The Law and Practice of the United Nations : Fifth Revised Edition [1 ed.] 9789004318533, 9789004318526

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The Law and Practice of the United Nations

Legal Aspects of International Organizations Edited by Niels Blokker

VOLUME 57

The titles published in this series are listed at brill.com/laio

The Law and Practice of the United Nations Fifth Revised Edition By

Benedetto Conforti† Carlo Focarelli

leiden | boston

Library of Congress Cataloging-in-Publication Data Names: Conforti, Benedetto, author. | Focarelli, Carlo, author. Title: The law and practice of the United Nations / by Benedetto Conforti, Carlo Focarelli. Other titles: Nazioni Unite. English Description: Fifth revised edition. | Leiden ; Boston : Brill Nijhoff, [2016] | Series: Legal aspects of international organizations ; volume 57 | Includes bibliographical references and index. Identifiers: LCCN 2016021885 (print) | LCCN 2016021999 (ebook) | ISBN 9789004318526 (hardback : alk. paper) | ISBN 9789004318533 (E-book) Subjects: LCSH: United Nations. Classification: LCC KZ4986 .C6613 2016 (print) | LCC KZ4986 (ebook) | DDC 341.23--dc23 LC record available at https://lccn.loc.gov/2016021885

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISSN 0924-4883 ISBN 978-90-04-31852-6 (hardback) ISBN 978-90-04-31853-3 (e-book) Copyright 2016 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Preface�����������������������������������������������������������������������������������������������������������������������xi Preface to the previous editions���������������������������������������������������������������������������xiii Abbreviations��������������������������������������������������������������������������������������������������������xvii General Bibliography������������������������������������������������������������������������������������������� xxv Introduction 1. Origins of the United Nations Charter������������������������������������������������������������1 A) From the Atlantic Charter to the San Francisco Conference������������������1 B) The San Francisco Conference, the entry into force of the Charter, and the United Nations membership����������������������������������������� 4 C) Relationship between the League of Nations and the United Nations��������������������������������������������������������������������������������������������� 6 2. The purposes of the United Nations��������������������������������������������������������������� 7 3. The organs���������������������������������������������������������������������������������������������������������� 8 4. The Charter as a treaty�������������������������������������������������������������������������������������10 5. Interpretation of the Charter��������������������������������������������������������������������������13 6. The power to interpret the Charter����������������������������������������������������������������16 7. The “rigidity” of the Charter and amendment and review procedures���������������������������������������������������������������������������������������������������������19 8. Present trends to revise the Charter������������������������������������������������������������� 22 Chapter 1.  Membership of the Organization Section I.  Acquisition of Membership Status 9. Admission�������������������������������������������������������������������������������������������������������� 29 10. Admission requirements�������������������������������������������������������������������������������� 30 11. Admission of mini-States�������������������������������������������������������������������������������34 12. Admission of neutralized States�������������������������������������������������������������������� 36 13. The so-called conditional admission and the non-existence of “positive” obligations of the UN organs���������������������������������������������������42 14. Readmission�����������������������������������������������������������������������������������������������������48 Section II.  Modifications in Membership Status 15. Suspension�������������������������������������������������������������������������������������������������������49 16. Expulsion���������������������������������������������������������������������������������������������������������� 52

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17. Withdrawal������������������������������������������������������������������������������������������������������� 52 18. Effects of State succession on membership status���������������������������������������54 19. Governments created as a result of revolutions or foreign military interventions������������������������������������������������������������������������������������� 59 20. Governments in exile��������������������������������������������������������������������������������������66 21. State succession and rules on credentials�����������������������������������������������������68 Chapter 2.  The Organs Section I.  The Security Council 22.  Composition of the Council. Election of non-permanent Members............................................................................................................ 75 23.  Voting procedure in the Council: A) The nature of the four Powers’ Statement at the San Francisco Conference........................................................................................................ 78 24.  B) The so-called veto power and the significance of abstention by a permanent Member.................................................................................80 25.  C) Absence of a permanent Member............................................................ 85 26.  D) The problem of the double veto................................................................86 27.  E) Abstention from voting by a Member party to a dispute.......................94 28.  F) Approval by “consensus”........................................................................... 101 29.  Participation in Security Council meetings of States which are not members of the organ........................................................................103 Section II.  The General Assembly 30.  Composition of the Assembly. Subsidiary organs..................................... 108 31.  Voting procedure in the Assembly. A) The “present and voting” majority.............................................................................................................111 32.  B) Simple majority and qualified majority................................................... 112 33.  C) Approval by “consensus”........................................................................... 121 Section III.  The Secretariat 34.  Appointment of the Secretary-General........................................................122 35.  The Secretariat staff and the legal nature of the employment relationships.....................................................................................................123 36.  Privileges and immunities of UN officials...................................................133 37.  The protection of UN officials.......................................................................137

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Section IV.  The Economic and Social Council and the Trusteeship Council 38.  Composition and functions of the Economic and Social Council������������������������������������������������������������������������������������������������������������147 39.  The Trusteeship Council������������������������������������������������������������������������������ 150 Section V.  The International Court of Justice 40.  Organization of the Court���������������������������������������������������������������������������� 151 41.  Election of judges�������������������������������������������������������������������������������������������153 Chapter 3.  The Functions Section I.  General Limits to the United Nations Functions 42. Limits ratione personae and ratione materiae���������������������������������������������157 43. The United Nations and non-Member States���������������������������������������������157 44. The domestic jurisdiction clause (Article 2, para. 7)���������������������������������167 45. A) The notion of domestic jurisdiction�������������������������������������������������������170 I. The legal notion���������������������������������������������������������������������������������170 II. The notion under Article 2, para. 7�������������������������������������������������172 III. Developments in the practice����������������������������������������������������������179 46. B) The meaning of “intervene”���������������������������������������������������������������������183 47. C) The significance of the exception in the last part of Article 2, para. 7���������������������������������������������������������������������������������������������185 48. D) Competence to interpret Article 2, para. 7��������������������������������������������189 Section II.  Maintenance of the Peace: Functions of the Security Council 49. Chapters VI and VII of the Charter�������������������������������������������������������������189 50. The power to seize the council���������������������������������������������������������������������193 51. Investigation��������������������������������������������������������������������������������������������������� 196 52. The peaceful settlement function under Chapter VI. A) Objective preconditions�������������������������������������������������������������������������� 203 53. B) Indications to the States of “procedures or methods” for settling differences that may endanger the peace�������������������������������������208 54. C) The indication of “terms of settlement”������������������������������������������������� 211 55. Action with respect to maintenance of the peace under Chapter VII. General remarks����������������������������������������������������������������������214 56. The determination of a threat to the peace, a breach of the peace, or an act of aggression�����������������������������������������������������������������������������������219

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57. The measures provided for by the Charter. A) Recommendations under Article 39���������������������������������������������������������������������������������������������236 58. B) Provisional measures (Article 40)����������������������������������������������������������240 59. C) Measures not involving the use of force (Article 41)���������������������������248 60. D) Measures involving the use of force (Articles 42 ff.). (a) Peacekeeping operations�������������������������������������������������������������������������281 61. (b) The authorization of the use of force by States������������������������������������298 62. (c) Administration of territories������������������������������������������������������������������319 Section III.  Maintenance of the Peace: The Functions of the General Assembly 63. Discussions and recommendations on general questions����������������������� 337 64. The peaceful settlement function���������������������������������������������������������������� 338 65. The problem of General Assembly powers regarding “action”. A) The solutions given by the Charter�������������������������������������������������������� 343 66. B) The alleged formation of customary rules��������������������������������������������348 Section IV.  Maintenance of the Peace: The Functions of the Secretary-General 67. Delegated functions and executive functions�������������������������������������������� 353 68. Autonomous initiatives for peaceful settlement��������������������������������������� 356 Section V.  Maintenance of the Peace and Regional Organizations 69. Regional actions “authorized” by the Security Council���������������������������360 70. Existing regional Organizations������������������������������������������������������������������366 Section VI.  Economic Co-operation and Action for Development 71. Political decolonization and economic decolonization. Co-operation for development�������������������������������������������������������������������� 375 72. The organs tasked with economic co-operation��������������������������������������� 376 73. Normative functions������������������������������������������������������������������������������������� 376 74. Operational functions������������������������������������������������������������������������������������381 75. Relations with Specialized Agencies�����������������������������������������������������������386 Section VII.  The Protection of Human Rights 76. General aspects of United Nations action���������������������������������������������������391 77. Action regarding individual countries�������������������������������������������������������396 78. Resolutions of a general nature������������������������������������������������������������������� 398

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79. The Human Rights Covenants and the Human Rights Committee�����������������������������������������������������������������������������������������������������400 Section VIII.  Decolonization and Self-Determination of Peoples 80. UN competence to decide on the independence of peoples under colonial domination��������������������������������������������������������������������������������������404 81. The self-determination of peoples��������������������������������������������������������������408 82. Trusteeship����������������������������������������������������������������������������������������������������� 412 83. The case of Namibia�������������������������������������������������������������������������������������� 414 Section IX.  Registration of Treaties 84. Effects of registration������������������������������������������������������������������������������������ 418 85. Effects of non-registration��������������������������������������������������������������������������� 419 Section X.  The Judicial Functions 86. The judicial settlement of disputes between States����������������������������������� 421 87. The advisory function of the International Court of Justice�������������������423 Section XI.  Financing the Organization 88. Compulsory contributions of the Member States������������������������������������� 433 89. Voluntary contributions�������������������������������������������������������������������������������442 90. Issuance of loans and other “alternative” funding methods��������������������443 Chapter 4.  The Acts 91. Recommendations to the States������������������������������������������������������������������445 92. Decisions��������������������������������������������������������������������������������������������������������450 93. Organizational resolutions��������������������������������������������������������������������������� 452 94. Operational resolutions�������������������������������������������������������������������������������� 453 95. Proposals, authorizations, delegations of powers or functions, approvals, directives, recommendations between the organs�����������������454 96. Declarations of principles���������������������������������������������������������������������������� 455 97. The UN resolutions and the rule of law: The duty of the organs to comply with the Charter and with international law���������������������������460 98. The observance of rules of procedure���������������������������������������������������������462 99. Illegality of acts and the role of consensualism in the United Nations system����������������������������������������������������������������������������������466 Index��������������������������������������������������������������������������������������������������������������������� 475

Preface Sadly on 17th January 2016, Professor Benedetto Conforti passed away only two weeks after delivering with me the final version of this volume for publication. In situations of this kind, any words are superfluous and it is his memory that remains. The version of the book that follows is exactly the one we wrote together, including the preface. * * * In this fifth edition, apart from the most minute updates throughout the whole book, the following developments in UN practice of the last six years, since the publication of the fourth edition in 2010, have been taken examined: the opinion of the International Court of Justice on the Kosovo case, the military intervention in Libya authorized by the Security Council, the European Court of Human Rights Al-Jedda ruling and the admission of South Sudan as the 193rd Member State of the United Nations; the designation of Palestine as a “Nonmember Observer State” by the General Assembly, and the consequent effects on the Palestinian acceptance of International Criminal Court jurisdiction; the rejection of a non-permanent seat by Saudi Arabia, waiting for the (unlikely) reform of the Security Council; the proposals made in practice and scholarship against the right of veto in the Security Council; the temporary absence from the Council of the delegate of the United States on the occasion of a resolution condemning Israel; the Russian vote within the Council on the Crimean issue with no objections concerning Russia’s obligation to abstain, being an involved State; the most recent case law of the Dutch courts and the European Court of Human Rights in favor of absolute immunity from jurisdiction on the part of the United Nations reiterated recently by a US court which dismissed a class action against the UN, held responsible for a cholera epidemic caused by Nepalese peacekeepers in Haiti; the spread of the “Ebola” virus and possession of chemical weapons by Syria constituting, according to the Council, a possible “threat to peace and international security”; the more recent “targeted” sanctions (together with the relevant monitoring committees and humanitarian exemptions) against ISIS, and the extension of existing ones against GuineaBissau, the Central African Republic, Yemen and South Sudan (as in the case of North Korea and Libya), as well as measures to dismantle chemical weapons in Syria and the latest previsions recommending “all necessary measures” against ISIS; the case law of national courts, the European Court of Human Rights and the Court of Justice of the European Union on human rights in the application of Security Council sanctions, in relation, inter alia, to Article 103

xii  Preface

of the Charter; the new peacekeeping missions, including an “Intervention Brigade” in the Democratic Republic of Congo with peace-enforcement ­characteristics, and the most recent Security Council directives and discussions on the subject, in particular those fostering multi-functionality and the integration of UN contingents with national police forces and local authorities; authorization of a limited use of force in the Central African Republic in order to safeguard the arms embargo, and in Libya, against the illegal exportation of crude oil; the creation of the Extraordinary African Chambers in the Senegalese courts with regard to “hybrid” criminal courts; the Dutch case law in favor of Member States’ responsibility supplying peacekeeping contingents; the debate on the application of the doctrine of responsibility to protect in Syria, with a view to a possible military intervention and humanitarian support to the population, and North Korea; the developments of certain topical issues relating to human rights today as the focus of the United Nations’ attention (corporate social responsibility, the protection of personal data in the digital age, sovereign debt and human rights) and a brief mention of the advisory opinion of 2012 rendered by the International Court of Justice on Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development. We wish to thank Raffaella Nigro for her precious assistance in the search for bibliographic updates. December, 2015 Benedetto Conforti and Carlo Focarelli

Preface to the previous editions Since its foundation in 1945, the United Nations has transformed itself, without any significant formal amendments to its Statute, to face the unforeseeable and ever-changing issues which have arisen in the international community. These now include, to name a few, global warming, AIDS, international terrorism and civil conflicts. Another impetus for the changes within the UN is the dramatic increase in membership. While the number of Member States has nearly quadrupled since its inception, decolonization has raised questions about the institutional fragility, or even failure, of some of them. Moreover, transnational non-governmental organizations have found that the UN provides a voice representing “civil society”. Sovereignty, limited by the principle of self-determination of peoples and human rights norms, has increasingly been discussed in terms of “responsibility” of the State towards its citizens; is has also been considered eroded by the massive, “borderless” flow of goods, services, capital, ideas, technologies, people, and risks in the global economy, including the unprecedented relevance of “virtual space” and the Internet. The UN has widely promoted the democratic form of government based on the western-liberal matrix, and since 1945 the number of States adhering to the process of democratization is proportionally at least five times higher than before the UN originated. The Organization has also dramatically increased the adoption of resolutions and treaties, the size of its Secretariat staff, the annual budget, the number and functions of peacekeeping operations, and so forth. Such a huge deployment of the UN’s means and resources has not always been crowned with great success. Of the countless activities carried out by the UN, one in particular has characterized the Organization’s work in recent years, namely, the notion that the pursuit of peace and international security is critically dependent on the internal stability of States. The underlying assumption is that States that are institutionally stronger, more democratic and respectful of its citizen’s essential rights, as well as the defense of the rule of law, the fight against the corruption of public authorities and the private use of institutions can ensure a more peaceful, safer and more just world. The Security Council, while not abandoning the original plan of the UN Charter to ensure peace and security through the prevention and suppression of acts of inter-state aggression, has largely used its powers to intervene within the States, especially those weakened and torn by conflict, thus ensuring the exercise of certain sovereign functions and in some cases the full range of governmental responsibilities.

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Because of its transformation and its current role in international governance, the UN can hardly be grasped without a comprehensive analysis. This edition reviews the life of the Organization in legal terms and in light of its actual practice. Compared to the previous publication (apart from the necessary updates), this edition contains a more articulated discussion of the Charter in Chapter VII and presents a variety of solutions to accommodate the most recent developments in practice and the presence of two authors. We are deeply grateful to Letizia Cinti and Raffaella Nigro for their great help in researching the bibliography and documentation. We would also like to thank the Roman office of the “Società Internazionale per l’Organizzazione Internazionale” (SIOI) for their patience and dedication in providing us with access to documents otherwise not available. Special thanks also goes to Katrina Malcolm for her extremely thorough and invaluable linguistic revision. February, 2010 Benedetto Conforti and Carlo Focarelli *** The third edition of the book, although all parts of it have been up-dated, is mainly focused on the practice of the Security Council. In particular the action of the Security Council under Chapter VII has been taken into account. The legal literature on Chapter VII has grown enormously in recent times, so that it is difficult to select what actually needs to be read. The legal aspects of the action or the inaction of the Security Council have even been discussed by ordinary people with regard to the war against Iraq. The importance of the role of the United Nations has become a leitmotiv of all debates on international politics. Consequently, the opinion often held in the past, according to which it was useless to deal with the legal aspects of the United Nations activity, can be considered as obsolete. I am deeply indebted to Angelo Labella, research fellow of the University of Naples, for help in selecting the bibliography, and to Rachael Kondak, barrister in London, for the review of the English text. September, 2004 Benedetto Conforti *** In the second edition of the English version no radical changes have been made, no radical changes having taken place in the structure and the activity of the United Nations. However, some new elements in practice, such as the

Preface to the previous editions   xv

power of the Security Council to provide for the civil administrations of territories (Kosovo, East Timor) have been taken into account. Despite the discouraging scenario offered by the international community to-day, the author still belongs to an irreducible group of individuals who believe in the rule of law as opposed to the “real Politik”, in the need for strengthening the UN system as opposed to the unilateral actions of powerful States, and in a genuine and universal fight for peace and security. I am grateful to Rachael Young for the help with the revision of the English text. March, 2000 Benedetto Conforti *** This volume is the up-to-date English version of the fifth Italian edition of a textbook on the United Nations which was first published in 1971 by CEDAM (Padua). The book aims to provide a comprehensive legal analysis of problems concerning membership, the structure of U.N. organs, their functions and their acts taking into consideration the text of the Charter, its historical origins, and, particularly, the practice of the organs. Developments in United Nations practice subsequent to 1971 have obviously been taken into account. As a general working criterion, the more recent practice has been added to the pre-existing one, rather than substituting it, even when past practice may appear to be obsolete. Indeed, one of the aims of the book is to trace the “story” of the United Nations from its birth precisely through an analysis of the practice. Moreover, since the Charter has never undergone any substantive modifications, one cannot exclude that what may appear to be old and obsolete today could become of current interest in the future. For this reason the examination of former practice will sooner or later become useful to anyone seeking to interpret the Charter. For instance, in 1975 the United States proposed the admission of the two Vietnams, which were separate countries at that time, and of the two Koreas, under the “package” technique. Thus the well-known 1948 advisory opinion of the International Court of Justice on the “package” proposed by the Soviet Union for collective admission in the 40s and 50s again became timely, despite its having appeared obsolete. In my own view a legal analysis which is free of dogmatism and firmly linked to practice can describe the role played by the United Nations in the past and at present better than many lengthy and inconclusive political or sociological studies.

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The book is very much focused on the Charter as it stands while it only marginally deals with reforms that might be introduced, such as those concerning the structure of the Security Council and the General Assembly. Indeed, it is difficult to foresee radical reforms, giving the U.N. an entirely new shape. This is particularly true with regard to endowing the Organization with the force and efficacy that would be needed for the maintenance of peace and security. Recent events have clearly shown how unfeasible such an endowment would be. I am indebted to Carlo Focarelli, Massimo Iovane and Angelo Labella for the help provided in the preparation of the manuscript and to Susan Fisher Francioni for the first English draft. November, 1995 Benedetto Conforti

Abbreviations Documents* ICJ

International Court of Justice. Pleadings, Oral Arguments, Documents ICJ Reports International Court of Justice. Reports of Judgments, Advisory Opinions and Orders PCIJ Reports Permanent Court of International Justice. Collection of Judgments ESCOR Economic and Social Council Official Records GAOR General Assembly Official Records ILC Yearbook International Law Commission Yearbook SCOR Security Council Official Records SC Rep. Repertoire of the Practice of the Security Council U.N.C.I.O. United Nations Conference on International Organization U.N.L.S. United Nations Legislative Series UN Rep. Repertory of the Practice of the United Nations Organs U.N.T.S. United Nations Treaty Series Journals AAAPSS AAHDH Act. DI ADel ADI ADL ADPILC ADSP AF Afr J AfYIL AfYIL AIDH

Annals of the American Academy of Political and Social Science Anuario de acción humanitaria y derechos humanos Actualité et droit international Anuario de derecho internacional Annuario di diritto internazionale Annales de droit de Louvain Annual Digest of Public International Law Cases Annales de droit et de sciences politiques Annuaire français de droit international African Journal of International Law African Yearbook of International Law African Yearbook of International Law Annuaire international de droits de l’homme

* UN Documents are usually quoted according to official acronyms. Sources of General Assembly and Security Council resolutions are not quoted since they can be easily found.

xviii  Abbreviations

AILR AJ AJCL AJIA AJICL ALR AmexDI AmexDI ANU ARIEL ASDI ASIL Proceed. AsJIL AUF AUJILP Austr Y AV AYIL BeJIA BoUILJ BoUILJ BrJIL Bruns’Z BuHRLR BYB CaLR ChJIL CI CILJSA CJIL CJTL CLP CLR CMLR CoILJ CommLB ConJIL

American Indian Law Review American Journal of International Law American Journal and Comparative Law Australian Journal of International Affairs African Journal of International and Comparative Law The Adelaide Law Review Anuario mexicano de derecho internacional Anuario mexicano de derecho internacional Annuaire des Nations Unies Austrian Review of International and European Law Annuaire suisse de droit international Proceedings of the Annual Meeting, American Society of International Law Asian Journal of International Law Annali dell’Università di Ferrara, Nuova serie American University Journal of International Law and Policy Austrian Yearbook of International Law Archiv des Völkerrechts Australian Yearbook of International Law Berkeley Journal of International Affairs Boston University International Law Journal Boston University International Law Journal Brooklyn Journal of International Law Zeitschrift für ausländisches öffentliches Recht und Völkerrecht Buffalo Human Rights Law Review British Yearbook of International Law California Law Review Chinese Journal of International Law La Comunità internazionale Comparative and International Law Journal of Southern Africa Chicago Journal of International Law Columbia Journal of Transnational Law Current Legal Problems Columbia Law Review Common Market Law Review Cornell International Law Journal Commonwealth Law Bulletin Connecticut Journal of International Law

Abbreviations  xix

CS

Comunicazioni e studi dell’Istituto di diritto internazionale e straniero dell’Università di Milano CWILJ California Western International Law Journal CYIL Czech Yearbook of International Law DdisP Digesto delle discipline pubblicistiche DDP Digesto di diritto pubblico Denv J Denver Journal of International Law and Policy DI Diritto internazionale DUDI Diritti umani e diritto internazionale DUE Il diritto dell’Unione Europea EA Europa-Archiv ECR European Court Reports ED Enciclopedia del diritto EGT Enciclopedia Giuridica Treccani EHRLR European Human Rights Law Review EI Etudes internationals EIA Ethics & International Affairs EILR Emory International Law Review EJIL European Journal of International Law EPIL Encyclopaedia of Public International Law FA Foreign Affairs FFWA The Fletcher Forum of World Affairs FoILJ Fordham International Law Journal FP Foreign Policy FW Die Friedens-Warte FYIL Finnish Yearbook of International Law GeJIL Georgetown Journal of International Law GlC The Global Community: Yearbook of International Law and Jurisprudence GlG Global Governance GLJ German Law Journal GöJIL Goettingen Journal of International Law GReP Global Responsibility to Protect GroJIL Groningen Journal of International Law GYIL German Yearbook of International Law HastICLR Hastings International and Comparative Law Review HaYIL Hague Yearbook of International Law HCLQ Hastings Constitutional Law Quarterly HILJ Harvard International Law Journal HLJ Hastings Law Journal

xx  Abbreviations

HLR HRLJ HRLR HRQ HV IA Moscow IA ICLQ ICLR IICLR IJ IJHR IJIL IJMGR ILF IllLR ILM ILQ Ilsa JIC InA Int. Org. Int. Pol. InYIL IOLR IowaLR IP IQ IR IRRC IrYIL IS ISJ IsLR IYHR IYIL JafIL Jap AIL JCSL JDI JEAIL

Harvard Law Review Human Rights Law Journal Human Rights Law Review Human Rights Quarterly Humanitäres Völkerrecht International Affairs (Moscow) International Affairs The International and Comparative Law Quarterly International Community Law Review Indiana International & Comparative Law Review International Journal The International Journal of Human Rights Indian Journal of International Law International Journal on Minority and Group Rights International Law Forum Illinois Law Review International Legal Materials International Law Quarterly LILSA Journal of International and Comparative Law International Affairs International Organization International Politics Indian Yearbook of International Law International Organizations Law Review Iowa Law Review International Peacekeeping India Quarterly: A Journal of International Affairs International Relations The International Review of the Red Cross The Irish Yearbook of International Law International Studies International Studies Journal Israel Law Review Israel Yearbook of Human Rights The Italian Yearbook of International Law Journal of African and International Law Japanese Annual of International Law Journal of Conflict and Security Law Journal du droit international Journal of East Asia and International Law

Abbreviations  xxi

JHIL JIA JICJ JIEL JIL JILD JILIR JinP JIS JLPS JPR JSL JWTL JYIL KJIL LJIL LLAICLR LLR LPICT LS MeJIL MinnJIL MisJIL MJIL MP YUNL NDI NDIApp NF NILR NJIL NoJIL NoTIR NTIR NUCM NULR NwULR NYIL NYUJILP

Journal of the History of International Law Journal of International Affairs Journal of International Criminal Justice Journal of International Economic Law Journal of International Law Journal of International Law and Diplomacy Journal of International Law & International Relations Journal of International Peacekeeping Journal of Intervention and Statebuilding The Journal of Law and Political Science Journal of Peace Research Journal of Space Law Journal of World Trade Law The Japanese Yearbook of International Law Korean Journal of International Law Leiden Journal of International Law Loyola of Los Angeles International & Comparative Law Review Liverpool Law Review The Law & Practice of International Courts and Tribunals Legal Studies Melbourne Journal of International Law Minnesota Journal of International Law Miskolc Journal of International Law Michigan Journal of International Law Max Planck Yearbook of United Nations Law Nuovo Digesto italiano Novissimo Digesto Italiano (Appendice) Nigerian Forum Netherlands International Law Review Netherlands Journal of International Law Nordic Journal of International Law Nordisk Tidsskrift for International Ret Nederlands Tijdschrift voor Int. Recht ONU, Cronique mensuelle/ONU, Cronique Natal University Law Review Northwestern University Law Review Netherland Yearbook of International Law New York University Journal of International Law and Politics

xxii  Abbreviations

NZW OIDU OY ÖZöR ÖZöRV PYIL QIL RADIC RBDI RC RCGI RDI RDIDC RDISDP RDMDG ReD RegDI RF RFD RGDIP RHDI RHDIE RIA RIDU RIS RISA RP RPI RQDI RRDI RREI RRSS RSPI RTDH SAYIL

Neue Zeitschrift für Wehrrecht Ordine internazionale e diritti umani Ocean Yearbook Österreichische Zeitschrift für öffentliches Recht Österreichische Zeitschrift für öffentliches Recht und Völkerrecht/Austrian Journal of Public International Law Polish Yearbook of International Law Questions of International Law (at ) Revue africaine de droit international et comparé/African Journal of International and Comparative Law Revue belge de droit international Recueil des cours de l’Académie de droit international Rivista della cooperazione giuridica internazionale Rivista di diritto internazionale Revue de droit international e de droit comparé Revue de droit international, de sciences diplomatiques et politiques Revue de droit militaire et de droit de la guerre Revista espanola de derecho internacional Revue égyptienne de droit international Revista de la Facultad—Universidad Nacional de Córdoba/ Facultad de Derecho y Ciencias Sociales Universidade Federal de Minas Gerais/Faculdade de Direito: Revista da Faculdade de Direito Revue générale de droit international public Revue hellénique de droit international Revue hellénique du droit international et étranger Review of International Affairs Rivista internazionale dei diritti dell’uomo Review of International Studies Revue internationale des sciences administratives Rassegna parlamentare Revue de la politique internationale Revue québécoise de droit international Revista româna de drept international Revue roumaine d’études internationales Revue roumaine de sciences sociales Rivista di studi politici internazionali Revue trimestrielle des droits de l’homme South African Yearbook of International Law

Abbreviations  xxiii

Schw.Z SD SIPRI SJIL SS StD StJIL SuTLR SYIL T TA TFLR TJCIL TLCP TuJICL UGLJ UILR UNJY UNLS UNLS UNMC VaJIL Virg.JIL VLR VN VRU VULR WILJ WinLJ YaJIL YIEL YILC YIMEL YLJ YWA

Schweizerisch Zeitschrift für internationales und europäisches Recht Security Dialogue Stockholm International Peace Research Institute Yearbook Syracuse Journal of International Law Studi senesi Studia diplomatica Stanford Journal of International Law Suffolk Transnational Law Review Singapore Yearbook of International Law Transactions of the Grotius Society Thesaurus Acroarium Tilburg Foreign Law Review Tulse Journal of Comparative and International Law Transnational Law and Contemporary Problems Tulane Journal of International and Comparative Law University of Ghana Law Journal University of Illinois Law Review United Nations Juridical Yearbook United Nations Legislative Series United Nations Legislative Series United Nations Monthly Chronicle, or UN Chronicle Vanderbilt Journal of Transnational Law Virginia Journal of International Law Virginia Law Review Vereinte Nationen Verfassung und Recht in Übersee Victoria University Law Review Wisconsin International Law Journal West Indian Law Journal Yale Journal of International Law Yearbook of International Environmental Law Yearbook of the International Law Commission Yearbook of Islamic and Middle Eastern Law Yale Law Journal Yearbook of World Affairs

General Bibliography Walther Schüking and Hans Wehberg, Die Satzung des Völkerbundes (Berlin: Vahlen, 1924). Jean Ray, Commentaire du Pacte de la société des Nations, selon la politique et la ­jurisprudenza des organs de la Société (Paris: Sirey, 1930). Lazare Kopelmanas, L’Organisation des Nations Unies. L’Organisation constitutionnelle de l’ONU (Paris: Librairie du Recueil Sirey, 1947), vol. 1. Herbert V. Evatt, The United Nations (Cambridge: Harvard University Press, 1948). Alf Ross, Constitution of the United Nations (Analysis of Structure and Functions) (København: Munksgaard, 1950). Norman Bentwich and Andrew Martin, A Commentary on the Charter of the United Nations (London: Routledge & Kegan, 1951). Hans Kelsen, The Law of the United Nations. A Critical Analysis of Its Fundamental Problems (New York: Stevens, 1951). Tomaso Perassi, L’ordinamento delle Nazioni Unite (Padova: Cedam, 1953). Inis L. Claude, Swords into Plowshares: The Problems and Progress of International Organization (New York: Random House, 1956). Benjamin V. Cohen, The United Nations: Constitutional Developments, Growth and Possibilities (Cambridge, Mass.: Harvard University Press, 1961). Sydney D. Bailey, The United Nations: A Short Political Guide (New York: Pall Mall, 1963). Norman J. Padelford and Leland M. Goodrich (eds), The United Nations in the Balance (Accomplishments and Prospects) (New York: Praeger, 1965). Richard A. Falk and Saul H. Mendlovitz (eds), The Strategy of World Order. The United Nations (New York: World Law Fund, 1966), vol. 3. Alf Ross, The United Nations: Peace and Progress (Totowa, N.J.: Bedminster Pr. 1966). Harry Wünsche, Die Vereinten Nationen (Berlin: Institut für internationale Beziehungen der Deutschen Akademia für Staatsund Rechtswissenschaft “Walter Ulbricht”, 1966). Maurice Waters, The United Nations (International Organization and Administration) (New York: Macmillan, 1967). Robert W. Gregg and Michael Barkun (eds), The United Nations System and Its Functions. Selected Readings (Princeton, N.J.: Van Nostrand, 1968). David C. Coyle and Arthur J. Goldberg, The United Nations and How It Works (New York: Columbia University Press, 1969). Leland M. Goodrich, Edward Hambro and Anne P. Simons, Charter of the United Nations, Commentary and Documents (New York-London: Columbia University Press, 1969, 3rd edn). Clarence W. Jenks, The World beyond the Charter in Historical Perspective (London: Allen and Unwin, 1969). William L. Tung, International Organization under the United Nations System (New York: Crowell, 1969). S.R. Gibbons and P. Morican, The League of Nations and UNO (London: Longman, 1970). Michel Virally, L’Organisation mondiale (Paris: Libraire Armand Colin, 1972). Mahdi Elmandjra, The United Nations System. An Analysis (London: Faber and Faber, 1973). Manlio Udina, L’Organizzazione delle Nazioni Unite (Introduzione e testi annotati) (Padova: Cedam, 1973, 2nd edn). I.G. Edmonds, The United Nations. Successes and Failures (Indianapolis-New York: The Bobbs-Merrill company, 1974). Leland M. Goodrich, The United Nations in a Changing World (New York-London: Columbia University Press, 1974).

xxvi  General Bibliography

Klaus Hüfner and Jens Naumann, Das System der Vereinten Nationen. Eine Einführung (Düsseldorf: Bertelsmann, 1974). Manuel Medina Ortega, La Organizacion de las Naciones Unidas, Su estructura y funciones (Madrid: Ed. Tecnos, 1974, 2nd edn). Herbert G. Nicholas, The United Nations as a Political Institution (London: Oxford University Press, 1975, 5th edn). Gottfried Zieger, Die Vereinten Nationen (Hannover: Niedersächsischen Landeszentrale für politische Bildung, 1976). Rüdiger Wolfrum, Norbert J. Prill and Jens A. Brückner (eds), Handbuch Vereinten Nationen (München: Beck, 1977). John W. Halderman, The Political Role of the United Nations: Advancing the World Community (New York: Praeger, 1981). David E.T. Luard, A History of the United Nations. The Years of Western Domination, 1945– 1955 (New York: St. Martin’s press, 1982), vol. 1. Bertrand G. Ramcharan, Keeping Faith with the United Nations (Dordrecht: Nijhoff, 1987). Victor Y. Ghebali, La crise du système des Nations Unies (Paris: Documentation Française, 1988). Amos Yoder, The Evolution of the United Nations (New York: Crane Russak, 1989). Franck Barnaby (ed), Building a more Democratic United Nations: Proceedings of CAMDUN-1 (London: F. Cass, 1991). Bruno Simma (ed), Charta der Vereinten Nationen (Kommentar) (München: Beck, 1991). Rüdiger Wolfrum (ed), Handbuch Vereinte Nationen (München: Beck, 1991, 2nd edn). Charles Chaumont, L’Organisation des Nations Unies (Paris: Pr. Univ. de France, 1992). Joachim W. Müller, The Reform of the United Nations (New York: Oceana, 1992), 2 vols. Adam Roberts and Benedict Kingsbury (eds), United Nations, Divided World: The UN’s Roles in International Relations (Oxford: Clarendon, 1993, 2nd edn.). Rüdiger Wolfrum and Christiane Philipp (eds), United Nations: Law, Policies and Practice (Dordrecht: Nijhoff, 1995). Christian Tomuschat (ed), The United Nations at Age Fifty: A Legal Perspective (The Hague: Kluwer Law International, 1995). Christopher C. Joyner (ed), The United Nations and International Law (Cambridge: Cambridge University Press, 1997). Martin I. Glassner, The United Nations at Work (Westport Ct: Praeger, 1998). Helmut Volger, A Concise Encyclopaedia of the United Nations (The Hague: Kluwer Law International, 2002). Henry G. Schemers and Niels Blokker (eds), International Institutional Law: Unity Within Diversity (Boston, Leiden: Nijhoff, 2003, 4th edn). Chadwick F. Alger, The United Nations System. A Reference Handbook (Santa Barbara, Calif.: ABC-CLIO, 2005). Peter R. Baehr and Leon Gordenker, The United Nations Reality and Ideal (HoundmillsBasingstoke: Basingstoke, 2005, 4th edn). Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds.), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd edn). Sven Bernhard Gareis and Johannes Varwick, Die Vereinten Nationen. Aufgaben, Instrumente und Reformen (Opladen: Budrich, 2006, 4th edn). Thomas G. Weiss and Sam Daws (eds), The Oxford Handbook on the United Nations (Oxford: Oxford University Press, 2007). Simon Chesterman, Thomas M. Franck and David M. Malone, Law and Practice of the United Nations (New York/Oxford: Oxford University Press, 2008). Robert Kolb, Introduction au droit des Nations Unies (Bâle/Bruxelles: Helbing Lichtenhahn, 2008). Andrea De Guttry and Fabrizio Pagani, Le Nazioni Unite. Sviluppo e riforma del sistema di sicurezza collettiva (Bologna: Il Mulino, 2010, 2nd edn).

General Bibliography   xxvii

Thomas G. Weiss, David P. Forsythe, Roger A. Coate and Kelly-Kate Pease (eds), The United Nations and Changing World Politics (Boulder, Colo.: Westview Press, 2010, 6th edn). Sergio Marchisio, L’ONU. Il diritto delle Nazioni Unite (Bologna: Il Mulino, 2010, 2nd edn). Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd edn) 2 vols. Frédérique Mestre-Lafay, L’Organisation des Nations Unies (Paris: PUF, 2013, 19th edn). Jochen A. Frowein, ‘United Nations (UN)’, EPIL (Oxford: Oxford University Press, 2nd edn, at , last updated March 2013) Loraine Sievers and Sam Daws, The Procedure of the UN Security Council (Oxford: Oxford University Press, 2014, 4th edn). Thomas G. Weiss et al., The United Nations and Changing World Politics (Boulder: Westview Press, 2014, 7th edn). Gary Wilson, The United Nations and Collective Security (London: Routledge, 2014). Jussi M. Hanhimäki, The United Nations: A Very Short Introduction (Oxford: Oxford University Press, 2015, 2nd edn). Katie Marsico, The United Nations (Ann Arbor, Mich.: Cherry Lake Publ., 2015). Laurence Peters, The United Nations: History and Core Ideas (Basingstoke: Palgrave Macmillan, 2015).

Introduction 1.  Origins of the United Nations Charter Select bibliography: Paul Guggenheim, L’organisation de la société internationale (Neuchâtel: Éd. de la Baconnière, 1944) 155 ff; Roberto Ago, L’organizzazione internazionale dalla Società delle Nazioni alle Nazioni Unite, 1 CI (1946) 5 ff; Hugh McKinnon-Wood, ‘The Dissolution of the League of Nations’, 23 BYB (1946) 317–23; Lazare Kopelmanas, L’Organisation des Nations Unies, I. L’Organisation constitutionnelle des Nations Unies (Paris: Recueil Sirey, 1947) 10 ff; Gilbert Murray, From the League to UN (London: Oxford University Press, 1948) 65 ff; Denys P. Myers, ‘Liquidation of League of Nations Functions’, 42 AJ (1948) 320–54; Clyde Eagleton, International Government (New York: Ronald Press, 1957) 288–315; Ruth B. Russel, A History of United Nations Charter (Washington: Brookings Inst., 1958); Miguel A. Marín, ‘Reflexiones sobre la Conferencia de San Francisco y la Carta de las Naciones Unidas’, 13 Revista de la Facultad de Derecho. Universidad Complutense. ONU: año XL (1987) 33–52; Robert C. Hilderbrand, Dumbarton Oaks: The Origins of The UN and the Search for Postwar Security (Chapel Hill: Univ. of North Carolina Pr., 1990); Philippe Drakidis, La Charte de l’Atlantique 1941: La Déclaration des Nations Unies 1942 (Besançon: Centre de Recherche et d’Information Politique et Sociale, 1995); Townsend Hoopes and Douglas Brinkley, Franklin D. Roosevelt and the Creation of the UN (New Haven: Yale University Press, 1997); Stephen Schlesinger, Act of Creation: The Founding of the United Nations (Boulder, Colo.: Westview, 2003); Emmanuelle Jouannet, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd edn), vol. 1, 1–24; Robert Kolb, Introduction au droit des Nations Unies (Bâle/Bruxelles: Helbing Lichtenhahn/Bruylant, 2008) 14–34; Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton: Princeton University Press, 2009); Daniel-Erasmus Khan, History, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd edn), vol. I, 1–23; Stephen Ryan, ‘The Great Powers and the United Nations’, in Brian J.C. MacKercher (ed.), Routledge Handbook of Diplomacy and Statecraft (London: Routledge, 2012) 240–51.

A)  From the Atlantic Charter to the San Francisco Conference The term United Nations was adopted during the Second World War by the States who were fighting against the Axis Powers. In a solemn declaration signed in Washington D.C. on January 11, 1942, these nations, besides undertaking to direct every effort towards the enemy’s defeat and agreeing not to sign a separate peace or armistice, accepted the principles laid down by President Roosevelt and Prime Minister Churchill in the 1942 Atlantic Charter. The Charter did not envisage the establishment of an organization or association of States that could replace the League of Nations; it did indicate, however, the necessity of creating a collective security system after the war

2  Introduction

capable of discouraging aggression (para. 8) and of establishing strong cooperation between the States in economic and social matters (para. 5). Collective ­security and co-operation in economic and social matters are today the fundamental aims of the United Nations Organization, or simply the United Nations (UN). Para. 8 of the Atlantic Charter established as follows: “They [the United States and Great Britain] believe that all of the nations of the world, for realistic as well as spiritual reasons, must come to the abandonment of the use of force. Since no future peace can be maintained if land, sea or air armaments continue to be employed by nations which threaten, or may threaten, aggression outside of their frontiers, they believe, pending the establishment of a wider and permanent system of general security, that the disarmament of such nations is essential”. Para. 5 stated that the United States and Great Britain “desire to bring about the fullest collaboration between all nations in the economic field with the object of securing, for all, improved labor standards, economic advancement and social security”. The United Nations Declaration was signed by twenty-six governments, some of them in exile. Another twenty-one governments subsequently adhered to it.

It was only at the Moscow Conference, in October 1943, that the establishment  of an international organization similar to the League of Nations was ­officially envisaged. The Declaration of the Four Nations who participated in the Conference (the United States, the Soviet Union, the United Kingdom and China) recognized “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”. Between the end of August and the beginning of October 1944 the same four governments that had taken part in the Moscow Conference met in Dumbarton Oaks, near Washington D.C., to lay down the foundations of the future world organization. In the meantime the United States Department of State had undertaken a series of studies, investigations and even public opinion polls in the preparation of its draft. The other three governments also presented drafts of their own, although with less ambitious procedures. The Dumbarton Oaks “proposals”, published at the close of the meetings, already contained all of what are the essential aspects of the UN today. The proposals confirmed that the purposes of the Organization were to maintain international peace and security, to develop friendly relations among nations, to promote co-operation in economic and social matters. The structure of the new body was to be based on the model of the Covenant of the League of Nations. It was stated that the basic organs would be the same four organs of the League: the Assembly (consisting of all Member States), the Council (made up of a limited number of States, with permanent seats given to

Origins of the United Nations Charter   3

the Great Powers), the Secretariat, headed by a Secretary-General, and the Court of Justice. The Dumbarton Oaks proposals presented, in contrast to, quite noteworthy differences with the League of Nations Covenant as far as the functions and powers of the organs were concerned. First of all, the Assembly (to become the General Assembly) remained the only organ with general competence, while the Council (to become the Security Council), which in the Covenant had had the same power as the Assembly, was given the exclusive task of maintaining international peace and security. Further, the powers of the Council were considerably widened. The proposals laid down in detail the measures to be adopted in the case of aggression or threat of aggression that can be found in Chapter VII of the UN Charter. Next to the General Assembly, but in a subordinate position (“under the authority” of the Assembly), the proposals placed an organ specifically devoted to the development of co-operation in social matters: the Economic and Social Council. Another important difference with the League of Nations Covenant concerned the voting system, as it was proposed that the Assembly and the Economic and Social Council decide by majority rather than by unanimity. The Dumbarton Oaks proposals can be found in U.N.C.I.O., vol. 3, p. 1 ff. (English text) and vol. 4, p. 1 ff. (French text). Along with the acts of the following San Francisco Conference, they form, for purposes of interpretation, the “preparatory work” (travaux préparatoires) of the UN Charter.

The Dumbarton Oaks proposals established that the Security Council would be made up of 11 members: five of them, at that time the so-called Great Powers (China, France, the Soviet Union, the United Kingdom and the United States), would be permanent members; the other six would be elected by the General Assembly for a two-year period. On the contrary, nothing regarding the voting system in the Council was agreed upon at Dumbarton Oaks. The problem was eventually discussed by Churchill, Roosevelt and Stalin at the Yalta Conference in February 1945. It was here that the rule, later to become Article 27 of the UN Charter, took shape. The rule provided each of the five permanent members with a veto power, that is, the possibility to block, by not concurring to an affirmative vote, the adoption of any decision by the Council that was not of a merely procedural nature. It is for this reason that the rule became known as the “Yalta formula”. The three powers participating in the Yalta meeting decided to hold a United Nations Conference in San Francisco on April 25, 1945 with the task of drawing up the Charter of the new world Organization “along the lines proposed… at Dumbarton Oaks”. France and China were invited to be considered “Sponsoring Governments” at the Conference. France, while agreeing to participate, refused to accept this title; China accepted it.

4  Introduction

(B)  The San Francisco Conference, the entry into force of the Charter, and present United Nations membership Fifty States took part in the San Francisco Conference. In addition to those countries that had already signed the United Nations Declaration, Argentina and Denmark and two of the Republics belonging to the Soviet Union, the Ukraine and Byelorussia, were invited. Although Poland had signed the declaration, it did not participate in the preparatory work since at the time it had two rival governments (one pro-West and one pro-USSR) and the Great Powers were not able to agree on which government to invite. When the Communist regime had prevailed after the Conference was over, Poland was treated as a participating State and thus considered one of the original members of the Organization. Byelorussia and the Ukraine, which figure as original members of the United Nations, certainly could not have been considered, at the time of the San Francisco Conference, as true States under international law, as they were not independent. Their participation in the San Francisco preparatory work and their membership in the United Nations had been decided at Yalta for political reasons: to increase the weight of the Soviet Union, both in the Conference (the only other participating Communist State was Yugoslavia) and in the future Organization. The Soviet Union was thus actually attributed three votes instead of one in the Conference and later in the General Assembly (where, under Article 18, para. 1, of the Charter, every member has one vote). Today, following the breakup of the Soviet Union at the end of 1991, Byelorussia (now called Belarus) and the Ukraine are independent and sovereign, as are the other States created by the dissolution. Another two of the countries participating in the Conference were not exactly States under international law. India was then a British dominion and the Philippines was a protectorate of the United States. However, both India and the Philippines were nearing independence, which was actually obtained by the Philippines in 1946 and by India in 1947. The following States participated in the San Francisco Conference: Argentina, Australia, Belgium, Bolivia, Brazil, Byelorussia, Canada, Chile, China, Columbia, Costa Rica, Cuba, Czechoslovakia, Denmark, the Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, the United Kingdom, Greece, Guatemala, Haiti, Honduras, India, Iran, Iraq, Lebanon, Liberia, Luxembourg, Mexico, the Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, the Philippines, Saudi Arabia, the Soviet Union, Syria, Turkey, the Ukraine, the Union of South Africa, the United States, Uruguay, Venezuela and Yugoslavia. The proceedings of the Conference are published in United Nations Conference on International Organization (U.N.C.I.O.) (London/New York, 1945), 19 ­volumes and indexes.

The San Francisco Conference took place between April 25 and June 26, 1945. Even a cursory glance at the preparatory work can reveal how dominant was the role played by the Great Powers in the Conference. One might say that the Charter was born in a certain sense as a constitution granted (octroyée). The basic outline sketched at Dumbarton Oaks was presented as unchangeable. Although the Conference could decide by majority (two-thirds) on the ­wording of the individual articles, the participants knew that any substantial change in

Origins of the United Nations Charter   5

the Dumbarton Oaks proposals would have resulted in the rejection by the Great Powers, or by some of them, of the new Organization, and that it would have then been useless to proceed with its founding. However, many other matters were discussed and numerous provisions were added at San Francisco, including some important ones. These were often adopted at the initiative of middle-sized or small States. Some examples are the provisions concerning colonies (the declaration regarding non-self-governing territories contained in Article 73 of the Charter, the provisions establishing the Trusteeship Council, placed, as was the Economic and Social Council, under the authority of the Assembly), Article 51 of the Charter on the right of self-defense, the rules, drawn from the Covenant of the League of Nations, concerning the registration of treaties, the prevalence of the Charter over any other international agreement (see § 4), the privileges and immunities of Secretariat officials within Member States’ domestic legal systems and so on. In contrast to, the few attempts made to even partially modify the “lines” laid down at Dumbarton Oaks, the few attempts aimed at avoiding that the efficacy of the new Organization would rest largely on the will and agreement of the Great Powers and, in the final analysis, would depend on their unfettered free choice, ended in failure. Suffice it to mention the opposition to the drafts that tended to invest the International Court of Justice with some kind of review power over the legality of the acts of the Organization, thus giving it the binding power to interpret the Charter as a whole (see U.N.C.I.O., vol. 13, p. 633 f. and p. 645 f.) or at least the provisions of Article 2, para. 7, of the Charter regarding domestic jurisdiction (ibid., vol. 6, p. 113 and p. 509 f.); or the vain attempts to obtain from the Great Powers, if not changes, at least an authentic interpretation of the Yalta formula (see § 1 A), so as to dissipate the doubts that the application of this formula would certainly have given (and indeed gave) rise to. At the request of the other States, the four Sponsoring Powers issued a Statement, later also subscribed to by France, in order to “clarify” the Yalta formula (Article 27, paras. 2 and 3 of the Charter), and especially to clarify when a Security Council resolution should be considered to be of a procedural nature, that is, under the formula, not subject to the veto. Actually, the Statement (published in U.N.C.I.O., vol. 11, p. 711 ff.), being the result of a compromise, is almost more obscure than the formula. On this point, see § 23. The Soviet Union stood out in defending the prerogatives of the Great Powers and in its distrust of the Organization. At the Yalta meeting, only with great difficulty had it been convinced to exclude the possibility of the veto on procedural questions. For a long time after the UN had been set up, the Soviet Union’s conduct within the Organization reflected the same recalcitrant attitude. It hardly needs to be pointed out that the Soviet attitude at San  Francisco  (and also afterwards) is explained in view of its ideological isolation at the time.

At the end of the Conference, the Charter as a whole was unanimously approved and signed by all the participating States. Under Article 110, para. 3,

6  Introduction

it was to enter into force once ratified by the five permanent members of the Security Council and by a majority of the other signatory States. This occurred on October 24, 1945. At the end of December of the same year all the fifty States that had taken part in the Conference (as well as Poland which, without having taken part, was allowed to sign) had ratified the Charter. These States constitute the “original members” of the Organization, in accordance with Article 3. Article 4 governs the admission procedure for new members. After the admission of the successor States of the former Soviet Union and the former Yugoslavia, as well as of some territories which were still under a colonialtype domination and, ultimately, of Montenegro in 2006 and South Sudan in 2011—the original and admitted members of the United Nations now number today 193 Members. With very few exceptions, all States of the world are members of the UN: Taiwan (Republic of China, ROC), which is still independent from the People’s Republic of China (PRC), was thrown out of the Organization when it was replaced by the latter in the United Nations in 1971 (see § 19); the Turkish Republic of Northern Cyprus has never been admitted as it has never been recognized by the overwhelming majority of the member States. Switzerland, which for many decades chose to remain outside, finally decided to become a member, and was admitted to the United Nations in September 2002 following a referendum. Other entities, like the Holy See, the International Red Cross and many inter-governmental and non-governmental organizations (NGOs) enjoy observer status. For a list of Member States of the United Nations, see . For the development of membership within the Organization from 1945 to date, see . South Sudan was admitted under Security Council Res. 1999 of 13 July 2011 and General Assembly Res. 65/308 of 14 July 2011 according to Article 4, para. 2 (see § 9). For States and other entities that are not members of the UN, see . For entities with UN observer status, see .

(C)  Relationships between the League of Nations and the United Nations The League of Nations, which formally survived up until the Second World War, was dissolved in April 1946, when the UN was already fully active. The Assembly of the League met for the last time from 8 to 18 April and, with a unanimous vote, solemnly decreed its own dissolution. Parallel resolutions of the Assemblies of the two Organizations provided for the transfer of a whole series of functions of a non-political nature from the League to the UN. In particular, provision was made for the transfer of the functions carried out by the League Secretariat (typical examples were those functions concerning international agreements, such as custody of instruments of ratification, of adhesion, of denunciation, and so on) and by the

The purposes of the United Nations   7

v­ arious ad hoc Committees set up by the League to promote economic and social co-operation among States. The former were assumed by the UN Secretariat and the latter by the Economic and Social Council. On the basis of a “common plan”, also approved by the two Assemblies, most of the real and personal property owned by the League was acquired by the United Nations. With regard to the UN, cf. Assembly resolutions of February 12, 1946, part I, A (transfer of Secretariat functions regarding international agreements) and part III (“common plan”), of November 19, 1946 and December 14, 1946 (both covering the transfer of non-political functions of the Secretariat and of various ad hoc Committees of the League). As for the League of Nations, the Assembly permitted the transfer of all non-political functions and approved the “common plan” in various resolutions, all of April 18, 1946 (see AJ (1948), p. 326 ff.; Int. Org. (1947), p. 246 ff.). For other more detailed information on the transfer of functions and property from one Organization to the other, cf. YUN (1946–47), p. 110 ff. and p. 261 ff.

The transfer of functions and property did not give rise to any disputes. It would therefore be futile to try to establish whether the transfer was the subject of a veritable agreement between the two Organizations, or between their Member States, or, yet again, whether there existed unilateral or parallel acts. Aside from the functions that were expressly “transferred”, the question has arisen whether the UN could be said to have succeeded to the League of Nations. In particular, whether some sort of succession… mortis causa (that is, succession governed by customary international law) has taken place in the functions of a political nature. This issue came up over the legal situation of Namibia (formerly South West Africa) before its independence in 1990, with regard to the functions that the League exercised over mandated territories, and will be discussed below (see § 83). 2.  The purposes of the United Nations A detailed analysis of the purposes of the United Nations is hardly possible, considering their very general scope. As we shall see when we deal with the functions of the organs, the scope of activity of the United Nations can be better identified in negative rather than in positive terms. It is easier to single out the matters with which the Organization cannot be concerned than those which are within its competence. Of fundamental importance in this regard is the provision of Article 2, para. 7, of the Charter, whereby the United Nations may not intervene in matters “which are essentially within the domestic jurisdiction of any State”. The vagueness of its purposes, which gives the UN the nature of a political entity, can be immediately perceived from the listing in Article 1 of the Charter. This listing includes: maintenance of international peace and security;

8  Introduction

­ evelopment of friendly relations among Nations, based on respect for the d principle of equal rights and the self-determination of peoples; the achievement of international co-operation regarding economic, social, cultural and humanitarian issues; promoting respect for human rights and fundamental freedoms without distinction as to race, sex, language or religion. It is obvious how all-inclusive, especially the next to the last of these categories, is. Even if up to now UN activity has been carried out in all of the above areas, the following can be noted: in the years immediately following the birth of the Organization problems concerning maintenance of peace were considered the most important; between 1950 and 1960 the greatest results were achieved regarding decolonization, within the framework of the principle of self-­ determination of peoples; in the 1970s efforts began to be concentrated on co-­operation in economic, social, cultural and humanitarian fields, in the hope—unfortunately today still only a hope—of eliminating or at least of weakening the serious inequalities existing among the States and of assuring all people equal human dignity and a better future; finally, after the fall of the Berlin Wall, action is once again being taken with regard to the maintenance of international peace and security, mostly where international peace is threatened or violated by crises arising inside individual States. 3.  The organs Article 7 of the Charter establishes as principal organs the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice, and the Secretariat. Among them, the Security Council and the General Assembly have a fundamental role. The Council consists of 15 members (11 until 1965 when membership was increased, as the result of an amendment to the Charter, in order to take into account the increase in the over-all membership in the Organization), of whom 5 are permanent members, enjoying the so-called veto power, and 10 are elected for a two-year period by the General Assembly. The Security Council is the organ in the Organization with the greatest powers. It has the exclusive power to decide the measures to be taken against States responsible for aggression or for threats to the peace. The General Assembly, in which all States are represented and have equal weight in the voting, can be concerned with any matter that is within the scope of the Charter, but its powers are very limited and come down, with rare exceptions, to the power to adopt “recommendations”, i.e. non-binding acts, and to promote co-operation among  States by means of treaties, i.e. acts that require the ratification of each State before entering into force. The Secretariat—or, rather, the SecretaryGeneral  who heads it and is appointed by the General Assembly upon the

The organs   9

r­ecommendation of the Security Council—is an organ with administrative functions. Even if they are called principal organs in Article 7, the Economic and Social Council and the Trusteeship Council in effect have a subordinate position with respect to the General Assembly, in so far as they are “under the authority” of the Assembly (Articles 60 and 87 of the Charter). In carrying out their functions they are compelled to follow the directives of the Assembly. Sometimes their task is limited to the preparation of measures that are then to be formally adopted by the Assembly (see, for example, Articles 62, para. 3, and 85). In any case, they do not have decision-making powers. The Economic and Social Council, whose field of activity is clear from its name, consists of 54 members elected by the Assembly for three years. The Trusteeship Council (trusteeship is a regime of administration of colonial-type territories under the UN oversight that, in recent years, has exhausted its function, somewhat similar to the former system of League of Nations mandates) has a membership that varies, in that the number of its members depends on the number of States administering trust territories (Article 86). The International Court of Justice, consisting of 15 judges, is defined by Article 92 as the “principal judicial organ” of the United Nations. Its activity is governed both by the Charter and by the annexed Statute. In the settlement of disputes between States, the Court presents the traditional characteristics of international tribunals: its jurisdiction rests on agreement between the parties. Alongside the function performed by the Court in contentious proceedings is its advisory function: under Article 96 of the Charter, the General Assembly, the Security Council or other organs so authorized by the Assembly may request the Court to give an advisory opinion on any legal question. These opinions are neither obligatory nor binding: the organ is neither obligated to request them nor required to conform to them. The structure, functioning and powers of the organs will be analyzed in the next chapters. Other organs (subsidiary organs, the Administrative Tribunal, and so on) whose establishment has raised problems in practice or which carry out important functions, will also be taken into consideration.

The Security Council, the General Assembly, the Economic and Social Council, and the Trusteeship Council are organs made up of States. This implies that the persons who, with their vote, concur in making a collective decision are organs of their own State and express the will of their State. The Secretary-General and the International Court of Justice, on the contrary, are organs made up of private individuals, meaning that the Secretary and the judges take office as private persons, without expressing the will of any State and without receiving or, rather, with the obligation not to receive, instructions from any State.

10  Introduction

4.  The Charter as a treaty Select bibliography: Lazare Kopelmanas, L’Organisation des Nations Unies, (Paris: Recueil Sirey, 1947) vol. 1, 165 ff; Georges Kaeckenbeeck, ‘La Charte de San Francisco dans ses rapports avec le droit international’, 70 RC (1947-I) 113–329; Placido Zancla, Saggio sullo statuto dell’ONU. In riguardo alla costituzione materiale della società internazionale (Palermo: Priulla, 1951); Charles de Visscher, Problèmes d’interprétation judiciaire en droit international public (Paris: Pedone, 1963) 141; Jochen Erler, ‘International Legislation’, 2 CYIL (1964) 153–63; Riccardo Monaco, Lezioni di organizzazione internazionale (Torino: Giappichelli, 1965), vol. 1, 44–56; Rolando Quadri, Diritto internazionale pubblico (Napoli: Liguori, 1968, 5th ed), 351–58; Joël Rideau, Juridictions internationales et contrôle du respect des traités constitutifs des organisations internationales (Paris: Pichon, 1969) 4–12; Ronald St. J. MacDonald, ‘The United Nations Charter: Constitution or Contract?’, in Ronald St. J. MacDonald and Douglas M. Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory (The Hague: Nijhoff, 1983), 889 ff; Blaine Sloan, ‘The UN Charter as a Constitution’, 1 Pace Yearbook of International Law (1989) 61–126; Pierre-Marie Dupuy, ‘The Constitutional Dimension of the Charter of the UN Revisited’, 1 MP YUNL (1997) 1–33; Bardo Fassbender, UN Security Reform and the Right of Veto: A Constitutional Perspective (The Hague: Kluwer Law International, 1998), Chapters 1–6; Id., ‘The United Nations Charter as Constitution of the International Community’, 36 CJTL (1998) 529–619; Ronald MacDonald, ‘The Charter of UN in Constitutional Perspective’, 20 Austr Y (1999) 205–31; Id., ‘The Charter of the United Nations as a World Constitution’, in Michael N. Schmitt (ed), International Law Across the Spectrum of Conflict. Essays in Honour of Professor L.C. Green on the Occasion of his Eightieth Birthday (Newport, R.I.: Naval War College, 2000) 263–300; Kenneth Manusama, ‘Traces of “Constitutionalism” in the International Legal Discourse on the UN Charter’, 3 Griffin’s View on International and Comparative Law (2002) 16–25; Thomas M. Franck, ‘Is the U.N. Charter a Constitution?’, in Jochen Abr. Frowein and Tono Eitel (eds), Verhandeln für den Frieden—Negotiating for Peace—Liber Amicorum Tono Eitel (Berlin; Heidelberg: Springer, 2003) 95–106; Ronald St. John MacDonald and Douglas M. Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Boston/Leiden: Martinus Nijhoff, 2005); Sandra Szurek, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd edn), vol. 1, 29–68; Jeffrey L. Dunoff and Joel P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge: Cambridge University Press, 2009); Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (Oxford: Oxford University Press, 2009); Bardo Fassbender, The United Nations Charter as the Constitution of the International Community (Leiden: Nijhoff, 2009); Jeffrey L. Dunoff and Joel P. Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge: Cambridge University Press, 2009); Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (Oxford: Oxford University Press, 2009), reviewed by Carlo Focarelli, 104 AJ (2010) 557–64.

The Charter, of which the Statute of the International Court of Justice is an integral part, is an international treaty. In so far as it gives rise to a set of organs that are designed to carry out basic functions within the international community, such as maintenance of peace, it is usually considered also as a kind of constitution. For some scholars it should even be considered as the ­constitution

The Charter as a treaty   11

of the international community as a whole. The fact that some of its provisions envisage the possibility of the Organization taking measures involving nonMember States would contribute to this, something considered to be in contradiction with (or not explicable in terms of) the principle that treaties have no effect on third parties (pacta tertiis neque nocent neque prosunt) (see § 43). However, the basis of the constitutional thesis primarily lies in the fact that over the years the Charter has been interpreted in ways substantially farremoved from its original stipulation and that it sanctions the fundamental principles of today’s international community. Since, in principle, international treaties should be interpreted in the light of the circumstances existing at the time of their stipulation, so as to respect the will of the parties, and have an identical formal status, the proponents of the constitutional thesis consider it to be correct and more realistic to see the Charter as an instrument that— unlike all other treaties, and in a manner not dissimilar from national constitutions, as for instance the US constitution—must be interpreted in the light of current circumstances and places itself above other international obligations, whether they stem from treaties or other sources. Of course, when talking of the Charter as a “constitution”, while having in mind national constitutions, the aim is not that of extending to the Charter all their characteristics, which among other things vary greatly from state to state, but only that of recognizing the Charter as a somehow “superior” legal instrument and susceptible to an evolutionary interpretation. The constitutional aspect of the UN should not be exaggerated. The Charter is and remains a treaty. It is subject to the principles that govern international agreements and a State is not bound by it if such State does not express a willingness to adhere to it. In other words, the UN remains a voluntary community, not an obligatory one, even if today nearly all States are members: it is hard to challenge the fact that a State, if so wishes, can decide to forgo membership and not be bound by the Charter. As far as the practice is concerned, even if the Charter is regarded as a treaty and therefore not necessarily qualified as a “constitution”, it is still possible to hold that unwritten rules have arisen along with, or in derogation of, the provisions laid down at San Francisco. Among the sources of international law, there is customary law. We shall see through the course of this book that certain customary rules have developed within the UN system, thereby supplementing the Charter or derogating from it. If account is taken of the fact that the Charter has remained formally unchanged, except for minor amendments, for more than sixty years, customary rules can give a vital flexibility to the action of the UN organs. However, a great deal of caution is necessary in ascertaining customary law of this kind. It is not enough that a certain principle or a certain rule has been observed over

12  Introduction

a period of time, even a lengthy period, by the UN organs and their majorities of the day. It is necessary also to pay attention to the conduct, to the reactions of the individual States, to the capacity of the individual States to effectively oppose majority tendencies. Besides, it is quite difficult to consider the Charter as a treaty that is formally “above” (or of a “higher rank” compared to) other international norms, apart from Article 103 of the Charter itself, which does sanction its prevalence over other obligations (“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”), yet always limited to treaty provisions. The above suggests that the Charter should be interpreted rigorously and— without discrediting its peculiarities—according to the criteria followed with international treaties. First of all, it is necessary to determine what the drafters intended to establish when they formulated the Charter and then, in case there exists subsequent divergent practice, what legal meaning should be attributed to it. To consider immediately and exclusively, or nearly so, the current practice is akin to forgetting that the practice has evolved from the Charter, sometimes confirming, sometimes supplementing and sometimes derogating from it. In so doing, among other things, the serious misunderstandings that the assimilation of the Charter to a constitution inevitably generates can be avoided, such as that concerning the operation of a centralized judicial review mechanism with its power to overturn unconstitutional rules, a mechanism that is provided for in some national constitutions (such as the US one), but is nonexistent within the UN. An account of the customary rules developed within the UN will be given when dealing with the individual fields they relate to. We will also see that in some areas (e.g. decolonization) unwritten law has greatly expanded the sphere of competence of the organs, giving them, for instance, binding powers not envisaged by the Charter against Member States (see § 80); that no obstacles stand in principle to such an extension, since also for the treaties establishing international organizations it does not seem appropriate to depart, at least at present, from the traditional rule that customary law and the law of treaties shall have equal power and the first may well overrule, repeal or amend the second (for a contrary view cf. the dissenting opinion of Judge Gerard Fitzmaurice, in ICJ Reports 1971, p. 282).

The provisions of the Charter primarily govern the UN organs’ functions and acts. There are, however, also provisions concerned with relations between Member States. Mention may be made of Article 2, paras. 3 and 4, under which the members “shall settle their international disputes by peaceful means” and “shall refrain in their international relations from the threat or use of force”, as well as of Article 51, which recognizes the right of every Member State to act in self-defense against an armed attack and until the Security Council has

Interpretation of the Charter   13

intervened to maintain international peace and security. However, these provisions are closely connected with the organs’ functions and acts in so far as the possibility of their being applied in practice depends on the actual functioning of the Organization. For example, the prohibition of the use of force makes little sense unless it is considered within the framework of the Organization normally exercising its centralized powers regarding the maintenance of international peace and security. This implies that our treatment will leave out rules and institutions of public international law that could easily and more comprehensively be found in international law books. In contrast to, the focus will be on rules governing the Organization, including international law rules insofar as they operate in connection with UN organs’ functions and acts. 5.  Interpretation of the Charter Select bibliography: Shabtai Rosenne, ‘United Nations Treaty-Practice’, 86 RC (1954II), 295; Karl Zemanek, ‘Internationale Organisationen als Handlungseinheiten in der Völkerrechtsgemeinschaft’, 7 ZöR (1956) 335–72; Georg Schwarzenberger, International Law (London: Stevens, 1957), vol. 1, 517–32; Ludovico M. Bentivoglio, La funzione interpretativa nell’ordinamento internazionale (Milano: Giuffrè, 1958) 128; Badr Kasme, La capacité de l’ONU de conclure des traités (Paris: Pichon & Durand-Auzias, 1960) 49 ff; Johannes W. Schneider, Treaty-Making Power of International Organizations (Genève: Droz, 1963) 135–42; Charles de Visscher, Problèmes d’interprétation judiciaire en droit international public (Paris: Pedone, 1963) 140 ff; Wilhelm Wengler, Völkerrecht (Berlin; Heidelberg: Springer, 1964), vol. 2, 1212–213; Ervin P. Hexner, ‘Teleological Interpretation of Basic Instruments of Public International Organizations’, in Salo Engel and Rudolf A. Métall (eds), Law, State, and International Legal Order; Essays in Honor of Hans Kelsen (Knoxville: University of Tennessee Press, 1964) 119–38; Oscar Schachter, ‘Interpretation of the Charter in the Political Organs of the United Nations’, ibid., 269–83; Luigi Ferrari Bravo and Andrea Giardina, ‘Commento all’art. 235’, in Rolando Quadri, Riccardo Monaco and Alberto Trabucchi (eds), Commentario CEE (Milano: Giuffrè, 1965) 1699–716; Joël Rideau, Juridictions internationales et contrôle du respect des traites constitutifs des organisations internationales (Paris: Pichon, 1969) 237–68; Francesco Capotorti, ‘Il diritto dei trattati secondo la Convenzione di Vienna’, in Convenzione di Vienna sul diritto dei trattati (Padova: Cedam, 1969) 35–39; Manuel Rama-Montaldo, ‘International Legal Personality and Implied Powers of International Organizations’, 44 BYB (1970) 111–55; Krzysztof Skubieszewski, ‘Remarks on the Interpretation of the United Nations Charter, in Rudolf Bernhardt and Hermann Mosler (eds), Völkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte. Festschrift für Hermann Mosler (Berlin/Heidelberg: Springer, 1983) 891–902; A.I.L. Campbell, The Attitudes and Practices of the Specialised Agencies and U.N. Organs and the Interpretation of their Basic Constitutions, Juridical Review (1986) 177–91; Krzysztof Skubiszewski, ‘Implied Powers of International Organizations’, in Yoram Dinstein and Mala Tabory (eds), International Law at a Time of Perplexity: Essays in Honor of Shabtai Rosenne (Dordrecht: Nijhoff, 1989); Mario Giuliano, Tullio Scovazzi and Tullio Treves, Diritto internazionale, Parte generale, (Milano: Giuffrè, 1991) 355–57; Gaetano Arangio-Ruiz, ‘The “Federal Analogy” and the UN Charter Interpretation’, 8 EJIL (1997) 1–28; David Malone, ‘The Security Council in the Post-Cold War Era: A Study in the Creative Interpretation of the U.N. Charter’, 35 NYUJILP (2003) 487–517; Per Sevastik, ‘Reflections on the Interpretation of the UN Charter and its Binding

14  Introduction Force’, in Diana Amnéus (ed), Peace and Security: Current Challenges in International Law (Lund: Studentlitteratur, 2004) 23–51; Monica Lourdes de la Serna Galván, ‘Interpretation of Article 39 of the UN Charter (Threat to the Peace) by the Security Council: Is the Security Council a Legislator for the Entire International Community?’, 11 AmexDI (2011) 147–85; Stefan Kadelbach, ‘Interpretation of the Charter’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. I, 71–99; Maurizio Arcari, ‘Limits to Security Council Powers under the UN Charter and Issues of Charter Interpretation’, 32 PYIL (2013) 239–57.

