous decision including the parties to the dispute, which was not, however, a legal necessity. cf also the report of a commission of the Council of the League of Nations (LNOJ (1927) 832–33),

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where a distinction was made between investigations requiring the explicit consent of the States whose territory was concerned, and those decisions concerning fact-finding being obligatory ipso iure (sub II d and III e); however, the question of the necessary majority was not addressed in either case; on this cf the detailed analysis by Riches, 62ff. 8

  Riches, 134ff, with further references, also on practice; for a special case, cf Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne [1925] PCIJ Ser B, Nos 12 and 31. 9

  For this description of the League’s practice cf Annex: San Francisco Declaration, I.6.

10

  This provision read: ‘If a report of the Council is unanimously agreed to by the members thereof, other than the Representatives of one or more of the parties to the dispute, the Members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report’ (emphasis added by author). 11

  Text to be found in PJG Kapteyn (ed), International Organization and Integration: Annotated Basic Documents and Descriptive Directory of International Organizations and Arrangements, vol 1 (1981) A.1.j. 12

  cf Protocol of Proceedings of Crimea Conference, proposed s C of ch VI, paras 1–3.

13

  Wilcox, 947.

14

  cf MN 13.

15

  Technical Committee on the Composition, Functions and Procedures of the Security Council. 16

  UNCIO XI, 334ff.

17

  UNCIO XI, 699ff.

18

  cf Annex: San Francisco Declaration.

19

  Wilcox, 950.

20

  ibid.

21

  ibid.

22

  cf MN 5.

23

  A French proposal, which was not adopted, UNCIO XI, 695ff; on this point, cf Day, 47; Brugière, 12. 24

  cf Annex: San Francisco Declaration, I.1.

25

  ibid, pt I, 2.

26

  ibid, pt I, 5.

27

  ibid, pt II, 2.

28

  ibid (emphasis added).

29

  Day, 41ff.

30

  Emphasis added by the author.

31

  US Dept St BuII (11 March 1945) quoted by Wilcox, 945.

32

  UNCIO XI, 513ff (emphasis added by the author).

33

  UNCIO XI, 515ff.

34

  cf Annex: San Francisco Declaration I.9.

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35

  Koo, 156 with fn 66; Bailey, Voting, 69, with further references in fn 42; cf also UNCIO XI, 514: the American delegate compared the application of the veto to the requirement of unanimity among the jurors in a criminal trial. 36

  cf generally Jiménez de Aréchaga, Voting, 42ff; Przetacznik, 153, 160ff.

37

  cf Annex: San Francisco Declaration, Preamble.

38

  UNCIO XI, 675, 684.

39

  cf generally Kadelbach on Interpretation MN 43–45.

40

  For further discussion of this issue cf Przetacznik, 153, 162ff, with further references.

41

  RM, 735ff; Koo, 118ff; GHS, 220.

42

  cf generally Witschel on Arts 108 and 109.

43

  For further details see Witschel on Art. 108 MN 5 and Art. 109 MN 21.

44

  The provision reads: ‘Those candidates who obtain an absolute majority of votes in the General Assembly and in the Security Council shall be considered as elected.’ For further details cf B Fassbender, ‘Art. 10’ MN 5–7 in A Zimmermann, C Tomuschat, K Oellers-Frahm, and C Tams (eds), The Statute of the International Court of Justice: A Commentary (2nd edn, 2012 OUP). 45

  ibid, MN 1–3.

46

  ‘Any vote of the Security Council, whether for the election of judges or for the appointment of members of the conference envisaged in Article 12, shall be taken without any distinction between permanent and non-permanent members of the Security Council.’ 47

  cf UNCIO XIII, 388ff.

48

  Fassbender, UN Security Council Reform, 163–70.

49

  cf Geiger on Art. 23 MN 2.

50

  UNGA Res 1991 (XVII) (17 December 1963) UN Doc A/RES/1991(XVII) and ‘Protocol of Entry into Force of the Amendments of Articles 23, 27 and 61 of the Charter of the United Nations adopted under General Assembly Resolutions 1991 A and B (XVIII) of 17 December 1963’ UN Doc A/6019 (1965). 51

  cf Witschel on Art. 108 MN 47.