Since it is an international treaty, the Charter must be read according to commonly accepted rules on the interpretation of treaties. While this is uncontested in principle, many attempts have been made to refer to special rules that should be applied both to the Charter and, more generally, to the constitutive agreements of international Organizations. These attempts reflect the previously discussed view that the Charter should not be considered only as an agreement but as a constitution, if not the constitution of the world community, and they are based on the similarities between the UN organs and the administrative or legislative organs of a State. The International Court of Justice took this direction when it made use of the so-called theory of implied powers in a number of opinions dealing with problems of interpretation of the Charter. According to the theory of implied powers, which has been developed particularly by the United States Supreme Court in order to extend the powers of the federal government to the detriment of the States, every organ has available not only the powers expressly attributed to it by the pertinent constitutional provisions but also all the powers necessary for exercising its express powers. In applying this theory to the UN organs, the International Court of Justice has considerably extended their reach, even inferring that certain powers of the organs stem directly and exclusively from the purposes of the Organization, purposes that, as seen, are extremely vague. Resort to the theory of implied powers clearly clashes with the once dominant view that international agreements should be interpreted restrictively in so far as they would involve in any case a limitation of the sovereignty and freedom of States. Certainly today this view seems obsolete and contradicted by the fact that co-operation among States continues to grow stronger. Indeed, international law should be construed in line with the principles elaborated upon by the general theory of law. Treaty norms should consequently be interpreted broadly or restrictively according to the wording of the text, and its object and purpose. Extreme caution should be used in transferring onto the plane of the UN and of international law doctrines that have been developed in domestic constitutional law. The existence of an analogy between State organs and UN organs is highly questionable insofar as the UN organs lack the effective capacity to impose their decisions on their addressees, which is a key

Interpretation of the Charter   15

feature of State organs. The theory of implied powers can be used in interpreting international treaty rules if it remains within the limits of a broad interpretation, if it serves to guarantee to an organ the full exercise of the powers assigned to it by the Charter. The tendency of the International Court of Justice to use such theory to infer powers from the provisions concerning the general purposes of the Organization does not, on the contrary, seem to be wholly justified and in most cases has proved ineffective. The Advisory Opinion of the Court that contained the most precise and also the widest formulation of the theory of implied powers is the well-known one of April 11, 1949 concerning Reparation for injuries suffered in the service of the United Nations (ICJ Reports 1949, p. 174 ff., especially p. 180: “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 p. 182: “… the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are…essential to the performance of its duties”). Here, the Court seems to have drawn implied powers… from implied functions! Cf. also the Opinions of July 13, 1954 on The Effects of awards of compensation made by the United Nations Administrative Tribunal (ICJ Reports 1954, p. 57) and of July 7, 1962 on The question of certain expenses of the United Nations (Article 17, paragraph 2, of the Charter) (ICJ Reports 1962, p. 168). We will go back to each of these decisions when we examine the specific issues they deal with. The Court has been more cautious when dealing with constituent instruments of the UN specialized agencies, which are independent international organizations although linked to the United Nations (see § 75). See the Opinion of July 8, 1996 (ICJ Reports 1996, para. 28) on the Legality of the use by a State of nuclear weapons in an armed conflict, which denies that this question pertains, even implicitly, to the scope of the World Health Organization (WHO).

While the common rules of interpretation of treaties apply to the Charter, it is beyond the scope of this book to examine them thoroughly. Suffice to mention that the tendency prevalent today on the issue is towards abandoning the socalled subjective method, a method borrowed from the realm of contracts in municipal law. This method would require in all cases and as far as possible that the effective intentions of the parties be sought, as opposed to their declared intentions. As a general rule, on the contrary, international treaties must be given the meaning that is clear in their text, that is evident from the logical connections between the various parts of the text, and that is in harmony with the object and purpose of the act as they result from the text. In this approach, the preparatory work, in which the effective intentions of the parties are likely to be found, have a supplementary function. Recourse may be made to them only when the text presents ambiguities or gaps. In practice the preparatory work serves primarily to support and strengthen interpretations that have already been, at least to a certain degree, obtained from the text of the treaty. It is indeed rare, and it is even rarer with regard to the UN Charter, that the ambiguities of the text do not reflect ambiguities in the preparatory work. This

16  Introduction

is because behind ambiguous provisions there is nearly always a solution of compromise. As regards the interpretation of a treaty authenticated in two or more languages, such as the UN Charter—equally authentic in five languages (Chinese, French, English, Russian, and Spanish) under Article 111 of the Charter itself—the commonly accepted view is that in cases of divergences in meaning between different texts the meaning more in line with the object and purpose of the treaty is to be preferred. The 1969 Vienna Convention on the Law of Treaties favors the “objective” method of treaty interpretation. Article 31 of the Vienna Convention lays down the general principle: “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”; the only significant exception to the principle is the provision of para. 4, according to which “A special meaning shall be given to a term if it is established that the parties so intended”. Article 32 considers the preparatory work as a supplementary means of interpretation to be used when the examination of the text “leaves the meaning ambiguous or obscure or… leads to a result which is manifestly absurd or unreasonable”. Article 33, para. 4, of the Vienna Convention, dealing with the interpretation of treaties authenticated in two or more languages, provides that “when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted”. (at ). It is worth noting that Arabic was added in 1973 as a sixth UN official language used in meetings and documents, while the Secretariat only uses English and French as working languages.

6.  The power to interpret the Charter Select bibliography: Lazare Kopelmanas, L’Organisation des Nations Unies, I, (Paris: Recueil Sirey, 1947) 253 ff; Hans Kelsen, The Law of the United Nations (New York/London: Stevens, 1950) 738–39; Hans A. Schwarz-Liebermann von Wahlendorf, Mehrheitsentscheid und Stimmenwägung (Tübingen: Mohr, 1953) 136; Angelo P. Sereni, Diritto internazionale (Milano: Giuffrè, 1960), vol. 2, 984–86; Finn Seyersted, ‘Settlement of Internal Disputes of Intergovernmental Organizations by Internal and External Courts’ (Stuttgart: Kohlhammer, 1964); Leo Gross, ‘The United Nations and the Rule of Law’, 19 Int. Org., 1965, pp. 538–61; Benedetto Conforti, La funzione dell’accordo nel sistema delle Nazioni Unite (Padova: Cedam, 1968) 58 ff; Joël Rideau, Juridictions internationales et contrôle du respect des traités constitutifs des organisations internationales (Paris: Pichon, 1969) 237–68; Gaetano Arangio-Ruiz, ‘The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations’, 137 RC (1972-III), 503 ff; Mohammed Bedjaoui, ‘Du contrôle de légalité des actes du Conseil de sécurité’, in François Rigaux (ed), Nouveaux itinéraires en droit. Hommage à François Rigaux (Bruxelles: Bruylant, 1993) 69–110; Id., The New World Order and the Security Council. Testing the Legality of its Acts (Dordrecht: Nijhoff, 1994); Louis B. Sohn, ‘The UN System as Authoritative Interpreter of its Law’, in Oscar Schacther and Christopher C. Jovner (eds), United Nations Legal Order (Cambridge: Cambridge University Press, 1995) 169–229; Stefan Kadelbach, ‘Interpretation of the Charter’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus

The power to interpret the Charter   17 (eds) The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. I, 71–99.

One of the key problems of the UN concerns the power of the UN organs to interpret the Charter provisions. There is no organ in the UN that has special power to interpret the Charter with binding effects for the other organs and for Member States. Under Article 96 of the Charter the International Court of Justice is empowered to give advisory opinions on any “legal question”, including advisory opinions on interpretation of the Charter. However, this activity, on the one hand, may not be requested by States but only by certain organs and, on the other, does not give rise to binding decisions: neither the organ requesting the opinion nor States are bound to comply with the ICJ’s opinion. The proposal made at the San Francisco Conference to give the Court a kind of control over the legality of UN acts (a review power that would have implied a kind of monopoly by the Court over the interpretation of the Charter rules) was, as mentioned, strongly opposed and then dropped (see U.N.C.I.O., vol. 13, p. 633 f. and p. 645 f.). On the other hand, the view that would assign the General Assembly a preeminent role regarding Charter interpretation with respect to the other organs and Member States is untenable. This view finds no basis in the preparatory work of the San Francisco Conference, where it was clearly stated that any conflict between two organs over interpretation of the Charter would have to be settled by an impartial organ, for example, by the International Court of Justice in its advisory function, or by a Committee of jurists especially appointed by the two organs, or even by a joint conference (see U.N.C.I.O., vol. 13, p. 719 f.). Nor does this view find support in the provision of Article 15, para. 2, which requires the UN organs to submit reports of their activity to the General Assembly, since this provision clearly does not give the Assembly the power to review the measures taken by the other organs. As for the argument that the Assembly would have the right to a position of pre-eminence in that it incorporates the “legal conscience” of the United Nations, such view may be true in general, but it is not supportive per se of a review power of the legality of UN organs’ acts on the part of the Assembly. If positions of pre-eminence as to the power to construe the Charter do not exist within the UN system, neither of the International Court of Justice, nor of the General Assembly, there remains the fact that each organ is inevitably called upon to interpret the Charter on its own at the time it adopts specific measures. The question therefore is that of whether the organ’s interpretation, especially when it involves its own power to adopt the act itself, is binding on other Member States.

18  Introduction

In our opinion, the answer has to be negative. A positive answer would imply the freedom of the organ to manipulate the Charter, to the effect that if it were to be accepted the organ could constantly change its interpretation to the point of attributing opposite meanings to identical questions depending on the majority operating in that particular moment in time. A positive answer could even lead to interpretations so subversive of the Charter that would bring it to be in conflict with the Charter rules themselves which sanction its “rigidity” (see § 7), i.e. with the rules that lay down special procedures for amending the Charter (Articles 108 and 109), and with those requiring that States co-operate with the Organization but only when it acts “in accordance with the present Charter” (Article 2, para. 5, and Article 25). If the UN organs had the power to authoritatively interpret the Charter provisions in a way that was binding on all Member States, this would be the same as saying that they had the possibility of violating them with impunity, since any decision could be justifiable in the light of their subjective interpretation of the Charter. On the other hand, the Charter’s silence with regard to interpretation (where the attribution of a potestas interpretandi by the organs owing to its importance would have required an explicit provision) is an element contributing to proving this negative view. In support of this, the preparatory work of the San Francisco Charter can be cited, where it was unanimously held that “if any interpretation given by any organ of the Organization…is not generally acceptable, it will be without binding force” (U.N.C.I.O., vol. 13, p. 832). During the Conference, in Committee IV, which was responsible for the study of legal issues, the question was asked: “How and by what organ or organs should the Charter be interpreted?” While the Committee felt it would be inappropriate to answer this in provisions that were to be part of the Charter, they unanimously approved a statement expressing the view of the Organization’s founders. The statement says that there would be no need to codify the principle because “in the course of the operations 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”. It then examines the possibility of a difference of opinion concerning interpretation arising between two States or between two organs, foreseeing that in the former case the dispute would be brought before the International Court of Justice as an organ of quasi arbitration and in the second case there would be recourse to the Court for an advisory opinion, to an ad hoc committee of jurists or to a joint Conference. The Commission concluded with the warning that: “it is to be understood, of course, that if an interpretation made by any organ of the Organization or by a committee of jurists is not generally acceptable, it will be without binding force. In such circumstances, or in cases where it is desired to establish an authoritative interpretation as a precedent for the future, it may be necessary to embody the interpretation in an amendment to the Charter. This may always be accomplished by recourse to the procedure provided for amendment”. The final part of the statement clearly denies the existence of an obligation for Member States to accept interpretation by the organs. For the history of the  Statement, see U.N.C.I.O., vol. 13, p. 631 and p. 633 f.; for the complete text, ibid., p. 831 ff.

The “rigidity” of the Charter and amendment and review procedures   19

If the interpretation of the Charter cannot be authoritatively imposed by an ad hoc organ, such as the International Court of Justice or the General Assembly, and if the interpretation of each organ upon the adoption of an act, depending on the majority in that particular moment in time, is not binding on Member States unless it is a legitimate act, it follows that each Member State is empowered to challenge any interpretation of the Charter by UN organs that it considers at odds with it. It must be noted that the distinction between legal and illegal acts—that is between an act in accordance with and an act not in accordance with the Charter—presupposes that the contents of the Charter is certain, or at least ascertainable. However, when a controversy arises as to the correct interpretation of the Charter it is its very contents to be uncertain. The question of the interpretation and of the competence to interpret the Charter tends to overlap that of the legality of the acts adopted by the organs of the United Nations and of who has the power of ascertaining it. If an organ follows an interpretation in conformity of the Charter, such an interpretation is binding on all Member States, but the issue is whether the interpretation followed by the majority of the organ (even the one that was to be followed unanimously by the members of a restricted organ) does or not comply with the Charter, in the absence of an organ entrusted with the exclusive competence to establish it with binding effect on Member States. Although it may be reasonable to presume legality in the case in which no Member State questions it, the issue arises when, conversely, one or more States do so. What consequences may arise from such questioning and how the differences between the organ and the State may be settled in such cases are issues that have often been raised in practice. They will be examined later in the chapter on UN acts (see § 99). 7.  The “rigidity” of the Charter and amendment and review procedures Select bibliography: Giorgio Balladore Pallieri, ‘Gli emendamenti allo Statuto delle Nazioni Unite’, 1 CI (1946) 193 ff; Tomaso Perassi, L’ordinamento delle Nazioni Unite (Padova: Cedam, 1953) 51 ff; Émile Giraud, ‘La révision de la Charte des Nations Unies’, 90 RC (1956-II) 307–463; Egon Schwelb, ‘Charter Review and Charter Amendment’, 7 ICLQ (1958) 303–33; Günther Schulz, Entwicklungsformen internationaler Gesetzgebung (Göttingen: Institut für Völkerrecht der Universität Göttingen, 1960) 90 ff; Manlio Udina, L’Organizzazione delle Nazioni Unite (Padova: Cedam, 1963) 11–12; Gaetano Morelli, Nozioni di diritto internazionale (Padova: Cedam, 1967, 7th edn) 40; Ralph Zacklin, The Amendment of the Constitutive Instruments of the UN and Specialized Agencies (Leiden: Sijthoff, 1968) 104 ff; Lina Panella, Gli emendamenti agli atti istitutivi delle organizzazioni internazionali (Milano: Giuffrè, 1986); Niels Blokker, ‘Beyond “Dili”: On the Powers and Practice of International Organizations’, in Gerard Kreijen (ed), State, Sovereignty, and International Governance (Oxford: Oxford University Press, 2002) 299–322; Shirley V. Scott, ‘The Question of UN Charter Amendment, 1945–1965’, 9 JHIL (2007) 83–107; Jessica Liang, ‘Modifying the UN Charter through Subsequent Practice: Prospects for the Charter’s Revitalisation’, 81 NoJIL (2012) 1–20; Thilo Rensmann, ‘Reform’, in Bruno Simma,

20  Introduction Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. I, 25–69; Georg Witschel, ‘Article 108’, ibid., vol. II, 2199–231; Id., ‘Article 109’, ibid., 2232–241.

Article 108 provides a specific procedure for the adoption of amendments to the Charter. In order for an amendment to become effective, it must be adopted by a two-thirds majority of the Assembly and then ratified by two-thirds of the  members of the United Nations, including all the permanent members of the Security Council, which thus have a veto power on this matter. The revision procedure under Article 109 is partly similar. In the case of revision, ratification does not occur after an Assembly resolution but after its being recommended by an ad hoc Conference made up of all Member States and held at a date and place to be fixed by a two-thirds vote of the members of the Assembly and by a vote of any nine members of the Security Council. The boundary line between revision and amendment is uncertain: recourse should be made to the former to bring about changes that noticeably affect the main characteristics of the Organization. Anyway, neither revision nor amendment are possible without the consent of the five permanent members of the Security Council. The two articles depart from the classic principle of international law that a change in a treaty may occur only with the consent of all the contracting States. The procedures which they provide for are to be characterized as procedures which draw their normative force not from general international law but from the UN Charter itself. To point out that the principle of consent has been superseded, Articles 108 and 109 are also cited as examples of provisions creating a kind of “quasi” international legislation. Actually, deviation from the classic principles is lessened by the fact that a State may withdraw from the Organization “if its rights and obligations as such were changed by Charter amendment in which it has not concurred and which it finds itself unable to accept” (see U.N.C.I.O., vol. 7, p. 267). Withdrawal is not specifically envisaged by the Charter—although it was expressly provided for within the League of Nations pursuant to Article 1, para. 3, and Article 26, para. 2, of the Covenant—, but at the San Francisco Conference it was said, as reported above, that withdrawal could not be excluded in the case of amendments that a State would not accept. For reasons that will be discussed later (see § 17), the view expressed at San Francisco should be corrected to the effect that the right of withdrawal in the event of amendments (or revision) that are not accepted is to be allowed only when such amendments have noteworthy importance. Even with these limitations, however, the right of withdrawal in the event of amendments weakens the innovative meaning of Articles 108 and 109, in that a Member State will tend to escape from a majority decision precisely when, and only when, an important question is involved.

The “rigidity” of the Charter and amendment and review procedures   21

The provision of particular procedures for modifying the Charter involves a prohibition for the UN organs to derogate from the Charter when they adopt resolutions and gives the Charter itself rigidity. This rigidity can be seen not only in Articles 108 and 109 but also in the principle—expressed in Article 25 with regard to the Security Council and in Article 2, para. 5, with regard to all organs—that Member States are obliged to co-operate with the Organization when an organ adopts resolutions or takes action “in accordance with the present Charter”. Although the Charter cannot be formally modified unless the procedure provided for by Articles 108 and 109 is followed, more or less incisive “informal” changes may de facto take place. The boundary between the interpretation of the Charter according to its original meaning, the emergence of additional meanings in the Charter application practice and the formation, again through practice, of customary rules internal to the United Nations system, actually tends to blur. However, where possible, it is necessary to distinguish between what is established by the Charter itself, and what is later asserted according to an “evolutionary” interpretation and, especially, to customary rules derogating from the Charter. The admissibility of innovative interpretations, and a fortiori of customary rules which come into being in derogation from the Charter, at first, would appear to be excluded from the contemplation of ad hoc amendment and revision procedures as provided for by Articles 108 and 109. It is however unreasonable to think that the interpretation of the Charter would not be affected by the passage of time and by practice. As mentioned above, this is the core of the thesis according to which the Charter should be regarded as a constitution, namely as an act that, while remaining formally unaltered, or nearly so, acquires new meanings over time adapting its principles to changed social circumstances. It has also been said that the Organization’s practice can give rise to customary rules without the need for qualifying the Charter as a constitution. It is now necessary to stress that, unlike theological or evolutionary interpretation, which remains anchored in the norms, or at least the principles, of the Charter and it applies on a caseby-case basis, the assessment of a customary rule exclusively depends on the practice followed by the Member States (together with the expressed opinio juris) and by the organs and acts as prescriptive also for future cases. On the contrary, the amendment or the revision of the Charter depend on the majorities formally required by Articles 108 and 109 of the Charter. Concerning evolutionary interpretation, mention must be made, in connection with what has been said here, of the judgment of 13 July 2009 on the Dispute regarding navigational and related rights (Costa Rica v. Nicaragua) in which the International Court of Justice admitted evolutionary interpretation, but only in restrictive terms, and in any case subject to the will of the parties. According to the Court, in fact, evolutionary interpretation is

22  Introduction permissible only when (a) the original intention of the parties is (or may be presumed to be) that of attributing to the terms of the treaty to be interpreted a meaning or content that may evolve over time, or (b) where the subsequent practice of States favours a meaning that differs from the original. Such practice must be capable of giving rise to a tacit agreement apt to justify a deviation from the originally intended meaning (in ICJ Reports 2009, paras. 64, 66).

8.  Present trends to revise the Charter Select bibliography: Tomaso Perassi and Roberto Ago, ‘Osservazioni sul problema della revisione dello Statuto delle Nazioni Unite’, 8 CI (1953) 572–83; Greenville Clark and Louis B. Sohn, World Peace through World Law (Cambridge, Mass.: Harvard University Press, 1966, 3rd edn); André Lewin, ‘La triade contraignante, une nouvelle proposition de pondération des votes aux Nations Unies’, 88 RGDIP (1984) 349–59; Maurice Bertrand, Contribution à une réflexion sur la réforme des Nations Unies (Genève, 1985); Rüdiger Wolfrum (ed), Die Reform der Vereinten Nationen. Möglichkeit und Grenzen (Berlin: Duncker und Humblot, 1989); Franck Barnaby (ed), Building a More Democratic UN, (London: Cass, 1991); Martin C. Ortega Carcelen, ‘La reforma de la Carta de Naciones Unidas: algunas propuestas institucionales’, 43 ReD (1991) 389–407; Joachim W. Muller, The Reform of the UN (New York: Oceana Publications, 1992); International Symposium, Prospects for Reform of the United Nations System, Rome, 15–16 May, 1992 (Padova: Cedam, 1993); William M. Reisman, ‘The Constitutional Crisis in the United Nations’, 87 AJ (1993) 83–100; K.P. Saksena, Reforming the United Nations (New Delhi: Sage Publications, 1993); Childers, Erskine and Urquhart (eds), Renewing the United Nation System (Uppsala, 1994); Ernst-Otto Czempiel, Die Reform der UNO. Möglichkeiten und Missverständnisse (München: Beck, 1994); Lilly Sucharipa-Behrmann, ‘The Increase in the Membership of the Security Council’, 47 ZöRV (1994), 1–83; Eric Fawcett and Hanna Newcombe (eds), United Nations Reform: Looking Ahead After Fifty Years (Toronto: Science for Peace, 1995); Erkki Korula and Tapio Kanninen, ‘Reforming the Security Council’, 8 LJIL (1995) 337–46; Attila Tanzi, ‘Notes on the “Permanent Conference of Revision” of the United Nations Charter at the 50th Anniversary of the Organization’, 78 RDI (1995) 723–37; Carolyn L. Willson, ‘Changing the Charter’, 90 AJ (1996) 115–26; Maurice Bertrand and Daniel Warner (eds), A New Charter for a Worldwide Organisation? (The Hague: Kluwer Law International, 1997); Louis B. Sohn, ‘Important Improvements in the Functioning of the Principal Organs of the United Nations That Can Be Made Without Charter Revision’, 91 AJ (1997) 652–62; Peter Wallensteen, ‘Representing the World: A Security Council for the 21st Century’, in Paul F. Diehl (ed), The Politics of Global Governance (Boulder: Rienner, 2005, 3th edn); John E. Noyes (ed), The United Nations at 50: Proposals for Improving its Effectiveness (Washington, DC: Paperback, 1997); Bardo Fassbender UN Security Council Reform and the Right of Veto: A Constitutional Perspective (The Hague: Kluwer Law International, 1998), Chapters 7–10; Olivier Fleurence, La réforme du Conseil de Sécurité: l’état du débat depuis la fin de la guerre froide (Brussels: Bruylant, 2000); David B. Steele, ‘UN Charter Reform and a New Global Bargain’, 15 IR (2000) 17–37; Joachim W. Müller, Reforming the UN: The Quiet Revolution (The Hague: Kluwer Law International, 2001); Mohamed Bennouna, ‘Should the United Nations be Changed?’, 1 GlC (2004) 3–9; Paolo Bargiacchi, La riforma del Consiglio di Sicurezza (Milano: Giuffrè, 2005); Andrea De Guttry and Fabrizio Pagani, Le Nazioni Unite. Sviluppo e riforma del sistema di sicurezza collettiva (Bologna: Il Mulino, 2005); Hans Corell, ‘Reforming the United Nations’, 2 IOLR (2005) 373–90; Jutta Brunnée and Stephen J. Toope, ‘Norms, Institutions and UN Reform’, 2 JILIR

Present trends to revise the Charter   23 (2005) 121–37; Dimitri Bourantonis, The History and Politics of UN Security Council Reform (London: Routledge, 2005); Laurence Boisson de Chazournes, ‘La réforme des Nations Unies’, 7 ILF (2005) 84–91; Id., ‘Rien ne change, tout bouge, ou le dilemme des Nations Unies’, 109 RGDIP (2005) 147–61; Yehuda Z. Blum, ‘Proposals for UN Security Council Reform’, 99 AJ (2005) 632–49; Joachim W. Müller, ‘Management Reform in the United Nations’, 2 IOLR (2005) 417–36; Carlos A. Magariños, Economic Development and UN Reform (Vienna: United Nations Industrial Development Organization, 2005); Peter Hilpold, ‘Reforming the United Nations’, 52 NILR (2005) 349–87; Hisashi Owada, ‘The United Nations and the Maintenance of International Peace and Security: The Current Debate in the Light of Reform Proposals’, 48 Jap AIL (2005) 1–25; Andreas Rechkemmer, Global Governance and UN Reform (Bonn: UNU-EHS, 2005); Sten Verhoeven, ‘The UN High-Level Panel Report and the Proposed Institutional Reform of the UN’, 7 ILF (2005) 101–07; Simon Chesterman, ‘Reforming the United Nations: Legitimacy, Effectiveness, and Power after Iraq’, 10 SYIL (2006) 59–86; Thomas M. Franck, ‘Collective Security and UN Reform’, 6 CJIL (2006) 597–611; Antonio Blanc Altemir, ‘La réforme du Conseil de Sécurité des Nations Unies’, 110 RGDIP (2006) 801–25; Steffen Bauer, Chancen für eine Reform der Vereinten Nationen? (Potsdam: Univ.-Verl., 2006); Marcus F. Franda, The United Nations in the Twenty-First Century. Management and Reform Processes in a Troubled Organization (Lanham: Rowman & Littlefield, 2006); Yeshi Choeden, ‘India’s Perspective on the UN Security Council Reform’, 63 IQ (2007) 14–48; Spencer P. Zifcak, United Nations Reform (London: Routledge, 2009); Upendra Baxi, ‘Mission Impossible? Some Thoughts Towards UN Charter Reform’, 50 InJIL (2010) 259–72; Peter G. Danchin and Horst Fischer (eds), United Nations Reform and the New Collective Security (Cambridge: Cambridge University Press, 2010); Yves Beigbeder, ‘The Ongoing Organizational Reform of the United Nations’, in Bob Reinalda (ed), The Ashgate Research Companion to Non-State Actors (Farnham: Ashgate, 2011) 303–18; Seryon Lee, ‘The Feasibility of Reforming the UN Security Council: Too Much Talk, To Little Action?’, 4 JEAIL (2011) 405–18; Louise Otis and Eric H. Reiter, ‘The Reform of the United Nations Administration of Justice System: The United Nations Appeals Tribunal After One Year’, 10 LPICT (2011) 405–28; Ekkehard Strauss, ‘UN-Reform und Menschenrechte’, in Helmut Volger (ed), Die Vereinten Nationen vor globalen Herausforderungen, Potsdam, Universitätsverlag Potsdam, 2011, 59–68; Philip Alston, ‘The United Nations: No Hope for Reform?’, in Antonio Cassese (ed), Realizing Utopia: The Future of International Law (Oxford: Oxford University Press, 2012) 38–51; Hans Köchler, ‘Regionalisation, Transnational Democracy and United Nations Reform: A Viewpoint’, in Philippe de Lombaerde, Francis Baert and Tania Felício (eds), The United Nations and the Regions: Third World Report on Regional Integration (Dordrecht and Heidelberg: Springer, 2012) 83–88; Thilo Rensmann, ‘Reform’, in Bruno Simma, DanielErasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. I, 25–69; Eric Suy, ‘Certain Other Perspectives for a Reform of the United Nations Security Council’, in Eva Rieter and Henri de Waele (eds), Evolving Principles of International Law: Studies in Honour of Karel C. Wellens (Leiden: Nijhoff, 2012) 91–101; Sabine Hassler, Reforming the UN Security Council Membership: The Illusion of Representativeness (London: Routledge, 2013); Eva Mareike Schmitt, ‘Neuere Entwicklungen bei der Reform des UN-Sicherheitsrats’, 61 VN (2013) 202–08; Joseph E. Schwartzberg, Transforming the United Nations System (Tokyo: United Nations University Press, 2013).

Until now the procedure for revision governed by Article 109 has never been applied. As regards amendments under Article 108, the only cases concern issues of lesser importance: an amendment to Articles 23 and 27 of the Charter

24  Introduction

expanding the number of elected members of the Security Council from 6 to 10, hence enlarging the total membership of the Security Council from 11 to 15, and increasing the majority required for adopting resolutions from 7 to 9 votes (with General Assembly Res. 1991-XVIII of December 17, 1963, entered into force on August 30, 1965); an amendment to Article 109, para. 1, of the Charter increasing the majority required in the Security Council from 7 to 9 votes for the convening of a review conference (with General Assembly Res. 2101-XX of December 20, 1965, entered into force on June 12, 1968); an amendment to Article 61 of the Charter enlarging the membership of the Economic and Social Council from 18 to 27 (with the same 1963 resolution amending Articles 23 and 27); and a further amendment to Article 61 of the Charter increasing the membership of the Economic and Social Council from 27 to 54 (with General Assembly Res. 2846-XXVI of December 20, 1971, entered into force on September 24, 1973). The need for revising the Charter has been the object of discussion for a number of years. Indeed it can be noted that at the time it was being discussed, in 1945, the majority of States—other than the proposing States—raised a number of objections, to the point that Article 109 was introduced in order to provide for a review conference to be held ten years from the coming into force of the Charter itself; this conference, however, never took place. Nowadays, the modification of the Charter, it is held, would be justified in itself by the fact that from when the Charter was drawn up to the present day the number of States has almost quadrupled. The far-reaching and hardly foreseeable phenomenon of decolonization has occurred; the original ideological conflict between capitalism and socialism, between East and West, has been substituted by the conflict of interest between industrialized and non-industrialized countries, between rich and poor, between North and South. Nor can it be ignored that the Charter reflects the balance of powers existing at the end of Second World War, as well as geopolitical circumstances very different from those prevailing today. To this the repeated criticism against the excess of redtape, the malfunctioning and the waste of resources of the Organization should be added; as well as, especially after decolonization, the anachronism and injustice of the veto power attributed to the five permanent members of the Security Council, the lack of decisional power of the General Assembly, where (unlike the Council) all States are equally represented and enjoy equal voting weight, and so forth. In 1974, the General Assembly created a special Committee made up of a certain number of Member States, with the task of studying the problem (cf. Res. 3349-XXIX of 17 December 1974). In 1975 this Committee took the name “Special Committee for the United Nations Charter and for strengthening the role of the Organization”. Moreover, with regard to the structure of the Security

Present trends to revise the Charter   25

Council, the General Assembly, with Resolution 48/267 of 3 December 1993, decided to establish an “Open-ended working group on the question of equitable representation and increase in the membership of the Security Council and other matters related to Security Council”. In this working group the proposals of the States gradually drew together, but shared solutions are yet to be reached, to the point that it is now referred to—ironically paraphrasing its “open-ended” character—as a “never-ending” working group. Lastly, in November 2003 a “High-level Panel” was established by the Secretary-General to recommend the changes necessary to ensure an effective action on the part of the United Nations. The Panel, made of sixteen independent “personalities”, delivered a report, entitled A More Secure World: Our Shared Responsibility, in December 2004. The issue was then taken up by the General-Secretary in the 2005 In Larger Freedom report and discussed at the World Summit of the Heads of States and of governments, which took place in September 2005, the final document of which (“World Summit Outcome” document) is included in Res. 60/1 of October 14, 2005 of the General Assembly. There were also many different proposals for changes which came directly from Member States. Some of them concerned the Organization’s structure, ranging from reinforcing the role of the Assembly (where the Third World States have an overwhelming majority) to enlarging the Security Council (in particular, to this effect the requests of Brazil, Germany, Japan and India— countered immediately and successfully by other States—stand out). Some internal organizational reforms were recently introduced by the General Assembly spurred by the Secretary-General, such as the restructuring of the Department of Peace-Keeping Operations (DPKO) and the establishment of the Department of Field Support (DFS) (cf. ). Some innovative practices, however marginal, have been introduced in recent years by the Security Council with regard to its “working methods” to promote greater transparency and participation of nonMember States (cf. SC Rep., Supp. 2004–2007, Chapter IV, p. 4 ff.; Doc. S/ PV.5968 of August 27, 2008), including the practice of holding “thematic discussions” with the widest participation of Member States of the Organization on issues such as humanitarian assistance. Moreover, it stands out, with regard to labor disputes between the Organization and its officials, the recent establishment of a single integrated and decentralized Office of the Ombudsman and a Mediation Division, and two tribunals, the Dispute Tribunal and the Appeals Tribunal, which will provide two sets of proceedings by substituting the Administrative Tribunal operating in the past (see § 35). Aside from changes in the structure, there has been insistence that several principles declared by the Assembly over the years (see § 96) be introduced in the Charter. These concern both principles regarding maintenance of international peace

26  Introduction

and security, for example, the rules defining aggression (see § 56) and principles relating to the field of economic and social co-operation. In this area declarations and initiatives by the Assembly and by its specially created organs have continued to multiply after decolonization, and they are part of the effort to give the world a fairer economic order. We can mention, among others, the Charter of Economic Rights and Duties and the principles of the new international economic order, such as the principle of economic equity, of collective economic security, of the complete and permanent sovereignty of every people over its own natural resources, of the right to a sustainable development, and so on (see § 73). Especially during the 1970s, when enthusiasm for the new international economic order was at its peak, and expectation that it could become reality was widespread, a view was held that all these ideas should no longer be entrusted to Assembly documents that were without binding force but should be solemnly made part of the Charter. For the Security Council debates on humanitarian assistance see Doc. S/PV.4109 of March 9; on the protection of civilians in armed conflict see, most recently, Doc. S/PV.5781 of November 20, 2007, S/PV.5898 of May 27, 2008, S/PV.6151 of June 26, 2009, S/PV.6116 and Res. 1894 of November 11, 2009, Doc. S/PV.7256 and Res. 2175 of August 29, 2014, Doc. S/­PV.7450 and S/PV.7450 (Resumption 1) and Res. 2222 of May 27, 2015; on women and peace and security see Doc. S/PV.5066 of October 28, 2004, S/PV.5766 of October 23, 2007, S/PV.5916 of June 19, 2008, S/PV.6005 of October 29, 2008, S/PV.6196 and Res. 1889 of October 5, 2009, S/PV.6453 and S/PV.6453 (Resumption 1) and Res. 1960 of December 16, 2010, Doc. S/PV.6984 and Res. of June 24, 2013; on the role of business in conflict prevention, peacekeeping and post-conflict peace-building see Doc. S/PV.4943 of April 15, 2004; on the role of civil society in post-conflict peace-building see Doc. S/PV.4993 of June 22, 2004 and particularly in conflict prevention and in the peaceful settlement of disputes see Doc. S/PV.5264 of September 20, 2005; on the UN response to complex crises see Doc. S/­PV.4980 of May 28, 2004; on climate change see Doc. S/PV.5663 of April 17, 2007; on the protection of children in armed conflicts see, most recently, Doc. S/PV.5834 of February 12, 2008, and S/PV.5936 of July 17, 2008, S/PV.6176 and Res. 1882 of August 4, 2009, Doc. S/­PV.6581 and S/PV.6581 (Resumption 1) and Res. of July 12, 2011, Doc. S/PV.6838 and S/­PV.6838 (Resumption 1) and Res. 2068 of September 19, 2012, Doc. S/PV.7466 and Res. 2225 of June 18, 2015; on the assignment of as many resources as possible to economic and social development, in particular in the fight against poverty, along with the support for national, bilateral, regional and multilateral measures aimed at reducing military expenditures see Doc. S/PV.9501 of November 19, 2008.

As for the above-mentioned 2004 report of the High-level Panel, it contains a series of observations on the need for action on the economic and social conditions of the inhabitants of the planet, the eradication of poverty and hunger, the environment, the fight against terrorism and so forth, which have already been, for several years, and still are the subject of the (largely unheeded) appeals of the General Assembly (see § 73). The report only accounts for two  concrete proposals on security. The first is concerned with the enlargement of the Security Council, consisting of two options: one would appoint

Present trends to revise the Charter   27

new ­permanent members, and the other would establish new long-term, renewable seats. The second proposal provides for the creation of a Peacebuilding Commission with the aim of identifying the States in which risk situations exist in an effort to prevent their collapse or internal conflicts. Taking into account that the proposal to enlarge the Council, as we will see, does nothing but take up the requests made by some governments (see § 22), and that the Peacebuilding Commission, established in 2005, is yet another subsidiary organ of the Council and of the Assembly, albeit possessing some interesting characteristics (see § 55), one soon realizes that the Panel’s report, even at the time of its release, could hardly be thought to change things. As a matter of fact at a few years distance these proposals, apart from the Peacebuilding Commission, have remained a dead letter. Indeed, the question is whether the States that can act, with the political support of their people, will decide to seriously undertake the task to live up to the deep problems of the world but unfortunately, in this case, optimism does not seem to be an option. In the area of the maintenance of international peace and security, worthy of mention are the report presented by the Secretary-General B. Boutros-Ghali to the Security Council in June 1992, a report called “An Agenda for Peace” (see ), and the “Supplement to the Agenda for Peace” of January 3, 1995 (see ). More than at a revision of the Charter, these documents were aimed at strengthening the role of the Organization within the framework of existing provisions. Worthy of mention is also General Assembly Res. 46/36 of December 9, 1991, which sets up in the United Nations a “conventional arms register” where, beginning from January 1, 1992, there is to be registered information, supplied by the Member States, concerning the import and export of conventional arms as well as the national stocks at hand. The aforementioned An Agenda for Peace (at para. 71) also refers to this register. If this were a first step towards an efficient system of control by the United Nations over the production and the sale of arms—a system which, involving direct inspections, for now is but a utopia—we would be on the right track in pursuing the aim of preventing threats to the peace. Unfortunately still in 1999, in the report to the fifty-fourth session of the General Assembly, the Secretary-General Kofi Annan had to notice that no progress at all had been made within the United Nations on the issue of disarmament (see Doc. A/54/1, paras. 122–23). Programs aimed at strengthening the role of the Organization were also contained in the Millennium Declaration adopted by the General Assembly on September 8, 2000 by Res. 55/2, today replaced by Res. 70/1 of September 25, 2015, adopting the “2030 Agenda for Sustanaible Development” (cf. ). These are especially devoted to the eradication of poverty, the ­protection of the environment, the protection of vulnerable people, the strengthening of the role of the General Assembly as “the chief deliberative, policy-maker and representative organ of the UN”, and so on. The implementation of the Millennium Declaration was the object of an annual report of the Secretary-General to the General Assembly (the first one is contained in Doc. A/57/270, of July 31, 2002). Cf. also the report presented by SecretaryGeneral to the General Assembly with the title “Strengthening of the UN: An Agenda for Further Change” (Doc. A/57/387 of September 9, 2002), which is strictly linked to the Millennium Declaration. The tragic conditions of poor countries and poor people are

28  Introduction

s­ ituations which these, and many other documents, would like to see eliminated or at least mitigated. Such situations, however, still remain to be seriously tackled.

It seems very unlikely that any radical changes in the structure of the United Nations will be made. The attitude of the permanent members of the Security Council is decisive on this. Permanent members have the veto with regard to ratification of amendments and revision, and they do not seem inclined to change the existing rules. But it is worth emphasizing that a single change in the structure of the Security Council, with a widening of the number of ­members or with the addition of other permanent members, is not in itself sufficient in order to make the United Nations more functional or, most of all, more credible. What would really change (or, better, would revolutionize) the structure of the Organization in a positive way would be, first, the democratization of the General Assembly, that is, its transformation from an assembly of governments (see § 30) to an assembly of representatives of peoples and, secondly, an effective control by the Assembly over what the Security Council does. Today we are very far from all this. Among the trends concerning revision of the UN structures there is one (antithetical to democratizing it) favoring a change in the voting system in the Assembly (a system that today is based on the “one State, one vote” principle laid down in Article 18, para. 1, of the Charter) through the introduction of a weighted vote, that is, of a vote that is proportionate to the weight, in terms of population, economic resources, contributions to the UN budget, etc., of each country. The weighted vote, whose supporters belong to the Western world, is obviously opposed by less developed countries who hold the majority in the Assembly.

New principles and purposes of the Organization added to the Charter are quite unlikely. The activity of the Organization is mainly aimed towards obtaining as much co-operation as possible among Member States and the possibility of negotiating equitable consensual solutions to the enormous problems that humanity is facing can be better assured if fewer and less binding objectives are prescribed. The purposes that the Charter presently indicates (see § 2), precisely because they are all-encompassing and reflect two very general ideals, those of peace and of economic and social co-operation among States—in ­particular, nowadays the respect for human rights, the rule of law and good governance by the States—are more than sufficient.

Chapter One Membership of the Organization Section I.  Acquisition of Membership Status 9.  Admission Select bibliography: Günther Jaenicke, ‘Die Aufnahme neuer Mitglieder in die Organisation der Vereinten Nationen’, 13 Bruns’Z (1950) 291–380; Hans Kelsen, The Law of the United Nations (London: Stevens, 1950) 61 ff; Tomaso Perassi, L’ordinamento delle Nazioni Unite (Padova: Cedam, 1953) 15 ff; Leland M. Goodrich, Edvard Hambro and Anne P. Simons, Charter of the United Nations: Commentary and Documents (New York: Columbia University Press, 1969) 85 ff; Guy Feuer and Ange Ouraga, in Jean-Pierre Cot, Alan Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3ed ed), vol. 1, 517–34; James Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 2006, 2a ed) 179–90; Thomas D. Grant, Admission to the United Nations: Charter Article 4 and the Rise of Universal Organization (Leiden: Nijhoff, 2009); Id., ‘International Responsibility and the Admission of States to the United Nations’, 30 MJIL (2009) 1095–185; Giuseppe Nesi, ‘Recognition of the Libyan National Transitional Council: When, How and Why’, 21 IYIL (2012) 45–59; Ulrich Fastenrath, ‘Article 3’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd edn), vol. I, 335–40; Id., ‘Article 4’, ibid., 341–61; Giuseppe Nesi, ‘Brevi note su diritto e politica all’ONU: ammissione, accreditamento, rappresentanza e status di osservatore in Assemblea generale’, in Michele Vellano (ed), Il futuro delle ­organizzazioni internazionali: prospettive giuridiche (Napoli: Editoriale Scientifica, 2015) 601–19.

With the exception of the States which signed the Charter at the end of the San Francisco Conference and are considered by Article 3 as original members of the Organization (see § 1 B), a State becomes a member of the United Nations under the admission procedure of Article 4. Paragraph 1 of Article 4 provides that, to become a member of the UN, a State must be peace-loving, accept the Charter provisions and be willing to fulfill its obligations. Admission is decided, under para. 2, by the General Assembly upon the recommendation of the Security Council. A two-thirds majority is required for the Assembly’s decision (Article 18, para. 2). Also the Council votes according to a qualified majority, with the possibility of the permanent members exercising the veto (Article 27, para. 3).

30  Membership of the Organization

10.  Admission requirements Select bibliography: P.O. Humber, ‘Admission to the United Nations’, 24 BYB (1947) 90–115; Roberto Socini, L’appartenenza all’Organizzazione delle Nazioni Unite (Firenze: Barbera, 1951) 22 ff; Nathan Feinberg, ‘L’admission de nouveaux membres à la Société des Nations et à l’Organisation des Nations Unies’, 80 RC (1952-I) 323 ff; Hermann Mosler, ‘Die Aufnahme in internationale Organisationen’, 19 Bruns’Z (1958) 285 ff; Matteo Decleva, ‘La qualità di membro delle organizzazioni internazionali’, 18 DI (1964) 187–250; Merrie F. Witkin, ‘Transkei: An Analysis of the Practice of Recognition—Political or Legal’, 18 HILJ (1977) 605–27; John Dugard, Recognition and the UN (Cambridge: Grotius Publications Limited, 1987); Francesc-Xavier Pons Rafols, ‘Los criterios para el otorgamiento de la condicion de observador en la Asemblea General de las Nacionas Unidas’, 47 ReD (1995) 438–47; David I.J. Efevwerhan, ‘Kosovo Chances of UN Membership: A Prognosis’, 4 GöJIL (2012) 93–130; Ulrich Fastenrath, ‘Article 3’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd edn), vol. I, 335–40; Id. ‘Article 4’, ibid., 341–61; Jure Vidmar, ‘Does General Assembly Resolution 67/19 Have Any Implications for the Legal Status of Palestine?’, in EJIL Talk!, December 4, 2012; Emanuele Cimiotta, ‘Corte penale internazionale e accettazione della giurisdizione da parte della Palestina’, 6 DUDI (2012) 685–93; Winston P. Nagan and Aitza M. Haddad, ‘Recognition of Palestinian Statehood: A Clarification of the Interests of the Concerned Parties’, 40 GJICL (2012) ­341–421; Marina Mancini, ‘Conseguenze giuridiche dell’attribuzione alla Palestina dello status di Stato osservatore presso le Nazioni Unite’, 96 RDI (2013) 100–18; Michelle Leanne Burgis-Kasthala, ‘Over-stating Palestine’s UN Membership Bid? An Ethnographic Study on the Narratives of Statehood’, 25 EJIL (2014) 677–701; Marina Mancini, ‘Adesione della Palestina allo Statuto di Roma e dichiarazione di accettazione della giurisdizione della Corte penale internazionale’, 2 OIDU (2015) 358–62.

An analysis of Article 4, para. 1, indicates the following requirements for admission to the UN: first, membership is open only to States; then, the State must accept the obligations contained in the Charter, be peace-loving and be able and willing to carry out the Charter’s obligations. Acceptance of the Charter’s obligations can be considered implicit in the request for admission presented by a State. Article 134 of the Assembly’s Rules of Procedure and Article 58 of the Security Council’s Rules of Procedure provide that requests are to be submitted to the Secretary-General and that they must contain a declaration made in a “formal instrument” that they accept the obligations contained in the Charter. What is indispensable is that the State’s request is made by its organs that have the power to undertake international obligations. This is what the two provisions refer to when they speak of “formal instrument”. Para. 1 of Article 4 provides that the State must be able and willing to fulfill the Charter’s obligations “in the judgment of the Organization”. The Assembly and the Council thus have full discretionary power in determining whether these two requisites are met. Since being “peace-loving” is only one particular aspect of the willingness to fulfill the Charter’s obligations, also the evaluation

Admission requirements   31

of this requirement is within the full discretion of the two organs. What about the first (and principal) requirement set by para. 1, that is, the quality of being a State? Is it to be determined by these organs? In other words, does there exist, with regard to Article 4, a notion of a State approximately corresponding to the notion found in customary international law (the notion of a State as a subject of international law), which the Assembly and the Council must adhere to if they do not want to meet with an invalid admission? If Article 4 was to be interpreted in the light of Article 3, which qualifies as States the original members of the United Nations, then the notion of a State accepted in Article 4 would depart remarkably from the notion of a State as a subject of international law. In fact, among the original members of the Organization there were entities such as Byelorussia and the Ukraine which at the time could certainly not be considered international subjects (see § 1 B). However, we believe that the interpretation of Article 4 must remain independent of Article 3 and the issue of original members. Participation in the San Francisco Conference was very much related to the political situation of the time. In the case of Byelorussia and the Ukraine, in particular, a strong need was felt to prevent the isolation and mistrust of the Soviet Union. Consequently, these events cannot have a decisive influence on the determination of admission requirements. If this is true, then it seems that a State that could be admitted to the UN under Article 4 comes within the definition of the State as a subject of international law. Such State must consist of an effective and independent system of government of a community within a defined territory. Such view is supported by a presumption (valid in the absence of elements to the contrary) of the conformity of Article 4 to general international law; by the basic principle that “the Organization is based on the principle of the sovereign equality of all its members”; and, lastly, by the admission practice followed up to now. In fact all of the entities that have been admitted so far have had the above-mentioned characteristics, namely, an effective and independent system of government of a community within a defined territory. The requirement of independence as a necessary requisite for an international subject should not be taken too literally. If it were understood as the possibility of acting in complete independence, hardly any State (and perhaps not even the great powers) would deserve to be called subjects of international law. This is true not only with regard to phenomena such as satellite States, the presence of foreign military bases on national territory, with relative limitations on sovereignty, but especially with regard to the inter-dependence that increasingly characterizes the entire network of international relations. This being the situation, it seems that the meaning that can be attributed to this requisite is one which stems from a formal element: that is, a State is independent when its legal system is original, it draws its power from its own

32  Membership of the Organization

Constitution and is not derived from the legal system or the Constitution of another State. The original character of the Constitution represents a minimum level below which admission of an entity to the UN would become inconsistent with the Charter due to the absence of the requirement of independence. In fact, discussions in the Assembly and in the Council regarding certain candidates, which were eventually admitted, rarely concerned independence in a strict legal sense, but rather independence in a broad and political sense, something quite undefined and of little consequence in legal terms. For example, China (at that time represented by the Nationalist Government) and the United States raised objections in the Security Council in 1961 to the admission of Outer Mongolia, held to be a Soviet puppet government (SCOR, 16th year, 971st meet., p. 5 ff. and p. 9). At the same time, the Soviet Union objected to the Republic of Mauritania, whose government had been formed under French influence in a part of the territory claimed by Morocco (ibid., p. 39 f.). Although they raised these objections, the United States and China, on the one hand, and the Soviet Union, on the other, abstained when the voting took place to avoid the two admission proposals from being blocked by reciprocal vetoes; the “deal” was criticised by Morocco before the Security Council (ibid., p. 39 f.). For other cases, see SC Rep.1946–51, p. 272 f. Cf. also SCOR, 26th year, 1587th meet. (Sept. 30, 1971), n. 86 ff., particularly 106 ff., and GAOR, 26th sess., Pl. meet., 1934th meet. (Sept. 21, 1971), n. 73 ff. (objections of the Yemenite Democratic Republic against the proposal for the admission of Oman, which was then decided by a unanimous vote in the Council and by a very wide majority in the Assembly, with the argument that it was a territory still under British colonial dominion). In some cases admission was not contested with regard to the requisite of independence but with regard to other requisites or elements of the State as an international subject. For example, in 1981 Guatemala protested against the admission of Belize before both the Security Council and the General Assembly, contending that Belize was not a State, since it had no territory. In fact, Guatemala was claiming that the territory of Belize, a British colony until independence, belonged to it. The Assembly voted for admission with 144 votes in favor and one contrary, following the unanimous proposal of the Council (cf. SCOR, 36th year, 2302nd meet., Sept. 23, 1981, pp. 1–6 and GAOR, 36th sess., Pl. meet., 13th meet., n. 24, p. 231). To the effect that only States can be admitted to the United Nations, the United States recently reiterated its opposition to Taiwan’s decision to hold a referendum on joining the United Nations under the name of Republic of China (see Report for Congress RL34683, prepared by the US Congressional Research Service (CRS), Taiwan-U.S. Relations: Recent Developments and Their Policy Implications of September 25, 2008, at , pp. 9–11). The People’s Republic of China (PRC) obviously opposed the proposal (cf. and ). Whether Taiwan is objectively a State according to international law is of course a different issue (see § 19).

Given that Article 4 adopts the traditional notion of a State as an international subject and restricts admission to the UN to those Governments which effectively and independently exercise authority over a territorial community, the possible admission of governments in exile (see § 20) or of Organizations or

Admission requirements   33

Committees of national liberation operating abroad (such as the PLO after the proclamation of the Palestinian Authority in 1988: see General Assembly Res. 43/177 of December 15, 1988) should be considered illegal. It should be recalled that on September 23, 2011 Palestine unsuccessfully applied to join the United Nations (though it did join only two months later, despite the ­protests of some States, such as the USA). The following year, with Res. 67/19 of November 29, 2012 the General Assembly granted Palestine the status of “non-member Observer State” whereas it had previously had the status of “non-member observer entity” (with 138 votes in favor, 9 votes against, and 41 abstentions). In the past, other States with this status, such as Switzerland, then went on to join. The use of the term “State” in Resolution 67/19 does not in itself mean that Palestine is a State according to international law, even though it does aim to lead the practice in that direction. An important consequence, as we shall see, was the recent acceptance by Palestine of the jurisdiction of the International Criminal Court, immediately followed by accession to its Statute. Many of these entities (and among them the Palestinian Authority with the name of “Palestine”), together with inter-governmental and non-governmental organizations, have observer status, a status which gives them the right to participate in the proceedings of the General Assembly, without the right to vote, to receive official documents, to enjoy certain immunities, and so on. As far as Palestine is concerned, it obtained a special observer status within the General Assembly by Res. 52/250 of July 7, 1998. The special status includes, inter alia, the right to speak on all agenda items at any plenary meetings of the General Assembly, the right of reply and the right to raise points of order and to co-sponsor draft resolutions and decisions on Palestinian and Middle-East issues. In the Advisory Opinion on The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, the International Court of Justice granted a request of Palestine to submit a written statement on the subject, according to Article 66(2) of the Statute of the Court (“The Registrar shall…notify any State…or international organization considered by the Court…as likely to be able to furnish information on the question…”). In the view of the Court, submissions of Palestine were to be admitted “taking into account the fact that the General Assembly has granted Palestine a special status of observer and that the latter is co-sponsor of the draft resolution requesting the Advisory Opinion…” (Order of December 19, 2003). For Palestine’s application to the UN, see . For the lukewarm reception (only 6 votes in favor) by the Security Council’s Applications Committee whose task it is under Article 4, para. 2, to adopt (with the right of veto of the permanent members) a resolution recommending admission to the GA, see, for example, . For Palestine’s joining UNESCO on November 23, 2011 and ensuing reactions, see ; for Palestine’s permanent UNESCO delegation, see . In two press releases issued on January 5 and January 7, 2015 the International Criminal Court announced that on December 31, 2014, Palestine had deposited a declaration pursuant to Article 12, para. 3, of its Statute, which recognizes the jurisdiction of the Court for “crimes within the jurisdiction of the Court committed in the Occupied Palestinian Territory, including East Jerusalem, since 13 June 2014”; and, subsequently, Palestine’s

34  Membership of the Organization

accession to the Statute of the Court—and the associated Agreement on Privileges and  Immunities, scheduled to come into force with regard to Palestine on February 7, 2015  (see )—as a Contracting Party under Article 11, para. 2, of the Statute under the Resolution of January 2, 2015 (see ). The reason for recourse to the two acts is understood to be Palestine’s wish to enable the Court to assume jurisdiction over the Protective Edge operation of July/August 2014. In fact, under Article 11, para. 2, of the Statute, when a State becomes party to the same, the Court may exercise jurisdiction only over crimes committed after its entry into force for that State (scheduled for April 1, 2015 in the case of Palestine, cf. ), unless the State has made a declaration under Article 12, para. 3, of the Statute retroactively giving the Court jurisdiction for acts prior to the declaration (see. D. Richemond-Barak, ‘Double Duty at the ICC’, in EJIL: Talk!, January 12, 2015). On January 16, 2015, the Prosecutor of the International Criminal Court announced the opening of a preliminary investigation into alleged crimes committed in the Occupied Palestinian Territory, including East Jerusalem, as of June 13, 2014 in order to determine whether there is “a reasonable basis to proceed” with the opening of a formal investigation (see http://www.icc-cpi.int/en_menus/ icc/press%20and%20media/press%20releases/Pages/pr1083.aspx>). In his view, Res. 67/19 is “determinative of Palestine’s ability to accede to the Statute pursuant to Article 125, and equally, its ability to lodge an Article 12(3) declaration”. On the same day, January 16, 2015, Canada (a State Party to the Statute), Israel and the United States (only signatories to the Statute) announced their protests to the Secretary General of the United Nations claiming that Palestine is not a State and does not have the ability to accede to the Statute of the International Criminal Court.

Lastly, little weight should be given to the fact that the State to be admitted is not recognized by some of the UN Member States. Aside from the question of  the nature and value of the recognition of new States, it can be said that Article 4 does not set any conditions on the subject. This can be explained by the UN’s aspiration to being a universal organization and to overcoming the positions of its individual members. A different problem is the impossibility, due to the lack of the prescribed majorities in the Assembly and in the Security Council, of admitting a State that is not recognized by the majority of UN members or even by only one of the permanent members of the Council. This is the case, for instance, of the Turkish Republic of Northern Cyprus that was established in 1983, after the military intervention of Turkey on the island, which took place in 1974. 11.  Admission of mini-States Select bibliography: Charles d’Olivier Farran, The Position of Diminutive States in International Law, in Festschrift für W. Schätzel (Düsseldorf: Hermes, 1961), 131 ff; William L. Harris, ‘Microstates in the United Nations: A Broader Purpose’, 9 CJTL (1970) 23–53; Jean Chappez, ‘Les micro-Etats et les Nations Unies’, 17 AF (1971) 541–51; Bernard SaintGirons, L’ONU et les micro-Etats, 76 RGDIP (1972) 445–74; M.H. Mendelson, ‘Diminutive States in the UN’, 21 ICLQ (1972) 609–30; Stephen M. Schwebel, ‘Ministates and a More Effective UN’, 67 AJ (1973) 108–16; Joseph R. Harbert, ‘The Behavior of the Ministates

Admission of mini-States   35

in the UN’, 30 Int. Org. (1976) 109–27; Roberto Adam, ‘Micro-States and the UN’, 2 IYIL (1976) 80–101; Michael M. Gunter, ‘What Happened to the UN Ministate Problem?’, 71 AJ (1977) 110–24; Wolfgang Ramonat, ‘Mikrostaaten in den Vereinten Nationen’, 32 Außenpolitik (1981) 283–96; Jorri C. Duursma, Fragmentation and the International Rela­ tions of Microstates: Self-determination and Statehood (Cambridge: Cambridge University Press, 1996), 134 ff; James Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 2006, 2nd edn) 182–86; Ulrich Fastenrath, Article 4, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd edn), vol. I, 347; Rita Mazza, Microstati e Nazioni Unite (Napoli: Editoriale Scientifica, 2012).

It does not seem that the size (in terms of population and territory) of a State in any way affects the Assembly’s or the Council’s discretionary power regarding the State’s admission. The Organization has had to deal in a number of instances with the question of micro or mini-States and, since 1965, proposals have been made that measures be studied which would limit their admission to the UN or would assign them a kind of limited participation. In particular, a kind of “associate membership” has been proposed for mini-States which not only have limited population but also few economic resources. Such Associate States would enjoy most of the advantages connected with membership status without the obligations. It is obvious that until such innovations are put into effect and specific procedures for implementing them are established, only cautious exercise of the discretionary power of the Assembly and the Council under Article 4 could serve to keep in check the admission of micro-States. Yet, the practice followed up to now has been exactly the opposite. Admission of countries such as the Seychelles, San Marino, Liechtenstein or, more recently, of Tonga and Nauru (the latter numbering approximately 11,000 inhabitants) to the United Nations and granting them full voting rights in the Assembly has certainly not helped to strengthen the role of this organ. The United States delegate to the Security Council in the Council meeting of Sept. 20, 1965 was the first to suggest the necessity of studying this problem (SCOR, 20th year, 1243rd meet., p. 14 f.), when France raised the issue with reference to the admission of the Maldives (ibid., p. 12). The Secretary-General dealt with the problem in his annual report to the General Assembly in 1966 and, in further detail, in 1967 (cf. Doc. A/6301/Add.1, p. 14; Doc. A/6701/Add.1, p. 20 f.). In 1969, the Council held a debate on the issue and set up a Committee of experts to investigate it (ibid., 24th year, 1505–1506th meets.). The proceedings of the Committee did not have any important results (after a first provisory report in 1970, published in Doc. S/9836, nothing else was done). Several States, however, expressed views on the issue. Some proposed the formula of associate membership for States with “limited population or resources”. Others refuted this, mainly with the argument that it would be impossible to introduce limitations after having in recent years already admitted most of the micro-countries (cf. Doc. A/AC.182/L.2, no. 135). There have also been various proposals for resolving the problem from private research agencies which have suggested changing the voting procedure in the General Assembly. For example, the proposal of the New York Center for War and Peace Studies is that the majority required for the approval of Assembly decisions should consist not only of the majority of present and voting

36  Membership of the Organization

­ embers but also of the States that represent a certain percentage of the world’s population m and of the States whose contributions to the UN budget reach a certain percentage: cf. André Lewin, La triade contraignante, une nouvelle proposition de pondération des votes aux Nations Unies, 88 RGDIP (1984), pp. 349–59.

As we have already noted in discussing Charter revision (see § 8), a real breakthrough in the issue of the General Assembly structure—a breakthrough that would inter alia resolve the problem of mini-States—would be to transform this organ into a world parliament, where all peoples were proportionately represented. Needless to say how remote such an occurrence is, also because it involves a radical redistribution of power among States, shifting it towards the most populous ones, such as the People’s Republic of China (PRC) and India. 12.  Admission of neutralized States Select bibliography: Titus Komarnicki, ‘The Problems of Neutrality under the UN Charter’, 38 T (1952) 77 ff; Howard J. Taubenfeld, ‘International Actions and Neutrality’, 47 AJ (1953) 377–96; Charles Chaumont, ‘Nations Unies et neutralité’, 89 RC (1956-I) 1–59; Alfred Verdross, ‘La neutralité dans le cadre de l’ONU particulièrement celle de la République d’Autriche’, in RGDIP (1957) 177–92; Rodolfo De Nova, ‘Considerazioni sulla neutralità permanente dell’Austria’, 8 CS (1956) 1–31; Giuseppe Tesauro, ‘Rinuncia alla belligeranza (l’art. 9 della costituzione giapponese)’, 2 ADI (1966) 291–311; Rudolf L. Bindschedler, ‘Das Problem der Beteiligung der Schweiz an Sanktionen der Vereinten Nationen, besonders im Falle Rhodesiens’, 28 Bruns’Z (1968) 1–15; Karl Zemanek, ‘Das Problem der Beteiligung des immerwährend neutralen Österreich an Sanktionen der Vereinten Nationen, besonders im Falle Rhodesiens’, ibid., 16–32; Alberto Miele, L’estraneità ai conflitti armati secondo il diritto internazionale, II, La disciplina positiva delle attività statuali (Padova: Cedam, 1970) 496–507; K. Herndl, ‘Die Mitgliedschaft Österreichs im Sicherheitsrat der Vereinten Nationen (1973/1974), Neue Aspekte der dauernden Neutralität’, in Festschrift für Rudolf Bindschedler (Berne: Stämpfli, 1980) 527–48; Rolf P. Haegler, Schweizer Universalismus, UNO-Partikularismus. die Bedeutung des Universalität­ sprinzips in der Frage des Beitritts der Schweiz zur Organisation der Vereinten Nationen, unter besonderer Berücksichtigung der Verhandlungen in der Bundesversammlung (Bern/ Frankfurt am Main: Lang, 1983); Detlev C. Dicke, ‘Völkerrechtliche Probleme eines eventuellen Beitritts der Schweiz zu den Vereinten Nationen’, 22 AV (1984) 405–17; Daniël Thürer, ‘UN Enforcement Measures and Neutrality. The Case of Switzerland’, 30 AV (1992) 63–85; Dietrich Schindler, ‘Kollektive Sicherheit der Vereinten Nationen und dauernde Neutralität der Schweiz’, 2 Schw. Z (1992) 435–79; Ivan Ingravallo, ‘L’ammissione della Svizzera all’ONU e la questione della neutralità permanente’, 58 CI (2003) 265–86; JeanFrançois Paroz, Les droits et les devoirs d’Etat membre: l’expérience et les initiatives de la Suisse depuis son adhésion aux Nations Unies, in Robert Kolb, Introduction au droit des Nations Unies (Bâle/Bruxelles: Helbing Lichtenhahn/Bruylant, 2008) 191–277.

It has been debated whether a neutralized State—that is, a State which, on the basis of an international agreement, has undertaken not to wage war or to engage in acts that might lead to war—may be admitted to the UN. The debate originated from the fact that some of the obligations imposed by the Charter on United Nations members, specifically the obligations to provide assistance

Admission of neutralized States   37

and to participate in UN actions for the maintenance of international peace and security, seem to be incompatible with neutralization. The question of compatibility may be raised, for example, with regard to Article 2, para. 5, whereby members have a general obligation to assist the UN in all actions, and in military actions undertaken against a State. The same can be said with regard to Article 41 which, in connection with Article 39, authorizes the Security Council to require Member States to adopt measures not involving the use of force (such as severance of diplomatic relations and economic sanctions) with a country responsible for threatening or breaching the peace. Such measures, indeed, may be seen as actions capable of involving in a war the State adopting them. Lastly, the provision of Article 43 should be mentioned, although it has not yet been applied by any member (see § 60). It provides for agreements to be concluded between the Security Council and Member States designed to govern the military contingents placed at the disposal of the Council, thereby imposing on Member States a kind of obligation de contrahendo with the Security Council in order to assure their participation in the measures involving the use of force. The problem of compatibility between status as a UN member and status of a neutralized State arose with the admission of Austria to the United Nations in 1955. The neutralization of Austria is not contemplated by an international treaty made in a solemn form but all the same it can be traced back to an international agreement whose conclusion results from the following elements. On May 26, 1955 the Republic of Austria declared its “perpetual neutrality” in a constitutional provision. Immediately afterwards it informed all the States with which it had diplomatic relations of such provision, inviting them to recognize its neutrality. Fifty-seven States, among them the United States, the Soviet Union, France and the United Kingdom, accepted this invitation, some before and some after December 12, 1955, the date when Austria was admitted to the UN. The Austrian invitation, on the one hand, and the recognition by the other States, on the other, can be considered as elements of an international agreement formalizing the neutralization of Austria. It should however be noted that, for the reasons we will put forth, the terms of the question of compatibility with the status as a UN member would remain unchanged, even if an international agreement were to be considered non-existent and therefore the thesis were to be supported that in the Austrian case the obligation not to wage war and not to engage in acts that might lead to war had only a unilateral domestic nature, namely that it would merely be an obligation imposed on the organs of the State by constitutional norms (so-called constitutional neutrality). Thereafter, the status of permanent neutrality has been adopted by Turkmenistan in 1985.

38  Membership of the Organization

Lastly, with the admission of Switzerland to the UN in 2002 (see § 1 B) another neutralized country is now member of the Organization. The neutrality of Switzerland, already recognized by the Vienna Congress in 1815, was reaffirmed by the Declaration of Paris of 1915. This status of neutrality has been recognized by international treaty instruments; according to some legal scholars it is even the subject of an international custom. The subject of the admission of neutralized States was already discussed at the time of the League of Nations with regard to Switzerland. The League of Nations Covenant provided, in Article 16, that military actions and economic sanctions could be requested of Member States against an aggressor State. In 1920, when Switzerland became a member of the League of Nations, it was once and for all exempted from military measures but not from economic measures by a Council resolution (of February 13, 1920). In 1938, another Council resolution (May 14) exempted it from the economic sanctions ordered against Italy for the Ethiopian War. For the text of the two resolutions, whose legality was very doubtful as the Council did not have explicit power to exempt a State from the obligations provided for by the Covenant, cf. Société des Nations, Journal Officiel, 1920, p. 57 and 1938, p. 368 ff. (the second resolution was approved with the abstentions of China and the Soviet Union). In view of its status, Switzerland decided in 1945 not to seek admission to the UN However, in 1981 the Federal Council sent a message to the National Council (Message concernant l’adhésion de la Suisse à l’ONU, du 21 décembre 1981, Doc. 81.081), proposing the admission. The message specifically dwelt on the issue of the compatibility between neutralization and admission (Message, cit., p. 45 ff. and passim). A popular referendum, held in 1986, rejected the proposal. After two other messages of the Federal Council, of November 9, 1993 and December 4, 2000, the referendum was again held in 2002 and this time the admission was approved by the majority of the population. Also in the case of Japan, a problem arose concerning compatibility with the status of a UN member (Japan was admitted in 1956). Article 9 of the Japanese Constitution, which entered into force on May 3, 1947, provides in para. 1 that Japan renounces war as a means of resolving international disputes and adds, at para. 2, that to achieve this purpose “land, sea, and air forces, as well as other war potential will never be maintained. The right of belligerency of the state will not be recognised”. It was therefore asked whether para. 2 did not put Japan in the condition of not being able to fulfil the obligation to assist the UN in possible military actions. Actually, over time Article 9 has lost some of its importance, particularly with Japan’s ratification of the 1951 peace treaty, which expressly stated that Japan would give the UN every assistance in any action undertaken within the framework of Chapter VII of the Charter.

That being said, the question of compatibility between neutralization and UN membership may be divided into two sub-questions. One is whether a neutralized State may be admitted to the Organization. The other is whether, once admitted, such a State has the right to invoke its status in order to be exempted from carrying out the Charter obligations regarding maintenance of the peace. To answer the first question, the requirements which, under Article 4, para. 1, a State must fulfill to be admitted deserve consideration. There is, first of all, the general acceptance “of the obligations contained in the present Charter”.

Admission of neutralized States   39

Given the clear formula of Article 4, it does not seem that such acceptance may be accompanied by any limits or reservations. Therefore, the acceptance by a neutralized State, like that by any other State, must be unconditional, lest the decision of the Assembly and the Council be illegal. It is indicative that Austria’s request, presented in 1952 and never altered, explicitly provided for acceptance “without any reservation” (see 223 UNTS (1955), p. 28). It is also i­ ndicative that in the long discussions which were held—before the latest referendum— in the Swiss federal organs on the admission of Switzerland, and where the main concern was the safeguarding of its neutrality status and the necessity that such neutrality be strongly and solemnly confirmed before becoming a UN member, the view was rejected that this status could be the object of a formal reservation expressed when the application was made because of the prospective inadmissibility that such a request would have faced (cf. 88 RGDIP (1984), p. 285). In fact, no such reservation is contained in the request presented by Switzerland in 2002. Non-opposability of reservations aimed at subordinating the acceptance of treaty obligations aside, there are no other limits to the power of the Assembly and the Council to admit a neutralized State. The ascertainment of the other requisites provided by Article 4, especially that of being “able and willing to carry out” the Charter’s obligations come within the full discretion of the two organs (see § 10). Therefore, if the Assembly and the Council believe that a neutralized State is able and willing to carry out the obligations, then the issue is closed. As regards Austria, the conclusion that its admission to the UN was perfectly legitimate is unquestionable. The preparatory works also indicate the possibility of admitting a neutralized State. During the San Francisco Conference, in Committee 1/2 which was examining the article concerning admission (present Article 4), the French representative proposed that this article should state that neutralization was incompatible with the obligations involved in  UN membership (see U.N.C.I.O., vol. 3, p. 383). His proposal was not accepted (ibid., vol. 7, p. 290). Later, Committee 1/1 dealt with neutralization during the study of Article 2, para. 5, which imposes on the Member States the obligation to assist the Organization in any actions it undertakes. The Committee chose not to include any reference to neutralization in Article 2, but expressed the unanimous opinion that a Member State could not avail itself of this status in order to free itself from the obligation under Article 2, para. 5, or from any other Charter obligation (ibid., vol. 6, p. 400 f. and 722). It is clear that the San Francisco Conference took for granted the possibility of admitting neutralized States to the UN. The stance adopted by the Conference in the sense that neutralization could not be invoked to justify non-performance is concerned with the second part of the problem.

Once a neutralized State has been admitted, may it refuse in specific cases to assist the United Nations when the Organization decides to take action to ­protect the peace?

40  Membership of the Organization

It is worth noting at the outset that, as hinted above, the answer will be the same whether the neutralization originates in an international agreement or it consists in the so-called constitutional neutrality. In fact, if permanent neutrality derives from an agreement, obligations under the UN Charter prevail over it in accordance with Article 103 of the Charter itself, which sanctions the prevalence of the obligations under the Charter, in the event of a conflict, over obligations under any other international agreement (see § 4). On the other hand, if permanent neutrality is established by a constitutional norm, according to an undisputed principle of international law—codified in Article 27 of the Vienna Convention on the Law of Treaties of 1969 (see § 5) and mirrored in Articles 3 and 32 of the International Law Commission’s Articles on State Res­ ponsibility adopted in 2001 (at )—the State cannot invoke its domestic law, even if it enjoys constitutional status, in order to avoid international obligations, such as the ones undertaken under the Charter. Hence, in both cases, albeit for different reasons, the State must follow the provisions of the Charter, regardless of whether its permanent neutrality status is established by an agreement or a constitutional norm. The Austrian government has occasionally claimed the right to pursue a policy of neutrality at the cost of failing to meet some Charter obligations. On February 28, 1967, in answering the Secretary-General on the measures to adopt against Southern Rhodesia following Security Council Res. 232 of December 12, 1966 (a decision that obligated all the Member States to interrupt all economic relations with Rhodesia under Articles 39 and 41 of the Charter), the Austrian Republic reserved its position, although at the time only in principle. In particular, it stated that it did not want to “prejudge the ­question whether Austria, as a permanently neutral State Member of the UN is ­automatically bound by decisions of the Security Council regarding mandatory sanctions—a question which in the opinion of the Federal Government of Austria can only be decided in each single case on the basis of the specific ­situation and with due regard to the obligations which result on the one hand from the membership of Austria in the United Nations and on the other hand from its permanent neutrality, of which all States Members of the United Nations have previously been notified” (SCOR, 22nd year, Supp. 1–2.3.1967, p. 155). This declaration of principle was also expressly referred to in the Austrian answer regarding the subsequent resolution adopted by the Security Council on May 29, 1968, which decreed a complete economic blockade of Southern Rhodesia (cf. SCOR, 23rd year, 7–8.9.1968, p. 176). The thesis of the Austrian Government was shared and expressly referred to by the Swiss Federal Council in the Message of December 21, 1981 to the National Council, in favor of the admission of Switzerland to the UN (cf. Message, cit., p. 47 ff., at 51).

Admission of neutralized States   41

The view held by Austria in the Southern Rhodesia case was later abandoned by this State, as can be seen in the official statements made by the Austrian Government during the 1991 Gulf War (see § 61). According to these statements, the right of neutrality cannot be considered “relevant” in the event the Security Council adopts sanctions on the basis of Chapter VII of the Charter (see Dietrich Schindler, ‘Kollektive Sicherheit der Vereinten Nationen und dauernde Neutralität der Schweiz’, 2 Schw.Z (1992), p. 454). In any case, the view does not seem well-founded. The following elements—Article 103, which confirms the prevalence of Charter obligations over all other obligations; the non-existence in the Charter of a rule providing for “softened” forms of UN membership; the importance of the maintenance of international peace and security in the UN system; the already mentioned clear position taken at the San Francisco Conference, in the sense that a Member State could never invoke its own neutralization—all favor the view that the neutralized State has the same, identical obligations as the other Member States. The fact, then, that, as in the case of Austria, neutralization had been recognized or at least known by the majority of Member States prior to admission does not seem sufficient to alter this conclusion. This fact is counter-balanced by the acceptance without reservations of the Charter obligations that every State must undertake in requesting admission. As far as Switzerland is concerned, its request of admission made in 2002 states that neutrality status “is compatible with the obligations laid down by the Charter” (Doc. S/2002/801). However, some modifications of the relevant parts of the Swiss Constitution had been already introduced in 2000, in order to permit the participation of the State in peacekeeping operations (even where they are armed). Such participation, as well as the application of measures not involving the use of force (Article 41) have been considered as compatible with neutrality status, being a contribution to the maintenance of the peace and not acts of war. The compatibility between the status of permanent neutrality and the fulfillment of the Charter obligations has also been recognized by the General Assembly in the case of Turkmenistan (see Res. 50/80 of January 11, 1996). The above does not prevent the satisfaction of the needs of neutralized States on the basis of the discretion enjoyed by the Security Council regarding actions safeguarding the peace. Under Article 48, para 1, in fact, the Council may ask that its decisions be carried out by some members and not by others. It therefore may exempt, within the limits allowed by the general interest, the neutralized State. If Article 48, para. 1, is taken into account, what can be conceded to the position taken by the Austrian government in the Southern Rhodesia case is that the Member States of the Security Council (especially the permanent members) that have recognized the neutralization status then have the duty to

42  Membership of the Organization

make an effort in the Council so that, in line with the general interest, the neutralized State is exempted on a case-by-case basis from certain measures. On the contrary, this exemption could not be decided on once and for all, because this would be the equivalent of the Council’s bringing about a change  in  the Charter, with the introduction of a “softened” form of UN membership. 13.  The so-called conditional admission and the non-existence of “positive” obligations of the UN organs Select bibliography: Marie S. Klooz, ‘The Role of the General Assembly by the United Nations in the Admission of Members’, 43 AJ (1949) 246–61; Günther Jaenicke, ‘Die Aufnahme neuer Mitglieder in die Organisation der Vereinten Nationen’, 13 Bruns’Z (1950) 330 ff; Nathan Feinberg, ‘L’admission des nouveaux membres à la Société des Nations et à l’Organisation des Nations Unies’, 80 RC (1952-I) 342 ff; Giuseppe Sperduti, ‘Il principio della buona fede e l’ammissione di nuovi membri delle Nazioni Unite’, 7 CI (1952) 42–63; Stephen Jacobs and Marc Poirier, ‘The Right to Veto United Nations Membership Applications: The United States Veto of the Viet-Nams’, 17 HILJ (1976) 581–608; Igor Janev, ‘Legal Aspects of the Use of a Provisional Name for Macedonia in the UN System’, 93 AJ (1999) 155–60; Id., ‘Some Remarks on Macedonia’s Legal Status in the United Nations’, 53 RIA (2002) 33–35.

Can admission be dependent on conditions or requirements different from those provided by paragraph 1 of Article 4? More specifically, can a permanent member of the Security Council veto a resolution recommending the admission of one or more States to the United Nations while recognizing that the State or States to be admitted meet the requirements of Article 4, para. 1? Or is there a requirement that permanent members not veto (or that the Security Council as a whole not oppose) the admission of one or more States respecting all the requisites of Article 4, para. 1? This problem arose in the early years of the UN (the so-called problem of “en bloc admission” or “package deal”), when for a period of time the Soviet Union paralyzed the admission of a certain number of States with its veto in the Security Council. Although the Soviet Union recognized that these States fulfilled all the requirements under Article 4, para. 1, it expressed its intention to vote in their favor only on the condition (hence the expression “conditional admission”) that certain other States deemed not qualified by the majority of the Council be admitted at the same time. The Soviet attitude, at the time condemned by Western countries, and particularly by the United States, was then adopted by the United States itself with regard to the admission of Vietnam, which was blocked in 1975 and 1976 by the United States veto and, in 1975, made conditional on the admission of South Korea. The admission of the Republic of Macedonia in 1993—while an ongoing dispute was, and still is, taking place with Greece as to the use of the name

The so-called conditional admission   43

“Macedonia”—can also be considered as a kind of sui generis conditional admission in so far as… it is decided on conditionally by the Security Council rather than being formulated by the State when placing its vote. In the Security Council resolution recommending the General Assembly to admit the “applicant State” (note the general nature of the term) to membership in the United Nations it is in fact provided for it “being provisionally referred to for all purposes within the United Nations as ‘the former Yugoslav Republic of Macedonia’ pending settlement of the difference that has arisen [i.e. the dispute with Greece] over the name of the State” (cf. Security Council Res. 817 of April 7, 1993 followed up on by the General Assembly with Res. 47/225 of April 27, 1993). The issue of “package” admission paralyzed UN admissions between 1947 and 1955. It began with the requests for admission by Bulgaria, Finland, Italy, Rumania and Hungary, who had been former enemies of the United Nations members or of some of them but who had ratified peace treaties. When, in the autumn of 1947, these requests were brought before the Council, the Western powers opposed the admission of Rumania, Bulgaria and Hungary. They maintained that these countries did not meet the requirements of Article 4, para. 1, and, in particular, referred to their human rights violations and to the support given by some of them to the Greek civil war. The Soviet Union, on the contrary, held that the five States all met the requirements of Article 4 and that therefore all had to be admitted. Consequently, the Soviet representative said that its favorable vote for Italy and Finland would be dependent on the admission of the other three States. Faced with the persistent refusal of the Western powers (the majority in the Council), the Soviet Union exercised its veto which then led to the defeat of all the requests (cf: SCOR, 2nd year, 203rd–206th meets.) The issue dragged on in this way until 1955, when the Soviet claim was finally successful, and a “package” of 16 States was admitted to the UN. For the position taken by the United States in the Security Council in 1975 proposing to make the admission of North Vietnam and South Vietnam (at the time not yet unified) conditional on the simultaneous admission of South Korea (and with the possibility of a U.S. vote also in favor of North Korea), see S/PV.1836 (of August 11, 1975), p.13 f. and S/PV.1846 (of Sept. 30, 1975). Several States, mainly of the Third World, spoke out in the Council debate against the American veto, invoking the 1948 Opinion of the International Court of Justice (an Opinion that will discussed shortly). See, for example, the statements by Tanzania (S/PV.1836, p.14 f.), Algeria (S/PV.1842, p. 3), India (S/PV.1844, p. 1), Cameroon (S/PV.1845, p.11), and Mexico (S/PV.1846, p. 4). The dispute with Greece over the use of the name Macedonia was decided by the International Court of Justice. On November 17, 2008, the Republic of Macedonia had instituted proceedings against Greece at the International Court of Justice claiming a flagrant violation of its obligations under Article 11, para. 1, of the Interim Accord signed by the two States on September 13, 1995, where Greece agreed not to object to the former Yugoslav Republic of Macedonia’s membership “in international, multilateral and regional organizations and institutions of which [Greece] is a member”. The violation is claimed to have occurred when Greece vetoed the admission of the former Yugoslav Republic of Macedonia into NATO at the Bucharest Summit in April 2008, as long as the dispute over the name of the Macedonian State were not resolved (cf. ). Greece considers the use of the term “Macedonia” to denote an underlying claim to the northern Greek province of the same name. In its judgment of

44  Membership of the Organization

December 5, 2011, the International Court of Justice found against Greece for violation of Article 11, para. 1, of the 1995 Agreement (cf. ). For a comment, see Nicholas Walbridge, In the Name of the State: The Interminable Dispute over Macedonia is Now Before the ICJ, at . The unlawfulness of the practice of conditional admission was also invoked against China for its veto concerning the admission of Bangladesh in 1972, and this unlawfulness was corroborated by the opinion of the International Court of Justice, which we shall immediately examine below; on this issue, see SCOR, 27th year, 1659th (especially no. 61 and no. 91) and 1660th (especially no. 11 and no. 46) meets.

On the question of admissions of States conditioned on the contextual admission of other States, in 1947 the General Assembly requested an Advisory Opinion of the International Court of Justice, under Article 96 of the Charter. The question was the following: Can a member of the Security Council or of the Assembly make its consent to the admission of a State to the UN dependent on conditions not expressly provided by Article 4, para. 1, and, in particular, on the condition that other States be admitted together with that State? The Advisory Opinion of the Court, of May 28, 1948 (Conditions for Admission of a State to Membership in the United Nations, in ICJ Reports 1947–48, p. 57 ff.), was handed down by a majority of nine to six. Close examination of this Opinion is useful in so far as it leads to some general conclusions regarding the limits met by the Assembly and the Council concerning both admission and other matters. As Article 4 is not concerned with the conduct of individual Member States in the Security Council or the Assembly, the views expressed by the Court in this Opinion, and also by the minority (in their dissenting opinions), refer mainly to these two organs and only indirectly affect individual Member States. Let us ask, say the judges, whether Article 4, para. 1, places a limit on the conduct of the two organs which would then make refusing admission for reasons not covered by para. 1 illegal; if such a limit exists for the organs, it must also exist for the States that make up such organs, and the answer to the General Assembly’s question must be negative (cf. ICJ Reports 1947–48, p. 62 and p. 83, para. 4, for the dissenting opinion by Judges Basdevant, Winiarski, McNair and Read). The Court’s Opinion is that it is illegitimate to refuse admission to a State on the grounds of non-admission by another State and is thus clearly contrary to conditional admission. In the view of the Court, the admission requirements provided for by para. 1 of Article 4 are not only necessary for the admission of a new State but are also sufficient; to add any other conditions would be illegal. What is their reasoning? The Opinion is based mainly on the text of the article. The English text of para. 1, which is not substantially different from the French text, opens with the phrase “Membership in the United Nations is open to all

The so-called conditional admission   45

other peace-loving States…”, and para. 2 adds that “The admission of any such State…will be effected…”. This clearly indicates, in the Court’s view, that it is impossible for the Assembly and the Council—and therefore for the Member States—to be legally entitled to refuse admission to countries which they believe meet the requirements of para. 1 (see ICJ Reports 1947–48, p. 62 f.). The spirit of Article 4 is also invoked by the Court (ibid., p. 63) but it is unclear in what sense. It would seem to be in the sense that para. 1, in connecting the acquisition of membership status to the capacity to observe the principles and obligations of the Charter, contains in itself a “legal” regulation of admission, regulation incompatible with an unlimited power of discretion of the organs as to whether or not to admit. Taking into account the letter and spirit of Article 4, the Court rejects the main argument used by the minority judges to uphold, on the contrary, the legality of a refusal of admission that is motivated by considerations extraneous to para. 1. For the judges in the minority, Council and Assembly resolutions concerning admission are acts of a “political nature”. They emanate from political organs and in any case involve the examination of political factors. The Council and the Assembly therefore have wide discretionary power on the matter, being free to choose the reasons for their decision. As far as the Security Council is concerned, its discretionary power should also be drawn from the fact that Article 24 entrusts it with “primary responsibility for the maintenance of international peace and security”; moreover, the same power was recognized to both organs during the San Francisco Conference. To these objections, the Opinion of the Court replies that discretionary power regarding admission must not be postulated, but is exactly the point to be demonstrated; that on the basis of an interpretation of the text of Article 4, this discretionary power no doubt exists within very wide limits as far as the ascertainment of the requirements expressly foreseen by para. 1 are concerned, but it ceases to exists once the organ and the States that are members of such organ have come to the conclusion that the candidate possesses them; and finally that, since the text of Article 4 is clear, neither recourse to Article 24 nor an appeal to the preparatory works is admissible. For the relevant passages in the opinions of the minority judges, see ICJ Reports 1947–48, p. 82 ff.; p. 94 ff.; p. 107 ff.; for the passages of the cited Opinion, ibid., p. 63 f.

In our view, the Court’s opinion is questionable. The correct approach to the problem would be to distinguish between (a) the position of the organs and (b) the position of the individual States that are members of them. Confusing the two positions and treating the latter as an automatic reflection of the former, resulted in leading the judges to the formulation of unpersuasive and ambiguous, rather implausible arguments.

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(a) With regard to the position of the organs, little doubt can be raised as to the freedom they enjoy not to admit States even though they meet the requisite conditions of Article 4, para. 1. This, moreover, not for the political nature of the issue, as the dissenting judges claim, but rather because in the United Nations system the existence of positive obligations—that is, obligations requiring a certain conduct on the part of the Assembly and the Council—is hardly conceivable. It is already difficult in municipal law to conceive of such positive obligations with regard to State organs, to say, in other words, that Parliament has the obligation to enact certain laws, or that an administrative body has the obligation to adopt a certain act. However, where remedies exist (such as dissolution or revocation of the organ, judicial or administrative remedies, and so on) against the inactivity of the organ, such a conception is still possible to the extent that said remedies are effective in putting pressure on the organs to adopt the measures they are required to take. On the contrary, it is out of place in the case of the Assembly and the Council, given the absolute lack of remedies of this kind. An organ does not exist that can take the place of the Assembly or of the Council in the adoption of an act which they fail to adopt while having a duty to adopt, nor does an organ exist that has any power under the Charter to force them to act. It is true, as the Court says, that the Council and the Assembly are not legibus soluti; they are subject to the Charter provisions, including Article 4. But this is true in the sense that their activity, i.e. the actions they adopt—what they do and not what they do not do—must meet the limits provided in the Charter, and are illegal if they conflict with it. As will be discussed later, such an illegality produces important consequences and may be invoked in certain ways and within certain limits by the individual Member States, which can refuse to apply allegedly illegal acts. However, they cannot give effect to the allegedly illegal failure of a UN organ to adopt an act for the simple reason that they can neither adopt the act themselves nor individually press for adoption by the organ if the majority are against (see § 99). The possibility that the failure to adopt an act by the Assembly and the Council, such as the failure to adopt the act necessary to complete the admission procedure under Article 4, para. 2, may be illegal as inconsistent with an alleged obligation to adopt the act itself should thus be ruled out. Despite the Court’s claim, it does not appear to us that from Article 4 the obligation of the Council and the Assembly to always and in any case admit the States that satisfy the requirements therein provided can be drawn, for the simple reason that we do not see how the fulfillment of such an obligation might then be made effective. The above does not, on the other hand, rule out the possibility that an act adopted in order to admit a State—as opposed to the failure to adopt an act entailing the refusal to admit a State that satisfies the requirements of Article 4, para. 2—could be considered as illegal if it conflicts with the Charter, and in

The so-called conditional admission   47

particular with para 2 of Article 4. It is illegal, for instance, if, as in the above mentioned case of the admission of the Republic of Macedonia in 1993, conditions are laid down by the Security Council and the General Assembly which are not requested by the Charter. It therefore appears to us that it is exactly (and only) this the case in which the observations of the Court in its Advisory Opinion against conditional admissions can be applied in practice. (b) With regard to the position of the Member States in the Assembly or in the Security Council, it is not Article 4 which answers the question whether there exist any limits to the freedom of the individual member to vote yes or no, or to abstain, in accordance with its “personal” convictions. There is no trace in Article 4 of an evaluation of the behavior of the individual Member State, and this is why it is necessary once again to avoid the confusion made by the Court between the organ and members of the organ. The voting procedures in the Assembly and in the Council are governed by Articles 18 and 27, which put no limit on the freedom of the vote. All that can perhaps be said, as inferred from Article 2, para. 2, of the Charter, is that the vote is to be exercised in good faith and that a State which persistently violates the principle of good faith may expect to meet with the sanction (up to now never applied) foreseen by Article 6, namely, expulsion. It is evident how far removed this is from Article 4 and how it fits into a more general and completely different framework. Therefore, just as the Assembly and the Council are free to complete the admission procedure or not, so are the individual Member States of the two organs equally free to vote for or against the admission of States, even (in case they vote against) when the latter satisfy the requirements of Article 4, para. 1. What fails to convince us of the Court’s Opinion is ultimately the presumption of positive obligations upon the organs and, secondly, the automatic inference from such obligations of obligations of the organ’s Member States. For the view that the Rules of Procedure in the two organs do not place any limits on the freedom of the vote, see the dissenting opinion of Judge Zoricić (ICJ Reports 1947–48, p. 97), who focuses, however, as do the other judges of the majority and of the minority, on the above-cited analysis of Article 4. After having inferred from Article 4 that the Council, and indirectly, the individual member, has discretionary power, Judges Basdevant, Winiarski, McNair and Read have recourse to the obligation of good faith in their dissenting collective opinion (ICJ Reports 1947–48, p. 91 f.). In his separate opinion, Judge Alvarez held the view that the State which acts as did the Soviet Union can be charged with “abuse  of  rights” (ICJ Reports 1947–48, p. 71). The notion of abuse of rights which has often  been invoked in UN practice to condemn the abuse of the veto in the Security Council by the Soviet Union, is, however, very much contentious as a notion of positive international law.

In 1949, as the practice of conditional admission and the Soviet Union’s exercise of the veto continued, the Assembly asked the International Court of

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Justice a second question. This was whether, in so far as the Security Council was not able to recommend admissions owing to the veto by a permanent member, the Assembly itself… could proceed with admissions on its own initiative. The negative answer of the Court, handed down by a very wide majority, is fully shareable and, in so far as it allows for the rejection of an admission sine die due to the inertia of the Council and to the impossibility of the Assembly to stand in for the Council, confirms what we have just said regarding the non-existence, in the UN system, of remedies against the inertia of the organs. For the second Advisory Opinion on the Competence of the General Assembly for the Admission of a State to the United Nations of March 3, 1950, see ICJ, Reports, 1950, p. 4 ff.

14.  Readmission Select bibliography: Charles Rousseau, ‘Syrie, Problèmes de la reconnaissance du nouvel Etat par les Etats tiers et sa réadmission dans l’ONU’, 66 RGDIP (1962) 413–17; Matteo Decleva, ‘La qualità di membro delle organizzazioni internazionali’, 18 DI (1964) 187–250; Felicetta Leanza Lauria, ‘La riammissione dell’Indonesia alle Nazioni Unite’, 21 DI (1967) 215–22; Mario Scerni, ‘La soluzione del caso dell’Indonesia da parte delle Nazioni Unite’, 22 CI (1967) 3–10.

The procedure under Article 4 is to be followed also in the case of readmission. Readmission covers both the case of a State which, after having been expelled or having withdrawn from the UN, asks to be readmitted and the case of a State which, after becoming extinct as an international subject (owing to merger or incorporation with another State) and after having, as a consequence, lost its membership status, again acquires its international personality and asks to be readmitted to the Organization. In both cases a new situation exists, which requires carrying out the procedures under Article 4. The practice varied to some extent in the Indonesian and Syrian cases. Indonesia left the United Nations in 1965, giving rise to a real case of withdrawal (see § 17) with the consequent loss of membership status. With regard to Syria, this State merged with Egypt in 1958 and at that time lost both its status as an international subject and its seat in the UN. When these two States expressed the desire to again become part of the Organization (this occurred with regard to Indonesia in 1966 and to Syria in 1961 when it separated from Egypt), they were readmitted with a simplified procedure. The Security Council did not intervene; nor did the General Assembly take a formal decision. In an Assembly session, the President asked whether there were any objections to restoring the seats of the two States, and after taking note of the unanimous approval, he invited them to again take their seats. Clearly, the consent of all the Assembly members, and therefore of all the Member States of the UN, including the members of the Security Council,

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made resort to the procedure laid down in Article 4 appear superfluous. These two cases underline a recurring phenomenon in the United Nations, which consists in the ability of acquiescence of the Member States to remedy even the most obvious illegal acts of the organs (see § 99). Moreover, the simplified procedure followed for Indonesia and for Syria may have practical justification, since they were cases of readmission. Recourse to such procedure in a case of admission would be forced, even if not considered otherwise from a legal point of view. For the statement of the Assembly President relating to the readmission of Syria and issued in the session of October 13, 1961, see GAOR, 16th sess., Pl. meet., 1035th meet., no. 1 ff. For the one concerning Indonesia issued in the session of September 28, 1966, see GAOR, 21th sess., Pl. meet., 1420th meet., n. 1 ff.

Section II.  Modifications in Membership Status 15.  Suspension Select bibliography: Roberto Socini, L’appartenenza all’Organizzazione delle Nazioni Unite (Firenze: Barbera, 1951) 107 ff; Dan Ciobanu, ‘Enforcement Procedure of Article 19 of the UN Charter’, 14 RDI (1971) 423–51; Id., ‘The Scope of Article 19 of the Charter’, ibid. 15 (1972) 48–88; Id., ‘Credentials of Delegations and Representation of Member States at the UN’, 25 ICLQ (1976) 351–81; Alden Abbott, Filiberto Augusti, Peter Brown and Elizabeth Rode, ‘The General Assembly, 29th Session: The Decredentialization of South Africa’, 16 HILJ (1975) 576–88; Jean-Marc Lavieille, ‘La procédure de suspension des droit d’un Etat membre des Nations Unies’, 81 RGDIP (1977) 431–65; C.N. Patel, ‘The Politics of State Expulsion from the United Nations—South Africa, A Case in Point’, 13 CILJSA (1980) 310–23; Jerzy Makarczyk, ‘Legal Basis for Suspension and Expulsion of a State from an International Organization’, 25 GYIL (1982) 476–89; C.N. Patel, ‘The Legal Aspects of State Expulsion from the United Nations. South Africa a Case in Point’, 4 NULR, 1982, p. 197 ff; Malvina Halberstam, ‘Excluding Israel from the General Assembly by Rejection of its Credentials’, 78 AJ (1984) 179–92; Giuliana Ziccardi Capaldo, ‘Il disconoscimento delle credenziali del Sud Africa come sanzione contro l’apartheid’, 68 RDI (1985) 299–325; Mala Tabory, ‘Universality at the UN: The Attempt to Reject Israel’ Credentials’, 18 IYHR (1988) 189–209; Daphna Shraga, ‘La qualité de membre non-représenté: le cas du siège vacant’, 45 AF (1999) 649–64; Charles Leben and Mathias Forteau, in Jean-Pierre Cot, Alan Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd edn), vol. 1, 535–56; Christian J. Tams, ‘Article 5’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd edn), vol. I, 362–73.

The Charter provides, first of all, for the possibility of total suspension from the exercise of rights related to membership status. Under Article 5, the Member State, against which the Security Council has undertaken preventive or enforcement action, may be suspended from the exercise of all rights and privileges in the Organization by a special decision of the General Assembly

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taken upon the recommendation of the Security Council. The Security Council then has the exclusive power to revoke such suspension. A kind of partial suspension is contemplated by Article 19, on the basis of which a Member State which is in arrears in the payment of its financial contributions due to the Organization (see Article 17) has no vote in the Assembly—while it retains it in the other organs of the United Nations of which it is a member, particularly in the Security Council—if the amount of its arrears equals the amount due for the preceding two years. Suspension occurs automatically, and is not dependent on a decision of the organ. Article 19 adds that the Assembly may prevent this from happening if it ascertains that such delay is beyond the member’s control. Articles 5 and 19 have not given rise, in the practice of the Organization, to significant problems. Article 19 should have been applied during the serious crisis which the UN went through between 1961 and 1965, a crisis due to the refusal (for political, not financial, reasons) of a certain number of members to contribute to the expenses incurred by the Organization for peacekeeping actions in the Middle East and in the Congo. In this case (see § 88), in order not to suspend the debtor members from the right to vote, it was ­preferred… to suspend the Assembly proceedings, and no session was held in 1964. For further cases of automatic application of Article 19 see Valentina Della Fina, Il bilancio nel diritto delle Nazioni Unite (Milano, Giuffrè, 2004), p. 249 ff. For States in arrears in the payment of financial contributions see. and § 88. 

The Charter does not provide for cases of suspension of rights connected to membership status outside the conditions and procedures under Articles 5 and 19. The decision taken by the General Assembly in 1974 in the South Africa case therefore did not conform with the Charter. This decision, maintained in subsequent years, consisted in refusing the credentials of the delegates of the South African government and in expelling them from the organ’s proceedings. Although it was taken in the form of a deliberation over credentials (on the value and limits of these deliberations, see § 21), the Assembly’s decision took concrete form in nothing less than the suspension of South Africa from membership rights. This was neither recommended by the Security Council under Article 5 nor justified by arrears in the payment of contributions under Article 19. The decision taken against South Africa was part of a move to put the country outside the international community and its law. It was supported by the great majority of UN members in the years when the policy of apartheid on the part of the Government of Pretoria was at its most ruthless and was a move aimed at denying the international legal personality itself of any State which practiced apartheid. Was this move reflected in a precise general rule (of a customary nature) in the international legal system? If the answer were

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a­ ffirmative, not only would suspension of South Africa from Assembly proceedings be justified, but also the loss of its UN seat owing to… the extinction of South Africa as a legal subject would be justified. However, taking into account the relations which many Governments have always maintained with South Africa, it does not seem that this general rule could have taken shape. It has been suggested (Ziccardi Capaldo) that expulsion of South Africa would not have been illegal in that it would have constituted a kind of collective sanction, a sanction directly imposed by the international community as a whole against the crime of apartheid. This view leaves us unconvinced given that the Assembly, as a UN organ, is bound by the limitation of powers laid down by the Charter and that the Security Council has exclusive power regarding sanctions (see §§ 55–62) and the Council’s exclusive competence has not ­weakened; if anything it has become strengthened in time and practice. South Africa regained its full membership in 1994, after the ending of its apartheid policy and the calling of free and democratic elections in the country. As early as 1971 the General Assembly had begun to refuse to recognise the credentials of the South African delegates, but it had given this refusal the value of moral condemnation, allowing the delegates to participate in the sessions and to vote (see the statement of the Assembly President, issued in the 28th session, in A/PV.2141 of 5 October 1973). On the contrary, in the 29th session in 1974, after the Security Council had failed to adopt a proposal expelling South Africa from the UN (under Article 6), owing to the vetoes of the United States, the United Kingdom, and France, the Assembly decided, against the objections of illegality by the Western States and others, to follow up the refusal to recognise credentials with definitive exclusion from the proceedings: cf. A/PV.2281 of November 12, 1974; cf. also UNJY (1975), p. 167 f. From that time, the South African Government was no longer present in the Assembly. One cannot say, however, that it was no longer treated as a United Nations member since it continued to participate in the Security Council meetings which concerned it: cf., for example. S/PV.2509 (January 4, 1984), S/PV.2540 (August 16, 1984). Exclusion from General Assembly proceedings was also proposed for several years by the Arab countries with regard to Israel, beginning from 1982 until the end of 1989, but it was always blocked owing to an opposition of the United States and the other Western countries, which was shared by the majority: cf., for the first proposal, A/37/PV.45 of October 26, 1982, and, for the most recent, A/44/PV.32 of October 20, 1989. At times reservations have been expressed (always during deliberations but without formally requesting exclusion from Assembly proceedings) over one government or another for behavior contrary to human rights or otherwise to be condemned. Cf., for example, the reservations regarding Chile at the time of the Pinochet regime in the reports of the General Assembly Credentials Committee during the 1985 (Doc. A/40/747) and 1986 (Doc. A/41/727). Other reservations have been put forward regarding governments which have come to power through force or with the aid of foreign States. However, these reservations concern rather the effects of State succession on membership status, a topic which will be treated later in the Chapter. The lack of a central government in a country where a war between different factions is going on can lead to a temporary suspension of membership rights. This has been the case of Somalia after 1991 (for the relevant practice, see Daphna Shraga, ‘La qualité de membre

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non-représenté: le cas du siège vacant’, 45 AF (1999), p. 653 f.; see also § 19 for a similar practice mainly concerning cases of revolutionary changes in the Government).

16.  Expulsion Select bibliography: Roberto Socini, L’appartenenza all’Organizzazione delle Nazioni Unite (Firenze: Barbera, 1951) 114 ff; Louis B. Sohn, ‘Expulsion or Forced Withdrawal from an International Organization’, 77 HLR (1963–64) 1397 ff; Leland M. Goodrich, Edvard Hambro and Anne P. Simons, Charter of the United Nations. Commentary and Documents (New York: Columbia University Press, 1969) 98 ff; Charles Leben and Mathias Forteau, in Jean-Pierre Cot, Alan Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd edn), vol. 1, 557–71; Christian J. Tams, ‘Article 6’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd edn), vol. I, 374–86.

Under Article 6, the Assembly, upon the recommendation of the Security Council, may expel from the Organization a Member State which has ­persistently violated the Charter. Also this rule has never been applied. In 1974, a proposal to expel South Africa, a proposal which would have obtained the prescribed majority in the Assembly and was in fact urged by the Assembly, was blocked in the Security Council by the vetoes of the United States, the United Kingdom and France (cf. Doc. S/PV.1796-1798, S/PV.1800-1804 and S/PV.1806-1808 of October 18–30, 1974). 17.  Withdrawal Select bibliography: Hans Kelsen, ‘Du droit de se retirer de l’Organisation des Nations Unies’, 52 RGDIP (1948) 5–19; Francesco Carlo Gentile, ‘Il recesso delle Nazioni Unite’, in CI (1951) 464 ff; Nagendra Singh, Termination of Membership of International Organizations (London: Stevens, 1958) 92 ff; N. Feinberg, ‘Unilateral Withdrawal from an International Organization’, 39 BYB (1963) 189–219; Fernand Dehousse, ‘Le droit de retrait aux Nations Unies’, 1 RBDI (1965) 30–48; Frances Livingstone, ‘Withdrawal from the United Nations’, 14 ICLQ (1965) 637–46; Mario Scerni, ‘Aspetti giuridici del ritiro dalle Nazioni Unite’, 20 CI (1965) 227–44; Lucien Nizard, ‘Le retrait de l’Indonésie des Nations Unies’, 11 AF (1965) 498–528; Felicetta Leanza Lauria, ‘Il recesso dall’Organizzazione delle Nazioni Unite: il caso dell’Indonesia’, 20 DI (1966) 153–74; Egon Schwelb, ‘Withdrawal from the United Nations: The Indonesian Intermezzo’, 61 AJ (1967) 661–72; Adriana Beghé Loreti, Il recesso dalle organizzazioni internazionali (Milano: Giuffrè, 1967) 85 ff, 121 ff, 173 ff.

No Charter provision lays down the possibility for the individual State to ­unilaterally withdraw from the Organization. The right of withdrawal was expressly provided for in the Covenant of the League of Nations: Article 1, para. 3 (“Any Member of the League may, after two years’ notice of its intention to do so, withdraw from the League, provided that all its international obligations and all its obligations under this Covenant shall have been fulfilled at the time of its

Withdrawal  53

­ ithdrawal”) and Article 26, para. 2 (“No such amendment shall bind any Member of the w League which signifies its dissent therefrom, but in that case it shall cease to be a member of the League”). There were a number of cases of withdrawal from the League (about 20); among the most noteworthy were those of Germany in 1933, of Japan, also in 1933, and of Italy in 1937.

With regard to the practice, the only case of withdrawal that can be cited is that of Indonesia. At the beginning of 1965, this State announced and put into effect its intention to withdraw from the Organization as a protest against the election of Malaysia (a State which came into being, despite Indonesian opposition, from the merger of Malaya with other territories) as a non-permanent member of the Security Council. Notice of withdrawal was given in a letter to the Secretary-General (Doc. A/5857 of January 21, 1965). Although in his letter of reply (Doc. A/5899 of February 26, 1965), the Secretary left open the issue of the legality of Indonesia’s conduct, the UN’s acquiescence to the ­withdrawal—defined as “inactive membership”—can be inferred from a series of conclusive acts of the Organization, such as the cancellation of Indonesia from the list of members, the removal of the Indonesian flag and plate from the UN, its exclusion from the budget documents, and so on. Indonesia came back into the United Nations less than two years later, at the end of 1966 (see § 14). Because of its peculiar characteristics, and especially because of the rather tenuous and sui generis justification brought by Indonesia as grounds for withdrawal, this case seems to testify to the view that each Member State has a complete and unconditional right to withdraw from the United Nations. Is this view acceptable on the basis of the Charter? We do not believe so. The Charter, as an international treaty (see § 4), is subject to the principles of international law regarding the unilateral denunciation of treaties. Thus, and because an individual case cannot in itself have a bearing on the law, and given the lack of an ad hoc rule in the Charter, the right of withdrawal from the UN should be allowed only when the conditions of the so-called rebus sic stantibus clause are met, as in any case is partly evinced from the preparatory work, where withdrawal was substantially allowed in the event of “exceptional circumstances.” As stipulated in Article 62 of the Vienna Convention on the Law of Treaties of 1969, the rebus sic stantibus clause concerns the principle that a State may withdraw from an international treaty when there has been a substantial change in the circumstances that existed at the time of the adoption of the treaty and that had a decisive influence on the conclusion of the treaty. A partial confirmation of the view that would limit the right of withdrawal from the UN in the event of substantial change in circumstances can be found in the preparatory work. In San Francisco, the debate in Committee 2 of Commission 1 between States favorable to withdrawal and those contrary to it was lively. With a majority of 24 States to 19, it was

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decided not to include a withdrawal clause in the Charter (U.N.C.I.O., vol. 7, p. 261 ff., and, for the vote, p. 266). With a majority of 38 to 2 and with 3 abstentions, the Committee drew up the following report, which was then approved by the Conference in its plenary session: “The Committee adopts the view that the Charter should not make express provision either to permit or to prohibit withdrawal from the Organization. The Committee deems that the highest duty of the nations which will become members is to continue their cooperation within the Organization for the preservation of international peace and security. If, however, a Member because of exceptional circumstances feels constrained to withdraw, and leave the burden of maintaining international peace and security on the other Members, it is not the purpose of the Organization to compel that Member to continue its ­co-operation with the Organization…Nor would a member be bound to remain in the Organization if its rights and obligations as such were changed by Charter amendment in which it has not concurred, and which it feels unable to accept, or if an amendment duly accepted by the necessary majority in the Assembly or in a general conference fails to secure the ratification necessary to bring such amendment into effect…” (see U.N.C.I.O., vol. 7, p. 267, for the text of the report and for the Committee vote; ibid., vol. 1, p. 619 f., for the approval by the Assembly plenary; emphasis added). The Committee’s report, in the part where it refers to “exceptional circumstances” as a cause justifying withdrawal, is in line with the view based on the rebus sic stantibus clause. This is not the case with regard to the part where it allows withdrawal in the event of amendments or revision of the Charter under Articles 108 and 109, in so far as an amendment may concern also issues of negligible importance and therefore involve no substantial change in circumstances. Despite the San Francisco report, it would seem that even in the event of changes in the Charter the rebus sic stantibus clause must be applied, with the result that the Member State will have the right to withdraw only if the amendment or revision not approved by it touches upon important questions. The San Francisco report cannot pretend to substitute what can be obtained from an objective examination of the Charter.

18.  Effects of State succession on membership status Select bibliography: Wilfred C. Jenks, ‘State Succession in Respect of Law-Treaties’, 29 BYB (1952) 133–12; Eugene Cotran, ‘Some Legal Aspects of the Formation of the United Arab Republic and the United Arab States’, 8 ICLQ (1959) 346–90; Julios D. Gonzales Campos, ‘Notas sobre la practica de las organizaciones internationales respecto a los effectos de la sucesión de Estados en el estatuto de miembro de la organizacion’, 15 ReD (1962) 465–508; D.P. O’Connel (rapporteur), The Effect of Independence on Treaties: A Handbook (London: Stevens, 1965) 222 ff; Karl Zemanek, ‘State Succession after Decolonization’, 116 RC (1965-III) 245 ff; K.P. Misra, ‘Succession of States: Pakistan’s Membership in the United Nations’, 3 CYIL (1965) 281–89; L.C. Green, ‘The Dissolution of States and Membership of the United Nations’, in R.H. Code, Holland and Georg Schwarzenberger (eds), Law, Justice and Equity. Essays in tribute to G.W. Keeton (London: Pitman, 1967) 152 ff; Daniel P. O’ Connell, State Succession in Municipal Law and International Law (Cambridge: Cambridge University Press, 1967), vol. 2, 184 ff; André Gonçalves Pereira, La succession d’Etats en matière de traités (Paris: Pedone, 1969) 102 ff; Natalino Ronzitti, La successione internazionale tra Stati (Milano: Giuffrè, 1970) 203 ff; Yehuda Z. Blum, ‘Russia Takes over the Soviet Union’s Seat at the UN’, 3 EJIL (1992) 344–61; Id., ‘UN Membership of the “New” Yugoslavia: Continuity or Break?’, 86 AJ (1992) 830–33; Ugo Villani, ‘L’attribuzione alla Russia del ­seggio sovietico all’ONU’, 75 RDI (1992) 120–26; Id., ‘Lo status della Repubblica ­serbo-­montenegrina nelle Nazioni Unite’, 76 RDI (1993) 26–36; ‘Correspondents’ Agora: UN Membership of the

Effects of State succession on membership status   55

Former Yugoslavia’, 87 AJ (1993) 240–51; David O. Lloyd, ‘Succession, Secession, and State Membership in the United Nations’, 26 NYUJILP (1994) 761–96; Michael C. Wood, ‘Participation of Former Yugoslav States in the UN and in Multilateral Treaties’, 1 MP YUNL (1997) 231–57; Vladislav Jovanovic, ‘The Status of the Federal Republic of Yugoslavia in the United Nations’, 21 FoILJ (1998) 1719–736; Maria Chiara Vitucci, ‘La questione dell’appartenenza della Repubblica federale jugoslava alle Nazioni Unite’, 83 RDI (2000) 992–1026; Yehuda Z. Blum, ‘Was Yugoslavia a Member of the United Nations in the Years 1992–2000?’ 101 AJ (2007) 800–18; Fernando Lusa Bordin, ‘Continuation of Membership in the United Nations Revisited: Lessons from Fifteen Years of Inconsistency in the Jurisprudence of the ICJ’, 10 LPICT (2011) 315–50.

Complex problems arise in international law over State succession. It is ­particularly difficult in some cases to determine whether or not a State is extinct, and, whether, if it is extinct, the rights and obligations under treaties to which it was a party are transmitted to other States by way of succession. These difficulties occur with regard to the United Nations since the extinction of a State as a subject of international law obviously involves the loss of its status as a UN member, and of the related rights and obligations, and since also in UN membership there can be the automatic succession of an old State by a new State. The Charter does not contain provisions on these questions. Therefore they must be solved in the light of principles of general international law to which, in the absence of evidence to the contrary, one must assume that the Charter refers. To begin with the most frequently met kind of succession, it can be said that, on the basis of a generally recognized principle, the mere loss or breaking off of part of the territory or of the population residing there does not determine the extinction of a State. The breaking off, by not involving the extinction of the State, has no effect on membership in the UN. The standing as a member of the United Nations, held by the State which suffers the breaking off, remains unchanged. On the other hand, if the territory which has broken off does not come under the sovereignty of another already existing State but forms an independent State (for example, when separation occurs owing to revolutionary and secessionist forces), such territory may become a member of the UN only by seeking admission under Article 4 of the Charter. In 1947 when Pakistan was separated from India, India kept the membership status it had acquired in 1945, while Pakistan became a member under the procedure in Article 4. Another example is that of Syria which, after having established the United Arab Republic (UAR) with Egypt in 1958, decided to become an independent State again in 1961. In this case, the UAR kept its seat, leaving only the problem of the admission of Syria or, rather, its readmission, since the State had been a member before 1958. The “readmission”, which should have occurred according to the procedure in Article 4, took place through an abbreviated procedure (see § 14). All the States which arose following decolonization came into being by separation from the so-called “mother country” and were gradually admitted to the UN in accordance with Article 4.

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It is not easy to draw a boundary line between a case of separation, followed by the formation of a new State in the part which has split off, and the similar case of dismemberment. While separation does not imply the extinction of the State, the characteristic feature of dismemberment is that one State becomes extinct and two or more new States are formed on its territory. The choice between the one hypothesis and the other depends on the circumstances of each individual case. In particular, the hypothesis of dismemberment must be excluded whenever the government organization of one of the remaining States has retained approximately the same size and features of the government organization of the pre-existing State. When the dismemberment of a UN Member State occurs, all the new States will be able to join the United Nations only through the admission procedure under Article 4. The fact that there is only one seat prevents any possibility of succession being contemplated. A striking case of dismemberment, whose effects on membership status were handled in a legally unorthodox way, was that of the Soviet Union at the end of 1991. The dissolution of this State should fall within the hypothesis of dismemberment, as the organization of the former Communist Government crumbled together with the dissolution. In the light of this, all the States that arose from the dismemberment should have become UN members through the admission procedure, with the exception of Byelorussia (now Belarus) and Ukraine, which were already members; they actually, for very special reasons, were original members (see § 1 B). Moreover, as has been noted (Villani), the admission procedure should have been followed in so far as none of the new States, not even Russia, could have claimed to be the successor of the Soviet Union in the permanent Security Council seat, the seat which had originally been assigned to the Soviet Union in its capacity as a great power. In fact, things developed differently. In an agreement concluded at Alma Ata in December 1991 most of the former Soviet Republics declared themselves favorable to assigning the permanent seat to Russia. The Alma Ata agreement was then acquiesced to by the UN members (some reservations, such as those of Germany and of Japan, were expressed; however, the aim of these two countries was not so much to object to this solution as to plead the case for increasing the number of permanent Security Council members). In short, Russia was considered to be the successor of the Soviet Union, while most of the other Republics were admitted to the UN as new States, the result being that a clear case of dismemberment came to be illegally treated as a case of separation. As often occurs in events of this kind, the illegality was “cured” by the acquiescence of the other member States (see § 97). Another case of dismemberment after the end of the Cold War also worthy  of mention is that of Yugoslavia. Also in this case the dismemberment

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­ ypothesis is preferable to that of the separation from the Yugoslav State of the h four former Yugoslav Republics (Croatia, Slovenia, Bosnia-Herzegovina and Macedonia) which declared themselves to be independent in 1991. Indeed, it is to be excluded that the Federal Republic of Yugoslavia (Serbia-Montenegro), were the successor of the old Socialist Republic of Yugoslavia, and here also for reasons of the radical changes in the system of government. As for the practice followed by the United Nations, the Organization at first seemed to tend towards continuity, shown by the fact that, until September 1992, the Yugoslav seat in the UN was occupied by the representative of the Federal Republic of Yugoslavia, while the other Republics were gradually admitted under the procedure in Article 4. In September 1992, however, the Security Council recommended (with Res. 777 of September 19, 1992, which was later on confirmed by Res. 821 of April 28, 1993) and the General Assembly decided (with Res. 47/1 of September 22, 1992) that the Federal Republic of Yugoslavia, in so far as it “cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia”, would have to apply for admission and, in the meantime, be expelled from Assembly proceedings. The Security Council’s and the Assembly’s decisions were obviously due to political reasons (in particular the desire to punish a country marginalized by the international community and civil society) and some opposition was raised among the Assembly members. For the above-mentioned reasons, the two decisions were, however, correct from a legal point of view. It is indicative, moreover, that the representative of “Yugoslavia” stated in the Assembly, on the very day that this organ decided to expel it, that it would “officially” ask to be admitted to the United Nations. Although subsequent practice has not been without ambiguities (for instance, in some official documents of the United Nations “Yugoslavia” was still treated as a Member State) the Republic of Yugoslavia (Serbia Montenegro) was finally admitted in November 2000 following a regular admission procedure under Article 4, para. 1. In 2003 its name was changed to Serbia and Montenegro; it must be recalled that in 2006 Montenegro became independent and became a United Nations Member (see § 1 B). For the discussion carried out in the General Assembly on the Yugoslav case in September 1992, a rather broad discussion but with hardly any legal content, cf. Doc. A/47/PV.2 and Doc. A/47/PV.7 (with the statement by the representative of the Serbia-Montenegro Republic). For the inclusion of Yugoslavia in an official document, see, for instance, the list of defaulting States (Doc. A/CN.2/R.641 of 23 June 1999, p. 14). As far as less recent practice is concerned, uncertainty between separation and dismemberment arose in the above-cited case of the separation of Pakistan from India, a separation provided for in the Act of the British Parliament which gave final independence to those territories (India Independence Act of 1947). The delegate from Argentina supported the view of dismemberment in the General Assembly, stating that either both States should be considered as successors of the previous Indian State, and therefore original UN members,

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or that both should apply for admission under Article 4 (cf. GAOR, 2nd sess., 1st Comm., p. 3 f.). The United Nations correctly decided in the sense of the continuity between the new and the pre-existing Indian State and admitted only Pakistan. The case of Confederation of Mali which split in August 1960 into the two republics of Mali and Senegal can also be cited as an example of dismemberment. The Confederation of Mali was not a UN member, but the Security Council had already decided in June 1960 to recommend its admission to the General Assembly. Once dismemberment had occurred, the Council deemed it necessary to open a new debate over the admission of both States. On this case, see ILC Yearbook, 1962, II, p. 105. Again concerning more recent practice, a non-controversial case of dismemberment was the one between the Czech Republic and the Slovak Republic, both of which were admitted as new States early in 1993 after their split.

Incorporation and unification are somehow opposed to separation and dismemberment, respectively. Incorporation occurs when a State, which has been extinguished, becomes part of another State. Unification occurs when two or more States all cease to exist and give rise to a new State. Here also it is not always easy to establish the boundary line between the two types. The hypothesis of incorporation is to be preferred to unification whenever there is continuity between the government organization of one of the former States and the government organization of the State resulting from the unification. The incorporation of a UN member into another Member State does not give rise to any problems. The incorporating State will maintain its seat while the membership status of the incorporated State will cease to exist. Thus, after the reunification of Germany, a reunification in which the Democratic Republic became part of the German Federal Republic, Germany continued to take part in all the United Nations organs to which the Federal Republic belonged, while it did not take the place occupied by the Democratic Republic. For example, in the session of January 3, 1991 (Doc. A/45/PV.65) the General Assembly elected Byelorussia as a member of the Information Committee (a subsidiary organ of the Assembly) in the place that “remained vacant” following the disappearance of the Democratic Republic.

In the event of unification between member States, the most traditional solution would seem to be to make the acquisition of membership status of the unified State dependent on the admission procedure under Article 4. This is because it would be by definition a new State and because it would be very difficult to contemplate a hypothesis of succession in membership status, since it would not be clear to which of the former States the succession were to apply. Although commentators usually speak of unification in referring to what gave rise to the United Arab Republic (UAR) in 1958, this should rather be considered as a case of incorporation. The continuity between the supreme organs of the United Arab Republic and Egypt, especially the concentration, before and after unification, of broad powers in the person of President Nasser, speaks in favor of the hypothesis of incorporation of Syria into Egypt. As it was a case of incorporation, the solution adopted by the UN, which held that the UAR enjoyed membership status without having to go through the admission ­procedure

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under Article 4, seems correct (for the facts concerning this case, cf. ILC Yearbook (1962), II, p. 104). A phenomenon similar to that of the formation of the UAR took place in 1964 with the merger of Tanganyika and Zanzibar, both UN members, into Tanzania. Also in this case, the hypothesis of incorporation of Zanzibar into Tanganyika seems preferable, given the continuity between the supreme organs of Tanzania and Tanganyika; and also in this case, Tanzania was automatically deemed a member of the Organization (cf. Doc. A/5701). For other cases of incorporation (but of non-Member States in a member State), incorporation which has always left the UN membership of the incorporating country unchanged, see UNJY (1963), p. 161 ff.

19.  Governments created as a result of revolutions or foreign military interventions Select bibliography: Rolando Quadri, Stato, 12 NDI (1940) 815 f; Gaetano ArangioRuiz, Sulla dinamica della base sociale nel diritto internazionale (Milano: Giuffrè, 1954); Id., ‘La questione cinese’, in Studi in onore di Tomaso Perassi (Milano: Giuffrè, 1957), vol. 1, 67–103; Rosalyn Higgins, The Development of International Law through the Political Organs of the United Nations (London: Oxford University Press, 1963) 158 ff; Myres S. McDougal and Richard M. Goodman, ‘Chinese Participation in the United Nations: The Legal Imperatives of a Negotiated Solution’, 60 AJ (1966) 671–727; Lincoln P. Bloomfield, ‘China, the United States and the UN’, 20 Int. Org. (1966) 653–76; Lung-Chu Chen and Harold D. Lasswell, Formosa, China and the United Nations (New York: St. Martin’s Press, 1967); Giuseppe Sperduti, ‘Sulla questione della rappresentanza cinese alle Nazioni Unite’, in Studi in memoria di Carlo Esposito (Padova: Cedam, 1973), vol. 3, 1937–42; Gerald B. Helman and Steven R. Ratner, Saving Failed States, 89 FP (1992–1993) 3–20; Ira W. Zartman (ed), Collapsed States: The Disintegration and Restoration of Legitimate Authority (Boulder: Rienner, 1995); Sheng-tsung Yang, ‘The Republic of China’s Right to Participate in the United Nations’, in Jean-Marie Henckaerts (ed), The International Status of Taiwan in the New World Order (London: Kluwer Law International, 1996) 117–32; Lung-Chu Chen, ‘Taiwan, China and the United Nations’, ibid., 189–206; Daniel Thürer, Matthias Herdegen and Gerhard Hohloch, Der Wegfall effektiver Staatsgewalt: “The Failed State” (Breakdown of Effective Government) (Heidelberg: Müller, 1996); Dafhna Shraga, ‘La qualité de membre non-représenté: le cas du siège vacant’, 45 AF (1999) 649–64; Daniel Thürer, ‘The “Failed States” and International Law’, 81 IRRC (1999) 731–61; Nii L. Wallace-Bruce, ‘Of Collapsed, Dysfunctional and Disoriented States: Challenges to International Law’, 47 NILR (2000) 53–57; Abdulqawi Yusuf, ‘Government Collapse and State Continuity: The Case of Somalia’, 13 IYIL (2003) 11–33; Gerard Kreijen, State Failure, Sovereignty and Effectiveness (Leiden: Nijhoff, 2004); Rikka Koskenmäki, ‘Legal Implications Resulting from State Failure in Light of the Case of Somalia’, 73 NJIL (2004) 1–36; Robin Geiss, ‘Failed States: Legal Aspects and Security Implications’, 47 GYIL (2005) 457–501; Id., Failed States: Die normative Erfassung gescheiterter Staaten (Berlin: Duncker & Humblot, 2005); Jennifer Milliken (ed), State Failure, Collapse and Reconstruction (Malden, Massachussets/Berlin: Blackwell Publication, 2005); Jonathan E. Hendrix, ‘Law without State: The Collapsed States Challenge to Traditional International Enforcement’, 24 WILJ (2006) 587–626; Gérard Cahin, ‘L’État défaillant en droit international: quel régime pour quelle notion?’, in Olivier Corten (ed), Droit du pouvoir, pouvoir du droit. Mélanges offerts à Jean Salmon (Bruxelles: Bruylant, 2007) 177–209; James Cotton, ‘Timor-Leste and the Discourse of State Failure’, 61 AJIA (2007) 455–70; Okechukwu C. Iheduru, ‘Globalization, State Failure and Maritime Insecurity in West Africa’, 21 OY (2007) 475–504; Pietro Pustorino, ‘Failed States and

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International Law: The Impact of UN Practice on Somalia in Respect of Fundamental Rules of International Law’, 53 GYIL (2011) 727–52; John Yoo, ‘Fixing Failed States’, 99 CaLR (2011) 95–150; Alison J. Ayers, ‘An Illusion of the Epoch: Critiquing the Ideology of “Failed States”’, 49 Int. Pol. (2012) 568–90; Marie von Engelhardt, ‘Die Völkerrechtswissenschaft und der Umgang mit Failed States zwischen Empirie, Dogmatik und postkolonialer Theorie’, 45 VRU (2012) 222–31; Ursula Werther-Pietsch and Thomas Ritzer (eds), Failed States. Staatsaufbau als Konfliktprävention (Wien and Graz: BWV-Berliner WissenschaftsVerlag, 2012); Carlos Jiménez Piernas, Estados débiles y estados fracasados, 65 ReD (2013) 11–49; Śrīpati Vijayaśrī, ‘United Nations Constitutional Assistance in Statebuilding’, in David Chandler (ed), Routledge Handbook of International Statebuilding (London: Routledge, 2013) 143–55; Ana Gemma López Martín, ‘De Somalia a Libia: El estado fallido, ¿un nuevo modelo de estado?’, 4 RF (2013) 91–110; Shahar Hameiri, ‘The Crisis of Liberal Peacebuilding and the Future of Statebuilding’, 51 Int. Pol. (2014) 316–33; Agnieszka Szpak, ‘What to Do with Failed States: A Quest for a Solution from the Inside’, 13 ChJIL (2014) 251–58.

What effects do revolutionary changes of government have on statehood, and, consequently, on UN membership? The problem arises only in the case in which the revolution considerably affects the legal order of the State, so as to modify the previously existing constitutional order. It does not arise when marginal changes concerning powers of the organs occur, even when they are extra-legal. These kinds of changes can certainly be explained in light of the concept of the “living” Constitution of the State, without raising issues concerning the identity thereof. Cases involving a revolutionary change of government include the possibility of governments being imposed by force and/or with the aid of foreign States. In UN practice one constant element can be noted: whenever a radical change of regime occurs in a Member State, owing either to domestic revolt or to the intervention of a foreign State imposing a “friendly” government, there is substantial agreement that membership status should not be affected and that a new admission procedure is not necessary. The new Government sends its own representatives to the Organization (or confirms, if it so wishes, those already sent by the former Government) and exercises through them all the rights connected with membership status. The only condition is that it is the Government effectively in control of the country. When, for example, following the coup in 1948 Czechoslovakia became Communist, it continued to exercise the rights and observe the obligations connected with membership status, with only a change of delegates to the Organization. The same can be said for Cuba, with regard to the establishment of Fidel Castro’s regime in 1959, or for Chile after Pinochet took over in 1973. With regard to Governments set up by foreign States, the same solution was found for the Governments formed after the armed interventions by the Soviet Union in Afghanistan and by the United States in Grenada during the 1980s, as well as in the case of the Panamanian

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Government after the capture of Noriega by the United States at the end of 1989. Even if criticism and reservations are sometimes put forward by members during the examination of the credentials of the representatives of the new Governments both in the Security Council and in the General Assembly, the general tendency is towards upholding the continuity between the old and the new Government. Reservations, although without effect, have been put forward over the years in the General Assembly with regard to the credentials of the representatives of Pinochet’s Chile by the Soviet Union and by other States (cf., for example, the Soviet Union’s statement in 1985, in Doc. A/40/747), with regard to those of the Government of Grenada after the United States’ intervention (cf., for example, Doc. A/40/PV.120), with regard to Afghanistan (cf., for example, Doc. A/41/PV.45 and A/43/PV.33), etc.

United Nations practice would seem therefore to confirm the view that the person of the State is not extinguished owing to revolutionary changes of government (“forma regiminis mutata non mutatur ipsa civitas”). This view is associated with a certain way of conceiving the State as a subject of international law. It is, first of all, upheld by those who identify the State with its people and who hold that the organization of government, the group of organs exercising power, is present at the international level only as the representative (in the sense of representing the interests) of the human community it governs. The same view is also held by those who, in contrast to, see the State as a body made up of three elements, i.e. population, territory and governmental authority. On this second account, changes in the official organs and in the way of exercising such authority does not affect the person of the State, its continuity being guaranteed by the permanence of the territory and the population. Actually, UN practice concerning revolutionary changes in the Member States may be justified also in the light of yet another conception of the State, on the basis of which the State as an international legal person is identified with the Government in a broad sense, and therefore with the group of organs which exercise, and to the extent that they effectively exercise, authority. It is true that whoever adopts a conception of this kind must for coherence recognize that the State becomes extinct when there is a radical change in the political system. Yet it is also true that such recognition is usually accompanied by the acknowledgement that the new Government, or, rather, the new State, ­succeeds, as a general rule, in the rights and obligations undertaken by the predecessor, provided they are not incompatible with the new political system. Consequently, as far as the UN is concerned, the above-cited practice can be interpreted as a practice of succession of the new State in membership status. Apart from speculation on the exact definition of a State, the issue is still today governed in international law—or at least in UN practice regarding the

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effects of State succession on membership status—by the principle of effectiveness. The fact that a new government is not democratic, or does not respect human rights, or is not peace-loving, etc., has been ever more often put forward as the grounds for the just-mentioned reservations regarding the legality of the credentials of the persons the new governments send as their representatives to the UN. It is also true that several rules contained in the Charter or that have developed in UN practice confer on the Organization a number of powers aimed at having human rights, the prohibition of force, self-determination of peoples, and so on, respected. However, still today, sooner or later it is the Government which effectively controls the country that occupies the seat in the Organization. There is not always perfect coincidence between the time when a new government takes over from an old one in the control of a country and the time when the former is installed in the UN seat occupied by the latter. It may happen that the succession within the United Nations occurs sometime before it occurs in the country, and is thus premature. For example, the substitution of the delegates of the Yemenite monarchical Government in the General Assembly by those of the Republican Government in December 1962 was considered by some observers to be premature: in fact, at the time the Republican forces had not entirely defeated the Imam’s forces but had only occupied a part, although a considerable part, of the country. In contrast to, it may happen that the succession within the United Nations occurs later than that within the country. Some discussion followed the accreditation of the Libyan National Transitional Council while Gaddafi still held power in part of the Libyan territory, though accreditation nevertheless took place on September 17, 2011, about one month before Gaddafi was killed. One may recall in this connection the case of Iraq, which was transformed from a monarchy into a republic in 1958. The representative of the old Government continued to participate in Security Council sessions for several weeks (Iraq at the time was a non-­ permanent member) in spite of protests by some members of the Council and despite the fact that the new Government had already announced the appointment of another delegate. Another example may be taken from the League of Nations practice. The representatives of the Spanish Republican Government continued to sit in the League Assembly even after the victory of Franco’s Government and up until May 1939, when Spain withdrew from the League. Although such anomalies in the timing of a succession are not formally correct, they have little practical relevance given their very limited duration. The General Assembly approved the credentials of the Libyan National Transitional Council that rebelled against the Gaddafi regime (the Council was imposed thanks to the military intervention of third party States authorized by the Security Council pursuant to Res. 1973 of March 17, 2011 on which see § 61) with Res. 66/1 of September 17, 2011 when

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Gaddafi was still in power and the insurgents did not control the entire country. Among others, Angola, also on behalf of the Southern African Development Community (SADC), objected to the Committee Report on the credentials required to recognize the Libyan National Transition Council in contempt, in its view, of the rules and regulations and only as a stopgap, stressing that “notwithstanding the fact that the NTC is in control in Libya, it is as yet not the Government in Libya, interim or otherwise” and proposing a motion to defer the decision. Bolivia stressed that the Libyan National Transition Council “is not a unified body” and “still a great question mark for the international community with regard to its composition and its forces”. The Angolan motion was, however, rejected by 107 votes against, 22 in favor, and 12 abstentions. There followed the approval of the report of the Committee on credentials, with Res. 66/1, adopted by 114 votes in favor, 17 against, and 15 abstentions. See UN Doc. A/66/PV.2 at .

In the recent practice, when different delegations are presented by conflicting governments to represent the same Member State, and the situation within the country is unclear, there is a tendency in the Security Council and in the General Assembly to decide that no one is entitled to occupy the seat. The  consequence is then that the country in question’s membership rights are left hanging, i.e., pending further definition (see § 15). We are dealing here with short periods of uncertainty or even anarchy. A different situation is that of a long-lasting anarchy as, for instance, in Somalia where single areas have been dominated by “warlords” since 1991 and where today a weak “provisional” Federal Government rules the country. What’s more, the UN seat of Somalia is currently “suspended” under Article 19 of the Charter because it fell behind in its dues (see §§ 15 and 88). Continuity, rather than extinction, of the so-called “failed States” is normally supported by the majority of States despite little or no effectiveness of their governments—­ especially in order to prevent the territories from being considered nullius and therefore open to acquisition through occupation, as it happened in the past with colonial territories—in accordance with the principle of self-­determination of peoples (see § 81). In this sense it is not necessary to follow the admission procedure for a failed State which becomes effective again. But it cannot be ruled out that, in case of downright extinction of the failed State during the effectiveness crisis period, as seen in the case of readmission (see § 14), the admission of the new State, should a single and effective government be established, may occur through a simplified procedure, i.e. without formal vote (for the relevant practice see Abdulqawi Yusuf, ‘Government Collapse and State Continuity: The Case of Somalia’, 13 IYIL (2003), pp. 11–33). On the Yemenite issue, resolved by the Assembly during the examination of credentials, with the seating of the republican delegates and the expulsion of the monarchical delegates from the Assembly hall, see GAOR, 17th sess., Pl. meet., vol. III, 1201st meet., 1202nd meet. On the Iraq case, see SCOR, 13th year, 827th, 834th, and 838th meets., p. 1 ff. On the League of Nations practice in the case of Spain, see Société des Nations, Journal Officiel

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(1939), p. 344 for the withdrawal announced by Franco’s Government; ibid., p. 102 f. for the last appearance in the Council, in February 1939, of the representative of the Republican Government. For the more recent practice, worthy of mention is the case of Panama in 1989. The Security Council, which had met to discuss the situation in Panama after the fall of the Noriega Government, and in particular the accusations of United States soldiers’ illegal entry into the Nicaraguan Embassy in Panama City, found itself faced with requests of the new Government and also of the old Government to send their representatives to take part in the discussion, as well as with a report of the Secretary-General in which he stated that he “is not in a position to provide an elucidation on the factual situation on the ground” (cf. Doc. S/21047 of December 21, 1989, p. 3). The issue was resolved with both Governments being excluded from the debate (cf. Doc. S/PV.2902 of December 23, 1989) and then was closed with the consolidation of the pro-American Government. In the General Assembly the same occurred when two delegations were appointed in order to represent Cambodia at the fifty-fourth session of the Assembly (see GAOR, 54th sess., 38th Pl. meet. and Res. 54/6 of October 25, 1999). Going back to the older practice, a different stand was taken in the case of the Congolese delegation, discussed in the General Assembly between September and November 1960. The Congo, which was admitted to the UN after acquiring independence in June, 1960, was, in the fall of 1960, going through a period of true anarchy. In September, when no Congolese representative had yet taken a seat at the UN, the Chief of State, Kasa-Vubu, and the Prime Minister, Lumumba, removed each other from office, with the subsequent formation of two separate Governments. A third Government, which later joined with the President of the Republic, was formed at the same time by the Chief of the Military Staff, Mobutu. The country was actually governed… by chaos. The General Assembly found itself faced with the opposing claims of Kasa-Vubu and Lumumba to the Congo seat in the UN At the request of several members, the Assembly first decided to postpone any decision. Then, however, with a resolution of November 22, 1960 (approved by a majority of 53 votes to 24, with 19 abstentions), it accredited the representatives of Kasa-Vubu. The decision was justified by the fact that Kasa-Vubu was Head of State and that Article 27 of the Assembly’s Rules of Procedure mentions the Head of State as the first among the organs that have the power to accredit representatives in the Assembly. The minority favoring Lumumba insisted, on the contrary, that a decision be postponed until the domestic situation was clarified. Clearly the view supporting postponement had the strongest legal basis. However, the Government headed by Kasa-Vubu later became well-established. For the relevant practice see GAOR, 15th sess., Pl. meet, 896th meet., 912th meet., 917th meet., and 918th–924th meets. See also the report of the Credentials Committee in GAOR, 15th sess., Annexes, item n. 3. A summary of domestic events in the Congo in September 1960 can be found in the annual report of the Secretary-General on the 16th Assembly session, in GAOR, 16th sess., Supp. n. 1. Cf. also SCOR, 20th year, 1207th meet. and 1227th meet. Still in the old practice, a position sui generis was taken by the General Assembly with regard to the Hungarian Government of Kadar between November 1956, when this Government was forcefully established with the support of the Soviet armed forces, and 1962. During this whole period of time the delegates of the Hungarian Government took part in Assembly proceedings, expressing their opinions and exercising their voting right, but… provisionally. In fact, at the 11th Assembly session in 1956–57 Chile challenged the regularity of their credentials. Under Article 29 of the Assembly’s Rules of Procedure, cited by Chile, a representative against whom objections have been raised, may sit in the organ only provisionally, until, first, the Credentials Committee of the Assembly, and, then, the Assembly in plenary have decided the case. However, in every session, between 1956 and 1962, the Assembly decided not to take any decision on the regularity of the Hungarians’

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credentials, thereby prolonging their provisional participation. For the relevant practice, cf. UN Rep. Supp. n. 2, vol. II, sub Article 9, n. 9 ff., and, for further details, GAOR, 11th sess. Pl. meet., 658th meet.; 12th sess., Pl. meet., 726th meet.; 13th sess., Pl. meet., 792nd meet.; 14th sess., Pl. meet., 852nd meet.; 15th sess., Pl. meet., 995th meet.; 17th sess., Pl. meet., 1202nd meet.

Separate mention is due to the question of Chinese representation, which dragged out for over twenty years, between 1949 and 1971. When the Communist Government of Mao-Tse-Tung was established on mainland China in 1949 and the Nationalist Government of Chiang-Kai-Shek was confined to ruling over only the island of Formosa, the former formally asked to take the latter’s seat in the UN, with all the rights and obligations connected with status as a permanent member in the Security Council. The request immediately received the support of the socialist States as well as of a group of Third World States, but met with the very strong opposition of the majority of Member States, led by the United States. Thereafter, the question of Chinese representation was the subject of heated debate and sharp controversy (the moment of greatest tension occurred in 1950 when the Soviet Union abstained in protest from taking part in all the organs in which China was represented) with Mao’s Government being completely excluded from United Nations life and with Chiang-Kai-Shek’s delegates confirmed in the exercise of all membership rights, including the rights belonging to permanent members of the Security Council. Only in 1971 did the Assembly find the necessary majority— a majority which, beginning in 1961, had been set by the Assembly itself at two-thirds of the members present and voting (see § 32)—to decide “to restore all its rights to the People’s Republic of China and to recognize the representatives of its Government as the only legitimate representatives of China to the United Nations, and to expel forthwith the representatives of Chiang-Kai-Shek from the place which they unlawfully occupy at the United Nations and in all the organizations related to it” (Res. 2758-XXVI of October 25, 1971) Unquestionably, the ostracism of the People’s Government for so many years and the presence of Nationalist China in the Security Council as a permanent member did not benefit either the prestige or the effectiveness of the Organization. The question of the “two Chinas” should have been resolved in 1950, not in 1971. If this is true, the question remain, however, whether the 1971 decision, in dealing with the issue as a case of turnover of delegates and therefore of a revolutionary change of government within a country, was legal. Serious doubts may arise on this, as the old Nationalist Government did not disappear in 1949 but continued, and still continues today, to govern over a small part (small with respect to the whole of China but not in an absolute sense since it covers 34,000 square kilometers with about 23 million inhabitants), of the Chinese territory. In other words, the Chinese question could have

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been brought within the principles on separation (see § 18) rather than those on revolutionary changes of Government. Therefore, if one had wanted to resolve it in accordance with law, the old Government should have kept its status as a member (losing, however, the permanent seat in the Security Council, in that it was a Government no longer representing a Great Power) and the People’s Republic should have been admitted to the UN (and been given, as a Great Power, the permanent seat). More specifically, as far as the Nationalist Government was concerned, the status of permanent member of the Security Council (a capacity given to this Government in 1945 exclusively because it ruled over the Chinese territory as a whole) had already been lost, along with all the related rights, through the effect of the rebus sic stantibus principle. The General Assembly, therefore, as some delegations, for example, the Tunisian delegation, had proposed shortly before the decision was taken in 1971 (cf. GAOR, 26th sess., Pl. meet., 1976th meet.), should have only verified the loss of this status, owing to the unexpected and fundamental change of circumstances, without proceeding as it did to the expulsion of Formosa in contempt of the procedure under Article 6 of the Charter. With regard to the People’s Republic, its entry into the UN should have occurred through the admission procedure under Article 4. It could have then been given one of the permanent seats in the Security Council even without a formal change in the Charter but in application of the provision in Article 23 which reserves such seats to the Great Powers. It is useless to add that, for purposes of one or the other procedure, no obstacle would have arisen from the presence of Taiwan in the Security Council, a presence which, as we have said, was no longer in accordance with the Charter. As hinted above, on June 19, 2007, following Taiwan’s decision to hold a referendum for admission to the United Nations with the official name of Republic of China (ROC), the United States—along with the People’s Republic of China (PRC)—declared their opposition to the admission due to the lack of statehood (see § 10), normally recognized by the judges (including those from the United States), which shows that the problem is strictly political.

20.  Governments in exile Select bibliography: Francis P. Walters, A History of the League of Nations (London: Oxford University Press, 1967) 688 ff; Gaetano Arangio-Ruiz, Sulla dinamica della base sociale nel diritto internazionale (Milano: Giuffrè, 1954) 156 ff; Douc Rasy, La question de la représentation Khmer à l’ONU: droit ou politique? (Paris: Pedone, 1974); Marc B. Dorfman, Mark S. Hasey, John T. Schmidt and Jeffrey G. Weil, ‘The United Nations, 28th Session, Cambodian Representation’, 15 HILJ (1974) 495–98; Elena Sciso, ‘La questione delle credenziali cambogiane all’Assemblea generale delle NU’, 64 RDI (1981) 83–95; Christian Koenig, ‘Die Vertretung Kambodschas bei den Vereinten Nationen’, 28 AV (1990) 266–84; Orna Ben-Naftali and Antigoni Axenidou, ‘“Accredito” Ergo Sum: Reflections on the Question of Representation in the Wake of the Cambodian Representation Problem in the 52nd Session of the General Assembly’, 27 Denv J (1999) 167 ff.