52

  cf UNGA Res 2101 (XX) (20 December 1965) UN Doc A/RES/2101(XX), as well as UNTS 638, No 8132, 308–12. 53

  cf Witschel on Art. 109 MN 6, 20.

54

  For the ongoing debate on a possible reform of the SC cf MN 253ff.

55

  Under the system of the League of Nations, the wording of Art. 4 made it clear that voting rights in the Council were dependent upon continued membership of the League: ‘At meetings of the Council, each Member of the League represented on the Council shall have one vote …’ (emphasis added by author). 56

  cf Tams on Art. 5 MN 20–22.

57

  cf also Tams on Art. 5 MN 3–5, as well as C Leben and M Forteau, ‘Article 5’ in JP Cot, A Pellet, and M Forteau (eds), La Charte des Nations Unies, Commentaire article par article (3rd edn, Economica 2005) 538. 58

  UNGA Rules of Procedure of the General Assembly, Rule 140 UN Doc A/520/Rev.17 (2008) provides: ‘Should a member cease to belong to a Council before its term of office

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expires, a by-election shall be held separately at the next session of the General Assembly to elect a member for the unexpired term’ (emphasis added by author). 59

  For further details cf MN 203ff.

60

  For a discussion of the latter point cf MN 221; for the practice of the League of Nations cf MN 10. 61

  For details cf MN 116.

62

  cf CP/Leben, 186; N Bentwich and A Martin, A Commentary on the Charter of the United Nations (Kraus 1951) 25; A Verdross and B Simma, Universelles Völkerrecht (3rd edn, Duncker & Humblot 1984) 87; Friedrich Berber, Lehrbuch des Völkerrechts, vol 3 (2nd edn, Beck 1977) 234; P Guggenheim, Lehrbuch des Völkerrechts (Verlag für Recht und Gesellschaft 1948) 245; Tams on Art. 5 MN 29. 63

  For further details cf Krisch on Art. 39 MN 22, 25–27.

64

  As to recent DC practice on the matter cf eg UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973. 65

  cf Schweisfurth on Art. 34 MN 19.

66

  cf generally on this concept International Commission on Intervention and State Sovereignty (ICISS), ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (Ottawa International Development Research Centre, December 2001) para 1.41ff, available at accessed 13 February 2012; cf AL Bannon, ‘The Responsibility To Protect: The U.N. World Summit and the Question of Unilateralism’ (2006) 115 Yale LJ 1157ff; G Evans, ‘From Humanitarian Intervention to Responsibility to Protect’ (2006) 24 Wis Intl LJ 703ff; Gareth Evans (ed), The Responsibility to Protect: Ending mass atrocity crimes once and for all (Brookings Institution Press 2008) 38ff; N Dorr, ‘The Responsibility to Protect—an Emerging Norm?’ (2008) 19 Ir Stud Intl Aff 189ff. 67

  cf C Stahn, ‘The Responsibility to Protect: Political Rhetoric or Emerging Legal Norm’ (2007) 101 AJIL 99ff, 110; as well as D Bodansky and JR Crook, ‘Symposium: The ILC’s State Responsibility Articles, Introduction and Overview’ (2002) 96 AJIL 773, 785, 790. 68

  Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Merits) [2007] ICJ Rep. 69

  ibid, 222 at para 431.

70

  ibid, 107 at paras 153f; Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) [1996] ICJ Rep 616, para 31. 71

  Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (n 68) 221, para 430. 72

  ibid, 222, para 431.

73

  cf B Kessler, ‘The Duty to “Ensure Respect” Under Common Article 1 of the Geneva Conventions: Its Implications on International and Non-International Armed Conflicts’ (2001) 44 GYIL 498ff. 74

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 135ff; cf A Imsei, ‘Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion’ (2005) 99 AJIL

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102ff (114ff); D Kretzmer, ‘The Advisory Opinion: The Light Treatment of International Humanitarian Law’ (2005) 99 AJIL 88ff. 75

  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (n 74) 200 at para 158. 76

  Decision as to the Admissibility of Application no 71412/01 (Agim Behrami and Bekir Behrami v France) and Application no 78166/01 (Ruzhdi Saramati v France, Germany and Norway) European Court of Human Rights (2 May 2007) available at