The problem of governments in exile must also be resolved on the basis of the principle of effectiveness. This phenomenon may occur following ­revolutionary changes of Government, or in the case of wartime occupation, or of a­ nnexation

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of territories. It may happen—as happened, for example, for the Spanish Republican Government after the civil war in Spain or for the Governments of the territories invaded by the Nazis during World War II—that the Government of the country where extra-legal forces have prevailed, and the country has been occupied or annexed to another State, seeks refuge abroad and continues there to be considered and treated as a sovereign entity. In our opinion, the attempts made in a part of legal literature to give an international legal personality to these entities, which are completely without any effective ruling power over a community, should be rejected. Such attempts do not take into account the fact that international law, although it addresses Governments, still protects the interests of the people who are governed, a protective function that is hardly conceivable without being capable of reaching out to the people protected. It is also true, however, that the governments in exile are often granted sovereign prerogatives in the host State, an attitude that is explained by the intent to promote their reinstallation and in light of the expectation that they actually return to govern as soon as possible. Consequently, a Government which no longer controls the territory of a Member State cannot occupy a seat in the United Nations. If power in the country has been seized by another Government, the latter will have the right to send its own delegates to the UN, in accordance with what was said in the preceding paragraph. If there has been an annexation, the State will cease to exist and so will its status as a UN member. If, lastly, it is a question of belligerent occupation, which is, or should be, characterized by temporariness, the  result should be the dormancy of the status as a member during the occupation. For these reasons, the position taken by the General Assembly between 1979 and 1990 when it was faced with the concurrent claims of the Democratic Kampuchea and of the Government of the People’s Republic of Kampuchea to occupy Cambodia’s seat in the United Nations, was illegal. With the latter Government established in Cambodia, following the Vietnamese invasion and the flight into Thailand and China of the previous rulers, the Assembly decided in 1979, and it kept to this decision throughout the following years up to 1990, to continue to accredit the representatives of the Democratic Kampuchea, belonging to the Government of Pol Pot’s Khmer Rouge—a Government that among other things committed, as is well known, heinous crimes against humanity, today tried by ad hoc tribunals established by Cambodia following an agreement with the United Nations (see § 62)—which later transformed itself in a coalition Government presided by prince Sianuk. All this occurred despite the fact that the Democratic Kampuchea no longer had effective control of the country. The decision, strongly opposed by the minority (including countries of the Soviet bloc and several non-aligned countries), was justified

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mainly for political reasons for the purposes of denouncing the Vietnamese aggression and the nature of puppet government attributed to the Heng Samrin Government, subsequently set up in Phnom Pehn. From a legal point of view, the decision was not, however, acceptable. For the relevant practice, cf. Report of the Credentials Committee of Sept. 20, 1979 (Doc. A/34/500) and the discussions in the Assembly plenary also in 1979, in GAOR, 34th sess., Pl. meet., 3rd and 4th meets. Cf., also, for the following years, A/39/PV.42 and A/37/PV.43 of Oct. 25, 1982; A/38/PV.34 of Oct. 20, 1983; A/39/PV.32 of Oct. 17, 1984; A/42/PV.36 of Oct. 15, 1987; A/43/PV.33 of Oct. 20, 1988; A/44/PV.32 of Oct. 20, 1989. It is indicative that the statements in favor of the Democratic Kampuchea were nearly all based on political grounds, while those favoring the Heng Samrin Government appealed to legal principles, particularly the principle of effectiveness. The argument used by the United States to support the representatives of the Democratic Kampuchea was a curious one (the United States itself said it had a “technical” nature). This was that the representatives of a Government that have been accredited in a previous Assembly session should continue indefinitely to be accredited in subsequent sessions, even if their Government is no longer effective, until a “superior claim” is put forth by another Government, and the “claim” of a puppet Government could not be considered “superior” (cf. GAOR, 34th sess., Pl. meet., 4th meet.). The problem of the representation of Cambodia had already arisen between 1971 and 1974 and was at that time correctly resolved by the Assembly. These were the years of the struggle between the Government of Prince Sianouk who was forced to seek refuge in Peking and the Khmer Government of Lon Nol who had taken control of the country. In spite of the heated attempts of several Socialist and Third World countries, aimed at expelling the representatives of the Khmer Government, accused of being a puppet Government of the United States, from Assembly proceedings, the Assembly majority decided to the contrary. On the debate, see GAOR, 26th sess., Pl. meet., 2027th meet.; 27th sess., Pl. meet., 2104th meet.; 28th sess., Pl. meet., 2155th meet., 2188th meet. ff., and 2204th meet.; 29th sess., Pl. meet., 2298th-2302nd meets. The position of the majority, which was for approval, was well summarized in a statement by the Japanese delegate who said the Assembly could not arrogate the right to make and to destroy Governments as it pleased (see 28th sess., Pl. meet., 2189th meet.). The solution given by the Assembly to the question of Cambodian representation in 1979 finds a precedent in the case of Ethiopian representation in the League of Nations. With Ethiopia annexed to Italy in 1936 and its extinction as a State thus having occurred, the League Assembly decided that nevertheless the delegates of Emperor Hailé Selassié could continue to sit in the organ and have full voting rights. The decision (repeated in subsequent years) was taken expressly for moral and political reasons, to condemn the Italian aggression, but even among its supporters it raised serious doubts of a legal nature (cf. Francis P. Walters, A History of the League of Nations (London: Oxford University Press, 1967), p. 690). In fact, Ethiopia, while continuing to maintain a permanent delegate in the League, eventually voluntarily abstained from participating in Assembly proceedings (cf. Société des Nations, Journal Officiel (1937), p. 658., ibid., 1938, p. 669).

21.  State succession and rules on credentials Select bibliography: Herbert W. Briggs, ‘Chinese Representation in the United Nations’, 6 Int. Org. (1952) 192–209; Gerald Fitzmaurice, ‘Chinese Representation in the

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United Nations’, 6 YWA (1952) 36–55; Gaetano Arangio-Ruiz, Sulla dinamica della base sociale nel diritto internazionale (Milano: Giuffrè, 1954) 145 f; Id., ‘La questione cinese’, in Studi in onore di Tomaso Perassi (Milano: Giuffrè, 1957), vol. 1, 67–103; Myres S. McDougal and Richard Goodman, ‘Chinese Participation in the United Nations: The Legal Imperatives of a Negotiated Solution’, 60 AJ (1966) 671–727; Wilfred Koschorreck, ‘Die Vertretung Chinas in den Vereinten Nationen’, 21 EA (1966) 655–68; Eugene A. Danaher, ‘The Representation of China in the United Nations’, 13 HILJ (1972) 448–57; Marc B. Dorfman, Mark S. Hasey, John T. Schmidt and Jeffrey G. Weil, ‘The United Nations, 28th Session, Cambodian Representation’, 15 HILJ (1974) 495–98; Alden Abbott, Filiberto Augusti, Peter Brown and Elizabeth Rode, The General Assembly, 29th Session: The Decredentialization of South Africa, 16 HILJ (1975) 576–88; Dan Ciobanu, ‘Credentials of Delegations and Representation of Member States at the UN’, 25 ICLQ (1976) 351–81; Edward McWhinney, ‘Credentials of State Delegations to the UN General Assembly: A New Approach to the Effectuation of Self-Determination for South Africa’, 3 HCLQ (1976) 19–36; Farrokh Jhabvala, ‘The Credentials Approach to Representation Questions in the UN General Assembly’, 7 CWILJ (1977) 615–38; Gerhard Erasmus, ‘The Rejection of Credentials: A Proper Exercise of General Assembly Powers or Suspension by Stealth’, 7 SAYIL (1981) 40–53; Elena Sciso, ‘La questione delle credenziali cambogiane all’Assemblea Generale delle Nazioni Unite’, 64 RDI (1981) 83–95; Malvina Halberstam, ‘Excluding Israel from the General Assembly by a Rejection of its Credentials’, 78 AJ (1984) 179–92; Raymond Suttner, ‘Has South Africa been Illegally Excluded from the United Nations General Assembly?’, 17 CILJSA (1984) 279–301; Jean-François Flauss and Philippe Singer, ‘La vérification des pouvoirs à l’Assemblée Générale des Nations Unies’, 31 AF (1985) 620–52; Giuliana Ziccardi Capaldo, ‘Il disconoscimento delle credenziali del Sud Africa come sanzione contro l’apartheid’, 68 RDI (1985) 299–325; Mala Tabory, ‘Universality at the UN: The Attempt to Reject Israel’ Credentials’, 18 IYHR (1988) 189–210; Orna Ben-Naftali and Antigoni Axenidou, ‘“Accredito” Ergo Sum: Reflections on the Question of Representation in the Wake of the Cambodian Representation Problem in the 52nd Session of the General Assembly’, 27 Denv J (1999) 167 ff; Suellen Ratliff, ‘UN Representation Disputes: A Case Study of Cambodia and a New Accreditation Proposal for the Twenty-First Century’, 87 CaLR (1977) 1207–264; Matthew Griffin, ‘Accrediting Democracies: Does the Credentials Committee of the United Nations Promote Democracy through its Accreditation Process, and Should it’, 32 NYUJILP (2000) 725–85; Giuseppe Nesi, ‘Brevi note su diritto e politica all’ONU: ammissione, accreditamento, rappresentanza e status di osservatore in Assemblea generale’, in Michele Vellano (ed), Il futuro delle organizzazioni internazionali: prospettive giuridiche (Napoli: Editoriale Scientifica, 2015) 601–19.

Articles 27–29 of the General Assembly’s Rules of Procedure (rules issued on the basis of Article 21 of the Charter) govern the procedure for accrediting the representatives of States in the Assembly. They provide that credentials must be issued by the Head of State or of Government or by the Minister for Foreign Affairs (Article 27); that the Assembly shall, at the beginning of each session, appoint a “Credentials Committee” to examine the credentials and report to the Assembly (Article 28); that a delegate, whose participation in the proceedings of the organ has been challenged by another member, shall be seated temporarily “until the Credentials Committee has reported and the Assembly has given its decision” on his or her position (Article 29). Similar provisions are contained in Articles 13–17 of the Security Council’s Rules of Procedure

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(issued on the basis of Article 30 of the Charter). The only differences concern the possibility, granted to the Head of Government or to the Minister for Foreign Affairs, to sit in the organ even without submitting credentials (Article 13) and the attribution to the Secretary-General of the powers that the Assembly’s Rules of Procedure give to the Credentials Committee (Article 15). In all matters concerning credentials, the Assembly and the Council vote by simple majority, since they are procedural matters. The Assembly decides by a majority of those present and voting, under Article 18, para. 3, of the Charter. The Council decides by a majority of nine votes out of fifteen, on the basis of Article 27, para. 2, without the power of veto. Similar to those dictated for the Assembly and the Council are the rules of Articles 11–18 of the Rules of Procedure of the Trusteeship Council. Much more succinct are the provisions on credentials in the Rules of Procedure of the Social and Economic Council (Article 17) which neither indicate the State organ competent to issue credentials nor contemplate the case of “challenging” a representative.

It has been asked in legal literature whether challenges as to delegates’ credentials, challenges which the Assembly and the Council may decide upon under Articles 28 and 17 of their respective Rules of Procedure, can concern the whole Government that the delegate represents. It has been asked, in other words, whether, during the examination of credentials and the relative discussion, they may resolve any doubts as to the right of the Government sending the delegates to occupy a UN seat and to participate in the organ’s proceedings. May the Assembly and the Council, during the examination of credentials, ascertain that a State is extinct and therefore refuse to accredit the Government representatives who claim to occupy that seat? May they decide whether, and when, the representatives of a Government formed after a revolution are to be accredited and refuse to accept the credentials issued by the old Government that has sought refuge abroad? According to one view, the answer should be negative. The cited articles in the Rules of Procedure would concern only challenges to the qualification of the delegate to represent his or her own Government given the presence of another delegate apparently sent by the same Government (or possibly by a different organ of the same Government); they would have been laid down only “for the case of challenges regarding the credentials of a real or false delegate by another real or false delegate from the same Government” (ArangioRuiz). In short, they would refer only to the rather hypothetical case of an individual appearing before the Assembly or the Council or another UN organ and declaring that he or she represents a certain Government, using false documents or presenting credentials from an organ different from the Head of State or the Foreign Minister.

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In fact, United Nations practice, as well as the previous League of Nations practice, has been clearly the opposite of this view. All, or nearly all, the problems that have been examined in the preceding sections of this chapter, concerning the right of a Government as such to occupy a seat in the organ of the United Nations and not the right of a given delegate to represent a State, have been raised during the examination of credentials and resolved with decisions regarding the credentials. More than anything, it has been through the decisions on credentials in the League of Nations and in the United Nations that the succession of Governments in the same seat has been carried out. Indeed, the practice seems to be perfectly in accordance with the Rules of  Procedure of the General Assembly or of the Security Council. Neither Article 29 of the Assembly’s Rules nor Article 17 of the Council’s Rules, in dealing with challenges to a delegate’s credentials and giving the power to the organ to settle such challenges, sets any limit on the subject matter of the challenge. Article 29 does not even speak of credentials but of objections against the “admission” of delegates. Also the rationale of the two articles supports the same view: if challenges concerning the Government as a whole were excluded from the list, one would not know what to include since it would be hard to imagine, and indeed has never occurred to our knowledge in UN practice, that an individual has said that he or she was a representative of a Government without actually being so. Nor does the fact that the organs competent to issue credentials are Government organs, such as the Head of State or the Foreign Minister (Article 27 of the Assembly’s Rules and Article 13 of the Council’s Rules) lead to the inference that any investigation aiming to verify the position of these organs, or of the Government to which they belong, is precluded. The indication of the organ competent to issue credentials concerns procedure and says nothing about the examination of credentials with a view to substance. Lastly, it is to be excluded that the matter can be influenced by the rule that the challenged delegate has the right to participate in the organ’s proceedings until such organ has come to a decision (Article 29 of the Assembly’s Rules and Articles 16–17 of the Council’s Rules). It has been said that if the representatives of two Governments could dispute the seat, both would have the right to speak and to vote in the organs until a decision were made about them, but this would result in a breach of the Charter rules that each member has but one vote. Indeed, it is even too obvious—and has always occurred in the practice (see, for example, the Congolese and Yemenite questions at § 19, as well as the question of representation of Panama before the Security Council, in SC Rep., Supp. 1989–1992, Part 2, no. 7)—that in cases of this kind the organ must decide immediately and at least before the items on the agenda are set. Another argument for the view upheld here may be drawn from the fact that the Charter does not provide any special procedure for ascertaining a State’s

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succession. It is therefore only with decisions regarding credentials that the Organization can resolve problems which involve establishing whether a State is extinct as an international subject, whether one Government may succeed to another, and so on. A difficulty that may arise with our thesis is that the Assembly and the Council, within their respective power to decide on credentials, may behave differently when faced with the same case, that is, they may each maintain that a different Government has the right to occupy the same seat in the UN, which obviously does not happen if the question is limited to individual delegates to specific UN organs. This drawback, which has up to now not surfaced in the UN practice, can find a solution only in an agreement between the two organs. It is, moreover, connected with a more basic matter, that of possible frictions between the Assembly and the Council due to differences in the political forces that prevail at the same time in each of the two organs. In 1950 the General Assembly, precisely in order to avoid disputes between the organs over credentials, recommended that the other organs let the Assembly decide “whenever more than one authority claims to be the Government entitled to represent a Member State in the United Nations” and provided that “this question becomes a subject of controversy in the United Nations” (Res. 396-V of December 14, 1950).

Decisions on credentials, as all UN decisions, cannot avoid the principle of legality (see § 97). They are illegal if they are in conflict with the Charter or, if the Charter does not provide otherwise, with general international law. Because the Charter is not concerned with State succession, it is necessary to refer to the principles of general international law that have been summarized in the previous sections. Decisions which do not conform to the principle of effectiveness in particular will be illegal, unless such unlawfulness is “cured” by the subsequent acquiescence of the generality of Member States. A decision on credentials, which does not conform to the rules of general international law on State succession may ultimately result in an admission, an expulsion, or a suspension of membership rights effected in contempt of the provisions in Articles 4–6 of the Charter. Therefore, i.e., if, through a decision on credentials, the Assembly admits to the United Nations the representatives of a new State (come into being, for example, owing to separation or dismemberment), which on the basis of general international law principles does not have the title to succeed a pre-existing Member State, the decision will be illegal as inconsistent with Article 4 which foresees a special procedure for admission. It is to be noted, to resume the discussion of “conditional admission” (see § 13), that in this case, the Assembly unlawfully admits, which is different from cases where, on the other hand, it does not admit because of a veto regarding the Security Council recommendation required by Article 4, para. 1, of the

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Charter. Our contention, as mentioned, is that the unlawfulness of admission is perfectly conceivable, while the alleged unlawfulness of the refusal to admit is not. Also, if the Assembly temporarily or definitively expels from its proceedings the representatives of a State that has not undergone any of the changes which under general international law result in extinction of a State (that is, it has not been incorporated, or dismembered, or defeated, etc.), the relative decision will illegally contradict the respective rules on expulsion (Article 6) and on suspension (Article 5). As we shall see in examining the problem of the illegality of UN acts (at § 99), the lack of a judicial review organ entails that illegal acts can be remedied only by the acquiescence by the generality of the Member States. As we shall also see (ibid.), acquiescence usually covers acts involving membership in the Organization, and therefore also decisions on credentials. This means that the decisions on credentials succeed in becoming final whether they lawfully or unlawfully affect the status as a Member State (if there is acquiescence). This is the reason for their great importance in the life of the United Nations Organization and for their reflections on general international law.

Chapter Two The Organs Section I.  The Security Council 22.  Composition of the Council. Election of non-permanent Members Select bibliography: Hans Kelsen, ‘Organization and Procedure of the Security Council of the United Nations’, 59 HLR (1945–46) 1087–121; Derek W. Bowett, ‘The Security Council’, in Ben A. Wortley (ed), The United Nations. The First Ten Years (Manchester: University Press, 1957) 19 ff; Egon Schwelb, ‘Amendments to Article 23, 27 and 61 of the Charter of the United Nations’, 59 AJ (1965) 834–56; Giancarlo Guarino, ‘Le recenti modifiche della Carta delle Nazioni Unite. (Articoli 23, 27 e 61)’, ADI (1965) 383– 93; Robert Marshik and Hanspeter Neuhold, Die Sicherheitsrat (Wien: Österreichische Gesellschaft für Außenpolitik und Internationale Beziehungen, 1973); Michael W. Reisman, ‘The Case of the Nonpermanent Vacancy’, 74 AJ (1980) 907–13; Sydney D. Bailey, The Procedure of the UN Security Council (Oxford: Clarendon Press, 1988, 2nd edn); Henry G. Schermers, ‘The Quorum in Intergovernamental Organs’, in Karl-Heinz Böckstiegel (ed), Völkerrecht, Recht der internationalen Organisationen, Weltwirtschaftsrecht. Festschrift für Ignaz Seidl-Hohenveldern (Köln: Heymann, 1988); Neil Fenton, Understanding the UN Security Council. Coercion or Consent? (Aldershot: Ashgate, 2004); Susan C. Hulton, ‘Council Working Methods and Procedure’, in David M. Malone (ed), The UN Security Council: From the Cold War to the 21st Century (Boulder: Lynne Rienner, 2004) 237–52; Kishore Mahbubani, ‘The Permanent and Elected Council Members’, ibid., 253–66; Madjid Benchikh, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd edn), vol. 1, 867–78; Jochen Prant, ‘Informal Groups of States and the UN Security Council’, 59 Int. Org. (2005) 559–92; Ronald Hatto and Nicolas Lemay-Hébert, ‘Le Conseil de sécurité des Nations Unies: entre représentative et efficacité’, in Bertrand Badie and Guillaume Devin (eds), Le multilateralisme: nouvelles formes de l’action internationale (Paris: Ed. La Découverte, 2007) 129–43; Rudolf Geiger, ‘Article 23’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. I, 751–60; Edward C. Luck, UN Security Council: Practice and Promise (London: Routledge, 2012, 2nd edn); Alejandro Rodiles, ‘Non-Permanent Members of the United Nations Security Council and the Promotion of the International Rule of Law’, 5 GöJIL (2013) 333–73.

The Security Council is composed of permanent members, the so-called five Great Powers, and non-permanent members, elected periodically by the General Assembly. In this regard, Article 23 provides as follows: The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics [today, the Russian Federation],

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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. The non-permanent members of the Security Council shall be elected for a term of two years…Each member of the Security Council shall have one representative. Each Member State, permanent or non-permanent, holds in turn the office of President of the Council, on a monthly rotation basis (Article 18, Council’s Rules of Procedure). For Council members, see .

Until 1965, the year when an amendment to Article 23 became effective, there were only 11 members of the Council, six of whom were non-permanent members. During the Cold War period, the formula of “equitable geographical distribution”, used by Article 23 with regard to the selection of non-permanent members, gave rise to very sharp clashes, and it was asked whether it referred to physical geography or rather to political geography. The issue arose in reference to a kind of verbal understanding that the Great Powers had made among themselves in 1946 and on the basis of which the six non-permanent seats in the Council were to be distributed as follows: two to Latin America, one to the British Commonwealth, one to the Middle East countries, one to Western Europe and one to Eastern Europe (the understanding is cited in GAOR, 8th sess., Pl. meet., 450th meet., no. 19). In the early years of the United Nations, the East European seat was allocated to a Communist government, for example, to Poland in 1946 and to the Ukraine in 1948. After 1950, the Assembly began to fill the seat with States which, although geographically part of Eastern Europe (or nearly so) had nothing to do with the Communist bloc. In 1952 Greece was elected and, in 1954, Turkey. Strong protests were then made by the Soviet Union which complained both that the 1946 understanding had been breached and that Article 23 had been violated. Apart from the 1946 understanding, whose binding nature is very dubious and which in any case did not bind all the General Assembly members but only the five Great Powers, it does not seem that the Article 23 formula can refer to the political situation of the country to be elected. In fact, geographical areas, such as Africa or Asia, which are not characterized by the same kind of political regimes but show the greatest variety. For a summary of the debates on the allocation of the seat belonging to Eastern Europe, see UN Rep., sub Article 23, nos. 14–22, and, for the most important statements in the General Assembly, GAOR, 4th sess., Pl. meet., 231st meet., no. 10 ff.; 6th sess., Pl. meet., 353rd meet., no. 10 ff.; 8th sess., Pl. meet, 450th meet., no. 22 ff.

The modification of Article 23, which increased the number of Council members to 15, was provided for by the General Assembly with Res. 1991-XVIII (section A) of December 17, 1963, and entered into force in August 1965 following ratification by two-thirds of the Member States, including all permanent members, as prescribed by Article 108 (see § 7). The 1963 resolution has two parts. In one, the Assembly decides to submit the amendment to ratification by the Member States. In the other it “further decides that the ten non-permanent members of the Security Council shall

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be  elected according to the following pattern: (a) five from African and Asian States; (b) one from Eastern European States; (c) two from Latin American States; (d) two from Western European and other States”. This ­second part of the resolution, which is still applied in the allocation of seats, is not, nor is meant to be, an amendment to the Charter. In fact, it has never been subject to ratification under Article 108. What, then, is its legal meaning? Certainly it is not binding upon the Member States. Under the Charter, the Assembly may adopt binding decisions only in very specific cases, and this is not one of them. Nor is it possible, in view of the circumstances, to interpret the second part of the resolution as a genuine international agreement existing between the States that voted for it. If these States had really intended to bind themselves, they would have adopted the second part of the resolution as an amendment as well. On the other hand, it would be excessive to say that the decision has no legal meaning at all, lowering it, for example, to the level of a “gentlemen’s agreement”. The better view is that the resolution falls within the General Assembly’s power to make recommendations under Article 10 of the Charter, and to attribute it the typical legal effect of all UN recommendations, that is, the effect of legality (see § 91). A State that follows the criteria indicated by the Assembly could not in any case be accused of violating the provisions of Article 23 on the geographical distribution of seats. With the geographical distribution adopted in the 1963 resolution, and considering that a permanent member, China, may be numbered among the developing countries, even if it represents one of today’s leading global economies, these countries (which are thus guaranteed more than six seats in the Council) enjoy a kind of “collective veto”. They are able, if they are in agreement, to prevent the formation of the majority of nine members necessary for the adoption of any decision.

If the Assembly does not succeed in electing one or more non-permanent member of the Council, it is possible that the latter will have to discuss and decide with an incomplete membership. This will have no effect on the validity of a decision. In fact, neither the Charter nor the Council’s Rules of Procedure (issued by the Council itself on the basis of Article 30 of the Charter) prescribe a particular quorum for the sessions. Therefore, the minimum number required to be present corresponds to the number of votes required by Article 27 for the adoption of resolutions. The only case of vacancy of a non-permanent seat occurred in early January 1980 because the Assembly, in the previous December, had not been able to fill one of the two seats assigned to Latin America for which both Columbia and Cuba were contending. The Council nevertheless met during those days but did not have the chance to vote before the seat was occupied by Mexico, elected on January 7 after the withdrawal of the candidacies of the two above-mentioned countries. On the case, cf. Michael W. Reisman, ‘The Case of the Nonpermanent Vacancy’, 74 AJ (1980), pp. 907–13. Cf. also the legal opinion issued by

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the UN Secretariat on December 3, 1979 (in UNJY (1979), p. 164 ff.) arguing that the Council is not legally formed if one or more non-permanent members have not been elected but that it… may nonetheless function so that its primary responsibility regarding maintenance of the peace is not affected. It may also happen that a State refuses a non-permanent seat, as Saudi Arabia has done, stating that it cannot accept the seat until the Council is reformed, as a form of protest against the “double standards” shown by Council policy during the conflicts in Syria, Egypt and Iran, and more generally in the management of the Middle East crisis between Israel and Palestine (for the declaration of the Saudi Foreign Minister of 18 October, 2013, see ).

The issue of the composition of the Security Council was addressed in the report issued in 2004 by the High-level Panel established by the SecretaryGeneral with a view to making suggestions with regard to UN reform and, in particular, the system of collective security. The two alternatives proposed by the Panel, however, had no following in the World Summit of Heads of State and Government in September 2005 and remain a mere matter of historical interest. The Panel, alternatively, suggested (a) the appointment of new permanent members (with no veto power) to be added to the existing five and three non-permanent seats to be added to the existing ten, or (b) to bring the number of non-permanent seats to nineteen, of which eight will be elected for a four-year term and eleven for a two-year term. In both cases the number of Council Members would increase from fifteen to twenty-four. And in both cases the geographical allocation would appear to be significantly different from the one currently applied, the countries being divided in four major regional areas, namely, Africa, Asia and Pacific, Europe and Americas (cf. Doc. A/59/165 of December 2, 2004, p. 66 ff.). It should be noted that the Panel roughly resumed existing proposals made by several States in previous years, proposals that had incurred in the opposition of other States, including Germany, India, Japan and Brazil, to obtain a permanent seat, and the initiative of others, including Italy, to secure a group of more influential countries a more frequent participation in the Council as non-permanent Members. In fact there currently are no real prospects of arriving at a new amendment of Article 23.

23.  Voting procedure in the Council: A) The nature of the four Powers’ Statement at the San Francisco Conference Select bibliography: Dwight E. Lee, ‘The Genesis of the Veto’, 1 Int. Org. (1947) 33–42; Eduardo Jimenez de Arechaga, Voting and the Handling of Disputes in the Security Council (New York: Carnegie Endowment for International Peace, 1950) 42 ff; Pierre-F. Brugière, La règle de l’unanimité des membres permanents au Conseil de Sécurité, “Droit de Veto” (Paris: Pedone, 1952) 36 ff; Leo Gross, ‘The Double Veto and the Four-Powers Statement on Voting in the Security Council’, 67 HLR (1953–54) 251–80; Bengt Broms, ‘Voting in the Security Council’, in Festskrift till L. Hjerner (Stockholm: Norstedts, 1990) 93–101; Francis Delon, ‘La concertation entre les membres permanents du Conseil de Sécurité’, 39 AF (1993) 53–64; Thomas Schindlmayr, ‘Obstructing the Security Council: The Use of the Veto in the Twentieth Century’, 2 JHIL (2001) 218–34; Paul Tavernier, in Jean-Pierre Cot,

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Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd edn), vol. 1, 935–57; Jan Wouters and Tom Ruys, ‘Security Council Reform: A New Veto for a New Century?’, 44 RDMDG (2005) 139–74; Aristotelis B. Alexopoulos and Dimitri Bourantonis, ‘The Reform and Efficiency of the UN Security Council: A Veto Player Analysis’, in Dimitri Bourantonis, Kostas Ifantis and Panayotis Tsakonas (eds), Multilateralism and Security Institutions in an Era of Globalization (Abingdon: Routledge, 2008) 306–23; Andreas Zimmermann, ‘Article 27’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. I, 871–938.

The voting procedure in the Security Council is outlined in Article 27, which reproduces the Yalta formula (see § 1 A) and confirms the veto power enjoyed by permanent members. Under this article, 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 [seven until 1965] 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.

At the San Francisco Conference, several questions were put to the four sponsoring governments (the United States, the Soviet Union, China and the United Kingdom) in order to clarify certain aspects of the Yalta formula that might have created, and that did indeed create, problems of interpretation. Mainly, it was asked how the Council was to vote if it were asked to decide on whether or not a matter was procedural (on the question of the double veto, see § 26). The answer was given in a Statement issued by the sponsoring governments on June 7, 1945 and adhered to by France in its capacity as a future permanent member of the Council. The nature of the Statement has often been discussed in the Council. The Soviet Union held, in disagreement with the Western Powers, that it is a true international agreement, and, as such, binding on the permanent members. However, if attention is paid to the circumstances in which the Statement was issued and, especially, the position taken at the time by some of the States which signed it, this view is untenable. The report presented to the President of the United States by the head of the American delegation to the San Francisco Conference has particular significance in this respect. The report indicated the Statement as an explanatory instrument but expressed specific reservations as to the reliability of an anticipatory interpretation made “without any practical experience as to the operation of the Organization or the Security Council”. It is clear that such position assumed an intention not to be formally bound.

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The Statement should thus be considered on the same level as the preparatory work. It is true that it was not adopted (but neither was it rejected) by the San Francisco Conference and remained limited to the five Great Powers. Yet it is also true that among these were the States that had drawn up Article 27 at Yalta and then imposed it on the Conference. Consequently, the Statement represented the viewpoint of the “drafters” of the Charter. The problem of the nature of the Statement should not, in any event, be over-estimated. Indeed, its content, being the result of compromises, is very ambiguous. As we shall see, it furnishes little help in answering the question the San Francisco Conference most wanted resolved by the Great Powers, the question of the double veto. For the text of the Statement, see U.N.C.I.O., vol. 11, p. 710 ff. The passage cited from the report by the Head of the American delegation is reproduced in Leo Gross, ‘The Double Veto and the Four-Powers Statement on Voting in the Security Council’, 67 HLR (1953–54), p. 255. The Statement is also reproduced in Andreas Zimmermann, ‘Article 27’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. I, 936–8.

24.  B) The so-called veto power and the significance of abstention by a permanent Member Select bibliography: Francis O. Wilcox, ‘The Rule of Unanimity in the Security Council’, 40 ASIL Proceed. (1946) 55 ff; B.A. Wortley, ‘The Veto and the Security Provisions of the Charter’, 23 BYB (1946) 95–111; Norman J. Padelford, ‘The Use of the Veto’, 2 Int. Org. (1948) 227–46; Jean De Preux, Le droit de veto dans la Charte des Nations Unies (Paris: Bellenand, 1949); Yuen-Li Liang, ‘Abstention and Absence of a Permanent Member in Relation to the Voting Procedure in the Security Council’, 44 AJ (1950) 694–708; Myres McDougal and Richard N. Gardner, ‘The Veto and the Charter: An Interpretation for Survival’, 60 YLJ (1951) 225–92; Pierre-F. Brugière, La règle de l’unanimité des membres permanents au Conseil de Sécurité, “Droit de Veto” (Paris: Pedone, 1952); Georges Day, Le droit de veto dans l’Organisation des Nations Unies (Paris: Pedone, 1952); Francesco Carlo Gentile, ‘Astensione ed assenza volontaria di un membro del Consiglio di sicurezza’, 37 RDI (1954) 547–66; Michel Fromont, ‘L’abstention dans le votes au sein des organisations internationales’, 7 AF (1961) 492–523; Hanns Engelhardt, ‘Das Vetorecht im Sicherheitsrat der Vereinten Nationen’, 10 AV (1963) 377–415; Tae Jin Kahng, Law, Politics, and the Security Council (The Hague: Nijhoff, 1964, 2nd edn) 124 ff; Clarence W. Jenks, ‘Unanimity, the Veto, Weighted Voting, Special and Simple Majorities and Consensus as Models of Decision in International Organizations’, in Cambridge Essays in International Law; Essays in Honour of Lord McNair (London: Stevens & sons, 1965) 48 ff; Constantin A. Stavropoulos, ‘The Practice of Voluntary Abstention by Permanent Members of the Security Council under Article 27, paragraph 3, of the Charter of the United Nations’, 61 AJ (1967) 737–52; Leo Gross, ‘Voting in the Security Council: Abstention in the post-1965 Amendment Phase and its Impact on Article 25 of the Charter’, 62 AJ (1968) 315–34; E.C. Udechuku, ‘The Problem of the Veto in the Security Council’, 4 IR (1972) 187–216; Sydney D. Bailey, ‘New Light on Abstentions in the UN Security Council’, 50 IA (1974) 554 ff; Azadon S. Tiewul, ‘Namibia

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and the Unanimity Principle in the Security Council: Is an Abstention a Concurring Vote?’, 11 UGLJ (1974) 20–42; A.B. Dambazau, ‘UN and the Veto Power’, 3–4 NF (1987) 84–89; Paul Tavernier, in Jean Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd edn), vol. 1, 941–48; Andreas Zimmermann, ‘Article 27’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. I, 871–938; Joel Wuthnow, Chinese Diplomacy and the UN Security Council: Beyond the Veto (London: Routledge, 2013).

“Veto power” are the words commonly used with regard to the provision of Article 27, para. 3, which provides that decisions on non-procedural matters shall be made by an affirmative vote of nine members (seven before the Council was enlarged in 1965), including all the permanent members. The English text of para. 3 reads as follows: “Decisions of the Security Council…shall be made by an affirmative vote of nine members including the concurring votes of the permanent members…”. The French text reads: “Les décisions du Conseil… sont prises par un vote affirmatif de neuf de ses membres dans lequel sont comprises les voix de tous les membres permanents…”. The other equally authentic Spanish, Russian and Chinese texts move in the same direction. The reform proposals of the United Nations to eliminate, as an anachronistic and undemocratic institution, or conversely to extend to other States beyond the current five permanent members, the veto power have already been mentioned (see § 8). The matter was debated in recent years, in particular, with reference to the “responsibility to protect” doctrine (see § 66). It was therefore argued that in the event of gross violations of human rights in a State that is unwilling or unable to stop them, the permanent members of the Security Council ought to give up their veto power and let the Council allow third-party States to intervene militarily in order to make them cease (cf. Anne Peters, ‘The Responsibility to Protect: Spelling out the Hard Legal Consequences for the UN Security Council and its Members’, in Fastenrath, Geiger, Khan, Paulus, von Schorlemer e Vedder (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford: Oxford University Press, 2011) 297–325). A similar invitation has been suggested by the doctrine even as far as the execution of judgments of the International Court of Justice condemning a permanent member is concerned, under Article 94 of the Charter (cf. Mary Ellen O’Connell, The Power and Purpose of International Law. Insights from the Theory & Practice of Enforcement (Oxford: Oxford University Press, 2008), p. 304). Of course, the permanent members are far from keen to follow up on similar proposals. Neither should it be disregarded that, from the discussions on the responsibility to protect, it is apparent that the veto power is defended not only by permanent members, obviously, but also, at least nowadays, by medium-size and small States who see the mutual restraint among the five permanent members—in particular, between the United States, the Russian Federation and the People’s Republic of China (PRC) (see §§ 47, 50, 56, 59, 66)—as a guarantee. On this topic see Carlo Focarelli, ‘The Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities for a Working Doctrine’, 13 JCSL (2008), pp. 191–213. The fact that the doctrine of responsibility to protect makes it “more difficult”, in political terms, to exercise the power of veto in the case of serious humanitarian crisis is serious but distinct. The idea that the right to veto should be lost in cases where intervention is permitted for the sake of the responsibility to protect should be extended to every State including the

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non-permanent ones, and not solely the permanent members of the Security Council, considering that a resolution in favor of intervention might not to be adopted simply due to the failure to reach a majority of any nine members, rather than because of the veto of one or more permanent members. However, allowing this would mean transforming the Security Council into a body whose intervention is compulsory, and where its individual members count for little, which, as we said concerning the positive obligations of UN bodies (see § 13), seems totally implausible. There is no lack of recent proposals in the practice. In an informal meeting on the margins of the General Assembly held on 25 September, 2014 at the initiative of France and Mexico, which was also attended by other permanent members of the Security Council, a mechanism was proposed to be set in motion by the Secretary General after a proposal from the High Commissioner for Human Rights or a group of fifty States of the United Nations, whereby in the event of “mass atrocities” (genocide, crimes against humanity and large-scale war crimes), the permanent members of the Council commit themselves voluntarily and collectively not to use their veto (see ). At the opening of the 11th round of negotiations on Security Council reform of 12 November 2014, a proposal was put to the General Assembly to reach an agreement in 2015 to increase the number of permanent Council members and strengthen relations between the Council and the Assembly. The most controversial issue, on which there has been profound disagreement, concerns the possible suppression of the right of veto for permanent Council members or at least limitation of its use when voting on resolutions relating to serious human rights violations (cf. Metou Brusil Miranda, ‘Ouverture du onzième du cycle de Négociations sur la réforme du conseil de sécurité: Le 70e anniversaire des Nations Unies en 2015 coïncidera-t-il avec la réforme du conseil de sécurité?’, Sentinelle, 15 November 2014). For an official list of vetos from 1945 to 2004, see Doc. A/58/47, pp. 13–19. For other statistics regarding the use of veto for the period 1945–2012 see .

There is little question that, under para. 3 of Article 27, the validity of a nonprocedural decision of the Council requires the affirmative votes of all five permanent members. It seems thus that abstention of a permanent member is to be considered a veto—although, in a strict sense, a veto implies the expression of a contrary vote—and is able to paralyze the Council’s activity in a ­particular case. This interpretation is supported, first, by the text of para. 3, which expressly requires that the votes of the permanent members “concur” (English text) or “are included” (French text) in the “affirmative” vote of the Council majority. The spirit of Article 27 moves in this same direction, since the Council is responsible under the Charter for the maintenance of international peace and security and that effective action in this area should be ­supported by the agreement of the permanent members. Lastly, also the San Francisco Statement militates in favor of this view: in point 9 it clearly confirms that Council resolutions which do not have a merely procedural nature require the “unanimity of the permanent members plus the concurring votes of at least two [today four] of the non-permanent members”.

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Attention must be drawn to the fact that to reach the majority of seven votes (today nine) prescribed by Article 27, para. 3, the Statement considers necessary the votes of the permanent members plus two votes (today four) of the non-permanent members. This very clearly means that the Statement requires the affirmative vote of the five Great Powers, and excludes the possibility of the Council deciding with the abstention of even one of them.

In spite of the above, the United Nations practice has, since its early years, tended to acknowledge the validity of decisions made with the abstention of one or more permanent members. After some initial uncertainty, this practice became well established through the agreement of all the States. It can be safely said that it gave rise to one of the unwritten rules in the Organization that derogate from the Charter provisions. The question of abstention of a permanent member first arose in the Council in 1946 during the examination of the domestic situation in Spain, a situation, according to some Member States, likely to threaten international peace and security. On April 29, 1946, the Council approved, with the abstention of the Soviet Union, a draft resolution proposed by Australia that provided for the creation of a sub-committee to study whether the Franco regime actually constituted a threat to the peace. The Soviet representative, after stating he did not approve the draft resolution in that it was dilatory, declared he would abstain so as not to make its adoption impossible; however, he invited the Council (and the United States adhered to this) not to consider his conduct as “a precedent capable of influencing in any way the question of the abstention of permanent members of the Security Council” (cf. SCOR, 1st year, 39th meet., part. p. 243). Thereafter, the abstentions of the permanent members began to be more frequent, without any longer raising any exceptions or reservations whatsoever. Important decisions, for example, concerning the admission of new States, the setting up of international peacekeeping forces, and so on, have often been taken with the abstention of permanent members. As we have said, it is now a well-established practice which has given rise to a customary norm (on the possibility that the Charter may be derogated from by customary rules, see § 4).

The customary rule that permits the validity of resolutions taken with the abstention of one or more permanent members was in no way influenced by the changes in the number of members of the Council introduced in the Charter in 1965. It has been held that since there are now 15 (instead of 11) members of the Council and that 9 votes (instead of 7) are sufficient for the adoption of a resolution, the customary rule should no longer be in effect. Otherwise, it is said, the Council could issue a decision even when all the permanent members abstained. It may be replied that such an eventuality is not able by itself alone to nullify a rule shaped over a period of time. In introducing changes to the Charter in 1965, Member States did not show any intention specifically concerning abstention, thereby letting it be understood that they intended to leave things as they were. Indeed, and most importantly, the practice after 1965 has been consistent with the previous practice.

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The fact that the practice has given rise to a customary rule on abstention, and that such rule has remained unchanged since 1965, can be inferred from a passage of the International Court of Justice’s Advisory Opinion of June 21, 1971 on the Namibia (South West Africa) case (cf. ICJ Reports 1971, p. 22). Insofar as the Court refers to a practice reflecting an “accepted interpretation…[that] has become binding on all member States”, rather than a modification of Article 27, para. 3, cf. Andreas Zimmermann, ‘Article 27’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. I, 915 ff. On the Namibia question, see § 83. Voluntary abstention of one or more permanent members of the Council without affecting the validity of decisions is rather common in the practice and can also concern resolutions of major importance. For more recent cases cf. Rep., Supp. 1993–1995, Chapt. IV, pp. 9–11; ibid., Supp. 2000–2003, Chapt. IV, pp. 7–8; ibid., Supp. 2004–2007, Chapt. IV, pp. 10–11.

A form of abstention is non-participation in the vote (in the vote, not in the discussion). Also on this point the practice has become well-established, especially in the years immediately following the entry of Communist China in the Council. By not participating in a vote, a State (if it is a permanent member), while not intending to prevent the adoption of a resolution, wants to more strongly emphasize its dissent (but not with different legal effects) with respect to a case of abstention. Non-participation in a vote implicitly carries with it the intention to contest the resolution and to be disassociated from its effects (on this point, see § 99). For several years after its entry in 1971, Communist China did not participate in voting on resolutions concerning the establishment and the functioning of peacekeeping forces or observation missions. Cf., for example, for the resolutions on peacekeeping operations in the Middle East, SCOR, 28th year, 1973, 1760th meet.; 33rd year, 1978, 275th meet. Various Arab countries and Third World countries joined China in non-participation with regard to the Middle East resolutions. Also other permanent members (for example, France, in the case of Res. 376 of Oct. 17, 1975, on the admission of the Comoros Islands) have resorted to the practice of non-participation in the vote. For more recent practice cf. non-participation in the vote of France for the adoption of Res. 1280 of December 3, 1999 (for the extension of the Oil for Food program for Iraq by one week) arguing that the one week renewal would prevent the resolution from achieving the purpose for which it was being adopted (cf. Doc. S/PV.4077, p. 2); and of Syria for the adoption of Res. 1483 of May 22, 2003 (which among other things lifted the Iraq financial and trade sanctions) claiming that, had it been given more time, as asked on several occasions, Syria would have voted in favor, but also explaining that the resolution did not meet all of the expectations and aspirations of the Iraqi people and its sovereignty over its natural resources. Moreover, it stated that the vote was not to be interpreted as a change of opinion on the illegality of the war in Iraq (cf. Doc. S/PV.4762 Resumption 1, p. 20). For the latter and for other cases of non-participation and/ or absence cf. SC Rep., Supp. 2000–2003, Chapt. IV, pp. 9–11.

By mitigating the rigidity of Article 27, para. 3, the customary rule on abstention has allowed the Security Council to adopt resolutions which otherwise would not have been adopted. Yet this rule weakens the capability of the

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Council to act effectively to protect the peace, given that this capability depends to a large degree on the consent of the permanent members. 25.  C) Absence of a permanent Member Select bibliography: Josef L. Kunz, ‘Legality of the Security Council Resolutions of June 25 and June 27, 1950’, 45 AJ (1951) 137–42; Yuen-Li Liang, ‘Abstention and Absence of a Permanent Member in Relation to the Voting Procedure in the Security Council’, 44 AJ (1950) 694–708; Leo Gross, ‘Voting in the Security Council: Abstention from Voting and Absence from Meeting’, 60 YLJ (1951) 209–57; Francesco Carlo Gentile, ‘Astensione ed assenza volontaria di un membro del Consiglio di Sicurezza’, 37 RDI (1954) 547–566; Tae Jin Kahng, Law, Politics, and the Security Council (The Hague: Nijhoff, 1964, 2nd edn) 132 ff; Marie-Françoise Labouz, L’Organisation des Nations Unies et la Corée. Recherches sur la fiction en droit international public (Paris: Publications universitaires de Paris, 1980); Andreas Zimmermann, ‘Article 27’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd ed), vol. I, 916–8.

Again with regard to Article 27, para. 3, the question arises as to whether the Security Council can validly adopt resolutions on non-procedural matters if one or more of the permanent members is absent during the sessions when they are being discussed. On this issue examples from practice are not abundant. Two cases can be cited, both involving the Soviet Union. In 1946, Iran brought a complaint before the Council, claiming Soviet interference in its internal affairs (Russian troops were stationed in Azerbaijan), but soon after announced it was withdrawing its complaint as the two countries had come to an agreement. Contrary to the Soviet view (shared by France and supported also in a memorandum from the Secretariat), whereby the agreement had eliminated any dispute or situation that might endanger the peace and had thus made any UN intervention unwarranted, the Council in the 36th meeting of April 25, 1946 decided to keep the question on the agenda. The Soviet Union then stated that it would not take part in the sessions in which the Iranian question was being discussed, thereby challenging beforehand the validity of eventual resolutions of the organ. The Council, in any event, did not adopt a resolution. The second case, which occurred in 1950, is more interesting. The Soviet Union abandoned the Council for more than six months to protest against the failure to substitute the People’s Republic of China (PRC) for the Republic of China (ROC), i.e. Taiwan, in the Security Council (see § 19). Before withdrawing, the Soviet delegate declared that he would refuse to recognize all resolutions passed in his absence. And, on his return, he confirmed this intention. This time the Council, despite the Soviet Union’s withdrawal, took two resolutions, no. 83 of June 27, 1950 and no. 84 of July 7, 1950, which were at the basis of the Korean War (see § 60).

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In both instances, the majority of the Council members expressed the view that the absence of a permanent member should be the same as abstention from the vote and that the organ could consequently proceed to take decisions on any matter. More recently, however, there has been a case where a delegate of a permanent member (the United States) withdrew from a single sitting inducing other Members of the Council not to vote for a resolution or a statement of the President (which would have been to condemn Israel for colonization of the Palestinian territories), that nevertheless had their support. Scholars remarked that, in so doing, the United States—who wished neither to vote for, against or to abstain—“invented the implicit, if not the pocket [de poche] veto” (see Philippe Weckel, ‘Israël, les Etats-Unis inventent le veto implicite au Conseil de sécurité’, Sentinelle, 6 February 2013). On the Iranian question, cf. SCOR, 1st year, 33rd, 36th, 40th and 43rd meet. (the above cited Secretariat’s memorandum is reproduced in SCOR, 1st year, 33rd meet., p. 143 ff.). For the Russian statements of 1950, see SCOR, 5th year, 461st meet., p. 9 f. and 480th meet., p. 2 ff. Cf. also the telegram from the Soviet Union deputy foreign minister to the SecretaryGeneral, of June 29, 1950 (Doc. S/1517, published in SCOR, 5th year, Supp. for June, July and August 1950, p. 29 f.).

Considering that the practice is limited, that one of the permanent members, the Soviet Union, had throughout its existence insisted on the invalidity of resolutions taken in its absence, and that caution must be used in ascertaining customary rules that have developed within the framework of the Charter (see § 4), it is difficult to consider that an unwritten rule has been shaped with regard to absence similar to the one supporting the validity of a resolution when a permanent member abstains. All that can perhaps be said, in the light of the provision of Article 27, para. 3, and together with the customary rule on abstention, is that the consequences of the absence from voting depend on the meaning given by the State that is absent. If the State is absent in order to paralyze the activity of the Council (as the Soviet Union was in the above-mentioned cases), its position is equivalent to a negative vote. On the contrary, if the absent State intends only to dissociate itself from the vote without preventing adoption—thereby attributing to absence a meaning that does not substantially differ, even if it may turn out to be more sensational, from non-participation in the vote—the customary rule on abstention applies. 26.  D) The problem of the double veto Select bibliography: Yuen-Li Liang, ‘Notes on Legal Questions Concerning the United Nations; The So-called “Double Veto”’, 43 AJ (1949) 134–54; Alexander W. Rudzinski, ‘The So-Called Double Veto. Some Changes in the Voting Practice of the Security Council’, 45 AJ (1951) 443–61; Leo Gross, ‘The Double Veto and the Four-Power Statement on Voting in the Security Council’, 67 HLR (1953–54) 251–80; Aleksander W.

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Rudzinski, ‘Majority Rule vs. Great Power Agreement in the United Nations’, 9 Int. Org. (1955) 366–75; Marion K. Kellogg, ‘The Laos Question: Double What Veto’, 45 VLR (1959) 1352–60; Leo Gross, ‘The Question of Laos and the Double Veto in the Security Council’, 54 AJ (1960) 118–31; Ernest L. Kerley, ‘The Powers of Investigations of the United Nations Security Council’, 55 AJ (1961) 892–918; Tae J. Kahng, Law, Politics, and the Security Council. An Inquiry into the Handing of legal Questions Involved in International Disputes and Situations (The Hague: Nijhoff, 1964) 112 ff; Klaus Prössdorf, Das Doppel-Veto im Sicherheitsrat, Voting in the Security Council and the PLO, in VN (1966) 48 ff; Leo Gross, ‘Voting in the Security Council and the PLO’, 70 AJ (1976) 470–91; Franciszek Przetacnik, The Double Veto of the Security Council of the United Nations: A New Appraisal, 58 RDISDP (1980) 153–81; Paul Tavernier, in Jean-Pierre Cot, Alan Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd edn), vol. 1, 938–41; Andreas Zimmermann, ‘Article 27’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. I, 903–8.

The veto power provided in Article 27, para. 3, can be exercised “on all other matters” with reference to “procedural matters” under para. 2 of Article 27 which requires for the latter a vote of any nine members of the Council. The different majority required for “procedural matters” and “all other matters” under Article 27, para. 3, raising the problem of establishing (a) which matters are “procedural” and which are not, and (b) in the event of a difference of opinion between Council members on whether a matter is “procedural”, what should be the majority needed to establish where a matter is “procedural” or not. Situation (b) has been known to arise and has led to the problem of the so-called “double veto”, which it might be better to examine before examining problem (a), pertaining to the identification of matters that, at least in principle, are unanimously regarded as “procedural”. The problem of the double veto is usually stated in the following terms. Since Article 27 makes a distinction, for voting purposes, between decisions on “procedural” matters and decisions on “other matters”, how will the Council vote when it must decide whether or not a matter brought before it (main question) concerns “procedure” or not (preliminary question)? Will it vote on the preliminary question according to the provision of para. 2 of Article 27, which excludes the right of veto, or according to the provision of para. 3, which allows it? The issue is usually referred to as “double veto” because in the second hypothesis, which as we shall see is the one set in the practice of the early years of the Organization, the preliminary question is voted exercising the veto power and then, rather likely, also the main question, leading to a “double veto”. The typical scenario is that of a permanent member (in older practice this was usually the Soviet Union) that intends to use, or who has made use of, the right of veto to block a resolution favored by the majority of the nine  members. To do so, it must argue that the resolution concerns a nonprocedural question, for which the right of veto is allowed. If some (or all) the

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other members of the Security Council consider that the matter in hand is in fact one of procedure, then a difference of opinion arises with no other solution than to put the question to the vote. But what majority is required? It is in the interest of the permanent member intending to exercise the right of veto to claim that the majority should be the same as that for non-procedural matters, with the right of veto. If the other members give their consent, which has sometimes happened, the result is a “double veto” as the permanent member who is against the resolution will first veto the resolution establishing the procedural nature of the matter, which will thus be non-procedural and will therefore have to be decided on through the power of veto, and will in the end use its veto on the main issue. As we can see, this strategy allows a permanent member to veto the adoption of resolutions and prevent (or challenge the validity of already approved resolutions) concerning matters that it considers non-procedural, whether in good faith or not, despite the fact that the other Council members consider it procedural. The problem had already arisen at the time of the League of Nations with regard to Assembly and Council acts, which, under Article 5 of the Covenant, could be either procedural or non-procedural. According to Article 5, procedural matters were subject to the rule of simple majority, and non-procedural matters to the rule of unanimity. This vote applied also to preliminary questions (for reference, see Leo Gross, ‘The Double Veto and the Four-Power Statement on Voting in the Security Council’, 67 HLR (1953–54), p. 252 ff).

The Charter does not provide elements for resolving the problem of the double veto. The text does not help, as both the above mentioned solutions can lead to consequences that may be challenged on the basis of Article 27. Those who want to say that the preliminary question must be decided by simple majority, will run the risk of attributing a procedural character to resolutions which objectively do not have it and thus of circumventing the veto power. Those, vice versa, who want to treat the preliminary question in the same way as a matter of substance, will contravene the rule of para. 2, by extending the veto to resolutions that are clearly procedural. The Statement of the Four Powers at the San Francisco Conference seems to confirm the second scenario (see § 23). The Four Powers affirm, on the one hand, the principle that the preliminary question must be resolved with the greater majority, and therefore with the possibility of exercising the veto, but they also point out, on the other, that the Charter itself distinguishes between procedure (Articles 28–32) and substance (Chapters VI and VII), and that the distinction made by the Charter is so precise as to make improbable the necessity that the Council make a preliminary decision; the Statement adds that in any case such a decision could be reached when the organ was faced with matters of “great importance”. In the practice the Statement lent itself to many interpretations, in support of both theses, depending in turn on which part of it was invoked.

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Most of the Statement (part I, nos. 1–5) aims at confirming that a procedural matter, for which the veto is excluded, comes within the provisions… concerning procedure (Articles 28–32 of the Charter). Then, with regard to the problem of voting on the preliminary question, the Statement concludes (Part II) 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 [today nine] members of the Security Council, including the concurring votes of the permanent members” (emphasis added).

If a solution to the so-called problem of the double veto is not offered by the Charter and if the Statement lends itself to opposing interpretations, neither can it be seen in a full and coherent way from practice, which is very inconsistent. In the early years of the United Nations, the Council decidedly seemed to take the position “of the double veto” insofar as the that the preliminary question was subject to the veto. It did so, first of all, in 1946, during the examination of the domestic situation in Spain, a situation which some members believed was likely to threaten international security. On that occasion, when a dispute arose over whether or not a resolution confirming the Assembly’s right to be concerned with the Franco regime was procedural, the majority decided that the preliminary question was to be voted on under Article 27, para. 3, and the resolution was then blocked by the veto of one of the permanent members. The same result was reached, and following the same procedure, in 1947 with regard to a resolution requesting that the Assembly consider the question of Greek border incidents and, in 1948, regarding a draft resolution for the appointment of a sub-committee to collect documents and testimonies on the coup (and consequent coming to power of the Communist regime) in Czechoslovakia. In all three cases the double veto was exercised by the Soviet Union, with the result that it succeeded in obstructing the adoption of the resolutions. For the practice concerning the double veto in the case of the Spanish question, see SCOR, 1st year, 49th meet., p. 400 ff., especially p. 413 ff. In this case the draft resolution stated “… The Security Council decides that, without prejudice to the rights of the General Assembly under the Charter, the Council shall keep the situation in Spain under continuous observation and shall maintain it upon the list of matters of which it is seized”. The resolution was clearly procedural, since its operative part required that the Spanish question was to be kept on the agenda. Nonetheless, the Soviet Union captiously held that at least one part of it, the part concerning the “rights of the General Assembly” went beyond procedure. The Soviet Union thus said that, since there was disagreement as to the nature of the resolution, the veto principle should apply. In the end, its view prevailed, despite the reservations of same States such as the Netherlands (ibid., p. 422 ff.) and Australia (ibid., p. 424 ff.) These

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reservations were mainly based on the fact that the Statement, cited by the Soviet Union, had no legal relevance for the non-permanent members of the Council. On the case concerning Greek border incidents (the UN was concerned for a long time in the post-war era with the support given by Communist countries to the Greek guerrillas), cf. SCOR, 2nd year, 202nd meet., p. 2397 ff. In this case the draft resolution, presented by the United States, and blocked by the Soviet Union, established that “… the Security Council…requests the General Assembly to consider the dispute between Greece on the one hand and Albania, Yugoslavia and Bulgaria on the other, and to make any recommendations with regard to that dispute which it deems appropriate under the circumstances” (ibid., p. 2369). The draft clearly involved an application of Article 12 of the Charter, under which the General Assembly shall not make any recommendation with regard to disputes or situations with which the Security Council is concerned “unless the Security Council so requests” (see § 64). The Western powers held that such a request was purely of a procedural nature. On the contrary, the Soviet view was that, when Article 27, para. 2, speaks of decisions on procedural matters, it is referring to the “internal” procedure of the Council and not to relations between organs as well. In any case, the Soviet Union was successful in requesting that the vote on the preliminary question as to the nature of the resolution be taken according to para. 3 of Article 27, and then exercised its veto. For the practice relating to the Communist coup d’état in Czechoslovakia, see SCOR, 3rd year, 288th, 300th, and 303rd meets. On this occasion, since it was obvious that the Soviet Union intended to block any intervention of the Council, Chile presented a draft resolution that was limited to the setting up of a sub-committee of three members instructed “to receive or to hear…(any) evidence, statements and testimonies and to report to the Security Council at the earliest possible time”. The discussion, which immediately flamed up, over whether or not the resolution was procedural was carried out both in the light of the Charter and on the basis of the Four Powers’ Statement. The Western view was that it concerned a subsidiary organ under Article 29 of the Charter and therefore was a subject that came within the part of the Charter dedicated to procedure and considered by the Statement (part I, no. 2) as pertaining to procedural matters. By contrast, the Soviet Union held that it involved a true request by the Council under Article 34 (on investigation), that is, an article in Chapter VI of the Charter and expressly used as an example in the Statement (part 1, nos. 4 and 5) of a provision concerning matters of substance. An impartial examination shows that the Western view was not correct and, in particular, that Article 29 was not appropriately cited. The setting up of a subsidiary organ is in fact admissible only when it may be assigned functions that the principal organ is able to carry out. It is clear, in other words, that, if the Council cannot proceed with an investigation under Article 34 owing to the veto of a permanent member, neither can it transfer such a function to a subsidiary organ. Also in the Czechoslovak case, the Soviet Union won, by having the view prevail that the preliminary question as to the nature of the resolution was subject to the veto.

It thus seemed that the practice tended to be in favor of the right of veto, even if, especially in the Czechoslovak case, many governments protested against the abuse of this right and tenaciously defended the procedural nature of the resolutions being discussed. As early as 1950, however, the Council began to change its view when it decided not to take into account the veto of the Republic of China (ROC) with regard to the Formosa question. This case concerned a resolution inviting Mao’s government to explain its own point of view before the Council (convened on Soviet initiative to discuss the American presence in Formosa) and the Chinese-Nationalist delegate held that, owing to the dispute

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over Chinese representation in the UN (see § 19), the invitation went beyond the area of procedure. When the preliminary question was put to the vote, the President stated, amid the protests and reservations of Chiang-Kai-Shek’s delegate, that the majority had voted against the latter’s view and that this was sufficient to admit Mao’s representative to the discussion. Actually, it cannot be said that this case was very important in the context of the practice concerning the double veto, since, as clearly emerges from a reading of the Council records, the ROC’s ability by itself alone to block a resolution appeared… pretentious even to the United States. Much more interesting is a subsequent case which occurred in 1959, during the examination of the question of the infiltration of Communist guerrillas in Laos. Here the Council was called upon to decide whether the appointment of a subcommittee to examine the situation was a procedural matter. It was called upon to give an opinion on a problem identical to the one it had already discussed and resolved in 1948 with regard to the Czechoslovak crisis. Yet this time the majority, favorable to the procedural nature, decided not to take into account the contrary opinion and veto of the Soviet Union. The sub-committee was thus appointed, in spite of the Russian statement concerning the absolute invalidity of the resolution. On the Formosa question, see SCOR, 5th year, 504th–507th meets. (for the most important statements of the Chinese representative, see 505th meet., p. 18 f., 506th meet., p. 3 and 5 ff., 507th meet., p. 2 ff. and 8). On the Laos case, see SCOR, 14th year, 847th meet. (for the Soviet Union declaration that the resolution, approved despite its veto, was “illegal” and “cannot be regarded as having any legal force”, see 848th meet., p. 23).

The problem of the double veto was touched upon also in December 1971, during the examination by the Council of questions relating to the war between India and Pakistan. On that occasion, the Soviet Union proposed several times that the Council hear a representative of the new State of Bangladesh that was coming into existence but then withdrew its proposal in the light of the opposition of several members, particularly of the representative of the People’s Republic of China (PRC) (cf. SCOR, 26th year, 1607th meet., Dec. 5, 1971, n. 25 ff. and 1613th meet., Dec. 13, 1971, n. 77 ff., especially no. 122). In the meeting of December 13, 1971, before the Soviet Union withdrew the proposal, the President was ready to put it to a vote and had noted that he would have considered the question one of procedure and not of substance (in line, therefore, with the solution given to the problem of the double veto in 1950, with regard to the Formosa question).

What is, then, the correct solution to the problem of the double veto? Inconsistencies aside, practice supplies some sufficiently substantial indications in order to distinguish between “procedural” questions and “other questions”. First, according to the Statement of the Four Powers the questions under Articles 28–32 of Chapter V of the Charter—entitled “Procedure”—pertain to procedure. These questions concern the holding of Council meetings

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(Article 28), the establishment of subsidiary organs (Article 29), the adoption of internal Rules of Procedure (Article 30) and the participation, without vote, in the discussion of the Council of UN members which are not members of the Council (Articles 31 and 32) or of States which are not UN members (Article 32). Then there are the proposals made by the General Assembly or its subsidiary organs, since the early years of the Organization. In 1947, the Assembly gave to a provisional Committee (established by Res. 111-II of November 13, 1947) the task of examining the issue (with Res. 117-II of November 21, 1947, adopted under Article 10 of the Charter and in view of an amendment of Article 27). With Res. 267-III of April 14, 1949, the Assembly recommended to the members of the Security Council “without prejudice to any other decisions that the Council may deem procedural”, to consider a long and detailed list of questions, set forth in the Annex, as “procedural”, in order to avoid the “excessive resort to veto”, which should be used “only when they [the permanent members] consider the question to be of great importance”, providing the reasons for considering it so, and inspired by a report the provisional Committee had drafted in the meantime (Doc. A/578). Other proposals were more recently formulated, in a report of July 25, 2000 (Doc. A/54/47, Annex VIII), by the “open-ended” working group dealing with the reform of the UN (see § 8). In the practice these were certainly considered “procedural”, in the sense that the validity of the related decision has not been contested, although taken with the negative vote of one or more permanent members, questions such as including or removing an item from the agenda, the order in which items should be inserted, the suspension and the adjournment of a meeting and the Council’s conduct of business. See UN Rep., vol. II, sub Article 27, no. 15, for the practice on questions considered to be procedural without any objections having been raised (inclusion in the agenda, order of items on the agenda, adjournment of a meeting, conduct of business, removal of an item from the agenda), and no. 16 ff. for questions that were the subject of contention (invitation to participate in the proceedings or to participate in the work, postponement of consideration, establishment of subsidiary organs for the elucidation of facts, retention of a question on the agenda, the request to the Assembly to consider and make recommendations on a dispute or a situation under Article 12, recommendations to the Assembly on admission to membership to the United Nations under Article 4). In particular, for questions considered to be procedural without any objections having been raised cf. UN Rep., Supp. no. 1, vol. I, no. 10 (inclusion in the agenda, adjournment of a meeting, conduct of business, invitation to participate in the proceedings); ibid., Supp. no. 2, vol. II, no. 10 (inclusion in the agenda, adjournment of a meeting, conduct of business, convocation of an emergency special session of the General Assembly); ibid., Supp. no. 3, vol. II, no. 11 (inclusion in the agenda, order of items on the agenda, suspension or adjournment of a meeting, invitation to participate in the proceedings); ibid., Supp. no. 4, vol. I, no. 9 (inclusion in the agenda, adjournment of a meeting); ibid., Supp. no. 5, vol. II, no. 9 (inclusion in the agenda, suspension of Rule 59 of the provisional Rules of Procedure, PLO and other non-member States invitation to participate in the Council’s discussion of their application for membership,

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adjournment of a meeting); ibid., Supp. no. 6, vol. III, no. 9 (invitation to the PLO to participate in the debate, convocation of an emergency special session of the General Assembly); cf. SC Rep., Supp. 2004–2007, Chapt. IV, p. 7 (inclusion in the agenda), also for a number of cases where it derives a contrario—from the fact that one or more permanent members have exercised the veto and the draft resolution was considered not to have been adopted—that certain questions are not “procedural” under Article 27, para. 3, of the Charter (ibid, pp. 7–8). It should be mentioned the decision, peacefully considered to be “procedural”, with which the Council decided the inclusion in the agenda on the Myanmar situation with 10 votes in favor, 4 against (including that of China) and 1 abstention (Doc. S/PV.5526). At times the Council decided on questions that have been considered “procedural” in the past under Article 27, para. 2, but without suggesting through the outcome of the vote how the issue was considered in the specific case. For instance, this happened in three different cases that occurred between 2000 and 2003, respectively concerning the adjournment of a Council meeting, the invitation of a special envoy of the Secretary-General to participate in the proceedings and the conduct of business of the Council: the first resolution was adopted unanimously, while the other two did not even reach a majority of any nine members (cf. SC Rep., Supp. 2000–2003, Chapt. IV, pp. 4–5).

Despite the above described indications of the practice, the problem of establishing what happens when a Member State of the Council disagrees on considering a question “procedural” remains open, also because, as said, it cannot be left to the majorities of the moment to determine, in turn, the content of the Charter (see § 6). The better view, therefore, seems to be that an “objective” solution imposed on all, including permanent members intending to, or having made use of, the right of veto, cannot be discerned: the uncertainty of practice moves in this direction. All that one can say is that if a Member State believes that the Council has adopted a substantive resolution with the legal majority for a procedural resolution, it will accuse it of having violated the Charter and will put forward its reservations with regard to the legality of the act (as the Republic of China and the Soviet Union did respectively in the cases of Formosa and Laos). Reservations of this kind do not concern only the double veto but rather are recurring aspects of United Nations practice. They arise from the fact that the Charter does not give the UN organs the power to give a binding interpretation of the Charter and that such organs lack the capacity to assert their authority over the individual State. Without a central organ capable of determining the legality of the acts and without the possibility to confer on the organs the power to interpret the Charter, a single Member State cannot be prevented from challenging the legality of an act adopted by the majority. What consequences derive from challenges of the legality of UN acts is a problem that will be examined later (see § 99). The only case that has practical importance with regard to the so-called double veto is that of a resolution adopted with the legal majority for a procedural matter and questioned by a permanent member who has opposed its veto (see the questions of Formosa and Laos) and possibly also by other dissenting members. On the contrary, if the Security Council decides

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to vote with the greater majority on a resolution which some members believe is procedural (see the Spanish, Greek and Czechoslovak questions), the exercise of the veto will block its adoption, thus making any reservation about the legality of the majority’s conduct useless. As we have had occasion to note elsewhere (see § 13), there is no point in speaking of illegality in the case of the inertia of a UN organ.

27.  E) Abstention from voting by a Member party to a dispute Select bibliography: Eduardo Jiménez De Aréchaga, Voting and the Handling of Disputes in the Security Council (New York: Carnegie endowment for international peace, 1950) 25 ff; Hans Kelsen, The Law of the United Nations. A Critical Analysis of its Fundamental Problems (London: Stevens, 1950) 258 ff; Michel Fromont, ‘L’abstention dans les votes au sein des organisations internationales’, 7 AF (1961) 492–523; Sidney D. Bailey, ‘New Light on Abstentions in the UN Security Council’, 50 IA (1974) 554–73; Yuen-Li Liang, ‘The Settlement of Disputes in the Security Council: The Yalta Voting Formula’, 24 BYB (1947) 354 ff; Paul Tavernier, ‘L’abstention des Etats à un différend (art. 27 § 3 in fine, de la Charte)’, 22 AF (1976) 283–89; Attila Tanzi, ‘Diritto di veto ed esecuzione della sentenza della Corte internazionale di giustizia tra Nicaragua e Stati Uniti’, 70 RDI (1987) 293–308; Paul Tavernier, in Jean-Pierre Cot, Alan Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd edn), vol. 1, 944–45; Andreas Zimmermann, ‘Article 27’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. I, 919–27; Enrico Milano, ‘Russia’s Veto in the Security Council: Whither the Duty to Abstain under Art. 27(3) of the UN Charter?’, 75 Bruns’Z (2015) 215–31.

After having established that non-procedural decisions of the Security Council are to be taken by an affirmative vote of nine members and having attributed the right of veto to the permanent members, Article 27, para. 3, adds that a member State of the Council which is “party to a dispute” shall abstain from voting in the decisions under Chapter VI and under para. 3 of Article 52. The so provided for mandatory abstention—which must be distinguished from the “voluntary” one admitted in any voting and that has given rise, for permanent members, to an unwritten rule (see § 24)—does not affect the adoption of acts when resorted to by a permanent member and specifically prevents any permanent member “party to the controversy” from contributing to the failure to achieve the required majority and in particular, if the matter is not procedural, in itself prevents adoption merely by exercising the power of veto. Apart from Article 52, para. 3, which is concerned with a rather specific case, namely, the relations between the Security Council and international organizations of a regional character (see § 67), Chapter VI authorizes the Council to investigate (Article 34) and to contribute to the solution of disputes, particularly disputes likely to endanger international peace and security, by recommending that the parties seek peaceful means of settlement such as negotiation, mediation, arbitration, etc. (Articles 33 and 36), or by dealing itself with the merits of a dispute in order to indicate a solution (Article 37).

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The nemo judex in re sua principle whereby no-one may act as judge in his own case, i.e. an interested party may not take part in the decision-making, is thus laid down in the Charter. It is regrettable, however, that this principle, specifically restricted to the subjects covered in Chapter VI, has limited scope. Some very important resolutions are excluded from its sphere of application, such as those concerning action (and sanctions) in the event of threats to the peace and of acts of aggression (Chapter VII) and those which affect membership status, especially the resolution in which the Council recommends that the General Assembly expel a Member State from the United Nations, a resolution without which the Assembly cannot act (Article 6). Worthy of mention is that the inapplicability of the nemo judex in re sua principle to questions ­relating to Chapter VII of the Charter depends on the criteria by which to distinguish Chapter VII from Chapter VI (see § 49). Another important matter which does not come under the nemo judex principle is the one covered in Article 94, para. 2, under which the Council may make recommendations or decide upon measures to take against a State which, having been party to a dispute brought before the International Court of Justice, refuses to comply with its decision. Since the right of veto applies for these decisions, being unanimously deemed non-procedure matters, the non-existence of an obligation to abstain on the part of the member whose case is before the Council means that it is impossible for the organ to take action against a permanent member. An example is offered by the United States’ refusal to comply with the International Court of Justice’s decision of June 27, 1986 in the case between the United States and Nicaragua concerning Military and Paramilitary Activities in and Against Nicaragua (in ICJ Reports 1986, p. 14). The decision was unfavorable to the United States, and was contested by the last country, which held that the case was not within the Court’s competence. Nicaragua had recourse to the Security Council under Article 94, para. 2, of the Charter and the organ drew up a draft resolution, which, although it received 11 favorable votes and three abstentions, among them, those of France and the United Kingdom (abstentions of permanent members do not prohibit the adoption of a resolution: see § 24), was blocked by the United States veto. Cf. Doc. S/PV.2715 of October 10, 1986 and S/PV.2718 of October 10, 1986. The draft (published in Doc. S/18428) was limited to urgently requesting “full and immediate compliance” with the Court’s decision. With regard to the application of the nemo judex in re sua principle, the Charter has certainly regressed with respect to the League of Nations Covenant. The Covenant, after having laid down at Article 5 the criterion of unanimity for decisions made by the collegial organs of the League, provided in various rules that a Member State of the Council was to abstain if it were directly interested in an issue. The obligation to abstain was foreseen not only by Article 15, paras. 6 and 7, of the Covenant, with regard to subjects roughly corresponding to those in Chapter VI of the Charter, but also by Article 16, para. 4, regarding expulsion. From an examination of paras. 1 and 2 of Article 16 (which concerned subjects corresponding to Chapter VII of the Charter but organizing differently the measures to be taken for protection of the peace), it is possible to see that with regard to the

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recommendation contemplated by para. 2, the vote of a directly interested Member State of the Council was also not to be counted for purposes of unanimity. According to the Permanent Court of International Justice (cf. the Opinion of November 21, 1925 on the Frontier between Turkey and Iraq, in PCIJ Reports, Series B, no. 12, p. 32) the obligation of a Member State of the League Council to abstain was to be considered to extend to all cases in which an international treaty asked the Council to settle a dispute, since it was “a well-known rule according to which no one can be a judge of his own case”.

Interpretation of the last part of Article 27, para. 3, presents considerable difficulties. What is meant by a “dispute”? And when can it be said that a Member State of the Security Council is “party” to it? The difficulties arise, first of all, from the fact that the definition of an international dispute is not clear and that the various current definitions can lead to misunderstandings if used for the purposes of Article 27, para. 3. Let us take the well-known definition given in 1924 by the Permanent Court of International Justice in the Mavrommatis case (cf. the Opinion of August 30, 1924, in PCIJ Reports, Series A, no. 2, p. 11) and several times upheld by the International Court of Justice (cf. e.g. ICJ Reports 1962, p. 328), according to which a dispute would be “a disagreement on a point of law or fact, a conflict of legal views or interests between two persons”. If one were to adopt a concept of this kind here, all the members of the Security Council would nearly always have to abstain from decisions taken on the basis of Chapter VI of the Charter. Indeed, as “disagreement” is defined so loosely, they would always end up being involved in some way. On the other hand, even assuming, as it seems correct, that a restricted notion is the right one and saying that in a dispute a conflict of interests arises between States when it is accompanied by each one’s claim to have its own interest prevail, difficulties and uncertainties still exist. Considering the very great political importance that the questions brought before the Council usually have, it is not difficult to find in them specific interests of a certain number of members, particularly of certain permanent members, and also clear evidence of their intention to have them prevail. The problem of attributing a sufficiently unequivocal meaning to the word “dispute” in the final part of Article 27, para. 3, becomes more complicated when one considers that, contrary to this provision, some of the most important provisions of Chapter VI of the Charter speak both of a “dispute” and of a “situation” likely, if continued, to endanger the peace. This is the case in Article 34 on the Council’s power to investigate, and also in Article 36 (“The Security Council may, at any stage of a dispute…or of a situation…recommend appropriate procedures or methods of adjustment”). Most observers have no doubt, given the very clear text of the last part of Article 27, para. 3, that the obligation to abstain concerns only “disputes” and not “situations” as well; but, this would lead to the necessity to define the first in order to distinguish them from the latter and the dividing line, as we shall see (see § 52), is far from clear.

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A case which very well illustrates the above mentioned uncertainties was the one which occurred in 1951 regarding the restrictions imposed by Egypt on the passage of ships through the Suez Canal. In that year, Israel brought a complaint before the Council, denouncing the Egyptian measure aimed at blocking the Suez Canal to ships directed towards Israeli ports and carrying arms, oil and other material that could be used in war operations. The Israeli government held that this measure was contrary to international law, to the UN Charter and to the general armistice agreement concluded in 1949 between the two countries. It is worth noting that before Israel appealed to the Council, several States whose ships had been affected by the Egyptian blockade had hastened to vibrantly protest against Egypt. They included, among others, the United States, the United Kingdom, and France, permanent members of the Council, as well as the Netherlands and Turkey, which in 1951 were non-permanent members. When the question was brought before the Council and the discussion phase was over, a draft resolution was proposed which urged Egypt to lift the restrictive measures on Suez traffic. It was at that point that the Egyptian representative, invited to participate in the Council meetings under Article 32 of the Charter, raised the problem of the applicability of the last part of Article 27, para. 3, maintaining that the five countries mentioned above had an obligation to abstain from the vote in that they were parties in the case. A heated discussion was carried out on the point, but in the end the Council decided that the obligation did not exist, and the draft, voted on by all, reached the prescribed majority. If the Egyptian view had been accepted, the Security Council would have been paralyzed, since at the time it was composed of 11 members and Article 27 then required a majority of at least 7 members. The arguments used by Egypt were mainly of a substantive nature, while those put forward by the five countries, and expressed by the British representative had a decidedly formal character. Egypt said: (1) that the interests of the United States, the United Kingdom, France, the Netherlands and Turkey were directly involved and that the protests of these countries, combined with the Egyptian resistance, constituted the typical grounds for an international dispute; (2) that Article 27, para. 3, last part, confirming the nemo judex in re sua principle, was applicable whenever a Member State of the Council was directly interested, and apart from whether or not there was, technically speaking, a real dispute. In turn, the British delegate held: (1) that only Israel had had recourse to the Council against Egypt and that therefore only Israel was party to the dispute with Egypt; (2) that the Council could not reject this formal criterion and resort to a rigid application of the nemo judex in re sua principle without paralyzing the Council (because of the likelihood that any question relating to maintenance of the peace could involve a number of States). The problem of interpretation of Article 27, para. 3, last part, had also been confronted from a general point of view, a few years before the Suez discussions, in the General Assembly in the Interim Committee set up by the Assembly for matters pertaining to international peace and security. The interpretation given by the Interim Committee, in a 1948 report, was very near in spirit to the one given by the British delegate in the Suez case, in that it was based on purely formal criteria, making the existence of a dispute for the purposes of Article 27, para. 3, depend on the way in which a matter was brought before the Council. The report of the Interim Committee was adopted contrary to the opinion of the United States which at that time supported the view… later upheld by Egypt. The problem was one of substance, the U.S. said, and must be resolved, whether or not it is technically a dispute, simply by taking into account the “principle of justice that one cannot be at the same time both judge and party”. For the discussions in the Council in the case of the Suez Canal blockade, see SCOR, 6th year, 553rd, 555th meet. (especially 553rd meet., p. 23 ff., 555th meet., p. 1 ff and p. 14 ff). The 1948 report of the Interim Committee is in GAOR, 3rd sess., Supp. no. 9, p. 7 f. For the proposal of the United States in the Interim Committee, see A/AC.18/SC.3/4.

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The interpretation of Article 27, para. 3, last part, was also discussed by the Council in February 1946, during the examination of the Syrian and Lebanese question (Syria and Lebanon had brought charges before the Security Council that French and English troops had failed to withdraw from their territories). On that occasion, even before the discussion on the merits had taken place or a draft resolution had been presented, the question was put in the following terms: How must the Council vote to establish whether or not a dispute exists and therefore whether France and United Kingdom must abstain? While some maintained that the question was procedural, requiring a vote by simple majority, others held that it was a question of substance to be decided by the qualified majority (with the right of veto). In short, the problem was addressed as a problem of the double veto (see § 26). On the fallacy of this approach, we remember the criticisms already made in the previous paragraph. It is evident that the problem does not consist in asking how the Council must vote, but rather what is the objective interpretation of Article 27, para. 3, last part. In the SyrianLebanese case, debate was finally cut off by the attitude of France and United Kingdom, which stated they would abstain although they believed that, in this particular case, a dispute did not exist (the draft resolution invited the parties to negotiate the troop withdrawal). Cf. SCOR, 1st year, 19th and 23rd meet. In recent practice the issue is rarely raised. There are two statements worth mentioning respectively made by Libya on April 17, 2000, whereby a Member State party to a dispute with a non-member “it [must] remain neutral when the issue is debated in the Security Council with the objective of imposing sanctions against that State” (cf. Doc. S/PV.4128, p. 30) and by the International Court of Justice Judge N. Elaraby, who was invited to speak at the Security Council pursuant to Rule 39 of the Rules of Procedure (see § 29) on May 13, 2003 and according to whom the Council should consider “the strict and faithful application” of the last part of Article 27, para. 3, adding that “[a] State should not be allowed to be party, judge and jury at the same time” (cf. Doc. S/PV.4753, p. 8).

In our view, it should be excluded that the obligation to abstain contemplated by Article 27, para. 3, is to be decided on the basis of formal criteria and that, in particular, it is incumbent only upon the States which bring a formal complaint before the Council and those against which the complaint is made. This is certainly not the spirit of the provision, since it is without question that the aim of the nemo judex in re sua principle is to avoid the judgment of an interested party. It is sufficient, moreover, to consider the absurd consequences that would be reached by accepting such formalistic view. A group of governments could get around the obligation to abstain by entrusting only one among them to bring the issue before the Council. Considering that the criterion must be a substantive and not a formal one, we believe that a satisfactory answer can be reached only if the concept of dispute in a technical sense (a concept that has been elaborated by international case law and therefore on different occasions and for different purposes) is abandoned, and the meaning of the obligation to abstain is determined in accordance with the rational of the provision in Article 27, para. 3. A balanced solution, taking into account that the provision should not be given a broad interpretation, thereby compromising the normal functioning of the Council, could be the following. The “parties to a debate” and hence the

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States members of the Council obligated to abstain are those States which in a given draft resolution are shown to be concerned parties addressees, either because they may benefit from it or because they may be harmed by it, and provided that their favorable or unfavorable position is different in that case from any other Member State of the United Nations and of the international community. In other words, it seems useless to seek to resolve the problem of abstention in abstract terms, by looking at the issue brought before the Council and asking whether such issue is or is not a dispute. On the contrary, attention should be paid to the specific measure of the organ in order to determine which States are effectively and individually involved, i.e. those which derive from the measure advantages or disadvantages different from those of any other member of the international community. There seems to be no better way to satisfy the rule of Article 27, para. 3, last part, without unduly extending its content. Again with reference to the case of the Suez Canal blockade, there is no doubt that the United States, the United Kingdom, France, the Netherlands and Turkey did not have an obligation to abstain. Indeed, the invitation that Egypt allow navigation through the Canal, an invitation contained in the draft resolution then made by the Council itself, did not acknowledge that these five States had any rights that were greater than or different from those of any other member of the international community.

If what we say is tenable, then the wording of the last part of Article 27, para. 3, is not to be considered decisive. It is also worthless to establish whether a question brought before the Council is, instead of a dispute, one of the “situations” mentioned in Chapter VI of the Charter. In any case, one must look in the sense specified above, at the addressees of the draft resolution. On the other hand, the distinction between dispute and situation, as we mentioned, is fleeting and for various reasons, as we shall see, completely useless (see § 52). In the sense that the obligation to abstain transcends the distinction between “dispute” and “situation”, referred to in Chapter VI of the Charter, speaks also the preparatory work, in particular, of the fact that the term situation was introduced in the most important Article of Chapter VI, namely Article 36, when Article 27 had already been formulated and (for the fact that it encloses the Yalta Formula: see § 1(A)) declared untouchable. On this point see the observations of the Chinese representative before the Commission of Experts of the Security Council in 1946, in S/Procedure/61/Rev. 1, also reproduced in BYB 1947, p. 349 ff. The contrary view held by the International Court of Justice in its opinion of June 21, 1971 on Namibia (see § 83) can be therefore criticized. The Court held that the clause which appears at the end of para. 3 of Article 27 of the Charter “…also requires for its application the prior determination by the Security Council that a dispute exists and that certain members of the Council are involved as parties to such a dispute” (cf. ICJ Reports 1971, p. 23). Actually, in this particular case, the objection raised by South Africa, maintaining that the Court did not have competence, was inconsistent for another reason. South Africa held that the resolution in which the Council had requested an opinion of the Court on the Namibia question was illegal because some members of the Council should have abstained in so far as they were “parties to the dispute”. However, regardless of any other

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consideration, the last part of Article 27, para. 3, refers only to decisions “under Chapter VI and under paragraph 3 of Article 52”, without mentioning the requests for advisory opinions of the Court under Article 96. Neither does the objection whereby our thesis may at most hold true as far as “situations” are concerned without distinguishing between the object and the parties of the dispute— based on the assumption, that we refute, that it is possible and legally relevant to distinguish between “situations” and “disputes”—seems convincing. Cf. Bruno Simma, Paul Brunner and Hans-Peter Kaul, in Bruno Simma (ed), The Charter of the United Nations. A Commentary (Oxford: Oxford University Press, 2002, 2nd edn), vol. 1, 506.

In shifting attention to the specific draft resolution of the Council, the advantage of largely eliminating uncertainties over whether to classify an issue as belonging under Chapter VI or Chapter VII of the Charter is also assured. The obligation to abstain covers only the matters in Chapter VI and not also Chapter VII, and since a precise boundary line between the two chapters does not exist (see § 49), only an examination of the specific draft resolution can answer the question, even only approximately, whether the Council is acting according to Chapter VI or Chapter VII. Confirmation may be found in the debate over the applicability of the last part of Article 27, para. 3, which preceded the adopted of Res. 502 of April 3, 1982 on the Falklands/Malvinas question. A draft resolution had been introduced which, after having established that Argentina had broken the peace, asked for the immediate cessation of hostilities, the withdrawal of Argentinean troops from the Falkland/Malvinas islands, and the start of negotiations between Argentina and the United Kingdom. Then, Panama, indicating this last request, raised the issue of whether the United Kingdom should abstain as party to the dispute. The majority of the Council correctly favored the British view that the resolution clearly came under Chapter VII, and permitted the United Kingdom to vote. The entire discussion concerned, as it should have, only the draft resolution. Cf. Doc. S/PV.2350 of April 3, 1982, p. 81 ff.

There are cases in which the Council, confronted with draft resolutions which clearly remained within the framework of Chapter VI but directly involved permanent members, allowed these members to vote and to exercise the right of veto. Cases of this kind must be strongly criticized. One of them occurred in 1983 when the draft resolution concerning the shooting down of a South Korean jetliner by the Soviet Union was not approved because of the Soviet veto (and despite the favorable vote of nine Council members) (cf. Doc. S/ PV.2476 of September 12, 1983). The draft resolution (published in Doc. S/15966/rev.1), without making any reference to Chapter VII and without describing the downing of the aircraft as a threat to the peace (it was in fact a police action, although a very brutal one), simply provided for an investigation. It is disturbing that during the discussion no Member State of the Council even mentioned the Soviet Union’s obligation to abstain. More recently, the Russian Federation, while being party to the dispute with Ukraine in connection with the annexation of Crimea, vetoed a draft resolution of 15 March 2014

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(see ) partly coming under Chapter VI of the Charter (para. 2) on the Crimean crisis with no objections from other Council member States. The view has been taken that, considering the trend in the practice to disregard the obligation to abstain without reputing it to have fallen into disuse, and stressing that the nemo judex in re sua principle remains important for the credibility of the Security Council, it is a transformation of the material constitution of the United Nations—while the Charter remains unchanged and abstractly valid at formal level—essentially involving the suspension of the obligation (at this time considered dormant and “unenforceable” upon any member of the Council) to be used in the future if a consensus, or at least acquiescence is sought in Council (cf. Enrico Milano, ‘Russia’s veto in the Security Council’, cit.). However, for the part of the draft resolution that is most probably not covered by Chapter VI (in particular para. 5 declaring the invalidity of the Ukrainian referendum), there is no obligation to abstain. The same can be said of Res. 457 of December 4, 1979 which asked the Iranian government to put an end to the illegal detention of staff members of the United States Embassy in Teheran, requesting also that both governments take the necessary measures to peacefully settle any unresolved issues. The United States, an interested State to which the resolution was addressed, took part in the adoption of the resolution which remained within the framework of Chapter VI. In this case, however, its participation had no influence from a legal viewpoint since the resolution was unanimously approved. Nevertheless, a unanimous condemnation by the other members of the Council, which represented the various components of the international community, would have had more force had the United States abstained. A similar example is the participation of the United States, the United Kingdom and France in Res. 731, approved by the Security Council on January 21, 1992. This resolution requested Libya to hand over to these three countries the Libyan citizens suspected of having organized the attacks against the PAN AM and UTA aircraft which had exploded in flight over Scotland (Lockerbie) and Chad. This resolution (unlike a subsequent resolution, no. 748 of March 31, 1992, in which the Council enacted enforcement measures against Libya) also came within Chapter VI. In spite of this, and in spite of the reservations put forward by the Libyan representative before the Council (cf. Doc. S/PV.3033, p. 24 f.), the United States, the United Kingdom and France were admitted to the vote. In this case also, the resolution was unanimously approved.

28.  F) Approval by “consensus” Select bibliography: Guy De Lacharrière, ‘Consensus et Nations Unies’, 14 AF (1968) 9–14; Jaskaran S. Teja, ‘Expansion of the Security Council and Its Consensus Procedure’, 16 NILR (1969) 349–63; Anthony D’Amato, ‘On Consensus’, 8 CYIL (1970) 104–22; Feng Y. Chai, Consultation and Consensus in the Security Council (New York: United Nations Institute for Training and Research, 1971); S. Bastid, ‘Observations sur la pratique du consensus’, in Josef Tittel (ed), Multitudo Legum—Ius Unum. Festschrift für Wilhelm Wengler zu seinem 65. Geburtstag (Berlin: Interrecht, 1973), vol. 1, 11–25; Hervé Cassan, ‘Le consensus dans la pratique des Nations Unies’, 20 AF (1974) 456–85; Antonio Cassese,

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‘Consensus and Some of its Pitfalls’, 58 RDI (1975) 754–61; Giuseppe Sperduti, ‘Consensus in International Law’, 2 IYIL (1976) 33–8; Miga Besteliu, ‘The Significance of Negotiations for the Adoption through Consensus of Decisions within the United Nations System and Other International Conferences’, 27 RRSS (1983) 139–45; Loie Feuerle, ‘Informal Consultation: A Mechanism in the Security Council Decision-Making’, 18 NYUJILP (1985–1986) 267–308; Miga Besteliu, ‘Some Remarks Concerning Reservations to the Decisions of International Organizations, with Special Reference to the Decisions Adopted by Consensus within the UN’, 21 RREI (1987) 443–49; Bruno Simma, Paul Brunner and Hans-Peter Kaul, in Bruno Simma (ed), The Charter of the United Nations. A Commentary (Oxford: Oxford University Press, 2002, 2nd edn), vol. 1, 521 ff.

As we have seen, Security Council decisions are valid if they are taken by a favorable vote of at least nine members and, in the case of non-procedural decisions, without the negative vote of the permanent members. Whenever at least nine votes are in favor of a certain text, the general will of the Council must be considered expressed. From a legal point of view, it does not matter how such will is shown: as in all collegial bodies, it may be in the form of a vote by roll-call, by hand-raising, by acclamation, by failure to object to the President’s statement aiming to ascertain, on the basis of the outcome of a debate, whether a certain decision has been adopted, and so on. In this variety of forms, and therefore with little legal relevance, the practice of approval by (or the expression of) consensus is to be included. The use of the term consensus has spread throughout the United Nations and other international organizations. Although it has also become part of official acts, its use retains some ambiguities. Generally, the term is used to mean a decision which reflects the agreement of all the members of an organ and which is made without a formal vote, usually with a statement (uncontested and in fact, agreed upon, and often agreed upon outside official meetings) of the president of the organ. However, these two elements—unanimous agreement and the lack of a formal vote—are not always combined. It may occur, for example, that the text does not reflect unanimity but is accompanied by the specific statement of one of the members that he “dissociates himself ” from the consensus. It may also occur that the consensus is even…put to a vote and obtains negative votes! All this confirms that, aside from terminology which is often linked only to what is in current fashion, the only thing that counts is the possibility of ascertaining the general will of the organ members according to the minimum majority required by the Charter. Nor is it possible to fashion, as has been done in legal literature (Bastid) precisely with reference to the Security Council, an ad hoc customary norm which would give legality to consensus. Indeed, the Charter does not establish rigid procedures for the calculation of votes nor may it be considered automatically fulfilled if a decision has been agreed upon by all members or by a very wide majority of members. Altogether different is the problem (on this, see Benedetto Conforti, ‘Le rôle de

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l’accord dans le système des Nations Unies’, 142 RC (1974-II), p. 271 ff.) of whether a resolution (either adopted by a formal vote or by consensus), whose content is contrary to the Charter, may have the force, on the basis of customary international law, of an agreement among States. As examples of decisions by consensus adopted by the Security Council through a presidential statement, see, among many others: SCOR, 26th year, 1576th meet. (August 26, 1971), no. 4; 28th year, 1684th meet. (January 15, 1973), no. 10; 1704th meet. (March 21, 1973), no. 192 and 1730th meet. (July 22, 1973), no. 335 (admission of the two Germanies); S/PV.2005 of November 11, 1977; as well as S/PV.3053 of February 19, 1992 (condemnation of the attacks on the Venezuelan Embassy in Tripoli); S/PV.3072 of May 12, 1992 (the sending of a mission of the Secretary-General in Nagorno-Karabac). For more recent cases cf. SC Rep., Supp. 1993–1995, Chapt. IV, pp. 13–14; ibid., Supp. 2000–2003, Chapt. IV, p. 13; ibid., Supp. 2004–2007, Chapt. IV, pp. 11–12. For an example of “dissociation” from consensus (specifically of China with regard to the border incidents between Iran and Iraq), see SCOR, 29th year, 1764th meet. and S/11229 in Supp. Jan.-Feb.-March 1974. Examples of when consensus has been put to a vote and approved with contrary votes are not found in Security Council practice, but they appear in General Assembly practice (see, for example, GAOR, 26th sess., Pl. meet., 1957th meet, October 7, 1971, nos. 208–218). Sometimes, not only has consensus been reached in informal meetings but it has not even been declared by the President during an official meeting, but only announced in an ad hoc document. Cf., for example, SCOR, 27th year, Supp. Apr.-May-June 1972, p. 32 f. (S/10611) and p. 128 (S/10705) which report, respectively, consensus on increasing the number of UN observers in the Israeli-Lebanese sector and consensus on the condemnation of air piracy. This practice, which has been sporadic and thus has not set any standard, was quite rightly criticized by the Italian delegate to the Security Council. In a letter to the President, he pointed out that it weakened the importance of Council decisions: cf. Supp. cit., p. 133, S/10711 (published also in IYIL (1975), p. 311 f.).

The practice of consensus, as one can easily imagine, has contributed to rendering the content of relevant resolutions vague and ambiguous. It also often happens that the States which take part in consensus say, on the one hand, that they approve the decision as a whole and therefore do not want to block, by abstention or by a negative vote, unanimous adoption but, on the other hand, they have specific reservations regarding certain parts of the decision. This last point, which is the only really important one in the practice of consensus, will be discussed later, in the context of challenges to the legality of UN resolutions (see § 99). 29.  Participation in Security Council meetings of States which are not members of the organ Select bibliography: Hans Kelsen, ‘Organization and Procedure of the Security Council of the United Nations’, 59 HLR (1945–46) 1087–1121; André Salomon, L’O.N.U. et la paix; Le Conseil de Sécurité et le règlement pacifique des différends (chapitre VI de la charte des Nations Unies) (Paris: Ed. Internat., 1948) 157 ff; Jiménez De Aréchaga, Voting and the

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Handling of Disputes in the Security Council (New York: Carnegie endowment for international peace, 1950) 56 ff; Leo Gross, ‘Voting in the Security Council and the PLO’, 70 AJ (1976) 470–91; Marie-Claude Smouts, ‘Réflexions sue les méthodes de travail du Conseil de Sécurité’, 28 AF (1982) 601–12; Loie Feuerle, ‘Informal Consultation: A Mechanism in the Security Council Decision Making’, 18 NYUJILP (1985–1986) 267–308; Sydney D. Bailey and Sam Daws, The Procedure of the UN Security Council (Oxford: Clarendon Press, 1998, 3rd edn) 154 ff; Janet E. Lord, ‘Taiwan’s Right to be Heard Before the Security Council’, in Jean-Marie Henckaerts (ed), The International Status of Taiwan in the New World Order. Legal and Political Considerations (London: Kluwer Law International, 1996) 133–52; Friedrick Soltau, ‘The Right to Participate in the Debates of the Security Council’, 25 SAYIL (2000) 1–19; Françoise Ferlan, in Jean-Pierre Cot, Alan Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed), vol. 1, 1005–27; Habib Gherari, ibid., 1029–43; Rudolf Dolzer and Charlotte KreuterKirchhof, ‘Article 31’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. I, 1050–63; Id., ‘Article 32’, ibid., 1064–7.

Articles 31 and 32 of the Charter and Article 39 of the Council Rules of Procedure are relevant as far as the participation in Security Council meetings of States which are not members of the organ is concerned. According to Article 31, a Member State of the United Nations which is not a member of the Council may participate in the proceedings of the organ, without vote, any time the Council “considers that the interests of that Member are specially affected”. This provision, which leaves the invitation to the complete discretion of the Security Council, does not raise noteworthy legal problems. The same can be said, and for the same reason, of Article 39 of the Rules of Procedure whereby the Council may invite any person (physical) whom it considers competent to supply information or to give assistance in matters within its competence. The rule contained in Article 32 is different. It provides that any member of the United Nations which is not a member of the Council and any State which is not a member of the United Nations shall participate in the discussions, without vote, whenever “it is party to a dispute under consideration by the Security Council”. It follows that in this case the Security Council may not refuse to hear the non-Member State. It has only, the article continues, to lay down the conditions for the participation in the discussion. Article 32 is important not only because it limits the discretionary power of the Council but also because, unlike Article 31, it is also concerned with UN non-Member States. It is only through Article 32 that they may take an active part in meetings. It is true that the representatives of a non-Member State can also be invited on a purely personal basis pursuant to Article 39 of the Rules of Procedure, but Article 39 has a very limited scope in that it does not allow any real participation in the discussion. The principle set out in Article 32 and valid for any activity of the Council, whether it comes within the scope of Chapter VI, of Chapter VII or of any

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other parts of the Charter, is basically the principle that if a State brings a charge or is charged—bearing in mind that any problem the Council is concerned with either directly or indirectly pertains to international security—, it must be heard. Also with regard to Article 32 (as, as we have seen in the previous paragraph, for the last part of Article 27, para. 3), it would be inappropriate to adopt a formalistic approach to the term “dispute” and to say that Article 32 does not apply when the Council is seized of a “situation” or a question that is not technically an international dispute. It would be quite unreasonable, for example, if a State against which the Council intended to initiate a procedure for expulsion from the United Nations, under Article 6 of the Charter, or against which the Secretary-General had brought the attention of the Council, under Article 99, did not have the right to express its views within the organ. Just as in the case of the last part of Article 27, para. 3, it was a matter of specifically defining the nemo judex in re sua principle, so here one must apply the principle that both the accused and the accuser must be heard. It therefore is party to a “dispute”, under Article 32, any State accused or that accuses another before the Security Council. Also in practice an invitation under Article 32 has been sometimes made independently of the existence and ascertainment of a real dispute. For example, in 1946, during the examination of the Greek question (Greece was at the time torn apart by fighting between Communist guerrillas and the legitimate government), Albania and Bulgaria, which had been accused of supporting the guerrillas, were allowed to take part in the discussions, even though the Council had undertaken the question as a situation, not as a dispute. The President held, and the Council agreed, that the invitation was to be extended to the two States (which, at the time, were not UN members) in consideration of “spirit” of Article 32 (cf. SCOR, 1st year, 84th meet., especially p. 607 ff.). By contrast, the decision taken by the Council in its meeting of June 26, 1950, and confirmed in its meeting of September 1, 1950, during the Korean conflict, to invite South Korea and not North Korea as well to the meetings must be considered arbitrary. This exclusion was justified not so much by the absence of a dispute, as by the fact the North Korea was the aggressor State. The Soviet Union fervently argued against this reasoning, holding correctly that the intention of Article 32 is that the accused State may defend itself (cf. SCOR, 5th year, 494th meet., p. 10 ff., especially p. 17). Also worthy of criticism was the failure to invite South Africa (also those accused of crimes must be heard!) when the Security Council requested an opinion of the International Court of Justice—handed down on June 21, 1971—on the Namibia question (see § 83). In this case the Court adopted a view in support of the attitude of the Council, hinging upon the circumstance that the Namibia question had been listed on the Council agenda as a situation, not a dispute (cf. ICJ Reports 1971, p. 22 f.). However, in subsequent meetings on the Namibia question, despite some efforts to the contrary, South Africa was invited to attend (cf., for example, SCOR, 26th year, 1584th meet., September 27, 1971, n. 1 ff.).

It has been asked in the practice what Article 32 means by a State when it speaks of non-Member States of the United Nations. The problem has been raised mainly with regard to revolutionary governments or to governments formed in parts of territories formerly controlled by Member States of the

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United Nations, such as the Indonesian government in 1947 or that of Bangladesh in 1970. To avoid extending an invitation under Article 32, appeal has often been made to the precariousness or to the lack of general recognition of the government in question. It is true that the practice is on the whole extremely variable, that political reasons have nearly always prevailed, and that at various times different standards have been adopted depending on the majority. In our opinion a legally correct solution can be inferred only from the notion of State envisaged in the Charter with regard to admission (see § 10). Invitation under Article 32 does not therefore depend on recognition and is to be extended when (and only when) the government effectively and independently exercises power over a territorial community. In all other cases, only the limited “hearing” under Article 39 of the Council’s Rules of Procedure can take place. In the case of Indonesia’s war of independence from the Netherlands, in August 1947, the majority of the Council invited the Indonesian government, which already controlled a large part of Indonesian territory, to participate in the meetings. This invitation, in the opinion of some members of the majority, was obligatory on the basis of Article 32. According to other members of the same majority, it was based only on “reasons of fairness and justice”. In the view of the minority, it was a clear violation of Article 32 since Indonesia was not a sovereign State and had not been recognized by any other State. The first of these opinions seems to be correct. On this question, see SCOR, 2nd year, 181st meet., p. 1918 ff. and 184th meet., p. 1954 f. A more or less similar question was discussed (and an identical solution was adopted) in 1948 with regard to the invitation extended to the provisional Israeli government to participate in the discussion on the Middle East crisis: see SCOR, 3rd year, 330th meet., p. 2 ff. On the contrary, in 1968, during the examination of the Czechoslovak question (the Soviet Union had occupied Czechoslovakia), the Council decided not to invite the German Democratic Republic, maintaining, as the majority of States affirmed during the discussion (cf. SCOR, 23rd year, 1445th meet.), that it… was not a State! Bangladesh was also denied an invitation, despite Soviet support, during the discussion of the Indo-Pakistani conflict (December 1970), a conflict which arose over the establishment of this State (cf. SCOR, 26th year, 1606-1613th meets.). For more recent practice on invitations under Articles 37 and 39 of the Rules of Procedure of the Council cf. SC Rep., 2004–2007, Chapt. III.

A rather sui generis form of invitation was devised by the majority in the Council during the meeting of December 4, 1975 with regard to the case of the Palestinian Liberation Organization. The PLO was invited to participate in the proceedings “not on the basis of Article 37 [which essentially corresponds to Article 31 of the Charter and, as Article 31, is limited to the Member States of the UN] or rule 39 of the provisional Rules of Procedure of the Security Council”, but with “the same rights of participation as are conferred when a Member State is invited to participate under rule 32” (sic!). The Western

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powers unsuccessfully opposed this invitation, holding that the form under which the invitation was extended had no foundation in any provision either of the Charter or of the Rules of Procedure and that the only way to invite the PLO was through Article 39 of the Rules of Procedure, with all the limitations connected to it. After that, the United States formally continued for many years to challenge the invitation under Rule 32 and to insist that the applicable article was Article 39 of the Rules of Procedure. This position was well founded, since the PLO was not a State but a national Committee operating abroad. The question is still on-going, starting from Res. 67/19 of November 29, 2012 whereby the General Assembly changed the status of Palestine from “non-member observer entity” to “non-member observer state” (see § 10), giving a boost to setting up Palestine as an actual State. For the December 4, 1975 meeting, see S/PV.1859. For subsequent ones, see, among many, S/PV.1993 (March 25, 1977), S/PV.2280 (June 12, 1981), S/PV.2540 (May 21, 1984), and, lastly, S/PV.3026 (January 6, 1992). The United States always voted against these decisions. France and United Kingdom (and other Western States, non-permanent members of the Council) abstained after 1976. It has been complained in legal literature (cf. Leo Gross, ‘Voting in the Security Council and the PLO’, 70 AJ (1976), pp. 470–91) that the United States did not resort to the practice of the double veto (on this, see § 26) in the 1975 meeting, thereby letting the resolution pass as a purely procedural matter and therefore valid despite the negative vote of permanent members. Also in the General Assembly, the PLO was for many years invited to participate in the capacity of an observer in the sessions and the work of the General Assembly, as well as in the proceedings of all the international conferences held under the auspices of the Assembly (cf. res. 3237-XXIX of November 22, 1974). On the contrary, in other cases similar to that of the PLO, for example, in the case of representatives of Polisario, the Security Council held only the hearing provided for by Article 39 of the Rules of Procedure (cf. S/PV.2151 of June 20, 1979).

Another “special” form of invitation was used between 1992 and 2000 with respect to the Federal Republic of Yugoslavia (Serbia and Montenegro) after the decision taken by the General Assembly, upon recommendation of the Security Council, not to allow this State to “… continue automatically the membership of the former Socialist Federal Republic of Yugoslavia” (see § 18). The representative of Serbia and Montenegro was correctly invited to participate in the Council’s discussions on the former Yugoslavia crisis as an individual person, without a reference to rule 37 or rule 39 of the Rules of the Procedure, but he was admitted to seat…behind the nameplate “Yugoslavia”! From a legal point of view this makes little sense. On this point cf. 3135th meet., November 13, 1992; 3201st meet., April 19,1993; 3336th meet., February 14, 1994; 3428th meet., September 23, 1994 ; 3478th meet., January 12, 1995.

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Section II.  The General Assembly 30.  Composition of the Assembly. Subsidiary organs Select bibliography: Jean Ray, Commentaire du Pacte de la Société des Nations selon la politique et la jurisprudence des organes de la Société (Paris: Sirey, 1930) 137 ff; Walther A. Schücking, Hans Wehberg, Die Satzung des Völkerbundes (Berlin: Franz Vahlen, 1931, 3rd edn), vol. 1, 420 ff; M.M. Ball, ‘Bloc Voting in the General Assembly’, 5 Int. Org. (1951) 3–31; Sydney D. Bailey, The General Assembly of the United Nations, A Study of Procedure and Practice (London: Stevens, 1960) 21 ff; Derek W. Bowett, The Law of International Institutions (London: Stevens, 1963) 37 ff; Richard A. Falk, ‘On the Quasi-Legislative Competence of the General Assembly’, 60 AJ (1966) 782–91; Geoffrey Goodwin, ‘The General Assembly of the United Nations’, in Evan Luard (ed), The Evolution of International Organizations (London: Thames and Hudson, 1966) 42–67; Siegfried E. Werners, The Presiding Officers in the United Nations (Haarlem: Bohn, 1967); Stephen G. Xydis, ‘The General Assembly’, in James Barros (ed), The United Nations, Past, Present and Future (New York/London: The Free Press/Collier-Macmillan, 1972) 64 ff; Matthias Brinkmann, Majoritätsprinzip und Einstimmigkeit in den Vereinten Nationen. Konsequenzen u. Grenzen staatlicher Gleichberechtigung in der Generalversammlung (Frankfurt/Main: Haag und Herchen, 1978); Blanche Finley, The Structure of the United Nations General Assembly. An Organizational Approach to its Work (Dobbs Ferry, N.Y.: Oceana Publ., 1990), 2 vols.; Dion M. Poulantzas, ‘The Interim Committee or “Little Assembly”: A Subsidiary Organ of the General Assembly of the United Nations Organization’, 71 RDISDP (1993) 251–59; Manuel Rama Montaldo, ‘Contribution of the General Assembly to the Constitutional Development and Interpretation of the United Nations Charter’, in Ronald S.J. Macdonald, Douglas M. Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Leiden: Brill, 2005) 493–513; M.J. Peterson, The UN General Assembly (London: Routledge, 2006); Id., ‘General Assembly’, in The Oxford Handbook on the United Nations (Oxford: Oxford University Press, 2007) 97–116; Stefan Barriga and Alejandro Alday, ‘The General Assembly and the Rule of Law: Daring to Succeed? The Perspective of Member States’, 12 MP YUNL (2008) 381–408; Emmanuel Voyiakis, ‘Voting in the General Assembly as Evidence of Customary International Law?’, in Steve Allen and Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Oxford: Hart, 2011) 209–23; Diana Panke, ‘Absenteeism in the General Assembly of the United Nations: Why Some Member States Rarely Vote’, 51 Int. Pol. (2014) 729–49; Jan Wouters, Jed Odermatt and Thomas Ramopoulos, ‘The Status of the European Union at the United Nations General Assembly’, in Inge Govaere, Erwan Lannon, Peter Van Elsuwege and Stanislas Adam (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Leiden, Nijhoff, 2014) 211–23.

All the Member States of the Organization are represented in the Assembly. Every member has the right to have five representatives (Article 9, para. 2) but has only one vote (Article 18, para. 1). The difference between the number of delegates and the number of votes had already been envisaged by the League of Nations Covenant with regard to the League Assembly. Article 3, para. 4, of the Covenant gave every State three representatives and one vote. The main purpose of the provision, according to the drafters, was to allow the participation in Assembly discussions of several people, representing the same State but expressing different, and perhaps even

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contrasting, views and interests. The right to vote, it was said, cannot be divided and would be exercised by the organs (the executive power) responsible for the foreign policy of each country. It would be wise, however, that each government ensure that more than one “voice” was heard in the discussion phase, accrediting, for example, a representative of the opposition in Parliament, of a trade association, and so on. As President Wilson solemnly declared during the peace conference (session of February 14, 1919), in this way one would have been able to partially get around the fact that the League Assembly was an assembly of State delegates and not a world Parliament. It does not seem that, either at the time of the League of Nations or today at the United Nations, the intention of the drafters of the Covenant has been followed in practice. Already in the League Assembly, there were not many “discordant voices” (only a few governments, among them, Belgium and Hungary, accredited members of opposition parties). They have actually disappeared in the UN Assembly. Although the delegations of many States are not made up exclusively of organs of the executive branch, it is impossible to find any trace of political views in the statements of delegates in the General Assembly not conforming to the Government majority. The plurality of delegates has also practical purposes since the Assembly proceedings take place, as do the proceedings of any collegial organ which has broad composition and broad competence, both in plenary session and in various committees and subcommittees. Indeed, considering that the Assembly committees and subcommittees are so numerous, even five delegates assigned to each State by Article 9, para. 2, of the Charter would not be sufficient for these purposes. Articles 25, 26, 100 and 101 of the Assembly’s Rules of Procedure are of help. These articles provide that five substitute delegates and an unspecified number of counselors, experts, etc., may be part of the delegation. The head of the delegation may invest the former with the same powers as the representatives. The latter may participate in committees without, however, being eligible for the offices of president, vice president or rapporteur in such committees. The delegation is accredited (by the Head of State or Government or by the Minister for Foreign Affairs under Article 27 of the Rules of Procedure) at the opening of every Assembly session. Under the provisions of Article 20 of the Charter, the sessions are regular annual sessions and special sessions. Every year, usually the Tuesday of the third week in September (Article 1 of the Rules of Procedure), the regular session opens. Special sessions are convoked by the Secretary-General at the request of the Security Council or of a majority of the members of the United Nations. The organization of Assembly activities, which has its basis in the Rules of Procedure, can be outlined as follows. At every session a President and various vice presidents are elected.

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The activities are mostly carried out in the Main Committees, where every member is represented and which prepare the resolutions to be submitted to the Assembly plenary. The Main Committees are: the First Committee (disarmament and international security); the Second Committee (economic and financial); the Third Committee (social, humanitarian and cultural); the Fourth Committee (special political and decolonization); the Fifth Committee (financial and budgetary); the Sixth Committee (legal). Two committees are concerned with important procedural matters. The General Committee, consisting of the President of the Assembly, the vice-presidents and the Chairmen of the Main Committees, is competent for the drawing up of the agenda to be submitted to the Assembly. The Credentials Committee, consisting of nine members, examines the credentials of the delegates and reports to the Assembly.

Making use of the competence given to it by Article 22 of the Charter, the Assembly has over the years gradually established a whole series of subsidiary organs of a permanent nature for pursuing special purposes. Some of them have been established principally to undertake studies. Others represent the forum in which the States negotiate agreements and seek to promote international co-operation in specific fields. Others, again, oversee operational tasks, in particular, the management of funds received through the voluntary contributions of Member States. The organs created within the framework of economic co-operation and development are very important. The following are examples of the most important organs (their structure will be examined later, in the framework of the UN functions in the economic and social field): the United Nations Conference of Trade and Development (UNCTAD), whose task is to promote international trade for the principal purpose of accelerating the development of economically disadvantaged countries; the United Nations Institute for Training and Research (UNITAR), for the training of officials in developing countries on general subjects concerning international co-operation; the United Nations Development Program (UNDP), whose governing council, consisting of 37 countries, oversees, in co-operation with various specialized United Nations agencies (see § 73), an extensive system of multilateral technical assistance to low-income countries; the United Nations Children’s Fund (UNICEF), which furnishes aid to governments requesting it for the health, nutrition, social protection, education, and professional training of children and adolescents; the United Nations Environment Program (UNEP), which is concerned with the environment. Among the permanent organs set up by the Assembly which do not concern the field of economic co-operation, the international law Commission deserves special mention. This commission consists of a certain number of experts (who sit as individuals, not as government representatives) and its purpose is to contribute to the codification and progressive development of international law. Other important subsidiary organs, whose tasks mainly involve research and study, are the following: the Disarmament Commission, the Special Committee for Peacekeeping Operations, the Committee on the Peaceful Use of Extra-Atmospheric Space, the Special Committee for the United Nations Charter and the strengthening of the role of the Organization, the Special Committee on principles of international law covering friendly relations and co-operation among the States, the Commission on the permanent sovereignty over natural resources. See also § 74.

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The organs created by the Assembly in the field of economic co-operation and development (which in turn have given birth to other organs and to a complex bureaucratic apparatus), together with the organs created by the Economic and Social Council, have very often acted without specific coordination and in the end have resulted in a waste of energy and funds not unlike an overbureaucratized State administration. On this point, see also § 38. 31.  Voting procedure in the Assembly. A) The “present and voting” majority Select bibliography: Allan Hovey, ‘Voting Procedure in the General Assembly’, 4 Int. Org. (1950) 420 ff; Ernest L. Kerley, ‘Voting on Important Questions in the United Nations General Assembly’, 53 AJ (1959) 324–40; Sydney D. Bailey, The General Assembly of the United Nations, A Study of Procedure and Practice (London: Stevens, 1960) 132 ff; Christian Tomuschat, ‘Tyrannei der Minderheit. Betrachtungen zur Verfassungsstruktur der Vereinten Nationen’, 19 GYIL (1976) 278–316; Leo Gross, ‘On the Degradation of the Constitutional Environment of the United Nations’, 77 AJ (1983) 582 ff; Rüdiger Wolfrum, ‘Voting and Decision-Making’, in Rüdiger Wolfrum and Christiane Philipp (eds), United Nations: Law, Policies and Practice (Dordrecht: Nijhoff, 1995); Dodo A. Mindaoudou, ‘La notion de majorité comme preuve de démocratie à l’Assemblée générale des Nations Unies’, 8 AJICL (1996) 447–55; Miguel Marín-Bosch, Votes in the UN General Assembly (The Hague: Kluwer Law International, 1998).

Article 18 provides that decisions of the Assembly be made by a majority (simple or qualified) of the members present and voting. This provision gives rise to the question, which is often raised also for collegial bodies in municipal law, of whether abstentions should be taken into account in calculating the majority. Is abstention equivalent to a vote? If so, the majority is to be calculated by summing the votes in favor, the votes against and the abstentions, with the consequence that the number of votes necessary for the adoption of a decision will increase. If not, it will be necessary to count only the negative and favorable votes, and therefore arrive at approval more easily. Article 86 of the Assembly Rules of Procedure resolves the problem in this second sense, establishing that “…the phrase ‘members present and voting’ means members casting an affirmative or negative vote”. However, the question remains whether the provision in the Rules of Procedure and the practice, which has always conformed to it, are compatible with Article 18 of the Charter. Article 86 of the Rules of Procedure was adopted at the second Assembly session in 1947. At the first regular session, in 1946, and at the first special session, at the beginning of 1947, the problem was raised, in the absence of rules on the point, twice. Both times, after a discussion in which views were put forward in favor of one or the other solution, the view consistent with the present Article 86 prevailed. Cf. GAOR, 1st sess., 2nd part, 1st Comm., 13th meet., p. 43 ff., 1st Comm., 57th meet., p. 346 f.

Domestic law literature has discussed at length the possibility of considering abstention as demonstration of a vote and including it in the calculation of the

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majority. Arguments favoring one view or the other may be, and have been, used. It has been said, by those who want to count abstention, that by abstaining, a member of the body takes a middle course which is neither more nor less significant than a yes or no vote, and that the abstaining member expresses his will and this will is to yield to the opinion of the majority, whether it is favorable or unfavorable to the draft resolution. Excluding those who abstain from the list of voters would mean unjustifiably putting them at the level of absentees. The contrary view points out the literal meaning of the word abstention. It adds that the voter who abstains in a certain sense gives up his right to vote, to effectively take part in the voting procedure. Mainly, however, this view holds that counting abstention for purposes of the majority gives it the same value as a negative vote. There are also views between these two extremes, such as the one that abstention should not be counted only when it is formally announced before the vote. It is difficult to establish which solution Article 18 of the Charter actually favors. A deciding element in favor of the view that excludes abstentions in counting the majority, the view underlying Article 86 of the Assembly’s Rules of Procedure, is one of the arguments already mentioned: the fact that abstention would not otherwise be different from a negative vote. Yet this argument, instead of interpreting the provision, indicates only the consequence, however serious, of one of its possible interpretations. One should rather consider the aspect of the greater or lesser facility in arriving at the adoption of Assembly resolutions. If abstentions do not count, the number of votes necessary for approval is reduced and the Assembly may more easily decide. Considering that this organ, unlike the Security Council, does not as a rule have real decision-making powers, the less rigid interpretation, which would facilitate its functioning, is perhaps more in conformity with the spirit of the Charter. Under this aspect it is therefore not difficult to acknowledge that Article 86 of the Rules of Procedure correctly interprets Article 18. One scholar (Gross) has held the opinion that Article 86 and the underlying interpretation more favorable to the adoption of a resolution could have been justified when there were few members of the United Nations, while today it would no longer be justified, given the great increase in the number of Assembly members. It is not easy, however, to understand what difference this makes. As for the view (held by the same author) that, if Article 86 of the Rules of Procedure were eliminated, Article 18 would necessarily have to be interpreted in the sense that abstentions are to be counted in determining the majority, it is difficult to establish on what historical, textual or logical arguments such view is based.

32.  B) Simple majority and qualified majority Select bibliography: Wellington Koo, Voting Procedures in International Political Organizations (New York: Columbia University Press, 1947) 231 ff; Allan Hovey, ‘Voting Procedure in the General Assembly’, 4 Int. Org. (1950) 420 ff; F.A. Vallat, ‘Voting in the

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General Assembly of the United Nations’, 31 BYB (1954) 273–98; Ernest L. Kerley, ‘Voting on Important Questions in the United Nations General Assembly’, 53 AJ (1959) 324–40; Francesco Salerno, ‘La procedura di voto della Assemblea Generale delle Nazioni Unite sulle c.d. questioni importanti’, ADI (1966) 312–29; Francis O. Wilcox, ‘Representation and Voting in the United Nations General Assembly’, in Richard A. Falk, Saul H. Mendlovitz (eds), The Strategy of World Order. II—The United Nations (New York: World Law Fund, 1966) 272–92; Dodo A. Mindaoudou, ‘La notion de majorité comme preuve de démocratie à l’Assemblée générale des Nations Unies’, 8 AJICL (1996) 447–55; André Lewin, in JeanPierre Cot, Alan Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed), vol. 1, p. 805–14; Rüdiger Wolfrum, ‘Article 18’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. I, 621–36.

There have been discussions both in legal literature and in the practice about the system adopted in Article 18, paras. 2 and 3, for distinguishing Assembly decisions that are to be made by a simple majority of present and voting members from those requiring a qualified two-thirds majority. After establishing that decisions on “important questions” are to be made by a two-thirds majority, para. 2 of Article 18 lists a number of questions of this kind, including 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, 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. Para. 3 provides that the Assembly shall decide by simple majority on “other questions” and that by simple majority it may indicate new “categories of questions to be decided by a two-thirds majority”, in addition to those listed in para. 2. Making use of the power given it by Article 18, para. 3, the Assembly has gradually introduced other categories requiring the two-thirds majority, by including them in its Rules of Procedure or in an annex to these rules. For example, Article 19 of the Rules of Procedure provides that the request to include an item on the agenda of an Assembly special session may be approved only by a two-thirds majority if it is made after a certain date. Article 81 of the Rules of Procedure provides that when a proposal (usually a draft resolution) has been adopted or rejected, it may not be reconsidered during the same Assembly session unless a two-thirds majority of the members present and voting decide otherwise. Annex III, section F—no longer of use after Namibia’s acquisition of independence—provided that decisions on reports and petitions concerning the South-West African Territory (today Namibia) under South African administration were to be made with the qualified majority, and so on. A proposal was presented, again within the meaning of Article 18,

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para. 3, that the qualified majority be required also for resolutions which repeal a previous resolution, but it was rejected by the Assembly. For the discussion on this proposal, carried out during the Assembly session of January 16, 1992, see A/46/PV.74. Actually, even if it was formulated in general terms, the proposal concerned a specific case being examined by the Assembly. Its aim was to make more difficult the adoption of a draft resolution which, owing mainly to the insistence of the United States, revoked Res. 3379-XXX of November 10, 1975. Under this latter resolution Zionism was to be considered as a form of racism. The draft was then approved by a wide majority (111 votes in favor, 25 against and 13 abstentions) and became Res. 46/86 of December 16, 1991.

The most important problem concerning the vote procedure central voting procedure is how to stop the General Assembly deliberating on the basis of the majority of the moment, thus becoming unpredictable and detrimental to States that from time to time find themselves in the “minority” (with respect to the type of “majority” always deemed necessary). In technical terms, the problem is whether the list of questions contained in Article 18, para. 2 is exhaustive or is only a list of examples. If the list is exhaustive, the Assembly may decide by a two-thirds majority only on the questions listed, except, obviously, for the possibility of creating an additional category on the basis of para. 3, i.e. for the possibility of deciding that in future all resolutions of a certain kind and with a certain purpose, will be voted on by the two-thirds majority. If, on the contrary, it is held that para. 2 contains only a list of examples, the Assembly may decide in individual cases (and therefore without resorting to para. 3) whether a question is important and whether it should be voted on with the qualified majority, i.e. it can vote on a case-by-case basis with a two-thirds majority on questions not listed in para. 2, nor added by para. 3. The practice has followed this second interpretation. In a number of cases— for instance, in 1998, in relation to the question of equitable representation and increase in the membership of the Security Council—the Assembly has decided that a certain resolution, not included in the list, was to be considered important and to be voted on by the two-thirds majority. Moreover, in making this decision it has a number of times stated that it did not want to be bound for the future by Article 18, para. 3. The problem arises, in practice, when one or more States opposed to a resolution concerning a question not listed in para. 2, try to prevent it from being adopted (but only in this case) by proposing it be declared (by a simple majority) “important” in the light of para. 3, and then approved by a two-thirds majority, making it more difficult to reach a majority. It can therefore be gathered that this matter also has practical significance— and it arose in the Organization’s practice—only when a draft resolution is supported by a simple majority and not by a two-thirds majority: in fact, the resolution could not be adopted, in any case, if it lacked a simple majority,

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while if it had a two-thirds majority the draft resolution would be adopted in any case. This has led the organ to behave differently, and without any substantial justification, in identical cases. For example, in the first session, in 1946, it was decided that the two-thirds rule was to apply to the request for an advisory opinion of the International Court of Justice, because the request was connected to another draft resolution requiring this majority. During the fourth session, in 1949, the simple majority was proposed and accepted although the same connection existed. In another example, simple majority and greater majority were adopted at different times for resolutions concerning non-selfgoverning territories (Article 73 of the Charter). The Assembly’s tendency to endorse the view that the list in para. 2 is not exhaustive has often led to perplexity and opposition within the organ itself. Therefore, while it is to be excluded that the practice has given rise to an ad hoc customary rule, it will be useful to investigate what is the acceptable interpretation from an objective point of view, i.e. as independent as possible of the political equilibria of the moment. For the question of the representation in the Security Council see Res. 53/30 of November 23, 1998, adopted by the General Assembly after two days and a half of heated debate on the reform of the Security Council (GAOR, 53rd sess., 63-66th meets.). The resolution, after a reference to Chapter XVIII of the Charter (which already states that a two-third majority is needed for the approval of amendments to the Charter) says that the Assembly “determine 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 matters without the affirmative vote of at least two third of the members of the General Assembly”. Of course, from the legal point of view we are discussing here, the determination contained in the resolution is important as far as the “equitable representation and related matters” are concerned, since the increase in membership, needing an amendments to the Charter, is already covered by Chapter XVIII, Article 108 (see § 7). Cf. also UN Rep., sub Article 8, vol. II, Supp. no. 9, no. 17. For the practice concerning the case of the request for opinions of the International Court of Justice, see GAOR, 1st sess., 2nd part, Pl. meet., p. 1048 ff. and 4th sess., Pl. meet., 270th meet., n. 126 ff. The details of the cases concerning non self-governing territories were the following. Up until the eighth Assembly session, in 1953, draft resolutions concerning information about non-self-governing territories were voted on by the two-thirds majority. On the contrary, in the eighth session, the Assembly decided for the simple majority, as proposed by Mexico (cf. GAOR, 8th sess., Pl. meet., 459th meet., no. 6 ff. and especially no. 35 f.). In the 11th, 12th, and 13th sessions, the Assembly again adopted the two-thirds rule, amidst the protests of Mexico and of other States (cf. GAOR, 11th sess., Pl. meet., 657th meet., no. 1 ff., Pl. meet., 722nd meet., no. 14 ff.; 12th sess., Pl. meet., no. 1 ff.). Subsequently, the voting was once again by simple majority: cf., for example, Resolutions 35/27 of November 11, 1980, 36/50 of November 24, 1981 and 37/30 of November 23, 1982 on the question of East Timor, adopted respectively by 58 votes to 35, 54 votes to 32, and 50 to 36. For other cases in which it was discussed and decided each time whether a question was to be voted by the two-thirds majority, cf., again as an example, GAOR, 16th sess., Pl. meet., 1043rd meet., nos. 6–25 (the Assembly decided to vote by two-thirds majority on a draft

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resolution presented by Czechoslovakia on the effects of atomic radiation. The draft was considered as not approved since it received only a simple majority); GAOR, 20th sess., Pl. meet., 1385th-1390th, 1400th, 1405th, 1407th and 1408th meet. (here it was decided to apply the simple majority rule to a draft resolution, which then became Res. 2105-XX of December 20, 1975, on the observance of the Declaration concerning the independence of colonial peoples). For other information on the less recent practice, see Francesco Salerno, ‘La procedura di voto della Assemblea Generale delle Nazioni Unite sulle c.d. questioni importanti’, ADI (1966), pp. 312–29; see also, further on this paragraph, regarding the question of Chinese representation.

Textual arguments have been used. For example, in favor of the view that has had the widest following in the practice, i.e. in favor of the opinion that the list of questions in para. 2 is a pure catalogue of examples, the English text of the article has been cited. In introducing the list with the phrase “The questions [the important questions to be decided by the two-thirds majority] shall include:…” the text would let it be understood that the Assembly is free to consider other questions as important. By contrast, others have made reference to the French text, which introduces the list with the phrase “Sont considérées comme questions importantes:…”, a phrase which would seem to support the exhaustive nature. In fact no textual argument can lead to a certain conclusion. The same must be said for those who, once again in favor of the opinion that the list contains only examples, put emphasis on the fact that if the qualified majority were to apply only to the questions listed, para. 2 would restrict itself to pinpointing questions to be decided by a two thirds-majority, as there would be no need for qualifying them as “important”; if therefore para. 2 adopts this terminology, they add, this implicitly means that it was intended to give examples of important questions and that, based on this list, the Assembly is free to declare other questions as “important” and reach a decision by a two-thirds majority. To the contrary, it could be said that such a serious problem cannot be resolved by discussions over whether or not a phrase is superfluous. Neither is it clear what avail the list might have as a benchmark for declaring other questions as “important”, if the questions to be discussed (and their respective importance) are, as they are, difficult to compare. Despite the prevailing tendency in the practice—followed also by the United Nations Secretary-General in a Memorandum of November 4, 1985, in UNJY (1985) at 130 f.—and notwithstanding the respective strengths of the textual arguments, the view to be preferred is the one holding that the list in para. 2 is exhaustive. This is for a reason of systematic interpretation, that is, a connection which must exist between para. 2 and para. 3 of Article 18. If the list were not exhaustive, and the Assembly could decide on a case-by-case basis whether a question was to be voted by a two-thirds majority, would there still exist the need to have the procedure under para. 3 which entails adding, in the future, other categories of questions to be decided by two-thirds majority? If para. 3

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has a purpose, it can only be that of avoiding the Assembly’s decision on a caseby-case basis. The view supporting the exhaustive nature of the list is also confirmed in the preparatory work. They reveal that the procedure under para. 3 was considered the only acceptable procedure for extending the two-thirds majority to questions not included in the list in para. 2. During the San Francisco Conference, it was debated whether certain questions should be included in the list in para. 2 as important questions. In some cases (for example, regarding the election of the Secretary-General) it was decided not to do so also because the Assembly would have always been able, on the basis of para. 3, to later add the question to the list. In these discussions, mention was never made of the possibility of the Assembly voting by the two-thirds majority on questions not listed in para. 2 or not added under para. 3. (Cf. U.N.C.I.O., vol. 8, p. 364 ff., especially p. 389 f. and p. 510 ff.)

Having established that the General Assembly can decide by a two-thirds majority only those questions listed in para. 2 or those questions added under para. 3, while all other questions must be decided by a simple majority, and not by qualifying majority case by case, it is necessary to address the question of whether the Assembly may, after having introduced a certain category, overturn it late, restoring as a result simple majority. The question is a very delicate one and is the pivot around which the whole interpretation of Article 18, paras. 2 and 3, revolves. If it is held that the list in para. 2 is a mere example and that the Assembly can deliberate on a case- by-case basis (by simple majority) an “important” question and then decide on it with a two-thirds majority, it is also endorsed that the Assembly may, again case by case, declare (by simple majority) that the question in not (or is no longer) “important” and decide on it by a simple majority. This way it would always be possible to overturn, case by case, not only and not much the categories under para. 3, but any declaration—no matter if it was meant only for the single case or also for other analogous future cases—by which a question is defined as “important”. If on the other hand one holds, as we do, that the list in para. 2 is exhaustive and that for those questions not listed therein the Assembly may not act on a case-by-case basis, but it must necessarily create an additional category under para. 3 applicable to future cases, such category could be regarded as binding, as otherwise the power of the Assembly to regulate itself as it sees fit, by simply overturning case by case the category formerly created, would be re-admissible. This argument would acknowledge that the Assembly had the power to modify the Charter by simple majority, as new questions would be added to para. 2 on which the Assembly would have to decide always by a two-thirds majority in the same way as those listed, in derogation of the provisions of Articles 108 and 109 on amendments and review. Moreover, if the additional categories under para. 3 were irrevocable, not only would the Assembly derogate from Articles 108 and 109 in creating them, but also their revocation, if a new derogation is to be avoided,

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would call for resort to the amendment and review procedures. Although this view has been held, such a rigid system cannot be attributed, in the absence of an express prevision to para. 3. In our view, the most sensible solution seems to be found halfway between the two extremes: admitting both the exhaustive nature of the list under para. 2 and the revocability of the categories under para. 3. In other words, as we shall soon clarify, it seems to us that the category is useful, but is not irrevocable in aeternum, while it can be revoked in general and abstract terms. One could object that admitting the revocability of a category under para. 3 would come into conflict with our opinion in favor of the exhaustive nature of the list in para. 2. The argument could go as follows: if the Assembly has the power to introduce and eliminate categories, does this not mean that it is then free to act on a case-by-case basis? Does it not mean that it is ultimately free, even if only through the creation or elimination of a category, to decide each time whether or not to vote by the two-thirds rule? And is this not the conclusion reached by those who deny the exhaustive nature of the list? We do not believe so. In speaking of categories, para. 3 authorizes the Assembly to make only general and abstract decisions. According to the purpose of para. 3, a category cannot be introduced for contingent reasons and with regard to individual cases, nor can it be eliminated for contingent reasons and with regard to individual cases. It may be introduced and eliminated only with a well-pondered and generally motivated measure. For example, the measures with which the Assembly has introduced several additional categories in its own Rules of Procedure—measures which have been mentioned above and which all-in-all represent the only serious examples of application of para. 3—respond exactly to these requirements. On the contrary, the rule of the case-by-case basis, even if disguised under the form provided by para. 3, does not constitute an application but rather a violation (or an abuse) of this paragraph. And such violation involves violation of the rights of the minority within the organ. “We should not change the rules in the middle of the game”, the United States delegate correctly observed in the 39th General Assembly session in 1984 (cf. Doc. A/39/ PV.98, sess. of December 12, 1984, p. 1792) in strenuously but unsuccessfully opposing a decision made by the organ that all resolutions, and their relative amendments, on the question of apartheid would require from then on a twothirds majority vote. In fact, the decision had clearly been proposed and was adopted for the sole purpose of preventing a United States amendment, which had just been introduced, from being voted on by a simple majority. Another example of resort to para. 3 to disguise a decision on a specific case was the one, above reported, of the proposal regarding resolutions repealing previous resolutions, a proposal put forward for the sole purpose of making the repeal of the declaration on Zionism more difficult. In this case, however the proposal was not successful.

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The situation is, then, identical to that of Rules of Procedure of collective bodies, for example the rule of procedure of the General Assembly or of the Security Council, of parliamentary rules of procedure, and so on. There is no doubt that, just as they are issued by the majority, Rules of Procedure can be modified by the same majority. However, it is necessary that the modification be general and abstract and that it be made only after an examination of the reasons that objectively make it necessary. On the contrary, the view cannot be held that the majority, which has the power to modify a rule of procedure, may also not apply it in individual cases. The individual failure to apply would constitute a violation of the Rules of Procedure and mean violation of the rights of the minority (see § 98). In conclusion, the Assembly practice, which tends to establish case by case whether a certain question not included in the list in para. 2 must nevertheless be voted by a two-thirds majority, is illegal. Under the Charter, the Assembly may adopt the two-thirds rule for a question not included in the list only through the procedure described in para. 3, deciding in a general and abstract way that all the questions of a certain kind shall in the future be decided by the two-thirds majority. Such decision could then later be revoked but always in a general and abstract way. Once again to show its illegality, separate mention should be given to the attitude taken by the Assembly regarding the voting procedure on the question of Chinese representation, before the question was resolved in favor of People’s Republic of China (PRC) (see § 19). Until the 15th session (1960), the problem had never arisen as to what majority should be required to vote on the Communist proposal aiming to substitute Mao’s delegates for those of Chiang-Kai-Shek in the United Nations. On the other hand, until that time the States favoring Formosa had constituted the great majority in the Assembly. At the 16th session, in 1961, a draft resolution was presented for the first time (by the United States together with other countries) and approved. The draft decided “in conformity with Article 18 of the Charter” that “any proposal to change the representation of China is an important question”. At the 20th session, in 1965, the Assembly confirmed the 1961 resolution, expressly deciding that “this resolution is still valid”. Similar confirmation occurred in subsequent sessions up until November 20, 1970. On that date, the proposal to substitute the delegates of Communist China for those of Nationalist China received for the first time a simple majority of the votes cast (51 in favor, 49 against, and 25 abstentions) but was not adopted owing to the decision that had made the Chinese question an important question to be decided by the two-thirds majority (cf. GAOR, 25th session, Pl. meet., 1913th meet.). It is not clear whether with the 1961 resolution the Assembly intended to introduce a category under para. 3 of Article 18, or if, in conformity with the practice that had always been followed and starting from the assumption that the list in para. 2 is a mere catalogue of examples, it had intended to take a decision limited to the session underway. Nor was this uncertainty cleared up in the subsequent practice. The fact that the Assembly felt the need several times in a row to confirm the two-thirds rule testifies for the latter solution, since the procedure in para. 3 has unlimited efficacy in time. Considering, however, that the resolutions after 1961 seemingly had the character of restatements (“the 1961 resolution is still valid”), resort to para. 3 is conceivable. In any case, whether the first or the

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second interpretation is the right one, Article 18 was not respected. If the Assembly intended to act on the basis of para. 2, its action would be in contempt of the exhaustive nature of the list of important questions. As for para. 3, this authorizes the introduction of “additional categories of questions” to be decided by the two-thirds rule. It is clear that the Chinese question could not be considered a category but an individual specific case (exactly as Albania held several times: cf., for one of its last statements, GAOR, 25th sess., Pl. meet., 1913th meet., no. 24), and that the treatment given by the Assembly to the Chinese question shows exactly that para. 3 has no other function than that of guaranteeing the general and abstract nature of Assembly decisions on the voting procedure. The resolutions which considered the Chinese question important are the following: Res. 1668-XVI of December 12, 1961; Res. 2025-XX of November 17, 1965; Res. 2159-XXI of November 29, 1966; Res. 2271-XXII of November 28, 1967; Res. 2389-XXIII of November 19, 1968; Res. 2500-XXIV of November 11, 1969 and Res. 2642-XXV of November 20, 1970. For the debate in the 16th session in 1961, see GAOR, Pl. meet., 1080th meet. An altogether different problem (on this, see § 19) is whether the Chinese question, in involving the Charter provisions on admission and expulsion, could be decided by an Assembly resolution, no matter whether it was passed by a simple majority or by a twothirds majority.

One final point needs to be discussed. Up to now the rules which the Assembly should follow when it is faced with a question not included in the enumeration in para. 2 have been examined. It may occur, however, as it has occurred, that the Assembly is faced with a question over which there is some doubt as to whether it belongs to one of the listed categories: a question that some members believe belongs to the list and others believe does not. The problem has arisen, for example, of whether a draft resolution stating that a certain State “should” be admitted to the UN, or another one recommending that the Security Council re-examine its policy on admission, belonged to the category “admission of new members to the United Nations” (a category which clearly concerns specific admission of a given State, and therefore the resolutions governed by Article 4 of the Charter). It has been also asked whether in the category “suspension of the rights and privileges of membership” there could be included the case of an invitation, made by the Assembly to the Member States, to renounce the right to present opinions to the International Court of Justice in the exercise of its advisory function; whether there belonged to the category “recommendations with respect to the maintenance of international peace and security” decisions relating to the inalienable rights of the Palestinian people or those on the aggressive and peace-threatening policy of Israel; whether there belonged to the category of “budgetary questions” the decision to qualify certain expenses as ordinary expenses under Article 17, if such qualification was made in the abstract, before the expenses were incurred and actually noted in the budget; whether, again concerning “budgetary questions”, there were to be included the mere setting of criteria for allocation of the financial burden among the Member States or regarding travel allowances for Secretariat officials, and so on. In these and in similar cases, the Assembly has always held

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that it could decide (by simple majority) whether a question was included in the enumeration in para. 2. In our opinion this is a classic problem of interpretation of the Charter and the considerations we made about the power of the UN organs to interpret the Charter (see § 6) should be applied: the interpretation given by the General Assembly to para. 2 in a concrete case is not binding for the Member States and may be challenged by any of them. For the practice cited, cf. GAOR, 6th sess. (1951–52), Pl. meet., 370th meet., no. 77 ff. (question of the admission of new members); 10th sess. (1955), Pl. meet., 541st meet., no. 126 ff. (renunciation of the right to present opinions to the Court); 25th sess. (1970), Pl. meet., 1921st meet., no. 74 ff. (question of the inalienable rights of the Palestinian people; ibid., no. 25, protests of the Israeli delegate that the Assembly had decided to vote by simple majority); 21st sess. (1966), Pl. meet., 1492nd meet., no. 17 ff. (qualification of the expenses of the Capital Development Fund as ordinary expenses); 27th sess., A/PV.2108 of December 13, 1972 (principles on the sharing of expenses); 28th sess., A/PV.2206 of December 26, 1973 (travel allowances for officials); 39th sess., A/PV.101 of December 14, 1984 (aggressive policy of Israel). In this last case, the United States, in maintaining that para. 10 of a draft resolution against Israel (which then became res. 39/146A) should come under the category of resolutions regarding maintenance of peace, was first opposed to the question of the applicability of the two-thirds rule under Article 18, para. 2, being put to the vote. Resolutions on the maintenance of the peace, the US delegate said, are, under para. 2, to be adopted by a two-thirds majority and the Assembly cannot decide otherwise without violating the Charter:. This view was correct. Immediately afterwards, however, the United States accepted “in a spirit of accommodation” that the Assembly decide on the preliminary question, and the organ decided by simple majority (69 in favor, 28 against, with 23 abstentions) that the two-thirds rule should not apply to the cited para. 10. Para. 10 was then adopted with 69 votes in favor, 39 against, and 26 abstentions, in clear violation of para. 2 of Article 18.

33.  C) Approval by “consensus” Select bibliography: see § 28.

The practice of consensus has already been dealt with in treating the voting procedure in the Security Council, and there is no need to resume the discussion. Worthy of mention here is the fact that in the General Assembly more often than in the Security Council States, while participating in the adoption of a measure by consensus, expressly reserve their position regarding some parts of it. Even if this can be explained by the large number of States sitting in the Assembly and therefore by the impossibility of reaching really unanimous decisions, it certainly does not lead us to consider the practice of consensus as entirely commendable. It is indicative that some important or even historical Assembly resolutions adopted by consensus, such as Resolutions 3201 S-VI of May 9, 1974 and 3202 S-VI of May 16, 1974 on the New International Economic Order (NIEO), stand out for the number and the quality of the reservations expressed against them (see § 97).

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Section III.  The Secretariat 34.  Appointment of the Secretary-General Select bibliography: Stephen M. Schwebel, The Secretary-General of the United Nations. His Political Powers and Practice (Cambridge: Harvard University Press, 1952) 30 ff; Sydney D. Bailey, ‘The United Nations Secretariat’, in Evan Luard (ed), The Evolution of International Organizations (London: Thames and Hudson, 1966) 97 ff; Leon Gordenker, The UN Secretary-General and the Maintenance of Peace (New York: Columbia University Press, 1967) 34 ff; Marie-Claude Smouts, Le Secrétaire général des Nations Unies (Paris: Colin, 1971) 17 ff; Riccardo Sessa, ‘Il Segretariato delle Nazioni Unite’, 27 CI (1972) 329–52, Joakim E. Parker, ‘Electing the U.N. Secretary-General after the Cold War’, 44 HLJ (1992) 161–84; Leon Gordenker, The UN Secretary-General and Secretariat (London: Routledge, 2010, 2nd edn); James Crawford, ‘The Term of Office of the United Nations SecretaryGeneral’, in Geneviève Bastid-Burdeau (ed), Le 90e anniversaire de Boutros Boutros-Ghali (Leiden: Nijhoff, 2012) 59–84; Kirsten Haack and Kent J. Kille, ‘The UN Secretary-General and Self-directed Leadership: Development of the Democracy Agenda’, in Joel E. Oestreich (ed), International Organizations as Self-directed Actors: A Framework for Analysis (London, Routledge, 2012) 29–59.

The office of Secretary-General (“the chief administrative officer of the Organization”, under Article 97) is held by an individual who is not the organ of any State and must not seek or receive instructions from any government (Article 100). The Secretary-General is appointed, under Article 97, by the General Assembly upon the recommendation of the Security Council. Since it is a non-procedural matter, the Council’s decision may be vetoed by one of the permanent members. The text and the rationale of Article 97 indicate that there must be perfect agreement between the Assembly and the Council on the appointment of the Secretary-General. This agreement must cover all details of the appointment. Since Article 97 does not set the length of the term of office, it must in some way be agreed upon by the Assembly and the Council. When (and only when) no final date is set, the closest solution to the rationale of Article 97 is that the Secretary will hold office until his mandate is revoked by the Assembly on the recommendation of the Council. In 1950, when the term of office of the then Secretary-General Trygve Lie, a term which had been previously agreed upon to last five years, expired, the Assembly decided to extend it for a further three years. Since this occurred without the recommendation of the Security Council (although only after ascertaining that the Council was unable to reach a decision owing to reciprocal vetoes of the permanent members), the extension was challenged by some countries as illegal. In the light of Article 97 there were good grounds for this challenge. Trygve Lie had been appointed in 1946 on the recommendation of the Security Council (on January 29, 1946) after the Assembly had established (Res. 12-I of January 24, 1946) that the first Secretary was to have a term of office of five years and that the appointment

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would be renewed for another five years, with the understanding that there would be the possibility of setting different terms in the future. Since the Council’s decision took place after the Assembly’s, it must be held that an agreement between the two bodies had been made for a five-year appointment. It follows that, in 1950, the Assembly could not have decided without a new recommendation by the Council. On the contrary, the majority in the organ expressed the view that since Article 97 had not set any term, the Assembly could make use, for purposes of the extension, of the original proposal. The Communist bloc lined up against the majority opinion. The Soviet Union stated that it would not recognize Trygve Lie “as the lawful holder” of the office of Secretary-General. For the discussion, see GAOR, 5th sess., Pl. meet., 296th meet., no. 13 ff.; 297th and 298th meet. (ibid., no. 1 ff., especially nos. 43, 46 and 49 the Soviet Union’s statement). In 1953, when the extended term was over, the Security Council recommended the appointment of Hammarskjold without indicating when his term would expire, but the Assembly set (Res. 709-VII) a five-year appointment, referring to the original resolution of January 29, 1946, which had provided for this term also for the second Secretary-General. In 1957, it was the Council, again recommending Hammarskjold, which set the five-year term. With Secretary U Thant, appointed in 1961 after the death of Hammarskjold, the practice of a three-year term was introduced, again on the Council’s initiative. However, with Secretary Waldheim, appointed in 1971, and reconfirmed in 1976, the five-year tern returned. Also Secretary Perez de Cuéllar, appointed at the end of 1981, Secretary B. Boutros-Ghali, appointed in 1992, Secretary Kofi Annan, appointed in 1997 and renewed in 2002 and the present Secretary Ban Ki-moon, whose term began on January 1, 2007 and was renewed with Security Council Res. 1987 of June 17, 2011, confirmed by General Assembly Res. 65/282 of June 21, 2011 from January 1, 2012 to December 21, 2016.

35.  The Secretariat staff and the legal nature of the employment relationships Select bibliography: L.C. Green ‘The International Civil Servant: His Employer and His State’, in 40 T (1954) 147–74; Oliver J. Lissitzyn, ‘Effect of Awards of Compensation Made by the United Nations Administrative Tribunal’, 48 AJ (1954) 655–60; Maxwell Cohen, ‘The United Nations Secretariat—Some Constitutional and Administrative Developments’, 49 AJ (1955) 295–319; Suzanne Bastid, ‘Le statut juridique des fonctionnaires de l’ONU’, in The United Nations Ten Years’ Legal Progress: Collections of Essays (The Hague: Nederlandse Studentenvereniging voor Wereldrechtsorde, 1956), 145 ff; Id., ‘Les tribunaux administratifs internationaux et leur jurisprudence’, 92 RC (1957-II) 343–517; Wolfgang Friedmann and Anghynios Fatouros, ‘The United Nations Administrative Tribunal’, 11 Int. Org. (1957) 13–29; Angelo P. Sereni, Diritto Internazionale. Soggetti a carattere funzionale (Milano: Giuffrè, 1960), vol. 2, 960 ff; Finn Seyersted, ‘Settlement of Internal Disputes of Intergovernmental Organizations by Internal and External Courts’, 24 Bruns’Z (1964) 1–121; Francesco Durante, L’ordinamento interno delle Nazioni Unite (Milano: Giuffrè, 1964) 194 ff and 363 ff; Byung C. Koh, The United Nations Administrative Tribunal (Baton Rouge: Louisiana State Univ. Press, 1966); Hans W. Baade, ‘The Acquired Rights of International Public Servants. A Case Study in the Reception of Public Law’, 15 AJCL (1966–67) 251–300; Michael Akehurst, The Law Governing Employment in International Organizations (Cambridge: Cambridge University Press, 1967); Rolando Quadri, Diritto internazionale pubblico (Napoli: Liguori, 1968, 5th ed) 85 ff and 559 f; Alain Pellet, ‘La grève des fonctionnaires internationaux’, 79 RGDIP (1975) 932–71; Theodor Meron, ‘Staff of the UN Secretariat: Problems and Directions’, 70 AJ (1976) 659–93; Paul Tavernier, ‘Les accords de recrutement des fonctionnaires des Nations Unies par voie de concours. Vers une révolution dans le droit de la fonction publique internationale’, 26 AF

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(1980) 503–23; Theodor Meron, ‘In re Rosescu and the Independence of the International Civil Service’, 75 AJ (1981) 910–25; Id., ‘Charter Powers of the United Nations’ SecretaryGeneral with Regard to the Secretariat and the Role of General Assembly Resolutions’, 42 Bruns’Z (1982) 731–79; Roger Barnes, ‘Tenure and Independence in the United Nations International Civil Service’, 14 NYUJLP (1981–1982) 767–82; Witold Zyss, ‘Le regime commun des Nations Unies’, 91 RGDIP (1987) 341–478; Mario Bettati, ‘Recrutement et carrière des fonctionnaires internationaux’, 204 RC (1987-IV) 171–444; J. Russel Bulkeley, ‘Depoliticizing United Nations Recruitment: Establishing a Genuinely International Civil Service’, 22 NYUJLP (1989–1990) 749–92; Theodor Meron, ‘“Exclusive Preserves” and the New Soviet Policy toward the UN Secretariat’, 85 AJ (1991) 322–29; Alain Pellet and David Ruzié, Les fonctionnaires internationaux (Paris: Pr. Univ. de France, 1993); Chittharanjan F. Amerasinghe, The Law of International Civil Service, as Applied by International Administrative Tribunals (Oxford: Clarendon Press, 1994), 2 vols.; Anthony J. Miller, ‘Le droit applicable par le Tribunal administratif des Nations Unies’, in Société Française pour le Droit International, Le contentieux de la fonction publique internationale. Actes des journées d’études des 9–10 décembre 1994 organisées au Sénat (Paris: Pedone, 1996) 219–42; Jerome Ackerman and Meir Gabay, ‘The Internal Judicial System of the United Nations’, 15 Justice (1997) 33–7; Jean-Didier Sicault, in Jean-Pierre Cot, Alan Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd edn), vol. 2, 2099–114; Kent J. Kille, From Manager to Visionary. The Secretary-General of the United Nations (Basingstoke: Palgrave Macmillian, 2006); Simon Chesterman (ed), Secretary or General? The UN Secretary-General in World Politics (Cambridge: Cambridge University Press, 2007); Kamrul Hossain, ‘The Challenge of Peace Management. The Role of the United Nations Secretary-General’, 48 InJIL (2008) 232–41; Chris De Cooker (ed), International Administration: Law and Management Practices in International Organizations (Leiden: Nijhoff, 2009, 4th ed); Beatrice I. Bonafé, ‘L’esistenza di rimedi alternativi ai fini del riconoscimento dell’immunità delle organizzazioni internazionali: la sentenza della Corte suprema olandese nel caso delle Madri di Srebrenica’, 95 RDI (2012) 826–29; Andreas R. Ziegler, ‘Article 105’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. II, 2158–78; Theodorus M. de Boer, ‘Can the United Nations Be Sued for its Role in the Srebrenica Massacre?’, 60 NILR (2013) 121–30; Aleksandar Momirov, ‘Dutch Courts and Srebrenica: Ascribing Responsibilities and Defining Legally Relevant Relationships’, 43 NYIL (2013) 233–48; Andrea Spagnolo, ‘Immunità delle Nazioni Unite per violazioni dei diritti umani commesse nell’ambito di operazioni di peacekeeping e rimedi disponibili per le vittime’, 7 DUDI (2013) 806–12; Manuel Ventura and Dapo Akande, ‘Mothers of Srebrenica: The Obligation to Prevent Genocide and Jus Cogens: Implications for Humanitarian Intervention, in EJIL: Talk!, 6 September, 2013; Helmut Buss and Thomas Fitschen, Handbook on the Internal Justice System at the United Nations (Turin: United Nations, 2014); Mariairene Papa, ‘Immunità delle Nazioni Unite europea dalla giurisdizione e rapporti tra CEDU e diritto delle Nazioni Unite: la decisione della Corte dei diritti umani nel caso dell’ “Associazione Madri di Srebrenica”’, 8 DUDI (2014) 27–62.

Under the Secretary-General there is a very large bureaucratic system for carrying out the executive functions of the United Nations. As of 30 June 2009, the Secretariat had some 40,000 staff members around the world (cf. Doc. A/64/352). According to Article 101 of the Charter, the status of staff members, and in particular their appointment and the rights and obligations connected to their

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employment relationship with the Organization, are regulated by rules laid down by the Assembly. With regard to their appointment, Article 101, para. 1, provides that the staff “shall be appointed by the Secretary-General under regulations established by the General Assembly”. It is obvious therefore that the normative power of the Assembly must be of a general and abstract nature without infringing upon individual appointments made by the SecretaryGeneral. In the practice, however, especially from the 1970s on and especially in the area of economic co-operation, a tendency has taken root in the Assembly to condition the appointment of higher-level officials both by requiring previous consultation with the Member States and by subjecting the appointment to subsequent confirmation by the Assembly itself. Since this practice has not given rise to any significant reaction and since the SecretaryGeneral has gone along with it, a customary rule has perhaps become superimposed on Article 101, para. 1. There are, however, some scholars (such as Meron) who have insisted that such practice is illegal. The principle of independence from their Member States extends from the Secretary-general to the Secretariat staff. “In the performance of their duties”, says Article 100, para.1, of the Charter, “the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization…Each member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities.” The principle is clearly aimed at safeguarding such responsibilities and their performance. It is difficult to say that it applies in the recruitment phase, that is, to the active role that the national governments may play either in the form of designation or under the guise of expressing agreement. Interventions of this kind—which are usual in the practice and are kept in check by the requisites of efficiency, competence and integrity which, under Article 101, must be given paramount consideration in hiring—do not seem illegal in that they take place in the phase preceding the performance of the function. On the other hand, if the Secretary-General yields to such interventions and consequently refuses to establish a given employment relationship, no legal effect is produced. The renewal of an employment contract is a different matter. It was asked in the practice whether the fact that a national government had “vetoed” the extension of a fixed-time contract could constitute a just cause for the failure to renew it when the renewal had been requested by the UN office of the staff member. The United Nations Administrative Tribunal (an organ which will be dealt with in a moment) correctly tended towards the view that, when it is not a matter of State employees seconded to the Organization but of ordinary employees, the non-renewal is illegal and gives rise to the employee’s right to compensation. This is because, according to the Tribunal, Article 100 of the Charter would prevent the Secretary-General from “…legally invoking a decision of a government

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to justify his own action with regard to the employment of a staff member” (cf. the decision in the Levcik v. Secretary-General case, on which see Theodor Meron, ‘In re Rosescu and the Independence of the International Civil Service’ ‘“Exclusive Preserves” and the New Soviet Policy toward the UN Secretariat’, 75 AJ (1981), p. 918). State interference in the assignment of positions in the Secretariat has also occurred through the “exclusive preserve” practice, that is, succession in vacant positions by citizens of the same country to which the previous staff member belonged. This practice, however, was finally prohibited by Res. 43/224 of December 12, 1988 of the General Assembly (Section A, para. 5).

The employment relationship between staff members and the Organization, resulting from Assembly resolutions and regulations issued by the SecretaryGeneral as delegated by the Assembly, was characterized by the existence of a judicial organ, the Administrative Tribunal. The Tribunal was set up by the Assembly with Res. 351-IV of November 24, 1949 (modified by subsequent Resolutions 782-VIII of December 9, 1953, 957-X of November 8, 1955, 50/54 of December 11, 1995, and 52/56 of December 15, 1997) which approved its statute and was competent to decide disputes arising from non-observance of the rules on the employment relationship. The Tribunal however has been abolished as of December 31, 2009 as it has been be replaced by a more complex system of justice internal to the organization with stronger guarantees of efficiency and independence referring to the Ombudsman Office and Mediation Services for the Friendly Settlement Stage (pre-litigation and optional), and two tribunals, the Dispute Tribunal and the Appeals Tribunal of the United Nations, which will provide two sets of proceedings (cf. Res. 63/253 of March 23, 2009 and ). Given the considerable increase of UN personnel the issue of reforming the administration of justice in relation to disputes between the Organization and its officials emerged in recent years, especially since the World Summit of 2005 (see § 8). In 2006 the General Assembly established the Redesign Panel (with Res. 59/282 of April 13, 2005), which, in a 2006 Report, emphasized how the “United Nations internal justice system is outmoded, dysfunctional and ineffective and that it lacks independence” as well as enormously expensive (available at ). The Panel’s proposal were welcomed by the General Assembly Resolutions 61/261 of April 4, 2007, 62/228 of December 22, 2007 and 63/253 of March 23, 2009, the latter adopting the respective Statutes. On June 22, 2009 the judges were sworn in and on July 1, 2009 the two Tribunals began operating. For the activities carried out, see . For the case law, see .

The establishment and operation of the Administrative Tribunal (which was not something new, since a similar organ had existed in the League of Nations), and today of the two tribunals, the UN Dispute Tribunal and the UN Appeals Tribunal, were intended to meet obvious considerations of justice. Indeed, employment disputes in international organizations, similar to disputes

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concerning employment relations with foreign sovereign entities, are still today considered in various States as not within the competence of domestic tribunals. If a staff member, dismissed by an international organization or by a foreign embassy, has recourse to the courts of the State where the organization’s headquarters or the embassy is located, his case will usually be dismissed owing to the principle of international law on the immunity of foreign States from civil jurisdiction, a principle which extends to international organizations and which, as far as the United Nations is concerned, is confirmed by Article 105, para. 1, of the Charter, whereby “The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes”. This immunity must then be counterbalanced by the possibility for the worker to have judicial protection elsewhere. In the event of an employment relation with a foreign State, the legal system of such State will provide such protection. In the same way, in the case of an international organization, judicial protection of employees must depend on  the remedies that the organization itself makes available. The United Nations Administrative Tribunal and the new two tribunals fall within this framework. Article 105, para.1, was recently applied by the District Court of The Hague to a different question relating to the right to compensation sought by the relatives of the victims of the Srebrenica genocide of 1995 from the Netherlands and the United Nations for not preventing the massacre, in the July 10, 2008 judgment in the Mothers of Srebrenica case, confirmed by the Court of Appeal of The Hague on 30 October 2010 and the Supreme Court on 13 April 2012, where the Court held that the United Nations immunity under Article 105, para. 1, of the Charter is absolute for those acts falling within the functions of the Organization, as the ones pertaining to the conduct of peacekeeping operations (see § 60). In particular, the District Court refused to review whether the omissions attributed to the United Nations by the plaintiffs were “necessary” for the purposes of immunity arguing that doing so would have an “enormous impact on the decision-making power of the Security Council in analogous peacekeeping operations” (para. 5.14). The Court also ruled out, in the light of the Al-Adsani v. United Kingdom judgment of November 21, 2001 of the European Court of Human Rights (at ), the exception to the immunity principle in cases of alleged violations of the standards of jus cogens, aligning it (i.e. extending to international organizations) to the prevailing law in international practice on the immunity of foreign States (para. 5.20) (the point was addressed in a judgment of the International Court of Justice on the Jurisdictional immunities of the State, issued on February 3, 2012, which found against Italy for denying immunity to Germany, if only on humanitarian grounds, for events occurring during the period of Nazi occupation in the Second World War, at ; see Carlo Focarelli, ‘Federal Republic of Germany v. Giovanni Mantelli and Others. Order No. 14201’, 103 AJ (2009) 122–31). We shall return to the problem later when we deal specifically with United Nations actions concerning peacekeeping and international security (see § 60). In a judgment of 2012, the Dutch Supreme Court noted that under Article 105 of the Charter and Article II, para. 2, of the 1946 Convention on the Privileges and Immunities of the United Nations, “the UN

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enjoys the most far-reaching immunity from jurisdiction, in the sense that the UN cannot be summoned to appear before any domestic court in the countries that are party to the Convention” (para. 4.2) and “[t]hat immunity is absolute” (para. 4.3.6). Immunity “is aimed at ensuring that the UN can function completely independently and thus serves a legitimate purpose”. Its basis and scope are “therefore different from those underlying the immunity from jurisdiction enjoyed by foreign states”, which “stems from international law (par in parem non habet imperium), and applies exclusively to acts of a foreign state performed in a governmental capacity (acta iure imperii)” (para. 4.2). The Court held that “there are no grounds for assuming that the ECtHR’s reference to ‘international organisations’ [in the 1999 judgments on Waite and Kennedy and Beer and Regan in order to recognise the doctrine of equivalent protection] also included the UN, in any event not in relation to the UN’s activities in the context of Chapter VII of the Charter (Action with respect to threats to the peace, breaches of the peace, and acts of aggression)” (para. 4.3.3). In addition, the gravity of the accusation (genocide in this case) is irrelevant and also applies to the United Nations, despite their diversity, as stated by the International Court of Justice in its judgment on the Jurisdictional Immunities of the State, in the sense that immunity can be denied also when a State is accused of violating jus cogens (para. 4.3.14). For the English translation of the judgment of first instance, see ; for the translation of the appeal, see , and for the Supreme Court ruling, see . In a subsequent decision of 2014, the Hague District Court, after recalling the judgments just described, confirmed the immunity of the United Nations proceeding only against the Netherlands, which it found against (cf. , para. 4.3-4). The European Court of Human Rights case also ruled on this case in a decision of 2013, whereby recognition of UN jurisdictional immunity does not violate the right to a fair trial in order to pursue a legitimate aim in a proportionate manner enshrined in Article 6 of the European Convention. The Court stated that it is not possible to invoke the binding nature of the prohibition of genocide nor the absence of alternative remedies, citing the 2012 judgment of the International Court of Justice on the Jurisdictional immunities of the State and the non-absolute nature of the principle of “equivalent protection” that has developed in its case law since 1999, because “[t]o bring such operations within the scope of domestic jurisdiction would be to allow individual States, through their courts, to interfere with the fulfilment of the key mission of the United Nations in this field, including with the effective conduct of its operations” (Stichting Mothers of Srebrenica and Others v. The Netherlands, decision of June 11, 2013, Appl. 65542/12, especially paras. 151–154). In Delama Georges and Others v. UN and Others of January 9, 2015 (at ), the District Court of New York for the Southern District dismissed a class action brought by thousands of Haitians against the United Nations and Secretary-General Ban Ki-Moon, held responsible for a cholera epidemic due to the failure by Nepalese peacekeepers employed on a peace mission in Haiti (see § 60) to implement appropriate health protection measures. The Court recognized the immunity of the United Nations under Article 105, para. 1, of the UN Charter and the 1946 General Convention on Privileges and Immunities, stating that it has absolute immunity insofar as it is not subject to the provision of alternative dispute resolution mechanisms under section 29 of the 1946 General Convention. Similarly, the Court recognized the immunity of the Secretary General under Section 105, para. 2, of the Charter as well as the diplomatic immunities to which he is entitled pursuant to Article V of the 1946 General Convention (see Kristina Daugirdas,

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‘Reputation and the Responsibility of International Organizations’, 25 EJIL (2014) 991–1018; Riccardo Pavoni, ‘Choleric Notes on the Haiti Cholera Case’, QIL, July 27, 2015, at ). Judicial remedies regarding employment are provided by many international organizations (the United Nations, the specialized Agencies, the European Union, etc.). The problem that arises more and more often at the internal level is whether such remedies are providing “equal” protection in order to still ensure to the individual, particularly to the officials of the relevant Organizations, a judicial protection equal to the one the individual “loses” when he is denied access to national courts. To this end, the new UN system, replacing the Administrative Tribunal mentioned earlier, aims at ensuring equal protection and preventing the refusal to grant immunity by national courts making the right to access to court, enshrined in both constitutional norms (e.g. Article 24 of the Italian Constitution) and international law (e.g. Article 6 of the 1950 European Convention on Human Rights, as interpreted by the European Court of Human Rights, in particular, in the Beer and Regan v. Germany Judgment, paras. 58 and 62–63, and in the Waite and Kennedy v. Germany judgment, paras. 68 and 72–73, ICtHR Reports (1999-I) 393), prevail over the Organization’s immunity. In the aforementioned Judgment of July 10, 2008 in the Mothers of Srebrenica case, the District Court of The Hague based on the Behrami e Saramati v. Germany and Norway Judgment of May 2, 2007 of the European Court of Human Rights, that we will look into more detail later (see §§ 61 and 62), held that the “equivalent protection” criterion “does not apply to the UN” as the UN—unlike the European Space Agency (ESA) in the Beer and Regan and the Waite and Kennedy cases—was founded before the ECHR came into force and with an almost universal membership (para. 5.24). For a summary of the problem and the most recent case law, see Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice (Oxford: Oxford University Press, 2012) 439–40.

Resolutions and regulations concerning the UN Secretariat staff make up a whole system of rules. It has been subject to debate (and the debate concerns all international organizations) whether these are true legal rules. Those who favor their legal nature ask whether with such norms the Organization has created a separate and original legal system or a system which draws its validity from the Charter and therefore directly from international law. To address these issues the Advisory Opinion handed down by the International Court of Justice in 1954 in the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal case (see ICJ Reports 1954, p. 47 ff.) may be helpful. In 1952, the Secretary-General dismissed without notice several staff members of U.S. nationality, accusing them of “disloyalty towards the hosting country” (United States) for having refused to testify before the McCarthy Committee of the United States Senate which at the time was investigating “subversive” activities. However, the Administrative Tribunal declared these dismissals unlawful and ordered either the re-employment of the dismissed staff or the awarding of substantial compensation. The case came before the General Assembly in its eighth session (in the autumn of 1953) during the approval, under Article 17 of the Charter (see § 88), of the UN budget item concerning the payment of this compensation. When strong criticism arose in

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the Assembly over the decision of the Tribunal (which was accused by some members of having issued judgments that were clearly unjust with regard to the Organization), and there was strong support for the idea that the funds should not be allocated, the General Assembly decided to seek an advisory opinion of the International Court of Justice under Article 96 of the Charter. The request was worded as follows: “Having regard to the Statute of the United Nations Administrative Tribunal and to any other relevant instruments and to the relevant records, has the Assembly the right on any grounds to refuse to give effect to an award of compensation made by that Tribunal in favour of a staff member of the United Nations whose contract of service has been terminated without his assent?”. An identical case had been presented in the League of Nations, but it was at the time when the League was breaking up. Since it was about to dissolve, the League Assembly decided (through a resolution of April 18, 1946) not to follow up several judgments of the League’s Administrative Tribunal which had awarded compensation to staff members of the Organization.

The Court gave a negative answer to the Assembly’s question, which is substantially shareable. The advisory opinion can be divided, from a logical viewpoint, in two parts. In the first part, the Court raised the problem of interpretation of the constitutive instruments of the Tribunal, especially of the Statute, and asked whether or not the Assembly, in adopting them, intended to reserve for itself the power to review the Tribunal’s decisions. In the Court’s view, no doubts could arise about this. Taking into account Article 1 (“A Tribunal is established by the present Statute…”), Article 2, para. 3 (“In the event of a dispute as to whether the Tribunal has competence, that matter shall be settled by the decision of the Tribunal”), and Article 10 (“decisions of the Tribunal shall be final and without appeal”) of the Statute, the Court concluded that the Assembly intended to create a true judicial body and not a mere subordinate institution with only advisory or subsidiary functions. Consequently, the Tribunal’s judgments were res iudicata between the parties, that is, between the individual staff member, on the one hand, and the Organization, represented by the Secretary-General, on the other. Therefore, the decisions awarding compensation were binding, by virtue of the Statute of the Tribunal, on the United Nations and on the Assembly itself, meaning that it cannot refuse to execute them. In the second part, the Court raised a problem of Charter interpretation, and asked whether the Assembly had the power to create a Tribunal of such a nature. Here also its view was very clear. This power was implicitly granted (on the so-called implicit powers, see § 5) by Article 101 of the Charter, which gives the Assembly the power to issue regulations regarding employment relationships of the staff members, requiring, among other things, that “conditions

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of service” be such as to “secure the highest standards of efficiency, competence and integrity” of the staff. Also implicit was the power to create a Tribunal for the purposes of “justice” pursued by the United Nations, considering that the staff members, owing to the Organization’s immunity from the jurisdiction of State courts, would have no one to turn to for judicial protection. The Court also examined, in detail, the reasons adopted by several States to support the opposite thesis in favor of the Assembly’s power to revoke Tribunal decisions. These reasons can be found in the opinions of the dissenting judges, annexed to the judgment. The principal ones were based on Article 22 and Article 17 of the Charter. It was held, first of all, that the Tribunal, as an organ created by the Assembly, was nothing other than one of the subsidiary organs referred to in Article 22, and that this subsidiary nature implied complete subjection to the principal organ. Regarding Article 17, it was said that in so far as this article gave the Assembly the power to examine and approve the budget, it gave the organ the freedom not to approve an expense; and such freedom would certainly be in conflict with the obligation to pay compensation awarded by the Tribunal. The Court rejected both views. With regard to the former, it pointed out the extraneousness of Article 22 to the case under discussion, since it was an article providing for the establishment of organs for exercising the Assembly’s own functions, and the function of the Administrative Tribunal was certainly not among them. With regard to Article 17, the Court’s opinion was that, in meeting expenditures that arise from previous Assembly decisions (in this case, the decision establishing the Tribunal), the Assembly had no alternative regarding the budget than to honor the engagements it had undertaken. No doubt the argument based on Article 17 was poorly chosen, in that it could be proposed with regard to… staff salaries (on problems of interpretation of Article 17, see § 88). By contrast, the Court’s view that the setting up of the Tribunal was only a way to regulate the employment relationship was a sound one. There were other arguments raised against the view taken by the Court, and also rejected by it. Some observers held that the reviewing power of the Assembly should be allowed at least in the case of a judgment that was clearly invalid (for example, for excess of power, for manifest injustice, and so on), analogously to what may happen with regard to decisions taken by international arbitrators in interstate disputes which a party does not comply with when it maintains that they are vitiated by a defect of this kind. However, the analogy can certainly be refuted owing to the different nature of the situation existing between a UN staff member dispute and a dispute between States; what is at stake here is the institutional nature of the Administrative Tribunal (and today the Administrative Dispute Tribunal and the Appeals Tribunal). Much insistence was placed on the definitive and final nature of the Court’s judgments, which, freed from the control of the Assembly, ultimately also legitimize the freedom to act of the courts. The truth is, on the contrary, that this definitive and final nature is also characteristic of other courts and, in any case, the freedom to act of the Administrative Tribunal cannot, by definition (being a court), be more dangerous than that… of the Assembly. It is

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noteworthy that, in the period following the Court’s pronouncement, the Statute of the Tribunal was changed so as to allow a sort of procedure for review of the judgments of the Court, by the International Court of Justice itself (see § 87). As mentioned, there is now a Court of Appeal with a reviewing power.

As already hinted, the conclusions reached by the Court are basically correct, albeit incomplete. It is not enough to say that the Statute of the Administrative Tribunal denies a review power by the Assembly and that the establishment of the Tribunal occurred legally under the Charter. There is a more general problem which is the key to the entire matter, although no trace of it appears in the Opinion of the Court. This is the question whether the Assembly, in regulating the employment relationship in the United Nations, must do so, on the one hand, according to the principle of generality and abstractness and, on the other, to the principle of the non-retroactivity of its decisions. One could, in fact, hold, taking a different view, that the very power exercised to establish the Tribunal could be exercised not only, obviously, to abolish it but also to modify the legal regime in the sense of not recognizing some decisions already handed down. The only way to refute this objection is to show that, under the Charter, the Assembly may proceed in the matter only with general, abstract and nonretroactive rules. Admittedly, in domestic legal systems these three characteristics of the law are ever less frequently considered essential. It is especially the third characteristic that can be sacrificed when the common good or higher principles of social justice so require. What, then, in the case of the rules governing the Administrative Tribunal? It is prudent to interpret the Charter in the sense of generality, abstractness, and non-retroactivity. On the one hand, the power attributed to the Assembly by Article 101, para. 1, with regard to the employment relationship is clearly a power of general law-making. On the other hand, the respect for the “principles of justice” that Article 1, para. 1, imposes on the Organization seem to testify in the sense that the Assembly cannot destroy, with regard to the past, what it itself has created and this is especially true when no higher social need can be found as in the specific case in favor of retroactivity. The Court only incidentally touched upon the subject of non-retroactivity, when, in confirming that the Assembly had the power to establish a real Tribunal for settling disputes between the United Nations and its staff, it conceded that that Assembly itself may abolish the Tribunal, repealing its Statute, or “…amend the Statute and provide for review of the future decisions of the Tribunal…”. Cf. ICJ Reports 1954, p. 61 (italics added).

The opinion that the General Assembly could repeal the decisions of the Administrative Tribunal (and today the Court of Administrative Litigation and the Appeals Court) has never been brought up again in the practice, even in relation to decisions whose reasoning raised perplexities.

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Cf., for example, the statements of the United Kingdom and the United States in the Fifth Committee in the 41st Assembly session (Doc. A/C.5/41/SR.39 of December 3, 1986) regarding an Administrative Tribunal decision (no. 370) which had awarded large amounts but which, in spite of this, in the view of the two States, had to be upheld in that it was the result of a legal procedure respecting the rule of law.

Coming back to the initial issue of the legality or not of the norms on the employment of the Secretariat personnel, in view of the thesis correctly held by the International Court of Justice on the irrevocability of Administrative Tribunal decisions, and in view of the fact that the Assembly’s power to establish such a Tribunal and, more in general, to regulate the status of UN staff finds its basis as well as its limits in the Charter, that is, in a set of legal norms, the full legal character of the regulation of the employment relationship in the Organization cannot be questioned. All that can be said is to reiterate what was observed at the time (see § 13), namely that neither the Assembly nor any other collegial body of the UN can be subject to positive obligations, or obligations to do, because of the lack of means able to force the organ to reach the necessary majority for a decision to be adopted. However, the hypothesis that this should happen in the case of a resolution approving the financial statements pursuant to Article 17 of the Charter or that the Assembly should decide… that officials no longer be paid remains somewhat theoretical. Supposing, therefore, that the terms of employment of officials be governed by legal rules, the question remains of whether the norms which regulate the status of staff members belong to an autonomous and original legal order (to an order which, like the legal order of a State, finds in itself the reason of its own force) or whether they draw their validity, through the Charter, from international law. This second solution seems to be the preferable one, in that it better underlines the uncontestable fact that the rules regarding staff can never be in conflict with the Charter provisions. In fact, it was exactly in the light of the Charter that a good part of the question dealt with by the International Court of Justice, on the effects of Administrative Tribunal awards, was formulated and resolved. It is true that the supporters of the “original nature” of the United Nations’ internal legal order usually consider the rules on staff members as subordinate to the Charter, maintaining that the Charter provisions are, so to speak, double-sided and that they have, on the one hand, the nature of international norms and, on the other, that they can be construed as constitutional norms of an original legal system. But then the whole dispute over the “original nature” of legal orders acquires then a purely theoretical tone and can best be left to jurisprudence’s researchers. 36.  Privileges and immunities of UN officials Select bibliography: Josef L. Kunz, ‘Privileges and Immunities of International Organizations’, 41 AJ (1947) 852 ff; Lawrence Preuss, ‘Immunity of Officers and Employees

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of the United Nations for Official Acts: The Ranallo Case’, 41 AJ (1947) 555–78; John K. King, International Administrative Jurisdiction with Special Reference to the Domestic Laws and Practices of the United States of America. A Report of the American Section of the International Institute of Administrative Sciences (Brussels: International Institute of Administrative Sciences, 1952); Mohammed Bedjaoui, Fonction publique internationale et influences nationales (International Civil Service) (London: Stevens, 1958) 173 ff; Clarence W. Jenks, International Immunities (London: Stevens, 1961) 111 ff; Roger Bloch, J. Lefèvre, La fonction publique internationale et européenne (Paris: Libr. Générale de Droit et de Jurisprudence, 1963); Georges Langrod, La fonction publique internationale. Sa Genèse, Son Essence, Son Evolution (Leiden: Sythoff, 1963); Carlo Focarelli, ‘L’ammissione al transito ed al soggiorno negli Stati Uniti della missione dell’OLP presso le Nazioni Unite’, 44 CI (1989) 25 ff; Eric David, ‘L’avis de la Cour Internationale de Justice du 15 décembre 1989 sur l’applicabilité de la section 22 de l’art. VI de la Convention sur les privilèges et immunités des Nations Unies (aff. Mazilu)’, 35 AF (1989) 298–320; Neville Botha, ‘Are United Nations Special Rapporteurs Entitled to Privileges and Immunities?’, 15 SAYIL (1989/90) 191–97; Francesc-Xavier Pons Rafois, ‘Applicabilidad de la seccion 22 del articulo VI de la Convencion sobre los privilegios e immunidades de las Naciones Unidas (Opinion consultiva del Tribunal Internacional de Justicia de 15 diciembre de 1989)’, 43 ReD (1991) 39–56; Bernard H. Oxman, ‘Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights’, 93 AJ (1999) 913–42; Anthony J. Miller, ‘Privileges and Immunities of United Nations Officials’, 4 IOLR (2007) 169–257; Id., ‘The Privileges and Immunities of the United Nations’, 6 IOLR (2009) 7–115; Anne Trebilcock, ‘Implications of the UN Convention Against Corruption for International Organizations: Oversight, Due Process, and Immunities Issues’, ibid., 513–40; Bruce Oswald and Adrian Bates, ‘Privileges and Immunities of United Nations Police’, 14 JInP (2010) 353–74; Anthony Miller, ‘Privileges and Immunities of United Nations Officials’, in Edward Kwakwa (ed), Globalization and International Organizations (Burlington: Ashgate, 2011) 225–33.

Customary international law provides that diplomatic agents enjoy a series of privileges and immunities within domestic legal systems (personal inviolability, exemption from civil and criminal jurisdiction, tax exemptions, and so on). By contrast, there do not exist customary international rules which require States to grant the same treatment to the officers and employees of international organizations. Thus it is only by means of an agreement that a State may undertake such obligations. It must be noted that the privileges and immunities of officials we are currently dealing with should not be confused with the jurisdictional immunity granted by customary international law and several international agreements to international organizations (including the UN) as such. There are treaty provisions regarding the immunity of staff members of every organization. They can be contained in the treaty which sets up the organization, in the agreements concluded by the organization with member or non-Member States, particularly with the State in which it has its headquarters, or, lastly, in agreements concluded between the Member States. As far as Secretariat staff and, more generally, United Nations officials are concerned, the Charter is limited to confirming in Article 105, para. 2, a framework principle concerning immunity (“…officials of the Organization shall…

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enjoy such privileges and immunities as are necessary for the independent exercise of their functions…”), leaving to the General Assembly the task of proposing to the Member States the conclusion of agreements for a detailed regulation of the subject (Article 105, para. 3). Among the agreements presently in force, special mention should be made of the General Convention on the Privileges and Immunities of the United Nations, of February 3, 1946, to which a large number of States are party, and the Convention between the United Nations and Switzerland—a Member State since September 10, 2002 (see § 12) where a number of offices of the Organization have their seats—of July 1, 1946. These and numerous other treaties provide for immunities for UN officials operating within certain States: see, as examples, Article VIII of the United Nations-Thailand Convention of May 26, 1954 on the Economic Committee for Asia and the Far East; Article VI of the United Nations-Ethiopia Convention of June 18, 1958 on the Economic Committee for Africa; the United Nations-Egypt Convention of September 12, 1950 regarding the United Nations Office for Palestinian refugees; the United Nations-Jordan Convention of August 20, 1951; the United Nations-Egypt exchange of notes of February 18, 1957, r­ egarding the status of the United Nations Emergency Forces in Egypt. Their text is available in UNLS, Legislative Texts and Treaty Provisions Concerning the Legal Status, Privileges and Immunities of International Organizations (1959), p. 183 ff. For more recent treaties, see the first part of UNJY where they appear under the heading “Legal Status of the UN and Related Intergovernmental Organizations”. Article VI, Sect. 22, of the General Convention on the Privileges and Immunities of the United Nations provides that also experts who perform “missions” on behalf of the United Nations shall enjoy various immunities during the period of their missions, such as exemption from measures limiting their personal freedom, immunity regarding acts done by them in the exercise of their function, the inviolability of correspondence, the right to receive documents, and so on. Under the Advisory Opinion of the International Court of Justice of December 15, 1989, in the case of the Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (in ICJ Reports 1989, p. 177 ff.), by “mission” is meant, within the meaning of Sect. 22, not only the sending of experts in one or more countries but any task assigned to persons, such as the preparation of reports, the carrying out of research or investigations and the like. The opinion, issued upon the request of the Economic and Social Council, originated in the Mazilu case. Mr.  Mazilu was a Romanian citizen who, in his individual capacity, was seated in the Subcommittee for the Prevention of Discrimination and the Protection of Minorities (a subsidiary organ of the Human Rights Commission, in turn a subsidiary organ of the Economic and Social Council, now replaced by the Human Rights Council, see § 76). For political reasons, the Romanian government in power at the time prevented Mr. Mazilu from leaving Romania in order to reach the United Nations headquarters, from receiving documents from the United Nations and from preparing a report assigned to him by the Subcommittee. On Article VII, Sect. 22, see also the Advisory Opinion of the International Court of Justice of April 29, 1999 in the case of Difference relating to Immunity from Legal Process of A Special Rapporteur of the Commission on Human Rights. In this case an expert on mission on behalf of the United Nations, Mr. M. Cumaraswamy, was prosecuted in his country, Malaysia, for an interview given to a magazine, which was considered defamatory vis-à-vis

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Malaysian courts. The Opinion is important not only because the Court confirms its previous Opinion in the Mazilu case but also for the assertion that it is up to the SecretaryGeneral to assess whether a UN agent has a right to immunity. In the Court’s opinion, national courts must given the greatest weight to the assessment of the Secretary-General, an assessment which creates a presumption in favor of immunity which can be rebutted only in exceptional circumstances.

Generally, treaty provisions on the immunity of UN officials are of two types. They either describe in detail the kind of immunity and its scope or they (and this is usually the case of rules concerning higher ranking officials) refer to the norms of general international law regarding diplomatic immunity. As an example of the first type, there is section 18 of Article V of the cited general Convention, on the basis of which UN officials shall “…(a) be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity; (b) be exempt from taxation on the salaries and emoluments paid to them by the United Nations; (c) be immune from national service obligations; (d) be immune, together with their spouses and relatives dependent on them, from immigration restrictions and alien registration;…” and so on. As a rule of the second type, there is section 19 of the same Article V of the general Convention, which provides that, in addition to the immunities and privileges specified in section  18, the Secretary-General and all Assistant Secretaries General, together with their spouses and minor children, shall enjoy the “privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law”. The rules contained respectively in sections 15 and 16 of Article V of the Convention of July 1, 1946 between the United Nations and Switzerland are identical. Special mention should be made of the United States, the UN host country. The US adhered to the 1946 General Convention only in 1970. Prior to that time, the only norm binding on this country on the international plane with regard to the immunities and privileges of UN officials was Article 105, para. 2, of the Charter. In fact, the Headquarters Agreement concluded between the United States and the Organization on June 26, 1947, did not contain specific rules on immunities. Nor can it be held, as some scholars maintained prior to 1970, that the Agreement had incorporated the General Convention (in fact section 26 of the Agreement, whereby “the provisions of the present agreement shall be complementary to the provisions of the General Convention…”, far from proceeding to such incorporation depended on a US statement of 1947 that it wished to accede promptly to the General Convention). Actually, the subject was regulated by domestic laws, both federal laws and New York State laws, including the International Organizations Immunities Act of 1945 and subsequent amendments.

The immunities and privileges of officials are granted in the interest of the Organization which, through the Secretary-General, may always waive them in specific cases. Section 20 of Article V of the general Convention (and similar provisions are contained in the other above-cited conventions) provides as follows: “The Secretary-General shall have the right and the duty to waive the

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immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations. In the case of the Secretary-General, the Security Council shall have the right to waive immunity”. If a UN Member State is not a party to any of the conventions on immunity, it is nevertheless bound by the principles of Article 105, para. 2. Its organs, and in particular, its courts, shall be in such case called upon the not easy task of interpretation and shall have to decide what immunities are actually necessary for the independent performance of their functions. On the other hand, it does not seem that a very general formula, as is the one used by Article 105, para. 2, automatically involves the extension of all the usual diplomatic immunities to United Nations officials. In the same sense, cf. the decision of November 11, 1946 by the US City Court of New Rochelle in the Westchester v. Ranallo case in ADOILC (1946), p. 168 ff. The court rejected the argument of a UN employee (the Secretary-General’s driver) that Article 105 would guarantee all officials and employees of the Organization the enjoyment of immunities and privileges belonging to diplomatic agents.

Since, as we have seen, no immunity is granted by customary international law, a non-Member State of the United Nations which is not bound by special treaty provisions, has no obligation to concede immunities or privileges to Secretariat officials. 37.  The protection of UN officials Select bibliography: Yueng-Li Liang, ‘Notes on Legal Questions Concerning the United Nations—Reparations for Injuries Suffered in the Service of the United Nations’, 43 AJ (1949) 460–86; Quincy Wright, ‘Responsibility for Injuries to United Nations Officials, ibid., 95–104; Id., ‘The Juridical Personality of the United Nations’, ibid., 509–16; Clyde Eagleton, ‘International Organization and the Law of Responsibility’, 76 RC (1950-I) 323– 425; M.J.L. Hardy, ‘Claims by International Organizations in Respect of Injuries to their Agents’, 37 BYB (1961) 516–26; Jean-Pierre Ritter, ‘La protection diplomatique à l’égard d’une organisation internationale’ 8 AF (1962) 427–56; Benedetto Conforti, ‘La personalità internazionale delle unioni di Stati’, 18 DI (1964) 331–43; Finn Seyersted, ‘Objective International Personality of Intergovernmental Organizations: Its Scope and Its validity vis-à Non-Members. Do The Capacities Really Depend Upon the Constitutions?’, 4 InJIL (1964) 233–68; Id., ‘Jurisdiction over Organs and Officials of States, the Holy See and Intergovernmental Organizations (2)’, 14 ICLQ (1965) 493–527; Rolando Quadri, Diritto internazionale pubblico (Napoli: Liguori, 1968, 5th ed) 564–66, 611–14, 649–51, 756–57; Evan T. Bloom, ‘Protecting Peacekeepers: The Convention on the Safety of UN and Associated Personnel’, 89 AJ (1995) 621–31; M.-Christiane Bourloyannis-Vrailas, ‘The Convention on the Safety of UN and Associated Personal’, 44 ICLQ (1995) 560–90; Antoine Bouvier, ‘Convention sur la sécurité du personnel des Nations Unies et du personnel associé: présentation et analyse’, 77 IRRC (1995) 695–725; Claude Emanuelli, ‘La Convention sur la sécurité du personnel des Nations Unies et du personnel associé: des rayons et des ombres’, 99 RGDIP (1995) 849–80; Mahnoush H. Arsanjani, ‘Defending the Blue Helmets:

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Protection of United Nations Personnel’, in Luigi Condorelli, Anne-Marie La Rosa and Sylvie Scherrer (eds), Les Nations Unies et le droit internationale humanitaire: Actes du colloque international à l’occasion du cinquantième anniversaire de l’ONU (Genève, 19, 20 et 21 octobre 1995) (Paris: Pedone, 1996) 115–47; Philippe Kirsch, ‘La Convention sur la sécurité du personnel des Nations Unies et du personnel associé’, in Claude Emanuelli (ed), Les casques bleus: policiers ou combattants?, Montréal, 1997, 47–57; David Ruzié, ‘La sécurité du personnel des Nations Unies recruté sur le plan local’, 126 JDI (1999) 435–44.; Santiago Urios Moliner, ‘La Conventión sobre seguridad del personal de las Nacionas Unidas y el personal associado’, 15 ADcI (1999) 547–99; Vittorio Largajolli, ‘L’attentato contro la sede ONU in Iraq del 19 agosto 2003: il rapporto del Panel indipendente istituito dal Segretario Generale’, 60 CI (2005) 133–41.

If UN officials suffer injury against their person or their property while being on a mission in the territory of a State, what are the consequences in the relationships between this State and the Organization? The question arose in the past and has arisen again in recent times following several attacks, more or less serious, against UN missions around the world, among which it is worth recalling the tragic attack on the headquarters of the UN Mission in Baghdad, which took place on August 19, 2003 and caused the death of 22 UN officials, including the Special Representative of the Secretary-General Mr. Viera de Mello, and wounded more than 150 people. Such matters are regulated by the Convention on the Safety of UN and Associated Personnel, signed in New York on December 9, 1994, entered into force on January 15, 1999 and ratified, as of May 9, 2016, by 92 States. The Convention states that State Parties “shall take all appropriate measures to ensure the safety and security of UN and associated personnel…” (Article 7). The Convention is complemented by an Optional Protocol concluded on December 8, 2005 and entered into law on August 19, 2010 (binding, as of May 9, 2016, 29 States), that extends the Convention regime to the UN operations of “humanitarian, political and development assistance for peace-building” and “emergency humanitarian assistance” in order to bring to justice those responsible for the attacks against UN personnel). In recent years, there has been a tendency to define attacks on UN personnel engaging in peacekeeping or peace enforcement operations as “international crimes” (see § 60), as indicated by Article 8, para. 2 (iii), of the Statute of the International Criminal Court, established with an agreement adopted in Rome in 1998 (in force since July, 1, 2002) (see § 62). However, neither the Convention, nor the Statute of the International Criminal Court envisage a duty on the State to compensate either victims, or their relatives, or the United Nations, when an offense to a UN official or associated person has occurred. It is thus necessary to explore general international law appropriately to survey this matter. Following the attacks in Baghdad in 2003, the Secretary-General appointed on September 22, 2003 an independent Panel, chaired by Mr. Martti Ahtisaari, to investigate on causes

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and responsibilities. The Panel issued on October 20, 2003 the “Report of the Independent Panel on Safety and Security of UN Personnel in Iraq” (available at ). According to the report “the primary responsibility for the security and protection of UN national and international staff members rests with the host Government” and it “flows from the inherent function of government of maintaining law and order, as well as from the special responsibility enshrined in the Charter of the United Nations”. The report added that “under occupation, occupying forces carry definite responsibilities for the security of UN staff and premises located in the territories under their control, as derived from article 43 of the Hague Convention (IV) of 1907 [on the laws and customs of war on land, available at ] and [Security Council Resolutions] 1483, 1502 and 1511” of 2003. Moreover, “there may be instances where the security and protection factors will be uncertain. To deal with these situations, the bodies of the United Nations have put in place a system for planning and managing security issues which is aimed at ensuring that there is a coordinated approach for the protection of staff ”. The UN had asked the US the withdrawal of heavy military vehicles from the surrounding area, because of the concern that the population might perceive them as a connection between the UN and the occupants. It was also found that minimum security measures were not taken by the mission, the so called MOSS (Minimum Operating Security Standards), which could have reduced the vulnerability of UN offices, and that some members of the UN personnel were not adequately trained to operate in war zones. The report concluded that “a number of significant deficiencies that, besides exposing staff to great risks, contributed to the high level of casualties in the attack on 19 August”. The shortcomings of the mission have prompted the Secretary-General to appoint another Panel, which submitted a report on March 3, 2004, confirming the failures of the mission (available at ) and as a consequence of which the Secretary-General adopted disciplinary measures, including the request of resignation of the responsible officials. The Convention on the safety of UN personnel applies to “the members of military, police and civilian units of a UN operation”, to other officials and experts “on a mission” for the UN, to other agencies and to the associated personnel operating in various capacities for the UN, meaning by “UN operation” an “operation established by a competent organ of the United Nations in accordance with the Charter…and conducted under the authority and supervision of the United Nations” in order to maintain or restore peace and security and that the existence of an exceptional risk to the security of the personnel of the mission has been declared by the Security Council or the General Assembly (Article 1). This definition of the object of the Convention is matched by the explicit exclusion of operations “authorized by the Security council as coercive measures under Chapter VII of the Charter”. The exclusion is particularly significant because it would appear to make mention (or otherwise) of Chapter VII by the Security Council decisive in the application of the Convention and in suggesting that the operations “authorized” by the Council are not UN operations but remain operations of the intervening States (see §§ 56 and 61). The Optional Protocol of 2006—ratified by 18 States as of July 15, 2009, while Article VI requires 22 States for entry into force—is applied integrating the Convention between the States party to both as if it were “one instrument” for the purposes of interpretation (Article I) to those operations whose purpose is to provide “humanitarian, political and development assistance for peace-building or delivering emergency humanitarian assistance” (Article II, para.1), permanent offices of the United Nations established by an agreement with the UN excluded (Article II, para.2) except for the possibility of declaring the exclusion of the Protocol (by way of opting out)—to be addressed to the Secretary-General before the deploying the mission—in those operations whose sole purpose is to “respond to a natural disaster”

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(Article II, para. 3). The term peace-building was the subject of a lively debate both on its scope and on whether it should be defined by the Protocol (cf. UN Doc. A/60/52, nos. 16–38; A/C.6/60/L.4, pp. 7–11; and A/60/PV.61, pp. 3–11). The Convention imposes on the contracting States the obligation to take all appropriate measures to ensure the safety of UN personnel (Article 7, para. 2), in particular, by preventing and repressing (or alternatively by extraditing those responsible for) a series of specifically listed crimes (Article 9), and the obligation to release or return the UN personnel captured or detained (Article 8). The Optional Protocol provides that the obligations under Article 8 of the Convention does not undermine the right of the State on which the obligation is imposed to exercise its jurisdiction over the UN and associated personnel who violate its laws and regulations, as long as it does not contravene other international obligations upon that State (Article III). The Convention does not prejudice the norms of international humanitarian law and human rights, as well as the right to self-defense (Articles 20 and 21). The text of the Convention and of the Protocol is available at and . A more recent investigation was carried out by an independent Board of Inquiry appointed by the Secretary-General on the Israeli attacks against the UN premises in Gaza during the conflict that took place between December 23, 2008 and January 19, 2009. In a report delivered to the Secretary-General on April 21, 2009 and forwarded in a summarized version (to avoid the disclosure of evidence that could give rise to judicial proceedings) to the Security Council for discussion, pointing out inter alia that the report is an “internal document” and that the Board is not a “judicial body” nor does it examine “legal responsibilities”, the Board stated that Israel was both directly responsible, since it could not invoke military necessity or error as in interstate armed conflicts, and at fault for failing to adopt adequate protection measures (cf. and ) (see §§ 64 and 76). On January 22, 2010 it was announced that Israel has accepted to make an ex gratia payment of 10.5 million dollars for the losses sustained by the UN in Gaza (cf. ). For a further report on the Gaza conflict of 2008–2009 commissioned by the Human Rights Council (see § 76) from a fact-finding Commission headed by former judge of the South African Constitutional Court Judge and former Prosecutor with the Tribunals for crimes committed in the former Yugoslavia and Rwanda (see § 62), Richard Goldstone, and aiming to “investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after” a report published on September 29, 2009, see . The report was approved by the General Assembly with Res 64/10 of 05 November 2009. On January 22, 2010 it was announced that Israel has accepted to make an ex gratia payment of 10,5 million dollars for the losses sustained by the UN in Gaza (cf. ).

Moreover, neither the Convention nor the Statute of the International Criminal Court addresses the duty of a State to compensate the victim or his/her family, nor the United Nations, when an attack on security takes place. The discipline of this aspect of the matter must therefore be sought in general international law.

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Classic international law, and specifically the branch of international law that concerns the treatment of aliens, provides for diplomatic protection. The State whose citizen has suffered injury abroad, either to his person or to his property, has the right to act at international level (with protests, requests for arbitration, threat of reprisals or retaliation, and so on) against the State in whose territory the wrong occurred and for the purpose of obtaining compensation for damage. Does the United Nations have a similar right with regard to its officials? And on what conditions and within what limits? The question was the subject of well-known an International Court of Justice Advisory Opinion (in the case of Reparation for injuries suffered in the service of the United Nations, in ICJ Reports 1949, p. 174 ff.), handed down in 1949 at the request of the General Assembly and occasioned by the killing of several UN officials who were in the Middle East to negotiate and oversee the truce between Arabs and Israelis. The killing in Jerusalem on September 17, 1948 of Count Folke Bernadotte, sent by the UN as a mediator between Arabs and Jews, and of Colonel André P. Serot, a UN observer, gave rise to strong emotion at the time. The two crimes were committed by Jewish extremists and Israel, which had only recently become an independent State, was openly accused by the UN Secretary of not having taken suitable measures to prevent them.

To approach the subject of the protection of officials correctly and to evaluate the Court’s opinion fully, let us begin with the subject of the treatment of aliens. A general principle of international law imposes on States a duty to protect aliens. Under this principle, the State must make available suitable measures to prevent and to punish wrongful acts against the person or the property of an alien committed on its territory. The standard of suitability should be ­commensurate to what is usually made available for all individuals in a State “which normally sees to the need for order and security in the society under its control” (Quadri). Because of the difficulty in configuring the rights of the individual in international law, the duty of the territorial State to protect aliens formally exists with the State of which the alien is a national, even if, from the viewpoint of substance, its purpose is the protection of individual interests and property. The general duty to protect also covers the case of the alien who is an organ or official of his own State and who is abroad on an official mission. With regard to measures aimed at preventing injury to aliens who are State organs, especially injury to their person, the care taken by the territorial State must be greater than that taken for foreign private persons. If, for private persons, the State may limit itself to normal police oversight, for aliens who are organs it must adopt measures which are all the more intense the higher their rank and the more dangerous their mission. Indeed, the general principle of the protection of aliens requires the State to protect them with suitable measures. The

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suitability cannot but depend on the rank of the individual to be protected and the activity he is performing. Moreover, although already assured by the general principle of the protection of all aliens, the protection of an alien who is an organ or an official is also contemplated and made obligatory by an ad hoc principle of international law. The autonomy of such a norm (compared with one valid for foreigners in general) is shown by the fact that it, unlike the more general principle, does not protect individual interests and property but an interest that is solely of the State: by safeguarding the person of the official or of the organ, the function of the State is safeguarded. The specificity of such norm becomes evident in the infrequent case of aliens who are citizens of one State and organs of another. The territorial State’s obligation to protect in such a case exists, in international practice, both with respect to the national State and the State of which the alien is an organ. In the former case, it is to protect the citizen and, in the latter, to protect the State function. As far as the pathological aspects of the subject are concerned, a State that does not fulfill its obligation to protect any alien on its territory has an international obligation to pay compensation for damage. Such compensation, as already mentioned, may be the subject of international procedures by the State of which the injured individual is a citizen, namely, diplomatic protection. Although it is the national State which acts at international level, although compensation is due to it and only to it, and although it may also, for political reasons, decide not to take any action (and all this owing to the non-existence of individual rights at the international level), the fact that the general principle on the protection of aliens basically aims to protect individual interests still remains. It is well-known, in fact, that compensation concerns personal and property damage suffered by the victim and awarded on the assumption—an assumption usually verified—that it is intended, through the national State, for the victim himself or for persons entitled through him/her. Also when the victim is a foreign organ or official on a mission, diplomatic protection can be exercised by the national State on the basis of the above cited principle and in order to obtain compensation for damage for the victim or for his/her heirs. However, in such case the State may also complain that the autonomous rule set in place, as mentioned above, for the protection of the State function has been violated and therefore claim that it be compensated for the damage caused to such function, that is to say, the damage that it has suffered through the loss or the injury of its organ or official. While this second claim may usually appear to be covered by diplomatic protection, it clearly is seen to be, as already pointed out, fully autonomous in the case, albeit sporadic, of an alien who is the organ or official of a State different from the State of which he/she is a national.

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It is in the above framework that the problem of the protection of UN officials must be inserted. This problem therefore consists in asking whether the States in whose territory the officials are performing their function have obligations towards the United Nations that are identical or similar to those described above; whether towards the United Nations there exists a duty of protection of the function, and whether, next to this, there is also a duty of protection of the official as an individual; whether, as a result, the UN may act at the international level against the State that has failed to protect its official in order to compensate for the damage caused to the function, as well as—alongside the national State of the official—the damage caused to the victim himself/ herself or to persons entitled through him/her. A rather different framing of the problem is found in the above-mentioned 1949 Opinion of the International Court of Justice. This was because of the way the question put to the Court by the General Assembly was formulated. The Assembly (Res. 258-III of December 3, 1948) had formulated its question as follows: “In the event of an agent of the United Nations in the performance of his duty suffering injury in circumstances involving the responsibility of a State, has the United Nations as an Organization the capacity to bring an international claim against the responsible government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations; (b) to the victim or to persons entitled through him? In the event of an affirmative reply on point (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national?” (ICJ Reports 1949, p. 175; emphasis added). The Court stated at the outset that it took it for granted that the States, whether members or non-members of the United Nations, have a duty to protect UN officials. The existence of a duty to protect, it went on, is to be admitted since it implicitly results from the Assembly’s question, and specifically from the part of the question which speaks of “circumstances involving the responsibility of a State”. Therefore, to stay within the limits of the question— staying within such limits is actually a constant practice of the Court in its advisory function—, it is necessary only to see what occurs after the failure of the duty to protect and, in particular, whether the United Nations has the competence to bring an international claim (with protests, requests for submission to arbitral organs, to Committees of enquiry, and so on) for the reparation of damage caused either to itself or to the victim (ICJ Reports 1949, p. 177). With all due respect, the Court thus fell into a basic fallacy, whose consequences can be seen throughout the Opinion. The fallacy consists in wanting to resolve the doubts pertaining to the procedural phase of the protection of United Nations officials, especially the doubt whether the Organization may act only for reparation of damage caused to the function or also for damage caused to the victim, without first clarifying what is the “primary” discipline of the matter and particularly what is the content of the norms requiring the territorial State to protect the official on a mission. On the contrary, as we have seen with regard to the treatment of aliens, the possibility and the limits of an international legal action for reparation depend exactly on the way in which the matter is regulated at the level of “primary” discipline.

That being said, the first question to be addressed is whether States have a duty to protect UN officials operating within its territory, a question to which the

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Court gave the affirmative answer for granted. If the obligation stands, it will be necessary to investigate on the consequences of its violation and, in particular, on whether the ensuing obligation to reparation relates only to the damages to the function the victim performed on behalf of the organization or also for the damages caused to the official as an individual, i.e. regardless of whether he worked for the organization or not. As we shall see, the answer to the second question critically depends on the response to the first, in that it is only on the basis of norms applicable to the first question that a correct answer to the second can be found. As far as the first question is concerned, in our view, there undoubtedly exists an obligation of the territorial State to protect UN officials (and the same can be said for the officials of other international organizations) in order to protect the function. This obligation derives from general international law and specifically from the application by analogy to the United Nations (as to other international organizations) of the principle that the State that accepts on its territory a foreign organ or official on a mission has an obligation, towards the State that the official represents, to protect him/her. The rationale of the principle, which consists in protecting the State function, easily covers the hypothesis of the function exercised for an international Organization, i.e., a collectivity of States. Since it is a matter of the application of a rule of general international law, the duty to protect falls on both Member States and non-Member States, obviously on the assumption that they have agreed that a UN mission be present on their territory. With regard to Member States, confirmation of the existence of the obligation may be implicitly found in some Charter provisions, as well as in an analogy with the obligation to protect state officials. First of all, we should recall Article 2, para. 5, according to which “members shall give the United Nations every assistance in any action it takes in accordance with the present Charter…”. There is also Article 105, para. 2, in the part in which it provides that officials of the Organization shall enjoy such privileges and immunities as are “necessary for the independent exercise of their functions in connection with the Organization”. Since this last provision actually prescribes a privileged treatment of the official in protection of his function, it may be deemed implicitly to prescribe the more limited obligation to protect. If the Member States do have to grant immunity to United Nations officials, there is an even greater obligation to grant protection of a more general nature. Consequently, the United Nations may bring an international claim against a State that fails to protect an official adequately and request reparation for damage caused to his function, that is, damage that the Organization itself has suffered through the loss or injury of its agent.

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Also the Court’s opinion holds that the United Nations as subject of international law (a status that the Court recognized at a time when legal literature used to raise strong reservations about the personality of international organizations as distinct from the personality of Member States) may claim reparation for damage caused to the function against both Member States (ICJ Reports 1949, cit., p. 180 f.) and non-Member States (ibid., p. 184 f.). In this, the conclusions of the Court are no different from ours. However, the Court does not ask what the legal basis of the claim for reparation is, i.e. what are the international rules whose violation may be invoked by the United Nations. The Court does not ask this because, as already hinted, in a literal reading of the question it takes it for granted that the State’s obligation to protect UN agents does exist. It is obvious, according to the Court, that if a State violates an obligation owed towards the Organization, then this same State must compensate the damage caused. But the key problem was whether such a duty existed and, if so, to what extent.

It must be excluded that States have, towards the United Nations, an obligation to protect the official as an individual, i.e. irrespectively of the function carried out by the Organization. It is thus to be excluded that the United Nations may bring an international claim against a State which has not adequately protected an official, after he has been admitted to its territory, for reparation of damage caused to the official himself/herself. This negative conclusion has to be reached first (in particular with regard to non-Member States, which are thus not bound by the Charter) from the viewpoint of general international law. It is not possible, in fact, to extend the very general principle that is applied with regard to the treatment of aliens and that imposes on the territorial State an obligation to protect the individual. Such an obligation is imposed vis-à-vis the State with which there exists the closest link, that is, the nationality link, which by its very nature unquestionably justifies the national State in acting for the protection of individual interests. But it would be entirely inappropriate to set up an analogy between the relationship of citizenship and the State and the relationship of mere service that links the official to the United Nations. Still on the plane of general international law, it is doubtful that an autonomous customary rule, of similar content to the rule applying to States that illtreat other States’ citizens, has grown up specifically with regard to the United Nations, or to international organizations in general. There do not exist sufficient elements in practice to support such a view. On the other hand, the emergence of a rule of this kind would have to have been accompanied—and there is also no trace of this in practice—by the taking away from the rules on the treatment of aliens applying to States of the protection of all individuals who are UN officials, as well as of those who are officials of any international organization. Indeed, it would be unreasonable if international law imposed the same obligation towards both the national State and the Organization, with the final result of allowing both of them to defend the interests of the individual

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and to claim reparation of damage caused to him/her or to persons entitled through him/her (ne bis in idem). Neither, lastly, is there in the Charter a duty to protect similar to the one imposed by the rule on the protection of aliens, and can thus only be applied to Member States. If the already cited provisions of Article 2, para. 5, with regard to assistance to the United Nations, and Article 105, para. 2, on the privileges and immunities of officials, testify in favor of an obligation to protect the function, it would be arbitrary, in the absence of any textual or historical argument on the matter, to utilize them also for purposes of the protection of the official as an individual. The same can be said of Article 100 which prescribes the independence of officials “from any government or any other authority external to the Organization”, thereby imposing on Member States an obligation to respect such independence. This provision was invoked by the International Court of Justice in the above-mentioned Opinion in order to argue that the UN agent, in as much as he/she is removed from the “authority” of the State of which he/she is a citizen as far as the defense of his individual interests is concerned, would be implicitly entitled to compensation for individual damages. One could only infer from Article 100 that the national State has a duty to consult with the United Nations if it intends to undertake legal action in diplomatic protection and such action might compromise the independence of the official, a distinct and rather theoretical hypothesis indeed. The case ended with Israel paying compensation, after a claim by the United Nations of November 11, 1952 and December 9, 1952, respectively, amounting to $ 54,628 to the United Nations for damage to the function regarding Bernadotte and compensation of $ 25,233 for damage to the function regarding Sérot as well as 200,000 Francs to be paid to the father of the victim (cf. YILC, 1967, II, p. 218). By contrast, in its Opinion of 1949 the Court firmly held, in contrast to our conviction, that the United Nations may act in the protection of the individual, asking reparation for damage caused to the victim or his/her heirs, that is, from both Member States and non-Member States (ICJ Reports 1949, p. 181 ff. for Member States, p. 184 ff. for non-Member States). It is on this point (which has been criticized in legal literature) more than anywhere else that a certain superficiality of the Opinion appears. With regard to the Member States, the Court refers to Article 2, para. 5, and to Article 100 of the Charter but not in order to extract a rule imposing on Member States the obligation to protect the official as an individual. The duty to protect, unfortunately not better specified, is still taken for granted. From Article 2, para. 5, and Article 100, the Court infers only the United Nations’ power to act in the protection of an official as an implied power (see § 5) necessary for the effective functioning of the Organization. With regard to non-Member States, the Court limits itself even to stating that United Nations action in defense of an individual is to be allowed… once the responsibility of the territorial State has been admitted (by hypothesis!). According to the Court (ICJ Reports 1949, p. 185 f.), the UN action for individual damages would be concurrent with that of the national State. The United Nations and the national State would however have to find a solution with “goodwill and good sense”, taking

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into account that the State which failed in its obligation to protect would not be compelled to pay twice over, a rather unsatisfactory conclusion.

Section IV.  The Economic and Social Council and the Trusteeship Council 38.  Composition and functions of the Economic and Social Council select bibliography: Herman Finer, The United Nations Economic and Social Council (Boston: World Peace Foundation, 1946); W. Arthur Lewis, ‘The Economic and Social Council’, in B.A. Wortley (ed), The United Nations: The First Ten Years (Manchester: University Press, 1957) 34–46; R. Townley, ‘The Economic Organs of the United Nations’, in Evan Luard (ed), The Evolution of International Organizations (New York: Thames and Hudson, 1966) 246 ff; Walter R. Sharp, The United Nations Economic and Social Council (New York: Columbia University Press, 1969); Egon Schwelb, ‘The 1971 Amendment to Art. 61 of the UN Charter and the Arrangements Accompanying it’, 21 ICLQ (1972) 497– 529; Michel Virally, L’Organisation mondiale (Paris: Colin, 1972) 87 ff; Egon Schwelb, ‘Entry into Force of the Second Amendment to Article 61 of the UN Charter’, 68 AJ (1974) 300–05; Claude Rucz, Le Conseil Economique et Social de l’O.N.U. et la coopération pour le développement (Paris: Economica, 1983); Ahmed Ounaies, ‘La réforme du Conseil Economique et Social des Nations Unies’, 66 Dirāsāt Duwalīya (1998) 55–70; Denis Bauchard, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd edn), vol. 2, 1581 ff and 1681 ff; Giulio Bartolini, ‘Consiglio economico e sociale—Commissione dei diritti umani (60a sessione, marzo-aprile 2004). Le attività e le prospettive di riforma’, 60 CI (2005) 731– 54; Paul Wapner, ‘Civil Society’, in Thomas G. Weiss and Sam Daws (eds), The Oxford Handbook on the United Nations (Oxford: Oxford University Press, 2007) 254–63; Marta Garrich and Josep Xercavins, ‘Reforming the Economic and Security Council (ECOSOC)’, in UNBUTU Forum Secretariat (ed), Reforming International Institutions: Another World is Possible (London: Earthscan, 2009) 253–60; Peter-Tobias Stoll, ‘Article 55(a)(b)’, in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 2012, 3rd edn), vol. II, 1535–64; Jian-Michael Arend and Eibe H. Riedel, ‘Article 55 (c)’, ibid., 1565–1602; Tobias Stoll, ‘Article 56’, ibid., 1603–10; Werner Meng, ‘Articles 57–60’, ibid., 1611–65.

The Economic and Social Council (ECOSOC) is a subsidiary organ of the General Assembly vested with the task of promoting international co-operation in the social and economic field “under the authority of the General Assembly” (Article 60). It consists of 54 members of the United Nations who are elected for a three-year period (Article 61). They meet in regular session twice a year and in special session when the majority of its members so requires or in a series of other cases provided for in its Rules of Procedure (cf. Rules 1–4). The number of members of the Council was brought from 18 to 27 in 1965 (with the same resolution that increased the members of the Security Council from 11 to 15) and was then increased to 54 in 1971. The Assembly resolution which introduced the increase through an amendment to Article 61 (Res. 2847-XXVI of December 20, 1971) entered into force on September 24, 1973 following ratification by two-thirds of the Member States as provided for by Article 108 of the Charter (see § 8).

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Besides the part relative to the amendment, the 1971 resolution contains a part in which the Assembly “decides…that…the members of the Economic and Social Council shall be elected according to the following pattern: (a) fourteen members from African States; (b) eleven members from Asian States; (c) ten members from Latin American States; (d) thirteen members from Western European and other States; (e) six members from the Socialist States [today, former Socialist States] of Eastern Europe”. On the significance of this “decision”, which has not been ratified by the States, the remarks concerning the similar “decision” that in 1965 accompanied the increase in the number of Security Council members (see § 22) are applicable.

Each member of the Council has one vote. Resolutions are adopted by a majority of the members present and voting (Article 67). Article 60 of the Council’s Rules of Procedure interprets the expression “members present and voting” as including only members who vote in favor of or against a resolution. This interpretation, identical to the one given by Article 86 of the General Assembly’s Rules of Procedure seems correct for the same reasons applicable to the Assembly (see § 31). The Rules of Procedure (Article 41) provide also that, for decisions to be valid, the majority of members of the Council must be present. It is doubtful that this provision is consistent with the Charter, which is silent on the matter.

On the basis of Article 69 of the Charter, the “Economic and Social Council shall invite [convie in the French text] any member of the United Nations to participate, without vote, in its deliberations on any matter of particular concern to that Member”. Unlike Article 31, which is concerned with invitations made by the Security Council (see § 29), Article 69 is formulated in such a way as to leave no margin for the organ’s discretional power in deciding whether a subject is “of particular interest” for that State. Article 75 of the above-mentioned Rules of Procedure must therefore be considered contrary to the Charter, as it interprets the norms of Article 69 in the sense that the invitation should be addressed when the issue “in the judgment of the Council”, i.e. at its discretion, affects the State which is not a Member, thus making Article 69 work in practice with a content identical to that of Article 31 of the Charter with regard to invitations by the Security Council. Article 75 is to be censured also because it is hardly reconcilable with the lack of a power of UN bodies to provide authoritative interpretations of the Charter (see § 6). Unsurprisingly, the arbitrariness of Article 75 was deplored by some States within the Economic and Social Council itself at the time of the drafting of the Rules of Procedure (see UN Rep., vol. III, sub art. 69, no. 19–20).

Noteworthy is also Article 71 whereby the Council “may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence”. Under Article 71 41 non-governmental organizations (NGOs) were granted consultative status by the Economic and Social Council in 1946. The number has been steadily increasing ever since to more than 3,000 NGOs. Consultative status is today governed by ECOSOC Res. 1996/31 of July 25, 1996, which outlines the eligibility requirements, the rights and obligations of NGOs in consultative status,

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the procedures for the withdrawal or suspension of the status, the role and functions of the ECOSOC Committee on NGOs (an ad hoc organ made up of 19 Member States), and the responsibilities of the UN Secretariat. The status is granted by ECOSOC upon recommendation of the ECOSOC Committee on NGOs. Res. 1996/31 also allows sub-regional, regional, and national NGOs to be accredited, while previously only international NGOs could apply for consultative status. In 1975 the UN Non-Governmental Liaison Service (NGLS) was created by several agencies of the United Nations system to serve as a  bridge between the UN and NGOs (cf. ). More recently, the importance of strengthening ­relations between the UN and NGOs have been especially emphasized in General Assembly Res. 55/2 of September 8, 2000, adopting the “Millennium Declaration”(cf.), today replaced by Res. 70/1 of September 25, 2015, adopting the “2030 Agenda for Sustanaible Development”, and Res. 60/1 of September 16, 2005, containing in the World Summit Outcome Document (see § 8, paras. 172–174). On June 7, 2004 a Panel of experts set up by Secretary-General Kofi A. Annan issued the Report We the People’s: Civil Society, The United Nations and Global Governance (so-called “Cardoso Report”) which made a number of recommendations to strengthen UN-civil society interactions, which was followed by a report released on September 13, 2004 by the Secretary-General containing a set of proposals to bring greater coherence and consistency to UN-NGO relations (cf. ). The partnership with international NGOs is today strategic for the UN to present itself as a legitimate authority that is accountable to world opinion and ­concerned about the well-being of all humanity, thereby trying somehow to ­correct the shortcomings of its statist character. In turn, accredited NGOs enhance their reputation. The text of ECOSOC Res. 1996/31 of July 25, 1996 is available at . For the Committee on NonGovernmental Organizations see . A list of NGOs in consultative status with the Economic and Social Council is available at .

There are numerous subsidiary organs that have been set up by the Council over the years in accordance with Article 68 of the Charter (“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”). The most important of these organs are the functional Commissions (for statistics, population, social development, human rights, the conditions of women, drugs, crime ­prevention and

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criminal justice, science and technical assistance for development, ­sustainable development, etc.) and the regional economic Commissions (for Europe, Asia and the Far East, Latin America, and Africa), all consisting of representatives of governments. However, to these two types of commissions there have been added a myriad of intergovernmental Committees and Committees of experts, such as the Economic Committee, the Committees for coordination, for housing, for building and planning, for the application of science and technology for development, and for development planning, and so on. Under various aspects, the subsidiary organs of the General Assembly (see § 30) involved in the economic and social field are also linked up with the Council. Many of them (for example, UNICEF, UNCTAD, UNDP) must follow its directives. In turn, the Assembly, as the organ to whose “authority” the Council is subject, has the necessary power to give directives to the subsidiary organs of the Council as well as to the Council itself. In short, all the UN organs operating in the economic and social field, all organs today competent in the field of development, may be considered arranged in a hierarchy with the General Assembly at the top and immediately below it the Economic and Social Council. The impressive number of bodies concerned with development, their creation at different times, the similarity or the close affinity between their tasks and areas of competence have entailed that, despite the directing function assured by the Assembly and the Economic and Social Council, the whole machinery concerned with development has functioned in a chaotic way, with little coordination and a great waste of energy and resources. Beginning from the end of the 1970s the General Assembly has sought with a series of ­resolutions—deserving of special mention are Res. 32/197 of December 20, 1977 and, more recently, Res. 45/264 of May 13, 1991, Res. 46/219 of December 20, 1991 and Res. 46/235 of April 13, 1992—to put some order in the system, mainly to eliminate waste, overlapping among organs and fragmentary interventions. 39.  The Trusteeship Council select bibliography: Quincy Wright, Mandates under the League of Nations (Chicago: University of Chicago Press, 1930); Ramendra N. Chowdhuri, International Mandates and Trusteeship Systems: A Comparative Study (The Hague: Nijhoff, 1955); James N. Murray, The United Nations Trusteeship System (Urbana: The University of Illinois Press, 1957); Theodor Meron, ‘The Question of the Composition of the Trusteeship Council’, 36 BYB (1960) 250–278; Stephen S. Goodspeed, The Nature and Function of International Organization (New York: Oxford University Press, 1967, 2nd edn) 532 ff; Leland M. Goodrich and Edvard Hambro, Anne p. Simons (eds), Charter of the United Nations— Commentary and Documents (New York: Columbia University Press, 1969) 519 ff; Yehuda Z. Blum, ‘The Composition of the Trusteeship Council’, 63 AJ (1969) 747–768; Zoran

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Radivojević, ‘United Nations Reform and the Position of the Trusteeship Council’, 49 RIA (1988) 27–30; A.J.R. Groom, ‘The Trusteeship Council: A Successful Demise’, in Paul Taylor and A.J.R. Groom (eds) The United Nations at the Millennium: The Principal Organs (London: 2000) 142–176; Saira Mohamed, ‘From Keeping Peace to Building Peace: A Proposal for a Revitalized United Nations Trusteeship Council’, 105 CLR (2005) 809–840; Catherine Redgwell, ‘Reforming the United Nations Trusteeship Council’, in W. Bradnee Chambers and Jessica F. Green (eds), Reforming International Environmental Governance: From Institutional Limits to Innovative Reforms (Tokyo: United Nations University Press, 2005) 178–203; Tor Sellström, ‘The Trusteeship Council: Decolonisation and Liberation’, in Adekeye Adebajo (ed), From Global Apartheid to Global Village: Africa and the United Nations (Scottsville: University of KwaZulu-Natal Press, 2009) 107–137.

The Trusteeship Council is an organ whose importance is now diminished, with the disappearance of the institution of trusteeship (an institution similar to the former mandate system of the League of Nations and consisting of a colonial type of government of territories under the control of the United Nations) as a result of decolonization. The Council operates under the direction of the Assembly (Article 87), except when it performs its functions with regard to territories considered totally or partially as strategic areas. In this case, it is subordinate to the Security Council (Article 83). Under the Charter, its composition should vary. In fact, Article 86 states: “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 [the permanent members of the Security Council] 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”. However, in 1994, with the independence of Palau, the last remaining trust territory (belonging to the group of Marianne, Caroline and Marshall islands, all entrusted to the United States after the Second World War as strategic areas), the Trusteeship Council has ceased to be in operation. Due to the disappearance of the institution of trusteeship, the Council has no work to perform for the time being. For some proposals which aim at giving it new functions and for the more recent resolve to abolish it see § 82.

Section V.  The International Court of Justice 40.  Organization of the Court select bibliography: Michel Dubisson, La Cour Internationale de Justice (Paris: Librairie général de droit et de jurisprudence, 1964) 11 ff; Shabtai Rosenne, The Law and

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Practice of the International Court (Leiden: Sijthoff, 1965), vol. 1, 165 ff; Edward McWhinney, The World Court and the Contemporary International Law-Making Process (Alphen aan den Rijn: Sijthoff, 1979); Humphrey Waldock, ‘The International Court of Justice as Seen from Bar and Bench’, 54 BYB (1983) 1–5; Shabtai Rosenne, Procedure in the International Court: A Commentary on the 1978 Rules of the International Court of Justice (The Hague: Nijhoff, 1983); Geneviève Guyomar, Commentaire du règlement de la Cour Internationale de Justice adopté le 14 avril 1978. Interprétation et pratique (Paris: Pedone, 1983, 2nd edn); Edward McWhinney, The International Court of Justice and the Western Tradition of International Law (Dordrecht: Nijhoff, 1987); Edward Gordon, ‘Observations on the Independence and Impartiality of the Members of the International Court of Justice’, 2 ConJIL (1987) 397–426; Vincenzo Starace, Corte Internazionale di Giustizia, 11 EGT (1988) 1–19; Paolo Benvenuti, Corte internazionale di giustizia, 4 DDP (1989) 241–77; Shabtai Rosenne, The World Court. What it is and How it Works (Dordrecht: Nijhoff, 1989, 4th ed); André Oraison, ‘L’évolution de la composition de la Cour Internationale de Justice siégeant en séance plénière de 1945 à nos jours. Le déclin relatif de l’influence des juges occidentaux au sein de l‘“Organ judiciaire principal des Nations Unies”’, 77 RDISDP (1999) 61–91; Mohamed Sameh M. Amr, The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations (The Hague: Kluwer Law International, 2003); Andrew A. Jacovides, ‘U.N. Reform and the International Court of Justice’, 12 Ilsa JICL (2006) 547–53; Maria I. Papa, I rapporti tra la Corte internazionale di giustizia e il Consiglio di sicurezza (Padova: Cedam, 2006) 81 ff; Catherine Brölmann, ‘The International Court of Justice and International Organisations’, 9 ICLR (2007) 181–86; K.J. Keith, ‘The International Court of Justice: Primus Inter Partes?’ 5 IOLR, 2008, pp. 7–22; Willem-Jan van der Wolf and Donja de Ruiter (eds), The International Court of Justice: Facts and Documents About the History and Work of the Court (The Hague: International Courts Association, 2011); Andreas Zimmermann, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2012, 2nd edn.); Robert Kolb, The International Court of Justice (Oxford: Hart, 2013); Budislav Vukas, ‘The Composition of the International Court of Justice’, in Nerina Boschiero (ed), International Courts and the Development of International Law: Essays in Honour of Tullio Treves (The Hague: Asser Press, 2013) 213–18; Bardo Fassbender, ‘The Representation of the “Main Forms of Civilization” and of the “Principal Legal Systems of the World” in the International Court of Justice’, in Denis Alland (ed), Unité et diversité du droit international. Ecrits en l’honneur du professeur Pierre-Marie Dupuy (Leiden: Nijhoff, 2014) 581–97; Hugh W.A. Thirlway, ‘The International Court of Justice’, in Malcolm Evans (ed), International Law (Oxford: Oxford University Press, 2014, 4th edn) 589–617; Robert Kolb, The Elgar Companion to the International Court of Justice (Cheltenham: Elgar, 2014).

The International Court of Justice is considered by Article 92 of the Charter as the “principal judicial organ of the United Nations”, since it was basically intended to settle legal disputes between States. Its organization is governed by a Statute annexed to, and forming an integral part of, the Charter, as provided in Article 92. The fifteen members of the Court are elected in a personal capacity (they do not represent their own State, nor may they “exercise any political or administrative function or engage in any other occupation of a professional nature” under Article 16 of the Statute) and are chosen “among persons of high moral character, who possess the qualifications required in their respective countries

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for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law” (Article 2 of the Statute). Their term lasts nine years (five of the first judges served a term of nine years, five of six years and the other five of three years, in order to allow for partial renewal of the Court in the future), but they may be re-elected at the end of their term (Article 13 of the Statute). In the performance of their functions the judges enjoy diplomatic privileges and immunities (Article 19 of the Statute). The privileges and immunities of the judges were specified in an agreement between the Court and the Netherlands (the seat of the Court is at the Hague) on June 26, 1946, and the agreement was approved by the General Assembly with Res. 90–1 of December 11, 1946. The Assembly resolution, besides approving the agreement, contains a recommendation addressed to all members of the United Nations. It provides that, if a judge is residing in a country different from the one in which he usually resides, in order to be “at any time” at the Court’s disposal, he be given diplomatic immunities by the State of residence. It is also requested that diplomatic immunities be given by transit States, in case the judge has to travel for official reasons, and that all States recognize the passes issued by the Court to judges and to clerks and other employees of the Court. The immunities recommended by the Assembly, especially those requested from the State of residence, do not seem completely justifiable in the light of Article 19 of the Statute which limits diplomatic immunities to the period when functions are being performed by the Court. Worthy of noting is also that the recommendation speaks of “judges” rather than “members of the Court” (the expression used in Article 19). As is apparent from Assembly proceedings (cf. GAOR, 1st sess., 2nd part, 6th Comm., 22nd meet., p. 104 ff.) this was meant to refer not only to the 15 regular judges but also to the so-called ad hoc judges who, on the basis of Article 31 of the Statute, a State party to a case before the Court may appoint if none of the regular judges have the nationality of such State and there is a judge of the nationality of the other party. Under this aspect also, the Assembly recommendation seems more liberal than Article 19.

41.  Election of judges select bibliography: Clyde Eagleton, ‘Choice of Judges for the International Court of Justice’, 47 AJ (1953) 462–464; Aleksander W. Rudzinski, ‘Election Procedure in the United Nations’, 53 AJ (1959) 81–111.; Michel Dubisson, La Cour Internationale de Justice (Paris: Librairie général de droit et de jurisprudence, 1964) 31 ff; Sydney D. Bailey, The General Assembly of the United Nations, A Study of Procedure and Practice (New York: Frederick A. Praeger, 1961) 184 ff; Shabtai Rosenne, The Law and Practice of the International Court (Leiden: Sijthoff, 1965), vol. 1, 170 ff; Id., ‘Election of Members of the International Court of Justice: Late Nominations and Withdrawals of Candidacies’, 70 AJ (1976) 543–549; Id., ‘The Election of Five Members of the International Court of Justice’, ibid. (1982) 364–70; Edward McWhinney, ‘Law, Politics and “Regionalism” in the Nomination and Election of World Court Judges’, 13 SJIL (1986) 1–28; André Oraison, ‘L’évolution de la composition de la Cour Internationale de Justice siégeant en séance plénière de 1945 à nos jours’, 77 RDISDP (1999) 61–91; Chittharanjan F. Amerasinghe, ‘Judges of the International Court of Justice. Election and Qualifications’, 14 LJIL (2001) 335–48; David R. Robinson, ‘The Role of Politics in the Election and the Work of Judges of the International Court of Justice’, 97 ASIL Proceed. (2003) 277–82; Kenneth J. Keith, ‘International Court of Justice: Reflections on the Electoral Process’, 9 ChJIL (2010) 49–80.

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The election system is regulated by Articles 4–12 of the Statute of the Court. It is divided into the following phases. First, the Secretary-General draws up a list of candidates, who have been nominated by the so-called national groups in the Permanent Court of Arbitration (PCA) or, with regard to States that are not members of the 1907 Hague Convention which established this Court, from groups formed in a similar way (Articles 4–7). The national groups include experts in the field of international law appointed by their respective governments. In entrusting to them, rather than directly to the governments, the nomination of candidates for the office of judge of the International Court of Justice, the aim was to emphasize the irrelevance of political factors that should prevail on the subject. The list of candidates is then submitted to the General Assembly and to the Security Council which proceed “independently of one another” to elect the judges (Article 8). Although they do not have a joint session, the Assembly and the Council usually meet at the same time. The candidates who obtain the absolute majority of votes in both organs are considered elected, with Article 10, para, 2, specifying that in the Security Council the right of veto by the permanent members may not be exercised. “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” (Article 11). If the Assembly and the Security Council do not succeed, after three meetings, in covering all or part of the vacant seats, the task of electing the judges passes to a committee of six members, of whom three are appointed by the Assembly and three by the Council (Article 12, paras. 1 and 2). If the committee is not successful either, the judges who are already on the Court shall proceed by co-option, drawing upon the list of candidates drawn up by the Secretary-General (Article 12, para. 3). Various problems have been raised in practice with regard to the interpretation of the above rules. There was debate, for example, over the meaning of the term “meeting” adopted in Articles 11 and 12. During the first session, in February 1946, the General Assembly adopted the view that “meeting” meant “a vote” and that therefore after three unsuccessful votes, the appointment of the committee in Article 12 would become necessary. This interpretation seemed too restrictive to some delegates in the Assembly, particularly the delegate from El Salvador. He proposed, unsuccessfully, that meeting should mean the entire day, with the possibility, therefore, of more than one vote on the same day (for the debate, see GAOR, 1st sess., 1st part, Pl. meet., 24th meet., p. 344f.). The problem was eventually resolved by Article 151 of the Assembly’s Rules of Procedure and Article 61 of the Security Council’s Rules of Procedure, which have the same wording, and according to which

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“any meeting of the Assembly (or of the Council) held…for the purpose of the election of members of the Court shall continue until as many candidates as are required for all the seats to be filled have obtained in one or more ballots an absolute majority of votes”. The two articles thus codify an expedient which is often resorted to in the practice of collegial bodies. This consists in considering a session extended until it reaches the purpose for which it is being held. In this way, however, the possibility envisaged by Article 12 (the appointment of a committee after three unsuccessful meetings) narrows to the sole eventuality, which has never occurred, that, for three times, the lists of those elected respectively by the Assembly and the Council do not coincide. It has been also asked whether Article 10, para. 1, in providing that the Assembly and the Council vote by “absolute majority” means half plus one of those voting or half plus one of the members of the body. Although the text of the provision (“absolute majority of votes”), tends towards the former solution, it is rather ambiguous. By contrast, the second interpretation is clearly supported by the preparatory work, during which it was said that the adjective “absolute” was adopted (as it is adopted in American practice) to mean a majority of the members of the body (see U.N.C.I.O., vol. 17, p. 330). Practice has conformed to this solution (cf. UN Rep., vol. I, sub Article 18, no. 23). Lastly, as Article 10 speaks of absolute majority, the votes necessary in the Security Council are 8 out of 15 and not 9 out of 15 as prescribed in general by Article 27 of the Charter for Council decisions.

Chapter Three The Functions Section I.  General Limits to the United Nations Functions 42.  Limits ratione personae and ratione materiae Article 1 of the Charter, in listing the purposes of the United Nations and in thereby indicating the areas in which the Organization may act, adopts a very flexible and general formulation (see § 2). On the basis of Article 1, there is practically no subject, whether pertaining to the political sphere or to the economy or to social and cultural relations, and so forth, that cannot come within the competence of the United Nations. Owing to the indeterminacy of the UN’s purposes, those provisions of the Charter from which it is possible to extract some limits of general character to the Organization’s activity—thereby contributing, although only in a negative manner, towards better clarification of the sphere of the Organization’s ­competences—have special significance. A first limit is ratione personae. This can be found in the provisions which establish when the United Nations may be concerned with relations involving non-Member States. Since the United Nations has reached universality, this limit has no practical relevance. Then, there is a limit ratione materiae, the so-called limit of domestic jurisdiction, to which the Charter dedicates Article 2, para. 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…”. The provision of Article 2, para. 7, is a true key provision in the Charter system and, as such, has given rise to very animated discussion and disagreement within the United Nations. Although, as we shall see, the limit of domestic jurisdiction has undergone some important customary restrictions, it still plays a role in the UN system. 43.  The United Nations and non-Member States Select bibliography: Berthold Weinberg, Völkerbund und Nichtmitgliedsstaaten. Zugleich ein Beitrag zur allgemeinen Rechtslehre und den Strukturproblemen des Völkerrechts (Münster: Helios-Verl., 1932); Hans Kelsen, ‘Sanctions in International Law Under the Charter of the UN’, 31 IowaLR (1946) 499–543; Id., ‘Membership in the UN’, 46 CLR (1946) 391–411; Alfred Verdross, ‘Nazioni Unite e terzi Stati’, 2 CI (1947) 439 ff; Joseph L. Kunz,

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‘Revolutionary Creation of Norms in International Law’, 41 AJ (1947) 119–26; Hans Kelsen, The Law of the United Nations. A Critical Analysis of its Fundamental Problems (London: Stevens, 1950) 106 ff; Pierre Vellas, 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) (Paris: 1950); Constantin von Katzarov, ‘Die Stellung der Nichtmitglieder der Vereinten Nationen’, 3 AV (1951–52) 1–22; Shou-Sheng Hsueh, L’ONU et les Etats non Membres (Ambilly: Presses de Savoie, 1953); Ulrich Scheuner, Die Vereinten Nationen und die Stellung der Nichtmitglieder, in Hermann Mosler, Hans Ballreich and Carl Bilfinger (eds), Völkerrechtliche und staatsrechtliche Abhandlungen. Festschrift Bilfinger (Köln: Heymann, 1954) 371 ff; Josef Soder, Die Vereinten Nationen und die Nichtmitglieder. Zum Problem der Weltstaatenorganisation (Bonn: Röhrschied, 1956); Richard A. Falk, The Authority of the United Nations over NonMembers (Princeton: Center of International Studies, 1965); Rudolf L. Bindschedler, ‘Das Problem der Beteiligung der Schweiz an Sanktionen der Vereinten Nationen, besonders im Falle Rhodesiens’, 28 Bruns’Z, (1968) 1–15; Philippe Braud, ‘Recherches sur l’Etat tiers en droit international public’, 72 RGDIP (1968) 17–96; Giovanni Kojanec, ‘Lo Statuto delle Nazioni Unite e gli Stati non membri’, 23 CI (1968) 632 ff; Wolfang Martens, ‘Zur Frage der Bindung von Nichtmitgliedern an die Grundsatze der Vereinten Nationen’, Der Staat (1968) 431–45; Dedo von Schenck, ‘Das Problem der Beteiligung der Bundesrepublik Deutschland an Sanktionen der Vereinten Nationen, besonders im Falle Rhodesiens’, 29 Bruns’Z (1969) 269–315; Richard A. Falk, ‘The Authority of the United Nations to Control Non Members’, in Richard A. Falk (ed), The Status of Law in International Society (Princeton: Princeton University Press, 1970) 185–241; Jochen A. Frowein, ‘Die Vereinten Nationen und die Nichtmitglieder’, 25 EA (1970) 256–62; Philippe Cahier, ‘La Charte des Nations Unies et les Etats tiers’, in Antonio Cassese (ed), Current Problems of International Law. Essays on U.N. Law and on the Law of Armed Conflict, (Milano: Giuffrè, 1975) 81–105; Daniël Thürer, ‘UN Enforcement Measures and Neutrality: The Case of Switzerland’, 30 AV (1991) 69–85; Dietrich Schindler, ‘Kollektive Sicherheit der Vereinten Nationen und dauernde Neutralität der Schweiz’, 2 Schw.Z (1992) 435–479; Ahmed Mahiou, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed), vol. 1, 475–82; Stefan Talmon, Article 2(6), Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 1, 252–79.

The problem of the relations between the United Nations and non-Member States amounts to wondering when the United Nations may confer rights and/ or impose obligations on non-Member States (“may” from two points of view: “internally” insofar as the UN finds a legal justification for doing so in the Charter, and “externally” in the sense of being able to influence third party States in legal terms regardless of the Charter and its value for the Member States). The problem, which was strongly felt particularly in the early years of the post-war period, has lost its pratical importance as the Organization has become universal, although it remains central to those who defend the “constitutional” nature of the UN from a theoretical perspective (see § 4). Since Switzerland joined the United Nations in 2002, the only two States which are outside the Organization—the international status of which is disputed, the Holy See aside—are Taiwan and the Turkish Republic of Northern Cyprus (see

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§ 1 B). Nevertheless, the problem still deserves some observations. This is because it may well occur that a newly formed State goes through a period of time while waiting to be admitted and in the meantime there is the problem of its relations with the United Nations. Such event occurred, for instance, in the case of the Federal Republic of Yugoslavia (Serbia-Montenegro) which was admitted to the United Nations (see § 18) in November 2000, but ceased to have formal links with the former Yugoslavia in September 1992. The status of Kosovo is today uncertain, as it has not yet been admitted to the United Nations because of a possible veto by the Russian Federation, but it is part of other international organizations, particularly those associated with the World Bank and the International Monetary Fund (as these have a different voting system) (see § 81). The problem arises from the fact that several provisions of the Charter itself make reference to non-member States apparently granting or imposing their rights or obligations. Since the Charter is a treaty, one might think of a (very significant) departure from the principle in international law whereby treaties are not binding on third parties (pacta tertiis neque nocent nec iuvant) and it is thus necessary to examine whether the departure in question really occurs or not. The basic rule in this regard is Article 2, para. 6 of the, Charter. After listing, from paras. 1 to 5, the principles on which the Organization is based— requiring, in particular, that the Member States: fulfill in good faith the Charter obligations (para. 2); peacefully settle their disputes (Article 3); abstain from the threat or use of force (Article 4); assist the Organization in the actions it takes and refrain from assisting States against which the Organization is taking preventive or enforcement action (para. 5)—para. 6 of Article 2 of the Charter provides that “The Organization shall ensure that states that 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” (italics added). Among the other provisions of the Charter concerning non-member States, we recall Article 32, which obliges the Security Council to invite non-members to its discussions relating to cases in which they are involved (see § 29), and Article 35, para. 2, stating that non-member States may submit to the Council or the Assembly any dispute to which they are party, provided that they accept the obligation of pacific settlement provided for in the Charter (see § 50); then Article 50, whereby non-member States can bring the matter before the Security Council to try to resolve any economic difficulties arising from the Council’s peace-keeping activities. Also worthy of mention are the provisions of Articles 102 and 103. The former provides that agreements entered into by the Member States, and therefore also agreements concluded with non-­ Member States, cannot be invoked before UN organs if they are not registered

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with the Secretariat (see §§ 84–85); Article 103 envisages, as previously hinted (see § 4), the prevalence of the obligations “of the members of the United Nations under the present Charter” over their obligations “under any other international agreement”. As for Article 102, it should be noted that Article 1, no. 3, of the Regulations on the Implementation of Article 102 of the Charter, adopted by General Assembly Res. 97-I of December 14, 1946 (and amended by Resolutions 364 B-IV of December 1, 1949, 482-V of December 12, 1950 and 33/141 A of December 19, 1978) establishes that “registration may be made by any of the contracting parties”, meaning by this, as was specifically said in the Assembly when such regulations were drawn up, that also nonMember States may register a treaty (cf. UN Rep., sub Article 102, no. 43f.). Article 103, on the other hand, is a provision clearly intended for the Member States, but it too may involve third States in the sense that the latter certainly could not invoke before the UN organs agreements entered into with Member States that were in conflict with the Charter provisions. Article 2, para. 6, is inspired by Article 17 of the Covenant of the League of Nations, according to which in case of a dispute between a Member State and a third State, or between third States, the State or third States were to be invited to accept the obligations of the Covenant upon such conditions as the Council may deem just, the latter was to immediately institute an inquiry into the circumstances of the dispute and recommend such action as may seem best and most effectual in the circumstances; in case of refusal to accept the obligations of the Covenant and of resort to war against a Member State, the provisions of Article 16 were to be applicable, providing for sanctions against the third State, while the Council could take measures and make recommendations in order to prevent hostilities and settle the dispute. Article 17 indeed lent itself to the most varied interpretations (cf. Amor Bavaj, L’interpretazione dell’art. 17 del Patto della Società delle Nazioni (Tolentino: Filelfo, 1931) and differs in many respects, starting from the requirement of acceptance of treaty obligations, from Article 2, para. 6, of the UN Charter. In the 1923 Opinion on the Statute of East Karelia the Permanent Court of International Justice ruled out that Article 17 may apply to a third State, in this case the Soviet Union (cf. PCIJ Reports 1923, Series B, no. 5, p. 27f.). As far as we know, the fact that the provisions of Articles 32, 35, para. 2, 50, 102 and 103 concern non-Member States has never given rise to questions in the practice of the Organization.

That said, the problem of the meaning to attribute to the provisions of the Charter addressing non-member States must be resolved in the understanding that they do not imply any derogation from the principle of the ineffectiveness of the Treaties with regard to third parties. These provisions are in fact confined to setting out to the Organizaion the basic internal rules for adopting measures against third party States, without granting them rights or imposing obligations on such States. The legal position of third party States is governed by general international law, whatever the Charter states. When the Charter states that non-member states “may” do something, it is not granting them a right, but it is only stipulating that the organization, in relation to the powers

The United Nations and non-Member States   161

that the Member States have given them, and within which they must act (see § 97) is enabled (or obliged as the case may be) to take into account the nonmembers. The provisions in question concern in fact relations between the Member States and the Organization, especially the scope within which the Member States want the Organization to act vis-à-vis third party States. When the Organization acts in accordance with the provisions, it acts intra vires, i.e. within its powers, but if it were to go further, it would act ultra vires vis-à-vis the Member States. Thus one of the reasons underlying the constitutional theory of the Charter of the United Nations which we have already discussed is untenable (see § 4). Having thus solved the problem, we now need to discuss, for the sake of completeness, an argument put forward by some scholars, but that has remained isolated, i.e. that Article 2, para. 6, appears to foreordain the exercise of General Assembly and Council powers relating to the maintenance of peace an security in order to make non-member States accept the principles set out in Article 2, paras. 2–5, upon the Member States (Kelsen). If the Organization uses it organs to ensure that third party States honor the principles enshrined in Articles 2, it follows, according to this thesis, that “make” is none other than a formula for the adoption of sanctions in the event of non-compliance with the actual obligations imposed upon third party States. In other words, according to this view, if Article 2, para. 6, envisages the imposition of sanctions, then it may be inferred that it indirectly imposes on third party States the obligations for which sanctions are envisaged in the event of non-compliance. It should be noted that as Kelsen himself says, because it imposes obligations on third party States in departure from the pacta tertiis neque nocent nec iuvant principle, Article 2, par. 6, is a “revolutionary” rule. In our opinion, in light of the above, also Article 2, para. 6, is a provision concerning the Organization and not the non-member States, setting out what the Organization may do, in terms of the powers conferred upon it by the Member States, regarding third party States, whose legal status remains governed by general international law (including the principle of the ineffectiveness of treaties, and the Charter in particular, in respect of third parties). But perhaps it would not be inappropriate to adopt Kelsen’s stance for a moment in order to realize that his idea (at the time put forward as purely theoretical) no longer holds today in the light of the practice regarding Article 2, para. 6, which otherwise confirms our position regarding the ineffectiveness of the Charter in relation to non-members. We shall see that the obligations set out in paras. 2 to 5 of the Charter extend to non-members States only if they have become part of general international law (paras. 3 and 4 of Article 2), and not only as an effect of of the Charter itself as Kelsen believed, whereas they do not extend to third party States when they are purely instrumental to other obligations (such as the requirement of good

162  The Functions

faith referred to in para. 2 of Article 2) or when in practice non-member States have refused to consider themselves bound by them (such as the obligation to assist the Organization under para. 5 of Article 2). From Kelsen’s perspective, starting from the idea of sanctions enshrined in Article 2, para. 6, to deduce the actual obligations of non-member States, the first question is what pressure can the United Nations use on a third party State to achieve the purpose set out in Article 2, para. 6? In the abstract, two answers are possible: (a) any means to achieve the purpose, regardless of whether they are specifically covered by the Charter; (b) only the general means envisaged by the Charter. It would appear that, as Article 2, para. 6, is silent on the matter, reference should be made to specific norms of the Charter with respect to the powers of the organs, especially the General Assembly and the Security Council on matters regarding the maintenance of peace and security. Otherwise, Article  2, para. 6, would ascribe totally undefined further powers to the Organization. What means envisaged by the Charter may thus be taken against non-­ member States to “ensure” that they follow the basic principles of Article 2, paras. 2–5? Article 2, para. 6, must be linked, first of all, to the use of those kinds of pressure that are exhortatory and do not involve coercion. Both the General Assembly and the Council have the power to make recommendations to the States, that is, resolutions that do not bind the States (see § 91). Worthy of mention from this point of view are the provisions of Article 11, para. 2 (“The General Assembly may discuss any questions relating to the maintenance of international peace and security…and…may make recommendations with regard to any such questions to the State or States concerned”) and the various provisions of Chapter VI, particularly Article 33, para. 2, Article 36, and Article 37, para. 2, which give the Security Council the power to recommend settlement of disputes likely to endanger the peace. All the provisions cited, in indicating the addressees of the recommendations with expressions such as “States concerned” or “parties to a dispute” and thereby avoiding, unlike a number of other provisions, reference to only the Member States, clearly intend to apply also to third States. In other words, the Organization “may” certainly adopt recommendations addressed to non-member States, but this is because it is the Member States that have conferred upon it the power to induce—even through only exhortatory acts—non-member States to uphold the principles set out in Article 2, paras. 2–5. By adopting them, the Organization therefore does no more than act intra vires with regard to relations between the Organization and third party States. In any case, by definition recommendations impose no obligations on non-member States, nor do they necessarily imply a breach of any obligation on their part (including those referred to in paras. 2–5 of Article 2).

The United Nations and non-Member States   163 We are not wholly convinced by the objection that while the norms mentioned here a­ ttribute powers or faculties to the General Assembly and the Security Council (Article 11, para. 2: “The Assembly may make recommendations…”; Article 36: “The Security Council…may recommend…”, and so on) Article 2, para. 6, seems to transform such powers or faculties into obligations (“The Organization shall ensure…”). In fact, whatever the meaning of Article 2, para. 6, the fact remains that positive obligations, i.e. obligations upon the organs to do, are inconceivable in the light of the current structure of the United Nations, as there exist no remedies against the inertia of the organs themselves (on this point, see § 13).

Article 2, para. 6, must then be connected to Chapter VII of the Charter, specifically with regard to Articles 39, 4 l, and 42 which authorize the Security Council, for purposes of maintenance of the peace, to take enforcement measures against States. Under the procedures governed by these articles, the Council shall “determine the existence of any threat to the peace, breach of the peace, or act of aggression” (Article 39). Then, it may order the so-called measures not involving the use of armed force, such as interruption of economic relations by the UN Member States with the country responsible for the threat or aggression (Article 41), or undertake military action, if it believes that the measures not involving the use of armed force are or have proved to be inadequate (Article 42). Also the provisions of Articles 39, 41 and 42 are formulated in such a way as to be interpreted in the sense that any country, member or non-member, may be the object of enforcement measures. It follows that the Organiation “may” adopt enforcement measures against non-member States, but, again, this is because the Member States have granted it this power in order to induce non-menber States to abide by the principles of Article 2, paras. 2–5. Here too, then, by adopting them, the Organization is doing no more than acting intra vires as regards the relations between the Organization and third party States. It is true that, while not necessarily implying (like recommendations) a breach of an obligation by a non-member State (including those referred to in paras. 2–5 of Article 2), enforcement measures can in fact, unlike recommendations, impose obligations (in particular the measures in Article 41). But this does not change the fact that any obligations imposed formally concern only Member States and their relationship with the Organization, as is clearly reflected in practice. Quite different of course is the pressure that they can actually exert over a non-member State. When the Security Council has adopted measures under Article 41 addressed “to all States”, thus also to non-member States, which is routine, non-member states have pointed out that they are not bound by Security Council measures and that they would implement them as appropriate based on their own evaluation, free from any external constraint. This fact, coming from non-members, is certainly more significant than the Council’s willingness to also oblige nonmember States for the simple reason that these have successfully, and without particular contestation, refused to “obey” the Council. This shows that when

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the Council imposes Article 41 on “all States”, it is actually adopting decisions binding on the Member States and recommendations for the non-member States. It is also important to note that in any case, whatever the measure adopted (recommendation, decision, authorization, etc.), binding or not, this does not necessarily entail, as Kelsen argued, the violation of an (existing) requirement. All the acts that the Council may adopt in terms of the Charter may be adopted with reference to the Member States themselves—even when there is no breach of an obligation but merely on the basis of a threat, in the Council’s view, to international peace and security. In practice, non-member States (or their supporters in the UN) have very rarely contested the extraneous nature of the Organization, when measures such as those provided for under Section VII by the Council or the Assembly have been applied to them. They have almost always preferred to resort to other objections, such as non-compliance with procedural rules by the two organs, the violation of the principle of domestic jurisdiction under Article 2, para. 7, the lack of jurisdiction to act on the part of the Assembly under Chapter VII, etc. To cite an example, also in the case of the Federal Republic of Yugoslavia (Serbia-Montenegro), which from 1992 to 2000 was not considered to be a member of the UN and against which the Security Council invoked Article 41 of the Charter (see § 59), no objection was raised based on the extraneous nature of the Organization. For less recent practice, we may recall that, when between April and June 1946, the Security Council, at the request of Poland (a request expressly based on Article 2, para. 6), was discussing whether or not to resort to the measures in Chapter VII against Franco’s government in Spain, at the time a non-member, the objections which were raised by some States and which eventually prevented the Council from taking action, were all based on Article 2, para. 7. They were based on the fact that the Fascist nature of the government was a purely domestic situation and as such unlikely to threaten international peace and security (cf. SCOR, 1st year, 34th meet. and 44th–49th meets.). Also in the discussions that took place over the UN actions against North Korea (Democratic People’s Republic of Korea, DPRK) and China (People’s Republic of China, PRC), in 1950–1951, there is no trace, not even in the statements by the representatives of the PRC who were sometimes allowed to participate in the proceedings, of objections based on the non-membership of the two States in the Organization. In this case, the Security Council adopted two resolutions, respectively, no. 83 of June 27, 1950 and no. 84 of July 7, 1950, which accused North Korea of aggression and recommended that the Member States intervene with military means in the defence of South Korea (Republic of Korea, ROK). The Soviet Union sternly challenged the two resolutions, mainly for the reason that the Security Council had decided in its absence. It challenged also the participation of the representative of ROK, which, in its opinion, constituted a violation of Article 27, para. 3, of the Charter (see § 25). As for the Assembly, it recommended an embargo on all war material directed towards China and North Korea (Res. 500-V of May 18, 1951), which gave rise to objections by the Communist bloc States based only on the lack of competence of this organ to take measures under Article 41 (cf. GAOR, 5th sess., Pl. meet., 330th meet., n. 37 ff., 64 ff., 85 ff., and 101 ff.). Also Security Council Res. 221 of April 9, 1966 and Res. 232 of December 16, 1966 can be cited. The two resolutions were adopted under Chapter VII against Southern Rhodesia and objected to in the same year by South Africa and Portugal, although solely regarding alleged violations of procedural rules (cf. Doc. S/7271 and S/7392). In those cases where the Security Council adopted binding decisions under Article 41— that is, where it has imposed, as allowed by Article 41 (see § 59), economic measures or

The United Nations and non-Member States   165 measures not involving the use of armed force against a specific State—it has always ­explicitly stated that the obligation binds “all States”, sometimes specifying that it was addressing also “non-member States”: cf., for example, Resolutions 232 of December 16, 1966 (paras. 2 and 7) and 409 of March 27, 1977 (paras. 1 and 2) against Southern Rhodesia; Res. 418 of November 4, 1977 against South Africa (paras. 2 and 5); Resolutions 661 of August 6, 1990 (paras. 3 and 5), 670 of September 25, 1990 (para. 3) and 687 of April 3, 1991 (para. 24) against Iraq; Resolutions 713 of September 25, 1991 (para. 6), 757 of May 30, 1992 (paras. 4 and 11), 1160 of March 31, 1998 (paras. 8 and 10) and 1199 of September 23, 1998 (para. 7) against the Federal Republic of Yugoslavia (Serbia-Mon­ tenegro); Res. 733 of January 23, 1992 against Somalia (para. 5); Resolutions 748 of March 31, 1992 (para. 4) and 883 of November 11, 1993 (paras. 3 and 12) against Libya; Resolutions 788 of November 19, 1992 (para. 8), 1343 of March 7, 2001 (para. 6 b) and 1532 of March 12, 2004 (para. 1) against Lyberia; Resolutions 841 of June 16, 1993 (para. 5) and 917 of May 6, 1994 (paras. 2 and 12) against Haiti; Resolutions 864 of September 15, 1993 (para. 19 ff.), 1127 B of August 28, 1997 (para. 4) and 1173 of June 12, 1998 (paras. 11 and 12) against Angola; Resolutions 918 of May 17, 1994 (paras. 13 and 15) and 1054 of April 26, 1996 (paras. 3 and 5) against Rwanda; Res. 1672 of April 25, 2006 against Sudan (para. 1); Resolutions 1132 of October 8, 1997 (paras. 5, 6 and 11), 1171 of June 5, 1998 (para. 2) and 1306 of July 5, 2000 (para. 1 a) against Sierra Leone; Res. 1298 of May 17, 2000 against Ethiopia and Eritrea (paras. 6 and 9); Resolutions 1493 of July 28, 2003 (paras. 20 and 21) and 1596 of April 18, 2005 (paras. 13, 14 and 15) against the Democratic Republic of Congo; Resolutions 1636 of October 31, 2005 (para. 3) and 1701 of August 11, 2006 (para. 15) against Lebanon; Res. 1737 of December 23, 2006 against Iran (para. 3); and Res. 1874 of June 12, 2009 against North Korea (paras. 11 and 13); and Res. 1973 of March 17, 2011 against Libya (paras 17–19, 21, 27). The resolutions against international terrorism are formulated in similar terms: cf. Resolutions 1267 of October 15, 1999 (paras. 3–5), 1333 of December 19, 2000 (paras. 4–5), 1373 of September 28, 2001 (paras. 1–3) and 1390 of January 28, 2002 (para. 2). For an example of a resolution addressed only to Member States, see Resolution 1907 of December 23, 2009 against Eritrea (paras. 5–10, 12–13 and 16). It is noteworthy that the position of the non-Member State to which the sanctions in art. 41 are addressed is totally different from the position of the non-Member State when it is called (at least according to Kelsen) to enforce the obligation in Article 2, para. 5, to assist the Organization in imposing sanctions under Article 41 on the States to which it is addressed (members or non-members alike). We do not believe that the first has any obligation under Article 2, para. 6, to respect the principles of the Charter (whose violation would justify, in Kelsen’s view, sanctions under Article 41) let alone any obligation prescribed by art. 41 itself to “undergo” sanctions, even if it undergoes them in practice (and perhaps it might be considered that undergoing them corresponds to an “effect of lawfulness” envisaged by general international law in such a way as to remove the possible unlawfulness of the sanctions against it), nor that the latter has an obligation to assist the UN when the organization adopts sanctions arising from Article 2, para. 5. It may be added that the enforcement measures that the Council may adopt against a State under Chapter VII of the Charter, including those not involving the use of force, envisaged in the event of threats to peace or acts of aggression, presuppose situations of international and domestic armed conflict, or related situations. When adopted against non-members, they appear as measures taken by a coalition of States—or perhaps by all the States making up the international community and that have entrusted the Security Council, as Article 24, para. 1, of the Charter says, with “primary responsibility for the maintenance of international peace and security”—against another. Coalitions of this kind have always existed and have given rise to actions and reactions that, coming within the pathological aspects of the life of the relationship between States, elude precise assessment

166  The Functions in international law and even more so under the principle of the ineffectiveness of treaties with regard to third parties. From this perspective, it must indeed be said that the aforementioned provisions of Chapter VII, far from creating constraints on non-member States, constitute provisions… in their favour: this is because, unlike what happened in typical war situations, the Security Council is bound to comply with the statutory norms, and particularly procedural ones.

Moreover, as we said above, the thesis that there are obligations on non-­ member States arising from Article 2, para. 6, is today being reassessed, if not directly contradicted in the practice. The obligations set out in paragraphs 2 to 5 of Article 2 that ought to apply also to non-member States are in reality either imposed on them because they have become part of general international law (paras. 3–4), or are not imposed on them as they are autonomous obligations (para 2), or are not imposed on them for the simple reason that it is thus established in the practice (para. 5). Paragraph 2, in fact, establishes a good faith obligation which relates to the manner in which other obligations must be fulfilled. Paragraphs 3 and 4 ultimately prohibit the threat or use of force, a now well-acknowledged principle, particularly by the International Court of Justice in the Nicaragua Judgment (ICJ Reports 1986, para. 187 ff.) as established by general international law and therefore binding for all States regardless of whether or not they are members of the United Nations. Ultimately, the only paragraph of particular relevance is para. 5 of Article 2, which sets out a (positive) duty to assist the Organization in any action it takes and (negatively) to refrain from giving assistance to any State against which such preventive or enforcement actions are taken. Article 2, para. 5, raises the question of whether third States are under this obligation when the Organization takes measures not involving the use of force against a State under Article 41 of the Charter, whether it is a member or not. As it has been pointed out (Thürer, op. cit., p. 75) these views do not seem convincing and are not confirmed by the practice, the latter revolved only around Switzerland before becoming a member of the United Nations in 2002. Switzerland, in fact, has nearly always co-operated with the Council with regard to measures not involving the use of armed force, but sometimes it has not done so fully. For example, it did not do so in the case of the economic sanctions against Southern Rhodesia, imposed by Res. 232 of December 16, 1966. In a note of February 13, 1967, addressed to the Secretary-General, the Swiss government stated that it “cannot submit to the mandatory sanctions of the United Nations” and offered only to control imports from Rhodesia so that its territory would not be a place of transit for goods directed to other countries (see SCOR, 22nd Supp. for Jan., Feb., Mar., 1967, p. 117). In later cases, when Switzerland did apply UN sanctions, it seems that this was the result of free choice rather than the fulfilment of a true legal obligation: cf., for example,

The domestic jurisdiction clause (Article 2, para. 7)   167

the note verbal of November 8, 1990 to the Secretary-General (in Doc. S/AC.25/1990/33) which stated that Switzerland would “independently” apply the air embargo measures against Iraq, provided for by Res. 670 of 1990. Our thesis is supported by the International Court of Justice Advisory Opinion of June 21, 1971, on Namibia, where it denies that non-member States are, under the Charter, obliged by the Security Council decisions. The Court obviously safeguards the possibility that the Council may demand compliance with (general) international law which are valid for all States, irrespective of the Charter. Cf. ICJ Reports 1971, p. 56, para. 126. For the questions dealt with in the Opinion, see §§ 59 and 83.

44.  The domestic jurisdiction clause (Article 2, para. 7) select bibliography: Aart Van Deth, Etude sur l’interprétation du paragraphe 8 de l’article 15 du pacte de la Société des Nations (Amsterdam: Université Libre d’Amsterdam, 1928); Fritz Ullmann, Ausschließliche Zuständigkeit der Staaten nach Völkerrecht (BonnKöln-Berlin: Röhrscheid, 1933); Lawrence Preuss, ‘Article 2, Paragraph 7 of the Charter of the United Nations and Matters of Domestic Jurisdiction’, 74 RC (1949-I) 533–651; Helen Hart Jones, ‘Domestic Jurisdiction. From the Covenant to the Charter’, 46 IllLR (1951) 219–72; Antonio Ruini, ‘La competenza interna nel sistema dell’ONU’, ADI (1952) 13 ff; Mannaraswamighala Sreeranga Rajan, United Nations and Domestic Jurisdiction (London: Asia Publishing House, 1961, 2nd ed); Rudolf L. Bindschedler, ‘La délimitation des compétences des Nations Unies’, 108 RC (1963-I) 307–423; Alf Ross, ‘La notion de “compétence nationale” dans la pratique des Nations Unies’, in Mélanges offerts à Henry Rolin (Paris: Pedone, 1964) 284–99; Leo Gross, ‘Domestic Jurisdiction, Enforcement Measures, and the Congo’, 1 Austr. Y (1965) 137–57; Alfred Verdross, ‘La “compétence nationale” dans le cadre de l’Organisation des Nations Unies et l’indépendance des Etats’, 36 RGDIP (1965) 314–25; Id., ‘Les affaires qui relèvent essentiellement de la compétence nationale d’un Etat d’après la Charte des Nations Unies’, in Essays in Honour of Vallindas (Salonicco, 1966) 45–55; George Alfred Mudge, ‘Domestic Policies and UN Activities; the Cases of Rhodesia and the Republic of South Africa’, 21 Int. Org. (1967) 55–78; Felix Ermacora, ‘Human Rights and Domestic Jurisdiction (Article 2, § 7 of the Charter)’, 124 RC (1968-II) 376–451; Alfred Verdross, ‘The Plea of Domestic Jurisdiction Before an International Tribunal and a Political Organ of the United Nations’, 28 Bruns’Z (1968) 33–40; Giuseppe Sperduti, Il dominio riservato (Milano: Giuffrè, 1970); Id., ‘Competenza nazionale e competenza internazionale nel sistema delle Nazioni Unite’, 25 CI (1970) 494–507; Nicholas Greenwood Onuf, ‘The Principle of Nonintervention, the UN and the International System’, 25 Int. Org. (1971) 209–27; N.A. Ouchakov, ‘La compétence interne des Etats et la non-intervention dans le droit contemporain’, 141 RC (1974-I) 1–86; Inis L. Claude Jr., ‘Domestic Jurisdiction and Colonialism’, in Martin Kilson (ed), New States in the Modern World (Cambridge Mass.: Harvard University Press, 1975) 121–35; Benedetto Conforti, ‘La nozione di domestic jurisdiction nelle riserve all’accettazione della competenza della Corte Internazionale di Giustizia’, 14 CS (1975), 215–34; A.A. Cançado Trindade, ‘The Domestic Jurisdiction of States in the Practice of the UN and Regional Organizations’, 25 ICLQ (1976) 715–765; J.S. Watson, ‘Autointerpretation, Competence and the Continuing Validity of Article 2(7) of the UN Charter’, 71 AJ (1977) 60–83; Louis Henkin, ‘Human Rights and Domes­ tic  Jurisdiction’, in Thomas Buergenthal (ed), Human Rights, International Law and the Helsinki Accord (Montclair, NJ: Allanheld, 1979) 371 ss; Detlev C. Dicke, Die Intervention mit wirtschaftlichen Mitteln im Völkerrecht. Zugleich ein Beitrag zu den Fragen der

168  The Functions wirtschaftlichen Souveränität (Baden-Baden: Nomos Verlagsges, 1978); Goronwy J. Jones, The United Nations and the Domestic Jurisdiction of States. Interpretations and Applications of the Non-Intervention Principle (Cardiff: University of Wales Press, 1979); Rudolf Bernhardt, ‘Domestic Jurisdiction of States and International Human Rights Organs’, 7 HRLJ (1986) 205–16; Anthony D’Amato, ‘Domestic Jurisdiction’, 10 EPIL (1987), 132 ff; Delaney Trevor A., ‘Article 2(7) of the UN Charter: Hindrance to the Self-Determination of Western Sahara and Eritrea?’ 4 EILR (1990) 413–54; Gaetano Arangio-Ruiz, ‘Le domaine réservé. L’organisation internationale et le rapport entre droit international et droit interne’, 225 RC (1990-VI) 9–484; Sidney D. Bailey, ‘Intervention: Article 2(7) versus Articles 55–56’, 12 IR (1994) 1–10; T.D. 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’, 26 NYIL (1995) 33–138; Abdulrahim P. Vijapur, ‘No Distant Millennium: The UN Human Rights Instruments and the Problem of Domestic Jurisdiction’, in M.S. Rajan (ed), United Nations at Fifty Beyond (New Delhi: Lancer Books, 1996) 103–23; Gilbert Guillaume, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed) vol. 1, 485–507; Kawser Ahmed, ‘The Domestic Jurisdiction Clause in the United Nations Charter: A Historical View’, 10 SYIL (2006) 175–97; Robert Kolb, ‘Du domaine réservé. Réflexions sur la théorie de la compétence nationale’, 110 RGDIP (2006) 597–630; Eric De Brabandere, ‘UN Supervision of Post-Conflict Reconstruction and the Domestic Jurisdiction of States’, 59 Ars aequi (2009) 103–08; Abdulrahim P. Vijapur, ‘The Question of Domestic Jurisdiction and the Evolution of United Nations Law of Human Rights’, 47 IS (2010) 247–65; Nicholas Tsagourias, ‘Security Council Legislation, Article 2(7) of the UN Charter, and the Principle of Subsidiarity’, 24 LJIL (2011) 539–59; George Nolte, Article 2(7), in Bruno Simma, DanielErasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. I, 280–311.

“Nothing contained in the present Charter…”, states Article 2, para. 7, “… shall authorise 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”. The limit of domestic jurisdiction (in French, domaine réservé) is the only general ratione materiae limit on the activity of the Organization. It is our view that this issue now merits more detailed discussion, also taking into account the role that the United Nations are now playing in global governance, a role that leads the Organization to have increasing effects on the freedom of action of Member States also within their own communities. No doubt, then, the norm, which has undergone extensive (informal) evolution over time, now has a reduced scope, but is not completely obsolete. The meaning to be attributed to the term domestic jurisdiction has been much discussed in practice, and much has been written about it in legal doctrine. Various positions have been taken on its precise sphere of application. They range from the more conservative views—fiercely defended by the Socialist States—which tend to widen such sphere, in order to reduce the scope  of the Organization, to the more progressive ones more favorable to

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international co-operation in different areas of the domestic life of States. The latter hold that such limit has nearly been eliminated in practice, since there is almost no matter that lies outside the Organization’s authority. It should be noted that Article 2, para. 7, deals exclusively with the non-interference of the  Organization in matters falling within domestic jurisdiction and not, as sometimes suggested, with non-interference of States in the internal affairs of other States. Article 2, para. 7, has as a precedent Article 15, para. 8, of the Covenant of the League of Nations. The Covenant provision, however, did not limit the authority of the whole League but only that of the Council, with regard to the peaceful settlement of disputes. It reads as follows: “If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that Party, the Council shall so report, and shall make no recommendation as to its settlement”. The Dumbarton Oaks proposals (see 1 A) were directly inspired by this rule. The provision in the proposals was nearly identical to the one in the Covenant, placing a limitation only on the Security Council with regard to the peaceful settlement of international disputes. Chapter VIII, Section A, of the Dumbarton Oaks proposals (corresponding to what is now Chapter VI of the Charter), after having described in paras. 1 to 6 the functions of the Security Council with regard to the peaceful settlement of disputes, provided as follows in para. 7: “The provisions of paragraphs 1 to 6 of Section A should not apply to situations or disputes arising out of matters which by international law are solely within the domestic jurisdiction of the state concerned”. The most important difference in this text with respect to that of Article 15, para. 8, of the Covenant laid in eliminating the Council’s authority to decide whether or not a matter was within domestic jurisdiction.

It was at the San Francisco Conference, on the initiative of the sponsoring States that the present wording of Article 2, para. 7, was agreed upon. This provision differs from the former provision in the Covenant not only because: (a) it has been elevated to a general principle limiting the activity of the whole Organization (with the sole exception of the enforcement measures under Chapter VII of the Charter) but also (b) because of the very different way in which it indicates the limit of domestic jurisdiction (“matters which are essentially within the domestic jurisdiction” of a State, rather than a “matter which by international law is solely within the domestic jurisdiction” of a State), and, lastly, because (c) it does not say who is to decide whether or not a matter is within domestic jurisdiction. The principal problems of interpretation that Article 2, para. 7, has raised can be listed as follows: (A) What is meant by domestic jurisdiction? (B) What meaning does the word “intervene”, used in para. 7, have, and, therefore, what activities of the Organization are subject to the domestic jurisdiction clause?

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(C) What importance does the exception in the last part of para. 7 have, in which the domestic jurisdiction clause cannot be invoked regarding the application of “enforcement measures” under Chapter VII? (D) Who is to decide whether or not a matter is within domestic jurisdiction? 45.  A) The notion of domestic jurisdiction select bibliography: see § 44.

Three issues need to be analysed in this paragraph. First of all it is important to recall the notion of domestic jurisdiction in force at the time of the League of Nations with regard to Article 15, para. 8, of the Covenant (the so-called “legal” notion of domestic jurisdiction). One must then ask if and in what sense Article 2, para. 7, accepted a different notion, and, lastly, one must seek to establish whether the practice has given rise on this matter to unwritten rules which have overcome the Charter. I.  The legal notion In allowing international law to decide which matters are within the exclusive competence of the State, Article 15, para. 8, of the Covenant of the League of Nations adopted what can be called the legal notion of domestic jurisdiction. This notion had its fullest, most precise and most acceptable formulation in a well-known Advisory Opinion of the Permanent Court of International Justice (PCIJ) in 1923 on the Nationality Decrees in Tunisia and Morocco: domestic jurisdiction, said the Court, includes matters in which the State is free from international obligations of any kind; only in these matters, in fact, is it the exclusive “maitre de ses décisions”. The description given by the Court was then purely negative: domestic jurisdiction is what is not covered by international obligations. The Court Opinion (PCIJ Reports, Series B, no. 4, p. 7 ff.) was handed down on February 7, 1923, at the request of the Council of the League of Nations. A dispute between France and Great Britain concerning certain decrees issued by France in Tunisia and Morocco had been brought before the Council. These decrees had conferred, in certain circumstances, French nationality on aliens, among them, British subjects born in these territories. The French view was that the Council was not competent in the dispute, as a matter of citizenship was within the domestic jurisdiction of the State under Article 15, para. 8, of the Covenant. Great Britain held the opposite view, maintaining that the two decrees violated international obligations which France had undertaken towards it. After having given the above cited definition of domestic jurisdiction (ibid., p. 23f.), the Court held that the question of citizenship belonged, in principle, to domestic jurisdiction in that it was a matter not regulated by (general) international law, but stated that in the case before it France’s objection had to be rejected since it was a question of deciding whether or not the French measures violated agreements made with Great Britain, and thus preexistent international obligations (ibid., p. 24 ff.).

The notion of domestic jurisdiction   171 The legal notion of domestic jurisdiction was confirmed by the Permanent Court in its judgement of August 30, 1924 in the Mavrommatis case (cf. PCIJ Reports, Series A, no. 2).

Given that, as will be shown, the legal notion of domestic jurisdiction was in principle accepted when drafting Article 2, para. 7, of the UN Charter, it is worth examining at some length the PCIJ Nationality Decrees Opinion. From the definition given by the Court, what is clear, first of all, is the relative nature of domestic jurisdiction, which depends on the range of international obligations undertaken by a particular State. More specifically, since international obligations arise either from (general) customary international law or from treaty law, and since the former are equal for all States, the sphere of domestic jurisdiction of each country varies in function of the number of treaties which it has entered into. The question whether or not a matter is within the domestic competence of a given State depends on whether this matter is regulated by general international law and, moreover, whether, although unregulated by general law, it is the subject of obligations freely agreed upon by such State. Of course, if such a treaty obligation exists, then the matter will cease to belong to the domestic jurisdiction of the State solely with regard to the relationships within the contracting Parties. The legal notion of domestic jurisdiction has then a historical nature, since the number of obligations weighing on States may vary in time as a result of the (continual) evolution of both international general and treaty law. It is pointless to quibble, as sometimes happens, about the use of the phrase “matters not governed by international law”. This expression should be understood purely and simply, and we will use it as the equivalent of the other “matters in which the State has no obligations-internal policies”. This leaves open the question whether the areas in which there are no obligations are still not regulated by international law even as the subject of a right to freedom of States. This question is linked to the issue of the admissibility of gaps in the legal systems and in particular of whether or not, in any system, the so-called closing rule that everything that is not forbidden is allowed is valid, a topic of the general theory of law which can be omitted here. For futher analysis, see Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice (Oxford: Oxford University Press, 2012) 278–83.

Can there be a positive notion of domestic jurisdiction? In other words, what are, at least roughly, matters in which international law does not impose obligations on the States? With regard to general or customary international law, the traditional view has always been that the State does not suffer limitations with regard to the treatment of its own citizens, or regarding its own organization of government, or, lastly, in activities concerning the use of its own territory. This formula, which calls to mind the classic “elements” of a State, can still be used today, although with great caution. While it still corresponds to reality—indeed with

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some important exceptions (see § 44 III) related inter alia to globalization— with respect to the organization of governmental powers and to the utilization of the territory, a different view must be taken with regard to relations between the State and its own subjects. This is so because of the far-reaching developments that the protection of human rights has undergone from the viewpoint of general international law. In any event, the formula is useful only on first approximation and must be verified case by case. As for treaty law, it would be clearly impossible to detail the matters it does not regulate, as this would involve… a listing of the (countless) treaties entered into by each country. Generally speaking, one can say that the States, which once were certainly reluctant to undertake obligations in the matters left to domestic competence by general international law (so that the two spheres of domestic jurisdiction, under general law and under treaty law, in the end showed a tendency to coincide), have now modified this position. The most significant aspect of the development of treaty law today is the opposite tendency for treaty norms to invade almost all sectors of a State’s domestic life. Apart from treaties regarding the protection of human rights, worthy of mention are the many kinds of treaties which have assured co-operation in the  economic, social and cultural fields, in particular, those treaties which ­provide for economic integration among the contracting parties, by substituting domestic law in the regulation of customs tariffs, foreign trade relations and so on. II.  The notion under Article 2, para. 7 While Article 15, para. 8, of the Covenant speaks of a “matter which by international law is solely within the domestic jurisdiction of the State”, Article 2, para. 7, of the Charter takes away from the UN’s sphere of action “matters which are essentially within the domestic jurisdiction”. What is the importance of the change and, in particular, of eliminating the reference to international law? Must it be held, as many do, that the legal notion has been substituted by another one of a different nature? And if so, which? It does not seem that the framers of the Charter intended to make radical or revolutionary changes in the notion of domestic jurisdiction that had taken hold at the time of the League of Nations and it is for this reason that it may be useful to first examine Article 15, para. 8, of the Covenant. The preparatory work does not offer any traces of such changes. Indeed, the most important element offered by the San Francisco Conference proceedings is, as legal scholars well know, the speech made by the American delegate John Foster Dulles on behalf of the sponsoring powers regarding the text of Article 2, para. 7, to explain the reasons why it was formulated differently from Article 15, para. 8,

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of the Covenant. It is considered authoritative, not only because of the prestige of the speaker but also because it expressed the viewpoint of the powers that had drawn up Article 2, para. 7. From this speech, and also from the statements of the delegates of other countries, it is possible to conclude that the elimination of the reference to international law and the substitution of the adverb “essentially” (“matters which are essentially within the domestic jurisdiction”) for the adverb “solely” in Article 15, para. 8, was not meant to disavow the old legal notion of domestic jurisdiction but only to widen its scope, thus limiting that of the Organization favoring greater freedom to act on the part of Member States. In what sense? The drafters of Article 2, para. 7, were mainly concerned about the possibility that international treaties relating to matters traditionally within domestic jurisdiction (relations between State and citizen, economic policy, etc.) would continue to increase. These were matters which the Charter itself (for example, the provisions concerning respect for human rights in Articles 55 and 56) made the object of international co-­ operation. Besides the matters in which a country was free from any whatsoever international obligation (as under Article 15, para. 8, of the Covenant), they wanted to also remove from the UN’s sphere of action those matters in which a State was bound by treaties only by way of exception since such matters would normally (or traditionally) come within the sphere of freedom of the States. In short, the drafters wanted everything that in principle (that is, despite the existence of individual agreements) was not regulated by international rules to be subject to the limit of domestic jurisdiction. The formula “matters essentially [and no longer solely] within the domestic jurisdiction” was deemed the most suitable for expressing this intention. Dulles’ speech can be found in the Verbatim Minutes of Committee 1 of Commission 2 of the Conference, unpublished (on microfilm at the UN Library in Geneva). Actually, the summary appearing in U.N.C.I.O., vol. 6, p. 507f., omits the most interesting passages (passages that can also be found in Mannaraswamighala Sreeranga Rajan, United Nations and Domestic Jurisdiction (London: Asia Publishing House, 1961, 2nd ed.), pp. 42–44). The speech as a whole tends to present the limit of domestic jurisdiction under Article 2, para. 7, as broadened (unfavorably to the Organization) with respect to the limit in Article 15, para. 8, of the Covenant. Such broadening was made necessary by the remarkable extension of the UN’s sphere of action and was aimed at preventing a State from being brought before the Organization for the sole fact of having concluded an agreement on a matter usually not regulated by international law. Particularly enlightening on this is the passage in which Dulles explains why the reference to international law has been abolished. What, he wonders, should this reference mean? “Does it mean that whenever you have a treaty which deals with any subject that treaty is international law, and therefore the fact that a subject is dealt with by a treaty means that it is 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 a matter of domestic jurisdiction? If so…the whole purpose of that limitation is done away with, because it would mean that all these matters we talk about

174  The Functions [economic and social relations], 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”. In line with this passage, then, there is the part of the speech which supports the substitution of the adverb “essentially” for the adverb “solely” used in Article 15, para. 8, of the Covenant. The use of the adverb “solely”, Dulles says, “would destroy the whole legal effect of the limit of domestic jurisdiction; indeed, what today in the world is solely domestic?” Also worth citing is the statement by the Australian delegate (Australia took a very active part in the approval of Article 2, para. 7, and was responsible for the final formulation of the last part of the article relating to cases not within the limit of domestic jurisdiction; see § 46). This statement was contrary to a Belgian proposal intending to reinsert in the text of Article 2, para. 7, both the reference to international law and the adverb “solely” in place of “essentially”. Regarding the reference to international law, the Australian delegate stated that he believed “that there was no other possible criterion that could be used” and that, therefore, he did not see the necessity of mentioning it in the article. With regard to the adverb “exclusively”, the Australian delegate “agreed with Mr. Dulles that matters solely within domestic jurisdiction were constantly contracting”. He gave the example of an agreement on full employment, an agreement that up to a few years before would have been unthinkable because it concerned a matter that was “essentially” domestic even if, precisely because of the existence of the agreement, it was no longer “solely” domestic. The appropriateness of changing the adverb was to make the limit not totally worthless (see U.N.C.I.O., vol. 6, p. 511f.). Returning to Dulles’s speech, the American delegate’s main concern, which led to the necessity of emphasising the broadening of the limit of domestic jurisdiction, was to avoid that the Charter provisions on economic and social co-operation, on respect of the limit of national sovereignty, and so on, would lead the United Nations to interfere in the internal affairs of the Member States (the relationships between these provisions and Article 2, para. 7, and therefore the part of the speech specifically concerned with them will be discussed later on). There was also considerable concern, in relation to American domestic policy, that the US Senate would not ratify the Charter, as it had not in the past ratified the League of Nations Covenant, if the limit of domestic jurisdiction was not strongly defended.

Not only the historical background and the drafting history of Article 2, para. 7, but also the text of the provision speak in favor of the legal notion of domestic jurisdiction, despite the absence of any reference to “international law”, in the sense (made clear by the adverb “essentially”) of bringing within domestic jurisdiction those matters that are in principle free from international obligations. Indeed, it would be impossible to give a convincing meaning to the notion of domestic jurisdiction in Article 2, para. 7, if it were not anchored to international law. Frankly, no merit can be seen in the attempts that have been made to build up a notion of a moral character, on the basis of which, in order to invoke the domestic jurisdiction clause, in a given matter, the State would have to prove not so much that it were free from legal obligations as that it was not bound by “principles of international social ethics” (Sperduti). On the same line, a political notion of domestic jurisdiction, appealing on the interests rather than on law, has been held: outside of domestic jurisdiction,

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and therefore within the scope of the UN, would be, according to the thesis that we are criticizing, conduct which, although it does not violate the rights of others, and although it remains within the State’s own community in some respect, and despite coming under domestic jurisdiction in the legal sense, is apt to be essentially harmful to the interests of other States (Ross) and thus have significant repercussions on the international level. In our view, all these efforts, aiming (in themselves worthily) to increase the sphere of UN interference in the domestic affaris of member States in the name of international solidary, practically empty Article 2, para. 7, of any meaning, and, ultimately, reach the result (in open contrast with the basic importance given to the provision by the framers of the Charter) that it is as if the article did not exist. The idea that the United Nations is to be concerned with questions and only with questions that can have international repercussions is something that has already been made very clear in those Charter provisions which lay down the powers of the organs as well as by the very nature of the United Nations as an entity which was created to promote and bring about international co-operation. Article 2, para. 7, would have no meaning even if we were to agree with the view (Arangio-Ruiz) that domestic jurisdiction would not constitute a ratione materiae limit, as we understand it here, but would only bind the United Nations (and the same could have been said of the League of Nations Council on the basis of Article 15, para. 8, of the Covenant) not to interfere with the governmental functions exercised by the States within their own territories and “directly” regulate relations between individuals. This would mean that the UN could interfere in any matter, whereas we are convinced that it may not do so in matters that normally come under the province of States, as long as it does not do so directly regulating the lives of individuals. Even if Article 2, para. 7, did not exist, it is difficult to see how the United Nations could directly exercise governmental functions (especially taking into account that UN acts are taken in the form of recommendations) over individuals who are subjects of their respective States. It is true that some Charter provisions provide that the United Nations may undertake the administration of territories: Article 81 expressly provides so (or, rather, provided, since it concerns a matter that is now obsolete) with regard to the trusteeship territories (see § 82). Some other cases of administration of territories under the control of the Security Council have also occurred in practice (see § 62). But the Organization does not have direct regulatory powers over individuals, and if it did, it would be ultra vires. It can therefore never happen that Article 2, para 7, so understood, could be applicable, as it would cover cases which the Organization cannot (in law and in fact) address. In our opinion, Article 2, para. 7 certainly regards UN interference in the internal affairs of States, but not through measures that directly regulate internal relations within States. “Domestic matters”

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is one thing, “domestic regulation” within States is quite another. For example, granting citizenship is traditionally a domestic matter in which the UN cannot in principle interfere under Article 2, para. 7, which has nothing to do with the UN being able to regulate it at inter-individual level, even if in certain cases the two  profiles (and more precisely, the two different meanings of “domestic”) may overlap. Most of the views which depart from the legal notion of domestic jurisdiction tend, in the last analysis, to disparage this notion to the advantage of the UN’s powers, and thus move in a direction that is exactly the opposite of what the drafters of the Charter wished. Indeed, these views, more than offering an objective interpretation of Article 2, para. 7, want to propose an interpretation that would justify the UN practice as it has been developing since the early years of the Organization’s existence. As we shall see shortly, this practice does show the tendency of the organs to reject, in various areas, exceptions based on domestic jurisdiction. Yet, in our opinion, it does not seem that the best way to proceed in the light of such practice is to have Article 2, para. 7, say things that it does not say and that are its negation. The best way is to ask, as we will do, whether the practice has modified, or, even, nullified Article 2, para. 7, and given rise to norms of a customary nature. It is also necessary to dispel a misunderstanding that is at the basis of all the attempts to deny the legal notion of domestic jurisdiction. This misunderstanding consists in the belief that acceptance of this notion is meant to signal some sort of hostility or lack of faith concerning the UN and, in particular, entails that the United Nations cannot discuss the political aspects of an issue or reach political solutions regarding it. It is said that if organs such as the General Assembly or the Security Council or the Economic and Social Council were to refrain from intervening in questions not governed by international law, they would in the end only be concerned with legal disputes and become nothing more than a court of justice, thus betraying their functions which are eminently political. Actually, all that Article 2, para. 7, asks is that the United Nations not be concerned with a situation involving a particular State (we shall soon see that a different conclusion may be required for decisions of general applicability) except when there is damage, threat or the possibility of damage to the rights of others. On the contrary, there is nothing that prevents the Organization from being concerned with the non-legal aspects of such situation or recommending political solutions even if they are not legally orthodox. Arguments against those who accept the political notion of domestic jurisdiction and uphold the UN’s competence in anything that has significant international repercussions can be found in the preparatory work for Article 10 of the Charter concerning the functions of the General Assembly. This article was initially formulated as follows: “The General

The notion of domestic jurisdiction   177 Assembly has the right to discuss any matter coming within the sphere of international relations…”. But this formulation was substituted by the present one (“The General Assembly may discuss any questions or any matters within the scope of the present Charter…”) as a result of the Soviet delegate’s insistence that the former wording could have brought the Assembly to interfere in matters of domestic jurisdiction. Cf. U.N.C.I.O., vol. 5, p. 522 ff. and p. 535 ff.

Having said that, there is, moreover, a question of great importance for purposes of interpretation of Article 2, para. 7, to clarify to avoid an apparent contradiction. Various provisions of the Charter itself, beginning with those that establish the purposes of the United Nations, expressly concern (conferring the relative powers on the Organisation) matters usually not regulated— or, better, that were not regulated at the time the Charter was drawn up and entered into force—by international law and thus traditionally included in the domestic jurisdiction. One could then argue that all these matters are considered by the Charter as the possible subject matter for deliberation by the UN organs. Suffice it to mention that the Charter empowers the United Nations: to pursue the “principle of self-determination of peoples” (Article l, para. 2), an objective that may lead, especially if self-determination is given a literal meaning, to interference in the most intimate issues in the life of a State, such as matters concerning the form of government; to promote and encourage respect for human rights and fundamental freedoms for all (Article 1, para. 3, Article 55 (c) and Article 56); to promote, in addition to a high standard of living and full employment, “conditions of economic and social progress and development” (Article 55 (a) and Article 56), that is, everything that comes within the objectives of a modern State community. How was this compatible with the domestic jurisdiction clause? Need we hold, as some observers do, that the Charter “internationalized” these matters once and for all, practically rendering void Article 2, para. 7, where it explicitly admits that the Organization can intervene when they arise? In fact, as we shall see in greater detail, it is exactly on the basis of the above-cited provisions that the UN organs have given rise to a practice which tends to nullify Article 2, para. 7. In our view it is possible to reconcile the rules on the UN’s competence in “domestic” matters with Article 2, para. 7, without sacrificing either. Such reconciliation can be attained by holding that in those matters, or, rather, in all matters of domestic jurisdiction, the Organization may indeed adopt resolutions, but only of a general character (drafts for multilateral conventions, recommendations addressed to all the States, and so on), while it is precluded from adopting resolutions concerning individual States. The UN may thus deal with matters for which the Charter assigns it powers to intervene even if these are traditionally considered matters falling within the domestic jurisdiction of States, but it cannot do so by interfering in the internal affairs of individual

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States, precisely because of Article 2, para. 7 of the Charter. This seems the only convincing solution if we consider the opening phrase of Article 2, para. 7 (“Nothing contained in the present Charter shall authorize the United Nations to intervene…”), if we consider that Article 2, para. 7, expressly prohibits interfering in the domestic jurisdiction “of any State” (“d’un Etat”, in the French text), and if we consider, lastly, that the text of the above-mentioned provisions makes it clearly understood that they refer to initiatives of a general nature. This same solution is supported by the San Francisco Conference proceedings and by the cited speech by the American delegate Dulles. During the drawing up of Article 55 in Committee 3 of Commission II, the United States initially asked that a different wording be examined which made it clear that in economic and social matters there would be no interference in the domestic affairs of individual States. The Committee decided not to change the formulation, holding that the change was useless (according to the Australian delegate) because of the presence in the Charter of Article 2, para. 7. However, it was unanimously decided, again as proposed by the United States, to include the following statement in its final report: “The members of Committee 3 of Commission II are in full agreement that nothing contained in Chapter IX [including the present Article 55] can be construed as giving authority to the Organization to intervene in the domestic affairs of the Member States”. Cf. U.N.C.I.O., vol. 10, p. 57 ff. and p. 83. With regard to Dulles’s speech which we have already mentioned above, it was exactly concerning the provisions on economic and social co-operation that the American delegate uttered the most often quoted words of his speech: “Is it going to be”, he said, “an organization which deals essentially with the governments of the Member States, and through international relations? Or is it going to be an organization which is going to penetrate directly into the domestic life and the social economy of each one of the member-states?…None of us had the idea that the Economic and Social Council…was going to have the right to decide itself what pattern of social order is wanted and go behind the governments to intervene directly to impose that pattern on each one of the 50 member-states”. It must be excluded that Dulles meant to say that Article 2, para. 7, prevents the United Nations from taking decisions that are binding for the citizens of the Member States, since no provision in the Charter provides for, nor did the draft discussed in San Francisco contain, binding powers of this kind. The passage of the speech was to be interpreted exactly in the sense that economic and social questions of a domestic nature were to be dealt with on a general and abstract level, and resolved only through international co-operation, that is, through agreement.

Some of the general and abstract resolutions adopted by the Organization, for example, the General Assembly’s Declarations of principles (see § 96), in a certain sense perform a de lege ferenda function in that they promote the undertaking of new legal obligations by the States. This function is sometimes cited as a proof against the legal notion of domestic jurisdiction since such obligations do not exist when the resolutions are adopted. The proof is not convincing if it is held, as it is held here, that resolutions of general character, i.e. resolutions addressed without distinction to all the States, do not come within the provision of Article 2, para. 7.

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In conclusion, according to Article 2, para. 7, as formulated in San Francisco, the UN cannot adopt resolutions addressed to individual States on matters that although regulated by international norms, customary or treaty, are not usually regulated by international law, while it may adopt resolutions of a general and abstract nature on any matter. III.  Developments in the practice The very abundant UN practice (especially of the General Assembly) on the question of domestic jurisdiction from 1945 to date, indicates that the Organization has always, or nearly always, rejected the objections of Member States based on Article 2, para. 7. The UN organs have always, or nearly always, claimed that they could discuss and decide despite protests by the individual State or individual States addressed by a resolution of theirs. The areas in which this has occurred more than most are those of the liberation of peoples under a colonial regime, the protection of human rights and the struggle against governments imposed by force or against governments considered oppressive. In each of these areas the activity of the Organization has ultimately unfolded in a direction that was contrary to Article 2, para. 7. So, with regard to human rights, one of the areas where UN interventions have been increasing and intensifying since the 1970s (see § 77), not only the General Assembly has adopted, from the beginning of its existence, a large number of resolutions of a general and abstract nature—to which the Assembly should have confined under Article 55(c) and Article 60, as just clarified—but has also shown a tendency to see that human rights are respected within individual States. One of the most striking cases was that of South Africa, against which the General Assembly adopted several resolutions condemning the apartheid policy: the repeated objection of South Africa that they constituted an internal interference and a violation of Article 2, para. 7, especially since the 1960s has been invariably rejected by the generality of Member States. Nor is there any doubt as to the interference in domestic jurisdiction of single States by the discussions undertaken or the resolutions adopted by the General Assembly or the Security Council to condemn Fascist governments such as the Franco regime in Spain, or governments established by force (the coup d’état in Czechoslovakia in 1948, the setting up of the Kadar government in Hungary in 1956, and so on), or the puppet governments imposed by foreign Powers (the filo-­ Vietnamese government in Cambodia beginning in 1979, the Afghanistan government set up by Soviet troops in 1980, and so on). As for the colonial question, it is well known that—especially following the adoption of the Declaration on the independence of colonial peoples with Res. 1514-XV of December 14, 1960 (see § 80)—the United Nations played a dominant role in

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the process of decolonization; that the General Assembly took all responsibility in the matter, including deciding if and when the various peoples subject to foreign rule were to gain independence, thereby realizing the most far-reaching type of intervention in the internal affairs of the colonial powers; and that this competence was certainly not provided for by Article 73 of the Charter, which is concerned with non-self-governing territories in a very general way and without any specific commitment for the Organization (see § 80). For the resolutions adopted by the General Assembly against South Africa cf., for example, Res. 616-VII A, establishing a Commission to study the racial situation in South Africa: Res. 721-VIII of December 8, 1953, inviting South Africa to co-operate with the Commission; Res. 917-X of December 6, 1955, recommending South Africa to res­ pect  Article 56 of the Charter; Resolutions 1016-XI of November 26, 1957, 1178-XII of October 30, 1958, 1248-XIII of October 30, 1958, and 1375-XIV of November 17, 1959, condemning South Africa for its persisting policy of racial segregation in violation of the Charter; Resolutions 1598-XV of April 15, 1961 and 1663-XVI of November 28, 1961, which not only condemned South Africa but also asked all States to take into account adopting, individually or collectively, appropriate measures inducing South Africa to abandon the apartheid policy.

How is this practice to be evaluated? How should it be interpreted? Just as in evaluating the practice concerning other parts of the UN system, one needs here to proceed with the necessary caution and propriety of method in trying to ascertain the existence of unwritten rules which may have modified or abrogated Charter provisions. In this regard (see § 4), it is not enough that a certain rule has been observed over a period, even a long period, of time by the organs, that it has been confirmed and defended by the majorities that have over time been formed in such organs. It is also necessary to look at the conduct and the reactions of individual States, at their capacity to counteract effectively the tendencies of the majorities. It is precisely by following this rigorous method, we maintained in the previous editions of this book especially during the Cold War, that the original meaning and the basic concept of Article  2, para. 7, still remained alive and vital, except for the formation of individual specific unwritten rules derogating from it, particularly of norms relating to the areas of human rights and decolonization. Also for human rights, we contended that their violations, despite the general ratification of the two important United Nations covenants on human rights in 1966 and other international treaties promoted by the United Nations (see § 79), came within the matters “essentially” belonging to domestic jurisdiction, and that the only, however important, exceptions were the so-called gross violations, that is, severe and brutal violations, such as apartheid, genocide, torture and so on. We held so because there was a compact group of States (the Socialist States of Eastern Europe) whose existence and behavior could not be ignored. Even

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though they had ratified the above-cited covenants and conventions on human rights, these States still continued, with persistence and efficacy, to invoke Article 2, para. 7, within the limits that we have just mentioned. The Socialist States had staunchly defended the view that the existence of treaty obligations could not affect domestic jurisdiction in a matter, such as human rights, which “essentially” belonged to this domain. This occurred as early as 1948 and 1950 when Bulgaria, Romania and Hungary had been accused in several General Assembly resolutions (Resolutions 272III of April 30, 1949, 249-IV of October 22, 1949 and 385-V of November 3, 1950) of violating the provisions of the peace treaties they had signed which obligated them to respect human rights (for the statement by the Communist delegates invoking Article 2, para. 7, cf. GAOR, 3rd sess., Gen. Comm., 59th meet.p. 22 and p. 26ff.; 5th sess., Pl. meet., 284th meet., no. 166 ff.). To cite a more recent example, the same view was defended before the Commission on Human Rights—a subsidiary organ of the Economic and Social Council, now replaced by the Human Rights Council: see § 76)—on the Polish question (a question never dealt with by the General Assembly). When the government of General Jaruzelsky was accused in 1982 of committing gross human rights violations in Poland, such as the arbitrary arrest of thousands of persons, the suppression of the freedom of expression and of association, etc., thus violating the United Nations covenants ratified by Poland (cf. Res. 1982–26 of the Commission), the Polish and Soviet delegates, besides protesting the charge of gross violations, held that the intervention was illegal in so far as it was contrary to both Article 2, para. 7, and Article 40 of the Covenant on Civil and Political Rights (Article 40 provides, as the only form of international supervision over the implementation of the provisions in the Covenant, the sending by the States parties of periodical reports to a special organ, the Human Rights Committee (see § 77). Such reports are limited to the human rights situation in the State’s own territory. According to a restrictive interpretation of Article 40 which was strongly upheld by Socialist States, they could not be the subject of specific criticism of individual countries. For the positions of Poland and the Soviet Union, cf. Int. Comm. on Human Rights, 38th sess., 57th meet. (Doc. E.CN.4/1982/SR.57 of March 18, 1982, no. 33 ff.).

With the end of the Cold War and the fall of the Socialist regimes of Eastern Europe, the situation has changed profoundly. The domestic jurisdiction clause has finally vanished as far as human rights are concerned. However, what is important to note is that the protection of human rights, as it is understood in today’s international community, goes well beyond the respect for one fundamental right or another and rather affects all relations in which the human person and his dignity is in some way involved. In the name of human rights, for instance, any distinction between international wars or wars between States and internal wars or civil wars has been abolished for the purpose of any type of UN action. In short, any situation within a given State which is injurious to human dignity—from mistreatment of minorities and gross violations of human rights, like genocide, ethnic cleansing, massive deportations and so on, to the adoption of economic and social policies detrimental to the population, to suffering imposed on the civilian population by civil wars as well as natural disasters—is now the object of UN action, even with regard to individual

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States, whether or not it constitutes the violation of a specific international obligation. This is very clear to anyone who looks through the collections of resolutions by the General Assembly, the Security Council, and the Economic and Social Council and their subsidiary organs, as well as the records of the sessions where such resolutions are adopted. Unquestionably, everything concerning human rights, including the treatment of minorities, goes beyond the limit of domestic jurisdiction. For a recent Security Council resolution concerned with minorities, cf. Res. 688 of April 5, 1991 which condemned repression of Iraqi civilian populations, particularly in the areas inhabited by Kurds, considering such repression a threat to the peace. This resolution, which can be characterised as a resolution under Article 39 of the Charter (see § 56), involves an interference in Iraqi domestic affairs, interference considered lawful for the reason we have stated. It is then odd that the resolution contains a reference, in its preamble, exactly to Article 2, para. 7. This resolution was inspired by the doctrine of the droit d’ingérence that was elaborated by the French doctrine in the 1980s (see § 66). More recently, Turkmenistan (backed by the People’s Republic of China and Pakistan) has challenged a General Assembly resolution that deplored the situation of human rights in that State (Res. 59/206 of December 20, 2004), presenting a “no action” motion and claiming that the resolutions relating to individual States were “selective”, that is to say that they applied “double standards” depending on the State concerned, based on political reasons. Turkmenistan has not, in other words, raised the plea of domestic jurisdiction, but alleged a criterion of justice of a general nature. The motion was however rejected by 76 votes against 60 votes in favor and 33 abstentions (cf. Doc. GA/10321).

Another matter which is no longer covered by the domestic jurisdiction clause is the constitutional regime of countries where a civil war has taken place and some form of national reconciliation is ongoing with the help of the United Nations. Both the Security Council and the General Assembly normally intervenes in these procedures, promoting and monitoring the execution of agreements among the different factions on the future constitutional regime of the country (see §§ 57 and 65). Aside from the matters we have indicated, if the above hinted rigorous method is adopted, if attention is paid not only to the tendencies of the majority but also to the attitude of the individual States, or, rather, of individual groups of States, the domestic jurisdiction clause may still be and still is invoked for those matters—indeed, more and more narrow in scope—which international law in principle leaves to the discretion of the State. Both the United Nations organs, particularly the General Assembly when dealing with elections to be held in a State, and States from time to time keep referring to to domestic jurisdiction. It follows that, except for the case-by-case examination if the question is left or not (at least as a matter of principle) by international law to the freedom of the individual State, it may roughly be said, in accordance with the already-mentioned formula utilized to identify a “positive” notion of domestic jurisdiction (see § 45 I), to remain “essentially” within domestic

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jurisdiction the relations concerning the organization of government (the form of State and of Government, the organization of public offices and the like) and the utilization of the territory. For some General Assembly resolutions sanctioning the principles of sovereignty and noninterference in the internal affairs of States with regard to electoral processes, with specific reference to Article 2, para.7, cf. Resolutions 44/147 of December 15, 1989 and. 45/151 of February 18, 1990, 46/130 February 17, 1991, 47/130 of February 18, 1992, 48/124 of February 14, 1994, 50/172 of December 22, 1995, 52/119 of December 12, 1997, 54/168 of March 25, 2000 and 56/154 of December 19, 2001. It should be noted that the right to vote and to be elected is provided by some international treaty provisions, such as Article 25, para. 1, sect. b, of the United Nations Covenant on Civil and Political Rights (see § 79). It therefore is a matter that, in line with what we said about the meaning of the term “essential”, although provided by some treaties, is still considered in principle as falling under the domestic jurisdiction of a State. The enduring strength of Article 2, para. 7, was recently defended by, e.g., the People’s Republic of China (PRC), the Russian Federation, Brazil, Libya, the United Arab Emirates, Sudan and Belarus during the debates on the role of the Security Council in the prevention of armed conflicts (cf. Doc. S/PV4072 of November 29, 1999, p. 15 ff.). The Special Committee on the UN Charter on strengthening the role of the Organization, in a report of May 12, 1999, indicated as falling under the domestic jurisdiction of Member States any sanctions aimed at overthrowing the regime or the government of a State (cf. Doc. GAOR A/54/33, Supp. no. 33, para. 45).

Admittedly, the whole matter of domestic jurisdiction does not have precise contours and, more than any other, it is influenced by the fact that international law is continuously evolving and expanding. Taking into consideration what has occurred up to now in United Nations practice, it is difficult to say whether a certain area of UN activity has ceased to belong to domestic jurisdiction because international law has expanded or because UN practice has given rise to departures from Article 2, para. 7. The truth is that most often the evolution of international law is exactly due to pressure from the United Nations, being universal, and to the insistence with which it pursues certain values. In this sense, the UN itself daily erodes its limits on interference established under Article 2, para. 7, insofar as it appears credible to the majority of States and their people in terms of establishing standards within States and to foster global governance. And it is in this sense that everyone should support the Organization so that it appears ever more credible and effective in its universalistic aims. 46.  B) The meaning of “intervene” Select bibliography: see § 44. Adde: Hersh Lauterpacht, International Law and Human Rights (London: Stevens, 1950) 166 ff; D.R. Gilmour, ‘The Meaning of “Intervene” within Article 2 (7) of the UN Charter: An Historical Prospective’, 16 ICLQ (1967) 330–351.

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Article 2, para. 7, prohibits the Organization from “intervening” (“intervenir”) in matters that are within the domestic jurisdiction of a State. Legal scholars are nearly all in agreement in rejecting the view (Lauterpacht) which gives the term “intervention” the same meaning that it has under classic international law, that is, dictatorial interference carried out with the threat or use of force. If this view were correct, Article 2, para. 7, would once again lose any meaning. The UN organs, generally speaking, lack means of enforcement vis-à-vis the States, and usually only issue recommendations, i.e. acts that do not claim to make the conduct recommended compulsory. On the other hand, the only examples of dictatorial interference of the United Nations are the enforcement measures under Chapter VII of the Charter, exactly those measures that the last part of Article 2, para. 7, allows to be taken even if matters of domestic jurisdiction are involved! In other words, if “intervene” were to be understood in the sense attributed to it by Lauterpacht, it would follow that the United Nations could do what it can already do under Article. 2, par. 7, and it would not be clear what the point of this provision might be and why it was inserted into the Charter. An argument in favor of the above criticised view may be found in the preparatory work, specifically in the part of the speech by the American delegate Dulles at the San Francisco Conference (quoted at § 45 II in fine) where, in commenting on Article 2, para. 7, he holds that the Organization must not “go behind the governments to intervene directly to impose a social order [a certain pattern of social order] in each one of the 50 member-states” (our italics). We have seen, however (ibid.), that this phrase is to be understood in a different sense.

Once an interpretation based on the traditional meaning of the term intervention is excluded, Article 2, para. 7, must be intended as prohibiting the organs from exercising, in matters of domestic jurisdiction, the normal powers given them by the Charter. Of the two stages in which the examination of a question is usually divided at the UN, the discussion stage and the decision stage, the latter unquestionably falls under the prohibition. The organ must abstain from taking any resolution, whether it is a recommendation addressed to the State or to the States concerned, whether it is an act of an organizational nature, such as the establishment of a committee of inquiry, or whether, lastly, it is a decision of an operational nature, as, for example, a General Assembly decision to undertake  a study of the economic or social situation within a given country. However, the discussion stage must also be considered covered by the prohibition. This stage, owing to the lack of real decision-making powers of the organs, to the political importance that the questions examined usually have, and to  the fact that the United Nations constitutes a centre where world public opinion is reflected, has an importance that is equal to, if not greater than the

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decision-making stage. Of course the organ may undertake a discussion in order to establish whether or not a matter comes within domestic jurisdiction, but the discussion must be kept within the limits necessary for this purpose. The natural, even if not the only, time for such discussion is before a matter is placed on the agenda. Placing a question of domestic jurisdiction on the agenda does not therefore constitute an intervention under Article 2, para. 7, as long as such placement occurs in order to discuss and assess whether the question has purely a domestic nature or not. The problem of whether the mere examination or the mere discussion of a matter is prohibited by Article 2, para. 7, has been debated in the UN practice usually at the time of the drawing up of the agenda. The States which object on the basis of this article usually say that a question of domestic jurisdiction should not even be listed on the agenda. The States contrary to the exception usually answer that placement never constitutes an intervention under Article 2, para. 7, as the discussion stage is always legitimate. Both views are to be corrected in the sense we have stated. For the relevant practice, cf. UN Rep., sub Article 2, para. 7, no. 346 ff., especially no. 351; Supp. no. 1, no. 121 ff., especially no. 123; and Supp. no. 2, no. 139 ff.

It has been asked in legal literature and in the UN practice whether only ­resolutions addressed to certain countries amount to intervention under Article 2, para. 7, or whether general and abstract resolutions (recommendations addressed to all the States, drafts for multilateral agreements, and so on) also do. In our view (see § 45 II), Article 2, para. 7, prohibits only the former and leaves the Organization free to adopt the latter in any matter, even in the most domestic matter. It could indeed be stated that only the former constitute an “intervention” and not the latter. This, however, does not relate to the meaning of the term “intervene” but, as we have seen, concerns the relationships between Article 2, para. 7, and other Charter rules relating to material traditionally considered internal. 47.  C) The significance of the exception in the last part of Article 2, para. 7 Select bibliography: see § 44.

The last part of Article 2, para. 7, which is mistakenly often ignored, provides that the domestic jurisdiction clause cannot be invoked when the Security Council decides to adopt the enforcement measures (“mesures de coercition” in the French text) under Chapter VII. The Organization’s powers of intervention here anyway derive from Article 2, para. 7, itself, and not from practice or non-juridical notions of domestic jurisdiction. As is very clear in the preparatory work and as can be deduced from the purpose of the provision, which is to ensure at all events that the Security Council intervenes when faced with a threat to the peace, with a breach of the peace, or with an act of aggression,

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Article 2, para. 7, last part, means to refer not only to the measures of a military nature under Article 42 but also to the measures not involving the use of armed force governed by Article 41. It follows that even a more minimalist reading of Article 2, para. 7, hostile to extending the powers of the UN vis-à-vis Member States, must recognize that the UN can always intervene in the internal affairs of Member States through the coercive measures listed in Chapter VII, precisely by virtue of Article 2, para. 7. For these measures, the more or less extensive interpretation of Article 2, para. 7 is completely irrelevant, since they can most certainly be adopted. At the San Francisco Conference, the great powers had proposed to take all of Chapter VII (corresponding to Chapter VIII, Sect. B, of the Dumbarton Oaks proposals) away from the domestic jurisdiction clause. However, it was decided to accept, with their consent, an Australian amendment restricting the exception to the “enforcement” measures. The Australian memorandum which accompanied the presentation of the amendment expressly indicated as “enforcement measures” the measures provided by Articles 3 and 4 of Chapter VIII of the Dumbarton Oaks proposals, which correspond to the present Articles 41 and 42 of the Charter (see U.N.C.I.O., vol. 6, p. 439f., nos. 15–17 of the memorandum). This fact dispels any doubt about the applicability of Article 2, para. 7, last part, also to Council interventions on the basis of Article 41, although the use of the term “enforcement measures” (and, in the French text, the term “mesures de coercition”) may more immediately bring to mind the measures involving the use of force under Article 42. It is, moreover, indicative that the report of Committee 1 of Commission 1, where the Australian amendment was approved, speaks, in commenting on the amendment, of “enforcement action (preventive and coercive)” and, in the French text, of “mesures préventives et coercitives”, with very clear reference, then, also to measures not involving the use of armed force (ibid., pp. 488 and 492). The main purpose of the Australian amendment was to avoid that the domestic jurisdiction clause could be dropped with regard to recommendations that the Security Council may issue under Article 39, the opening article in Chapter VII. These recommendations have nothing to do with enforcement measures; they consist in indicating to the States involved in a case of threat to the peace, breach of the peace or an act of aggression how to settle the dispute or remove the situation which has given rise to the case. They therefore are quite similar to the recommendations covered in Chapter VI regarding the pacific settlement functions of the Council (see § 56). Since it is the same kind of recommendation, it would not be right, Australia held, that the domestic jurisdiction clause was not applicable for the former while it was applicable for the latter. This was all the more so since the unfairness would be turned against small and middle-sized States which, unlike the great powers who possess the right of veto, would not have available other means able to prevent the interference of the Council in their domestic affairs (cf. U.N.C.I.O., vol. 6, p. 437 ff., nos. 7–13 of the cited Australian memorandum).

All instances of Security Council intervention that are covered by Articles 41 and 42 fall outside States’ domestic jurisdiction. On the basis of Article 41, the Council may either decide (the decision having a binding effect) what measures not involving the use of armed force must be adopted by the Member States against a given State or may limit itself to recommending the adoption of

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such measures (see § 59). Even for recommended measures, therefore, domestic jurisdiction cannot be invoked. More controversial is the question of whether measures other than those referred to in Articles 41 and 42 constitute “enforcement measures”. In this regard, it seems to us that, although not provided for in Article 2, para. 7, last part, we should exclude all Security Council resolutions from the domestic jurisdiction clause that constitute or may constitute the necessary conditions for, or are fundamental for the purposes of, an effective intervention on the basis of Articles 41 and 42. This is because the possibility of adopting the same measures under Articles 41 and 42 would be affected, whereas it should be possible to adopt them as and when required. Therefore one must consider as falling outside the limit of domestic jurisdiction, firstly, the resolutions in which the Council decides to carry out an investigation, that is, to acquire factual elements on a given situation, provided that the investigation under Article 34 aims to ascertain whether the conditions exist for the possible ­application of Articles 41 and 42. The fact that the power of investigation is set  out under Article 34, that is, by an article in Chapter VI and not in Chapter VII of the Charter, is not a decisive element, for reasons we will explain later (see § 51). Security Council Res. 4 of April 29, 1946 was thus fully legal. This resolution appointed a sub-committee of five members entrusted with the task of gathering documents and testimonies on Franco’s Fascist regime in Spain and consequently with determining “whether the situation in Spain has led to international friction and does endanger international peace and security, and if it so finds, then to determine what practical measures the United Nations may take”. In its report, the sub-committee reached the conclusion that a real threat to the peace did not exist and that, therefore, none of the series of measures set out in Articles 41 and 42 and in Chapter VII in general could be taken (see SCOR, 1st year, 1st series, Spec. Supp., p. 1 ff.). Since the matter was one of domestic jurisdiction, the report should have stopped at this point. On the contrary, it stated that the Spanish situation came  within the framework of Chapter VI (regarding the dispute-settlement functions of the Council) and expressed the view that the Council was empowered under Article 36 to recommend appropriate procedures or methods of adjustment (ibid., p. 10). As was noted in the Council during the examination of the report (cf. SCOR, 1st year, 46th meet., p. 345 ff.), a recommendation of this kind would have surely been contrary to Article 2, para. 7. In fact, the sub-committee’s proposal was also politically useless and purely and simply revealed the Council’s impotence. If the Council had seriously wanted to deal with fascism in Spain, the only viable route would have been the legitimate one offered by Articles 41 and 42. In the end, the Council did not take any decision and referred the case to the General Assembly, thereby burying it. Equally legal was Res. 203 of May 14, 1965 which ordered an investigation into the internal situation in the Dominican Republic (para. 2). For other references to the practice concerning investigations, see § 51.

Other decisions which are functional to the interventions under Articles 41 and 42, and likewise also outside the limit of domestic jurisdiction are the

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invitations which, under Article 40, the Security Council may address to parties involved in a situation that is a threat to the peace or a breach of the peace or an act of aggression in order to call upon them to adopt “provisional” measures to prevent a worsening of the crisis. A typical measure of this kind, in case of war, is the “ceasefire” (see § 58). This measure may be therefore requested also with regard to a civil war, despite its evident “essentially internal” nature. On the occasion of Indonesia’s war of independence, the Council adopted, on August 1, 1947, a resolution which asked the parties involved to cease hostilities immediately and to seek a solution through arbitration or other peaceful means. It was correctly noted, in the Council and in consideration of a protest by the Dutch delegate, that at least the part of the decision concerning the ceasefire, in so far as it came within Article 40, left open the question of the lack of jurisdiction of the organ under Article 2, para. 7 (cf. SCOR, 2nd year, 193rd meet., p. 2175). The ceasefire in civil wars is now commonly recommended by the Security Council without protests from the parties concerned. To mention a different example, it may be recalled that the defence used by the Israeli government against Security Council Res. 250 of April 27, 1968 was groundless. This resolution requested Israel to postpone a military parade in Jerusalem so as not to increase tension of the area (a resolution falling within Article 40). The Israeli government held that the matter concerned its own domestic jurisdiction (cf. UNMC (1968), May, p. 24). More recently, on January 12, 2007, a draft resolution calling on Myanmar to cease military attacks against civilians—traceable to Article 40 of the Charter (see § 58)—was vetoed by the People’s Republic of China (PRC) and the Russian Federation, affirming that the matter “basically was an internal affair of a sovereign State” not posing a threat to international peace and security (cf. ). A draft resolution, of July 11, 2008, had a similar outcome. The draft resolution intended to impose sanctions not involving the use of force—under Article 41 of the Charter (see § 59)—against Zimbabwe, President Mugabe and other 13 government and  security officials (cf. ). In both cases the last part of Article 2, para. 7, allowed the adoption of the resolution; a different matter is whether there was a “threat to peace” under Article 39 (see § 56). It should be noted that a different view was taken by the International Criminal Tribunal for the former Yugoslavia (ICTY) (see § 62) in its 1995 Tadić decision. The Court, called upon to rule on the legal basis of its own establishment by the Security Council, excluded the relevance of Article 40 stating that the provisional measures provided for therein ­“subject to the Charter limitation of Article 2, paragraph 7” precisely because it would not be “enforcement measures” (cf. , para. 33).

By contrast, recommendations referred to in Article 39, the opening article in Chapter VII, do not come within the exception set out in Article 2, para. 7, last part, and thus are covered by the domestic jurisdiction clause. Their purpose is to indicate to the interested States how to resolve disputes or eliminate the situation at the origin of the threat to the peace, breach of the peace or the act of

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aggression (see § 57). Evidence of this is given, first of all, by the preparatory work, since, as we have seen above, the reference in Article 2, para. 7, last part, to “enforcement measures” (rather than to the entire Chapter VII) was furthered in order not to subject recommendations under Article 39 to the limit of domestic jurisdiction. Further evidence comes from a contextual approach, precisely from the circumstance that the recommendations under Article 39, while not being closely functional to the measures of Articles 41 and 42, they are entirely identical to those provided by Chapter VI, particularly by Articles 36 and 37, i.e. by the chapter concerning the peaceful settlement of disputes for which the domestic jurisdiction clause was especially conceived (see § 57). Some members of the Security Council, during Indonesia’s war of independence, when they were faced with the above cited Res. 27 of August 1, 1947 inviting the parties to a ceasefire and recommending that they seek a solution through arbitration, correctly maintained that the Council had competence regarding the invitation (under Article 40) but not regarding the recommendation. Cf. SCOR, 2nd year, 193rd meet., p. 2175.

48.  D) Competence to interpret Article 2, para. 7 Who has competence to decide whether or not a question falls within domestic jurisdiction? The problem of the power to interpret the Charter has been dealt with in general terms (see § 56) and there is no reason to depart in this instance from those considerations here.

Section II.  Maintenance of the Peace: Functions of the Security Council 49.  Chapters VI and VII of the Charter Select bibliography: Kurt Herndl, ‘Reflections on the Role, Functions and Procedures of the Security Council of the UN’, 206 RC (1987-VI) 289–396; Drazen Petrovic and Luigi Condorelli, ‘L’ONU et la crise yougoslave’, 38 AF (1992) 31–60; Pierre-Marie Dupuy, ‘Sécurité collective et organisation de la paix’, 97 RGDIP (1993) 617–27; William J. Durch (ed), The Evolution of UN Peacekeeping: Case Studies and Comparative Analysis (New York, N.Y.: St. Martin’s Press, 1993); Dörte Hahlbohm, Peacekeeping im Wandel: die friedenssichernden Einsätze der Vereinten Nationen nach dem Ende des Ost-West-Konflikts (Frankfurt am Main: Lang, 1993); Nigel D. White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security (Manchester: Manchester University Press, 1993); Davis Brown, ‘The Role of the United Nations in Peacekeeping and Truce-Monitoring: What Are the Applicable Norms’, 27 RBDI (1994) 559–602; Benjamin B. Ferencz, New Legal Foundations for Global Survival: Security Through the Security Council (Dobbs Ferry-New York: Oceana, 1994); Yoram Dinstein, The Legal Lessons of the Gulf War, 48 ZöRV (1995) 1–17; Martín C. Ortega Carcelén, Hacia un Gobierno Mundial. Las nuevas funciones del Consejo de Seguridad de Naciones Unidas (Salamanca: Ed. Hespérides, 1995).

Chapters VI (Articles 33 ff.) and VII (Articles 39 ff.) lay down the functions of the Security Council, the organ assigned by the Charter “the primary

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responsibility for the maintenance of international peace and security” (Article 24). Since the end of the Cold War and the fall of the regimes in Eastern Europe, the Council has once again become active (as it was in the very early years of the life of the United Nations). Chapter VI is dedicated to the peaceful settlement of disputes. Aside from some provisions (Articles 34 and 35) which govern general aspects of Council activities, and must therefore also be linked to the provisions in Chapter VII (see §§ 50–51), Chapter VI regulates the Council’s exercise of a merely conciliatory function. Chapter VII concerns “action” for the maintenance of the peace; it assumes that the peace has been breached or threatened and enables the Council to adopt a series of measures to restore peace, which may or may not involve the use of armed force. The distinction between Chapter VI and Chapter VII has a practical ­significance that needs to be highlighted. Firstly, from the point of view of the questionableness of domestic jurisdiction. All the conciliatory functions of the Council are in fact subject to question by domestic jurisdiction under Article 2, para. 7; question that the drafters of the Charter had indeed initially regulated precisely at the end of Chapter VI. Conversely, no objection can be raised when the Council is acting in accordance with Chapter VII, albeit only with regard to enforcement measures, or those depending on enforcement measures, provided for in Articles 40, 41 and 42 ff. (see § 47). However, no objection can be raised even regarding Chapter VI, and in this respect therefore the distinction between Chapters VI and VII does not cease to be relevant when the Council intervenes in internal situa-tions for which, as we have seen, the limit of domestic jurisdiction has been lost in the practice. In second place, the distinction between Chapters VI and VII is important in terms of Article 27, para. 3, last part. It will be recalled that according to this article, only in the case of a draft resolution in the context of Chapter VI is a Member State of the Council, which is directly and individually involved in the resolution, obliged to abstain from voting (see § 27). The obligation to abstain does not however exist for the resolutions falling under Chapter VI. The four main distinguishing features of Security Council actions on the basis of either Chapter VI or Chapter VII may be summarized as follows. First, the peaceful settlement function under Chapter VI deals with matters that only potentially could disturb the peace and is performed with regard to a dispute or situation “the continuance of which is likely to endanger the maintenance of international peace and security” (cf. Articles 33, 36, and 37). By contrast, Chapter VII concerns international crises that are underway, specifically the existence of a “threat to the peace”, a “breach of the peace”, or an “act of aggression” (cf. Article 39). The difference between a potential “danger” and a current “threat” to peace and international security, however, is difficult to define in the abstract.

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Secondly, the protagonists of the relationships governed by Chapter VI are, more than the Council itself, the parties to the dispute, or the States involved in a situation potentially prejudicial to the peace. Given its role of peacemaker, the Council has only the function of urging the States involved so that the endangering disputes or situations may be settled. However, such settlement remains a matter that is completely dependent on the will, and therefore on the consent, of the States directly concerned. It is not by chance that Article 33, the opening article of Chapter VI, places in the foreground the obligation on the parties to the dispute to resolve it by peaceful means. Vice versa, in the cases envisaged by Chapter VII, the main role belongs to the Council. Most of its actions, far from requiring the co-operation of the States (or the groups fighting within a country) who are the authors of the crisis, are directed against them. What is important is rather the obligation of the other States to co-­ operate to make effective the measures decided upon for the maintenance of the peace and international security (the breaking of diplomatic relations, economic blockades, use of force, and so on). Thirdly, the different degree of gravity of the situation to be dealt with and the different role played by the Council is reflected in the instruments the Council has available on the basis of either chapter. The typical act through which the pacific settlement function under Chapter VI is performed is the recommendation (cf. Articles 36 and 37) which is without binding force. By contrast, Chapter VII, while providing for the possibility of recommendations (and/or authorizations and delegations, within the limits that we shall see), is characterized by the Council’s power both to issue decisions (cf. Article 41), that is, acts binding upon the States they address, and to adopt resolutions of an operational nature (Article 42), that is, resolutions with which the Council does not address the States but decides to undertake itself—rather than entrusting, recommending or requiring, States to undertake—certain actions (on operational decisions, see § 94). Moreover, the conciliatory function cannot, owing to its nature, be carried over into resolutions which acquire a sanctioning nature with regard to one or more States. Whereas the imposing of sanctions against States which breach or threaten the peace is the typical measure governed by Chapter VII. Fourthly, it is obvious that the conciliatory function of the Council may not, by its very nature, result in punitive resolutions against one or more States; where the sanctioning of those States that violate or threaten the peace is the  typical scenario, although not the only one, among those provided by Chapter VII. It is not an exclusive hypothesis because, if it is true that only under Chapter VII may the Council adopt sanctions, it is also true that it may resort to Chapter VII without adopting any sanctions. In some instances, in fact, the Council may act under Chapter VII with the consent, and sometimes

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even at the request, of the State against which such measures are taken. Moreover, if by sanction it is meant,—as it usually is—the reaction to an unlawful action, then it must be borne in mind that the Council may take measures under Chapter VII even when the receiving State has not committed an internationally wrongful act, but are nevertheless deemed such as to justify enforcement measures. In the first instance the measures are not directed against a State; in the second, they are not intended as a reaction to an unlawful action attributable to a State, but rather to a situation which is considered to be objectively dangerous for peace and international security. The differences between Chapter VI and Chapter VII, what is more, apply only in principle. As will become evident from the analysis of the rules on the peaceful settlement function under Chapter VI and from the rules of Chapter VII, a sharp dividing line between the two groups of provisions cannot be drawn, particularly when resorting to Chapter VII due to a “threat” to peace. Besides, there are cases where Council interventions under Chapter VI may be mixed with interventions governed by Chapter VII (for example, Chapter VII also contains, in Article 39, conciliatory action: see § 57). In cases of this kind, the exact classification of a Council resolution in one chapter or the other can only be the result of careful interpretation aimed at establishing which of the distinguishing features outlined above are mainly present. Often in the past Council resolutions did not indicate the articles in the Charter, or even the chapters, on the basis of which they have been adopted. In recent times these cases have considerably diminished, although not disappeared, since the Council often declares that it is acting under Chapter VII. It still may happen, for instance, that the grounds for the decisions are connected to one chapter, while the operative part is within the framework of another. It may happen, for example, that the Council decides upon measures not involving the use of armed force of the kind governed by Article 41, but in the preamble to the resolution it avoids stating the existence of a threat to the peace or a breach of the peace and qualifies the situation in which it is intervening with terms that bring it within the situations covered by Chapter VI. It would be out of place, given the highly political nature of the Council functions, to treat the contradiction between the grounds and the operative part in the light of formal criteria… borrowed from administrative law, and conclude, or only raise doubt, that it is the cause of the illegality of the resolution! The only problem fore­seeable is that of the exact classification of the act under Chapter VI or Chapter VII. In classifying an act, the operative part is more important, since it is the part of the act that will have external effects. One could in fact adopt, as a valid criterion for any resolution, the rule that the act is characterized by its operative part and that examination of the grounds may help only if the operative part leaves open doubt as to whether it belongs under Chapter VI or Chapter VII.

The power to seize the Council   193

It is also of utmost importance to note that in recent times the Council has adopted a series of resolutions—concerning the authorization of the use of force by States, the institution of criminal tribunals, the administration of territories, etc.—that can hardly fit into one or the other Article of the Charter. A legal examination of such cases will ascertain whether sufficient practice has been established in order to justify the conclusion that customary rules have arisen within the UN system. The issue will be treated in the framework of Chapter VII. 50.  The power to seize the Council Select bibliography: Hans Kelsen, The Law of the United Nations. A Critical Analysis of its Fundamental Problems (London: Stevens, 1950) 372 ff; Eduardo Jimenez De Arechaga, Voting and the Handling of Disputes in the Security Council (New York: Carnegie Endowment for International Peace, 1950) 47 ff; Louis Cavaré, ‘Les sanctions dans la cadre de l’ONU’, 80 RC (1952-I) 191–291; Torsen Stein, ibid., 643–48; Riad Daoudi, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed), vol. 1, 1075–90; Theodor Schweisfurth, Article 35, in Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 1, 1108–18.

Article 35 grants all States the power to seize both the Security Council and the General Assembly. This is a general provision—as confirmed by the express reference to the power to bring a matter also before the Assembly, despite the fact that Chapter VII regards the Council—that can refer to any function of the Security Council. Under para. 1, the Member States may come before the Council, bringing to its attention any dispute or any situation which might lead to international friction. Under para. 2, non-Member States may also seize the Council although with certain limitations, and specifically they can only bring to its attention a dispute to which such State is a party and provided that it states its intention to settle the dispute peacefully. It should be recalled that Article 35, para. 2, does not grant third States a real “power” to seize the Council, it therefore does not derogate from the principle pacta tertiis neque nocet nec iuvant (see § 43), but it imposes an obligation on the Organization to act upon it when a dispute is brought to its attention by a third State. In practice, while in the past States that brought an action before the Council expressly stated to act under Article 35, most recently reference to Article 35 is almost always omitted. Usually, the States will activate the Council through telegrams and letters, mostly addressed to the President of the Council or also to the Secretary-General. The activation may limit itself to “inform” the Council of the question or extend to an explicit request of convocation. Article 35, para. 2, has had very little practical relevance in the past—in three cases the Council was seized by third States between 1946 and 1970 (Siam in 1946, Hyderabad in 1948 and Kuwait in 1961: cf. UN Rep., vol. II, sub Article 35, p. 252 ff.; ibid., Supp. 3, vol. II,

194  The Functions p. 178 f.)—and it has retained very little of it today as almost all existing States are Members of the UN. The possibility envisaged by Article 35 to bring a matter before both the Council and the Assembly leaves the States at freedom to choose between the two. In the practice of the Organization States have almost always addressed the Council, reserving the possibility to bring a matter before the Assembly at a later stage or to request the calling of a special ­session—once the draft resolution promoted at the Council was vetoed by a permanent Member—as has happened, for instance, after Res. 462 of January 9, 1980 on the Soviet intervention in Afghanistan (cf. SC Rep. Supp., 1975–1980, Chapter VIII, p. 348 ff.). Article 35 must be distinguished from Articles 37 and 38, which also deal with the seizing of the Council: Article 37 does not merely provide an option but creates a true obligation incumbent on the parties to a dispute who have failed to settle the dispute between themselves through peaceful means, an obligation, however, pertaining only to the conciliatory function of the Council and which we will discuss later (see§ 54); Article 38 provides for the possibility that all parties to a dispute agree to bring it before the Council, in which case certain limits, which, as we will see, should, according to the Charter, be inherent to the conciliatory function of the organ, do not apply. It should be noted that Article 35 was formulated in the preparatory work on the basis of (but also making many changes to) certain provisions of the Covenant of the League of Nations. The Covenant provided that only States parties to a dispute could submit the matter to the Council (Article 15) or bring to the attention of the Assembly or of the Council any “circumstance” which threatens to disturb international peace (Article 11, para. 2). In the event of a dispute between a Member of the League and a third State the Council could invite the latter to accept the obligations of membership in the League for the purposes of such dispute, in which case the Council would immediately institute an inquiry (Article 17).

In addition to Members and non-Members, matters may also be brought before the Council by the General Assembly and by the Secretary-General. The Assembly “may call the attention of the Security Council to situations which are likely to endanger international peace and security” (Article 11, para. 3). The Secretary-General may bring to its attention, under Article 99, “any matter which in his opinion may threaten [the French text reads “mettre en danger”] the maintenance of international peace and security”. The two provisions, taking into account the reference to situations that may endanger, as well as threaten the peace, are rules of general applicability: the Assembly and the Secretary may turn to the Council both when they believe that a matter requires action under Chapter VII and to request the conciliatory function under Chapter VI. On the initiative of the Secretary-General the Council has several times undertaken the examination of very important cases, for example, the Congolese crisis in 1960 (see § 60), the Cypriot crisis in 1947 (see Doc. S/11339), and the crisis resulting from the capture and detention of hostages in the United States Embassy in Tehran in 1979 (see Doc. S/13646). The provision of Article 11, para. 3, incorporates that of Article 11, para. 2, according to this provision, the Assembly, after having discussed a question regarding maintenance of the peace, may make recommendations to the Council concerning such questions. The other rule in Article 11, para. 2 (last part), which requires that the Assembly refer to the

The power to seize the Council   195 Council any question “on which action is necessary”, more than being concerned with procedure, confirms the Assembly’s lack of competence to perform functions of the kind envisaged in Chapter VII (see § 65).

When the States, the Assembly or the Secretary-General act on the basis of the above-cited provisions, the Security Council must meet. This can be understood from the letter and spirit of the norms themselves. Article 3 of the Council’s Rules of Procedure strictly conforms to these norms. It requires the President to call a meeting of the organ whenever it is requested under Articles 35, 11 and 99. Obviously, this concerns only the convocation of the organ. Once it has met, the Council must ascertain whether the conditions necessary for the exercise of its functions exist. If the conditions do not exist, it will not include the matter referred to on its agenda. It may be said that the Council President is authorized to carry out a prima facie investigation to exclude cases that are of manifest inadmissibility, for example, cases that have already been rejected by the Council and presented again within a very short time without any change of circumstances. This is all the more true since it is customary in the Council for the President to consult all the members before calling a meeting. Article 2 of the Rules of Procedure considers separately the case where a meeting of the Council is requested by a Member State of the organ, and also requires that the President call the meeting. This provision is independent from Article 3 of the Rules of Procedure which, referring to all the UN Member States, already includes the requests of members of the Council. In the first place, Article 2 is relevant mainly when the Council is already considering a question, included on the agenda, and it is only a matter of moving forward or postponing meetings that have already been decided upon or of urging the President in the event that the Council has entrusted him with convening at his discretion for subsequent meetings. Moreover, according to the interpretation given to Article 2 in practice, the request of a Council member takes away from the President the above mentioned power of prima facie investigation: he/she is in any case obligated to convoke the Council. For the practice concerning convocation, cf. SC Rep. (and subsequent supplements) sub Chapter I, part. I. An exemplary case regarding Articles 2 and 3 of the Rules of Procedure can be found in SCOR, 20th year (1965), 1220th meet., p. 3 ff. In this meeting, the President stated that he had convoked the Council to examine the situation in the Dominican Republic (a situation that had for some time already been placed on the Council agenda by the Socialist States who maintained that it was a situation likely, owing to the presence of United States troops in the territory, to endanger the peace), despite the fact that the preliminary consultations he had held with the majority of the Council members were prima facie in the sense that the meeting was useless. At the insistence of a member of the organ (the Soviet Union), he felt he was obligated to convene the meeting. Cf. also: SCOR, 21st year (1966), 1276–77th meet. (protests of the United States, the United Kingdom and other

196  The Functions countries over the President’s delay in calling a Council meeting on the Rhodesian question); Doc. S/14683 of September 10, 1981 and A/15699 of September 18, 1981 (containing, respectively, the formal request for convening a meeting of the Council, on the basis of Article 35 of the Charter and of Article 3 of the Rules of Procedure, by Guatemala for examining their dispute with the United Kingdom regarding the territory of Belize, and the formal protest by Guatemala that a Council meeting had not been called); Doc. S/PV.2977 (Part I) of February 13, 1991 (protest by Cuba for the failure to call a Council meeting concerning the Gulf War—the Council had not met for 28 days since the outbreak of ­hostilities—despite the request by several members).

We should emphasize that convocation of the Council is one thing and the Council’s performance of its functions is another. The latter includes the ascertainment of the conditions (for example, real danger to the peace) necessary to be able to undertake action, and such ascertainment may have positive or negative results. In other terms, the fact that the Council is seized does not mean that it will decide to intervene. The confusion between these two moments gave rise to a peculiar debate in the very early years of the United Nations, during the examination of the Iranian question. It was asked whether, since Iran had seized the Council under Article 35, para. 1, to protest against the stationing of Russian troops on its territory, but then had stated that it had reached an agreement with the Soviet Union, the Council could, in spite of this, keep the question on the agenda, as the majority wanted. The problem of the legality of the majority decision was approached, both within the organ and in a memorandum of the Secretariat, in the sense that it would have to be established whether the Council… could act ex officio or would have had to defer to the decision of the State which had requested the meeting! The fallacy of such an approach is clear, and it is clear that it is useless to pose a problem of ex officio action if it is true, as it is true, that the Council may always be activated by a single State and therefore, even more so, by the majority of its members. The only question that in this particular case should have been asked was whether, an agreement between the parties having been reached, international peace and security were still in danger. It concerned the objective conditions for carrying out the functions of the Council. For references to the documents, see § 25. Cf. also SC Rep. sub Chapter II, Part IV, no. 56.

51.  Investigation Select bibliography: Eduardo Jimenez De Arechaga, ‘Le traitement des différends internationaux par le Conseil de Sécurité’, 85 RC (1954-I) 5–105; Ernest L. Kerley, ‘The Powers of Investigation of the UN Security Council’, 55 AJ (1961) 892–918; Leland M. Goodrich and Anne P. Simons, The UN and the Maintenance of International Peace and Security (Washington: Brookings Institution, 1962) 173–203; Marcus Helmons, ‘Les Nations Unies et les commission d’enquête’, in ADSP (1962) 123 ff; Leland M. Goodrich, Edvard Hambro and Anne P. Simons, Charter of the UN. Commentary and Documents (New York: Columbia University Press, 1969) 265 ff; William I. Shore, Fact-Finding in the Maintenance of International Peace (Dobbs Ferry, NY: Oceana Publication, 1970); Azel Berg, The 1991 Declaration on Fact-Finding by the UN, 4 EJIL (1993) 107–114; Hitoshi Nasu, ‘Investigation proprio motu for the Maintenance of International Peace and Security’, 23 AYIL (2004) 105–34; Sofiène Bouiffror, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris:

Investigation  197 Economica, 2005, 3rd ed), vol. 1, 1061–73; Theodor Schweisfurth, Article 34, in Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 1, 1086–107.

“The Security Council”, Article 34 states, “may investigate [‘peut enquêter’ in the French text] 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”. Considering the location of Article 34 in Chapter VI and the language adopted (“in order to determine whether the…dispute or situation is likely to endanger the maintenance…of peace…”), we should conclude that the Council may make use of an investigation only to decide whether or not to exercise the conciliatory function under Chapter VI itself. However, in our opinion the provision is to be interpreted in a broader sense, as attributing a general and all-encompassing power of investigation. Taking into account the rationale of the provision, which is to enable the Council to acquire all the necessary factual elements regarding an international situation in order to determine its potentiality of danger, the investigation may constitute the premise for the exercise of any one of the powers of the Council regarding maintenance of the peace, and therefore also the powers envisaged in Chapter VII. On the other hand, it would be unreasonable if the Charter were to attribute the power to  investigate in relation to the conciliatory function and not in relation to the  functions under Chapter VII as well. There is, in fact, no provision in Chapter VII in which a power of this kind can be found. Even Article 39 of the Charter, when it states that “The Security Council shall determine [‘constate’ in the French text] the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations or decide what measures shall be taken in accordance with Articles 41 and 42 …” does not seem to cover decisions that are limited to making investigations. A general power of the Security Council to conduct investigations, as well as of the General Assembly and the Secretary-General, is sanctioned by the Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security, adopted by the General Assembly with Res. 46/59 of December 9, 1991. Cf. Axel Berg, The 1991 Declaration on Fact-Finding by the United Nations, 4 EJIL (1993) 106–14.

The fact that Article 34 gives the Council a general and all-encompassing power means that the organ is free either to decide purely and simply in favor of an investigation or to narrow the investigation to a certain function, deciding, for example that investigations are to serve only to ascertain whether conditions exist for exercising the conciliatory function, or for an action to restore the peace, and so on. It is clear that the second hypothesis should occur when

198  The Functions

the Council has already taken a certain direction and the investigation should furnish only additional elements. Although there are some examples of “restricted” investigations in practice, the resolutions that can be referred to Article 34 are mostly of a general nature. This shows the clear intention of the Council not to link the power of investigation to one or another of its functions. As examples of general resolutions, cf.: Res. 15 of December 19, 1946, which appointed a Commission to investigate Greek frontier incidents during the civil war in that country (“Whereas”, the resolution reads, “… there have been presented to the Security Council oral and written statements…relating to disturbed conditions in northern Greece…which conditions…should be investigated before the Council attempts to reach any conclusions…the Security Council resolves that…the Security Council under Article 34 of the Charter establish a Commission of Investigation to ascertain the facts relating to the alleged border violations…between Greece on the one hand and Albania, Bulgaria and Yugoslavia on the other”); Res. 4 of April 29, 1946 which appointed a subcommittee of five members of the Council to gather statements and documents to establish whether the existence of the Fascist regime in Spain could “lead to international friction” (a situation which is typically a subject of the conciliatory function) and “endanger international peace and security” (a situation typically referring to Chapter VII); Res. 132 of September 7, 1959 which was limited simply to deciding (with regard to guerrilla infiltration in Laos) “to appoint a subcommittee consisting of Argentina, Italy, Japan and Tunisia”, and instructing this subcommittee “to examine the statements made before the Security Council concerning Laos, to receive further statements and documents, and to conduct such inquires as it may determine necessary and to report to the Security Council as soon as possible”; Res. 189 (para. 5) of June 4, 1964 on border incidents between Vietnam and Cambodia; Res. 203 (para. 2) of May 14, 1965 on the domestic situation in the Dominican Republic, in which the Secretary-General was invited “to send, as an urgent measure, a representative to the Dominican Republic for the purpose of reporting to the Security Council on the present situation”; Res. 295 of August 3, 1971, appointing a mission of three members of the Council to be sent to Guinea to ascertain the situation caused by Portuguese raids; Res. 348 (para. 5) of May 28, 1974 on border incidents between Iran and Iraq; Resolutions 377 of October 22, 1975 and 379 of November 2, 1975, in which the Secretary-General was invited to consult with all parties concerned on the question of Western Sahara and to report to the Council in order to enable it to take appropriate measures; Res. 404 of February 8, 1977 appointing a mission of three members of the Council to investigate acts of violence committed in Cotonou, in Benin, by mercenaries brought by an aircraft which had landed without authorization and was from an unknown point of departure; deliberation of April 4, 1983 (resulting from a statement issued on the same date by the President of the Council and reported in Doc. S/15680) which entrusted the Secretary-General with the task of carrying out investigations on cases of mass intoxication in several Arab territories occupied by Israel; Res. 1595 of April 7, 2005, set up an international investigation Commission that was to investigate the killing of the Lebanese Prime Minister Hariri and of other 22 people, occurred on February 14, 2005. As an example of an investigation linked to specific objectives, cf. Res. 61 of November 4, 1948 appointing a committee of five members of the Council entrusted with the task of assisting the UN mediator in Palestine and, in the event of breaches of the truce between Arabs and Israelis, to “report to the Council on further measures it would be appropriate to take under Chapter VII of the Charter”. For a more recent example cf. Res. 1564 of

Investigation  199 September 18, 2004 setting up an international investigation Commission on the violations of human rights and of international humanitarian law, including acts of genocide, perpetrated in Darfur (Sudan), in which the Council expressed the intention to consider taking additional measures as contemplated in Article 41 of the Charter, in order to take effective action should Sudan not comply fully with the previous Res. 1556 of July 30, 2004 or with Res. 1564 itself (para. 14).

The fact that, on the basis of Article 34, an investigation may be decided on without reference to a specific function of the Council has practical consequences concerning the exception of domestic jurisdiction and the voting procedure in the organ: the possibility that the investigation might regard Chapter VI or Chapter VII should, in fact, be understood as meaning that both chapters are relevant. With regard to domestic jurisdiction, the exception can be raised in the case of the conciliatory function but not in that of the enforcement measures set out in Chapter VII (cf., Article 2, para. 7, last part). It is evident, then, that resolutions that in a general manner give rise to an investigation, which in turn can lead to the adoption of such measures, do not meet the limit of domestic jurisdiction. For similar reasons, general resolutions on an investigation always come under the rule of the last part of Article 27, para. 3, according to which “in decisions under Chapter VI…a party [a member of the Council] to a dispute shall abstain from voting”. This is specifically due to the possibility that the Council may restrict itself, following the investigations, to the exercise of the conciliatory function under Chapter VI. In brief, generic investigations, as not expressly intended to carry out the functions of Chapter VI or of Chapter VII, can always be set up from a substantive point of view—never being able to oppose their interference in the internal affairs of the State concerned—and always require the abstention of the permanent Member directly and individually involved in the resolution setting it up. Clearly, if on the other hand the investigation is expressly linked by the Council to the conciliatory function or to the measures under Chapter VII. When this is the case, the relative resolution will follow, as far as domestic jurisdiction and the cited provision of Article 27, para. 3, last part, are concerned, the regime of the function to which it is linked. The Council may carry out an investigation either directly or, as usually occurs, by creating an ad hoc subsidiary organ under Article 29 (for example, a Commission of inquiry composed of several members of the Council, of the diplomatic staff of members States, of UN officials, and so on), or by entrusting the Secretary-General who will act in accordance with Article 98 (see § 67). Also when it is accompanied by the creation of a subsidiary organ under Article 29, the resolution regarding an investigation under Article 34—which is per se “procedural”, according to the Security Council practice, as well as the 1945 Statement (see § 23)—has a “non-procedural” nature for purposes of the majorities prescribed by Article 27, para. 3. In

200  The Functions the past, in the Security Council it was discussed at length whether the investigation fell under the mere establishment of a subsidiary organ or not, in order to establish if the question has to be decided with or without the veto power. On this point, which gave rise to the question of the double veto, see § 26.

The power of investigation may also be exercised with regard to situations and disputes in which the Council has already intervened in exercising its functions in maintenance of the peace, but where it intends to follow further developments with a view to further interventions. From this point of view, the establishment, as subsidiary organs, of truce commissions or observation corps to oversee respect for truces and armistices in both international conflicts and internal wars, is covered by Article 34 for the latter case, as we will see, the limit of domestic jurisdiction does not exist (see § 45 III). Article 34 also furnishes the framework for the creation of subsidiary organs such as Commissions of good offices, of mediation, and so on, to which the Council may assign, besides their conciliatory functions (in accordance with Article 36 or Article 39 of the Charter) functions of investigation as well. Examples of truce commissions, observers, commissions of good offices and of mediation with functions of investigation and other similar organs, are abundant in practice. It is worth anticipating that the establishment of groups of military observers, whose role is limited to investigating, is to be kept separate from the establishment of UN armed forces (including peacekeeping forces), on the basis of Chapter VII (see § 60). Cf., for example, for less recent practice, Res. 39 of January 20, 1948 (appointment of a Commission of three Member States of the United Nations with tasks of investigating and mediating the Indo-Pakistani question); Res. 48 of April 23, 1948 (truce commission for Palestine, composed of career consuls of the Member States of the Council); Res. 50 of May 29, 1948 (military observers in Palestine), Res. 67, para. 4 (b) of January 28, 1948 (military observers in Indonesia); Res. 80 of March 14, 1950 (appointment of a UN representative for India and Pakistan); Res. 100 of October 27, 1953 (supervision of the suspension of works carried out by Israel in the de-militarized zone in Palestine); Res. 171 of April 9, 1962 (supervision of the truce in Palestine); Res. 179 of June 11, 1963 (military observers in the de-militarized zones along the border between Yemen and Saudi Arabia: see also the Report of the Secretary-General on the situation in Yemen, the basis for the Council resolution, in SCOR, 18th year, Supp. for April, May and June 1963, p. 33 f.); Resolutions 209 of September 4, 1965 and 210 of September 6, 1965 (supervision of the truce between India and Pakistan by military observers); Res. 234 of June 7, 1967 (supervision of the truce in the Suez Canal zone). For the more recent practice, particularly for the practice concerning the creation of military or non-military groups of observers, cf., for example, Res. 619 of August 9, 1988 (setting up of UNIMOG, a group of military observers for supervising the ceasefire between Iran and Iraq); Res. 644 of November 7, 1989 (setting up of ONUCA, a group of observers in Central America); Res. 653 of April 20, 1990 and Res. 656 of June 8, 1990 (monitoring the ceasefire in Nicaragua by the ONUCA); Res. 687, part B, para. 5, of April 3, 1991 and

Investigation  201 Res. 689 of April 9, 1991 (setting up of UNIKOM, a groups of observers for the respect of the demilitarized zone between Iraq and Kuwait after the Gulf War); Res. 690 of April 29, 1991 (creating MINURSO, the UN Mission for a Referendum in Western Sahara, extended several times, lastly with Res. 1813 of April 30, 2008); Res. 693 of May 20, 1991 (creating ONUSAL, the UN Observer Mission in El Salvador); Resolutions 854 of August 6, 1993 (relating to the sending of a mission in Georgia and in Abkhazia to provide, among other things, for monitoring the ceasefire between the parties in conflict) and Res. 846 of August 24, 1993 (setting up of UNOMIG, the UN Observer Mission for monitoring the respect of the ceasefire in Georgia and Abkhazia concluded on June 15, 2009 following the Soviet Federation veto on the occasion of its extension: cf. Doc. S/PV.6143); Res. 846 of June 22, 1997 (creating UNOMUR, the UN Observer Mission in Uganda and Rwanda); Res. 1118 of June 30, 1997 (creating MONUA, the UN Observer Mission in Angola); Res. 1161 of April 9, 1998, requesting the Secretary-General to reactivate the International Com­ mission of Inquiry set up in conformity with previous resolutions in order to collect information and reports relating to the sale and supply of arms to the former Rwandan government forces.

The question of whether the act which gives rise to an investigation is a decision (which as such binds the States to co-operate with the investigating organs), or a mere recommendation (and therefore an act without binding force) has been discussed in practice and in legal doctrine. It has been held, in favor of the first view, that the investigation may, since it presumably is carried out against the will of the State under investigation, owing to its very nature, only be decided upon and not recommended, and, as a consequence, Article 25 of the Charter has been invoked. According to this article, “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 functional and teleological interpretation of the Charter was also resorted to holding that if the States were  free to refuse their co-operation to the Council or to its investigating organs, considering that the Council needs adequate information in order to carry outits conciliation and protection of the peace functions, its “primary res­ponsibility” would fail under Article 24 of the Charter. The supporters of  the  non-binding nature have insisted on the fact that the provision ­con­cerning  investigations appears in Chapter VI and that, on the basis of Chapter VI, as was often repeated during the preparatory work, the Council has at its disposal only the tool of recommendation and therefore does not have binding powers. Such a discussion arose, in the early years of the United Nations, over the question of Greek frontier incidents. After the already mentioned Commission of investigation had been appointed to shed light on the accusations that Albania, Yugoslavia and Bulgaria were fostering the civil war in Greece, these three countries refused to co-operate with the Commission and refused to allow Commission members to enter their territories. The legality of this refusal (particularly the refusal by Yugoslavia which, at the time, among the three, was the only UN member) was examined with regard to whether the resolution ordering the investigation had the nature of a decision or of a recommendation (cf. SCOR,

202  The Functions 2nd year, 162nd meet., pp. 1418–427; 166th meet., p. 1522 ff.; 167 h meet., p. 1541 f.; cf. also SC Rep. 1946–51, Chapter X, Part II, Case no. 13).

In our view, the problem of the position of Member States with regard to an investigation is completely unrelated to the alternative of a recommendation or a decision and also to the distinction between Chapter VI and Chapter VII. The resolution providing for an investigation is not a normative act, neither in the sense of a binding prescription (decision) nor in the sense of an expression of an only desired outcome (recommendation). It is an operational resolution, with which the Council does not lay down rules on conduct (for the States) but simply acts (on operational resolutions, see § 94). Obviously, the question of whether, and up to what point, the Member States are obligated to co-operate stands, and its solution is, in fact, decisive for the success of the investigation, but the answer must be sought elsewhere. That the States are under the obligation to co-operate is undisputable under Article 2, para. 5, under which “all Members shall give to the United Nations every assistance in any action it takes in accordance with the present Charter”. Besides, even if a provision like Article 2, para. 5, did not exist, an obligation to co-operate would be inherent to any constitutive agreement of an international organization. Therefore the problem is not if the Member States are obliged to co-operate, since they unquestionably are. The heart of the problem consists in asking, up to what point co-operation must be lent, and, specifically, whether it must be lent up to the maximum concession that can be asked of a sovereign State, that is, to open its territory (or a territory controlled by it) to the Council or to its subsidiary investigating organs. On this specific point, around which the whole question revolves, we believe that the answer must be negative, since when the Charter has required such a concession in relation to certain actions by the United Nations, it has said so expressly (see, as an example, Article 43, para. 1, and the rights of passage on a State’s territory); we believe, however, that in light of the general duty to co-operate with the Organization, a State which closes its frontiers to an investigation must at least furnish an adequate reason for doing so. In the light of the Charter, therefore, the refusal of Albania, Bulgaria and Yugoslavia in the above-cited case cannot be condemned. The same is to be said, again in the light of the Charter, of Israel’s refusal in 1968 to allow entry in the occupied Arab territories to a representative of the Secretary-General, who had been entrusted, by Res. 259 of September 27, 1968, with the task of investigating the living conditions and the security of inhabitants (on this case, see UNMC (1968), Oct., p. 3).

Quite a different question is whether the refusal of a State to open its territory, although admitted for, and to fully co-operate with the investigating organs can be considered by the Council as a “threat” or a violation of international peace—which does not necessarily imply the commission of unlawful acts (see

The peaceful settlement function under Chapter VI. A) preconditions  203 § 56)—according to Article 39 of the Charter and engendering enforcement measures within the framework of Chapter VII. Various resolutions adopted against Iraq after the cold war was over, which demand the opening of the territory to, and full co-operation with, UN inspectors in order to investigate its program of development of weapons of mass destruction, can be cited in this respect. The last and most important one is Res. 1441 of November 8, 2002 which warned Iraq that it would face “serious consequences” if co-operation with the inspectors was refused or incomplete (para. 13).

52.  The peaceful settlement function under Chapter VI. A) Objective preconditions Select bibliography: Clyde Eagleton, ‘The Jurisdiction of the Security Council over Disputes’, 40 AJ (1946) 513–33; André Salomon, L’ONU et la paix. Le Conseil de Sécurité et le règlement pacifique des différends (Le chapitre VI de la Charte des Nations Unies) (Paris: Ed. International, 1948); Hans Kelsen, ‘The Settlement of Disputes by the Security Council’, 2 ILQ (1948) 173–213; Hans Wehberg, ‘Der Sicherheitsrat und das friedliche Streitverfahren’, 6 FW (1948) 311–14; Pierre-F. Brugière, ‘Le développement des procédures de réglementation pacifique des conflits et la compétence du Conseil de Sécurité’, 7 ibid. (1949) 257–62; Louis Delbez, ‘L’évolution des idées en matière de règlement pacifique des conflits’, 22 RGDIP (1951) 5–22; Ernst V. Zenker, Le Conseil de Sécurité et le règlement pacifique des différends (Paris, 1952); Alfred Verdross, ‘Idées directrices de l’Organisation des Nations Unies’, 83 RC (1953-II) 1–77; Eduardo Jimenez De Arechaga, ‘Le traitement des différends internationaux par le Conseil de Sécurité’, 85 RC (1954-I) 60 ff; Giovanni M. Ubertazzi, Contributo alla teoria della conciliazione delle controversie internazionali davanti al Consiglio di Sicurezza (Milano: Giuffrè, 1958); Leland M. Goodrich and Anne P. Simons, The UN and Maintenance of International Peace and Security (Washington: Brookings Institution, 1962), Part 3; Gaetano Arangio-Ruiz, ‘Controversie internazionali’, 10 ED (1962) 419–46; Angelo Piero Sereni, ‘Le crisi internazionali’, 45 RDI (1962) 353–83; Oscar Schachter, ‘The Quasi-Judicial Role of the Security Council and the General Assembly’, 58 AJ (1964) 960– 65; Derek W. Bowett, ‘The UN Peaceful Settlement of Disputes’, in David Davies Memorial Institute of International Studies. Study Group on the Peaceful Settlement of International Disputes, Report of a Study Group on the Peaceful Settlement of International Disputes (London: Thorney House, 1966), 161 ff; Rosalyn Higgins, ‘The Place of International Law in the Settlement of Disputes by the Security Council’, 64 AJ (1970) 1–18; Ugo Villani, ‘Controversie internazionali’, 2 NDIApp (1980) 711–16; Louis B. Sohn, ‘The Security Council’s Role in the Settlement of International Disputes’, 78 AJ (1984) 402–04; Kjell Skjelsbæk, ‘The UN Secretary-General and the Mediation of International Disputes’, 28 JPR (1991) 99–115; Maurizio Arcari, ‘Le risoluzioni 731 e 748 e i poteri del Consiglio di Sicurezza in materia di mantenimento della pace’, 75 RDI (1992) 932–65; Cornelius Murphy, ‘The Conciliatory Responsibilities of the UN Security Council’, 35 GYIL (1992) 190–204; Stephen John Stedman, ‘Alchemy for a New World Order: Overselling “Preventive Diplomacy”’, FA (1995) 14 ff; K. Savitri, ‘The United Nations Charter Framework for Conflict Resolution: Procedures and Practices of Pacific Settlement of Disputes’, 53 IQ (1997) 61–100; Connie Peck, Sustainable Peace: The Role of the UN and Regional Organizations in Preventing Conflict (Lanham:Rowman & Littlefield, 1998); Charles Hauss, International Conflict Resolution: International Relations for the 21st Century (London: Continuum, 2001); Barnett R. Rubin, Blood on the Doorstep: The Politics of Preventive

204  The Functions Action (New York: Century Foundation Press, 2002); Fen Osler Hampson and David M. Malone (eds), From Reaction to Conflict Prevention: Opportunities for the UN System (Boulder, Colo.: Rienner, 2002); Chandra L. Sriram and Karin Wermester (eds), From Promise to Practice: Strengthening UN Capacities for the Prevention of Violent Conflict (Boulder, Colo.: Rienner, 2003); Hervé Ascensio, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed) vol. 1, 1047–60; Djamchid Momtaz, ibid., 1091–107; MarieFrancçoise Labouz, ibid., 1109–24; John G. Merrills, International Dispute Settlement (Cambridge: Cambridge University Press, 2005, 4th ed); R. Mani, ‘Peaceful Settlement of Disputes and Conflict Prevention’, in Thomas G. Weiss and Sam Daws (eds), The Oxford Handbook on the United Nations (Oxford: Oxford University Press, 2007) 300–22; Bertrand G. Ramcharan, Preventive Diplomacy at the UN: A Journey of an Idea (Bloomington: Indiana University Press, 2008); Ian Brownlie, ‘The Peaceful Settlement of International Disputes (The Wang Tieya Lecture in Public International Law)’, 8 ChJIL, 2009, 267–83; J.G. Merrills, International Dispute Settlement (Cambridge/New York: Cambridge University Press, 2011, 5th ed); Christian Tomuschat, Article 33, in Bruno Simma, DanielErasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 1, 1069–85; Giegerisch, Articles 36–37, ibid., 1119–60; Rüdiger Wolfrum and Ina Gätzschmann (eds), International Dispute Settlement: Room for Innovations? (Heidelberg: Springer, 2013).

Chapter VI of the Charter includes Articles 33 to 38 and is entitled “Pacific Settlement of Disputes”. These provisions—apart from the just mentioned Articles 34 and 35, of a general nature—specify, within the scope of the Security Council powers, the peaceful settlement of international disputes enshrined in Article 2, para. 3, of the Charter. According to Articles 33, 36 and 37, the peaceful settlement function applies to “disputes or situations the continuation of which is likely to endanger the maintenance of international peace and security”. While Article 2, para. 3, refers to any dispute, Articles 33, 36 and 37 regard only those susceptible of endangering international peace and security. The peaceful settlement of disputes sanctioned by Article 2, para. 3, of the Charter and stressed many times by the General Assembly (cf. for example Resolutions 1625 of October 24, 1970, 37/10 of November 15, 1982, 40/9 of November 8, 1985, 43/51 of December 5, 1988, 47/120 of December 18, 1992 and 57/26 of February 3, 2003) today is recognized as general international law and it was reaffirmed at the 2005 World Summit Outcome Document (cf. Doc. A/60/L.1, paras. 73–76). Since the Cold War came to an end, alongside the settlement of disputes (already arisen), the concept of “conflict prevention”, intended as the removal of the causes of the conflict, close and remote, before they arise, started spreading. It is mainly thanks to the former Secretary-General Kofi A. Annan—who referred to the principles already indicated by the Secretary-General B. Boutros-Ghali in 1992 in the report An Agenda for Peace (see § 8) on “preventive deployment” and “preventive diplomacy”—that the commitment in promoting a “culture of prevention” as an alternative to a “culture of reaction” made its way, through a series of reports submitted in 1999 (Doc. A/54/1), in 2001 (Doc. A/55/985-S/2001/574), in 2003 (Doc. A/58/365-S/2003/888) and in 2006 (Doc. A/60/891). The conflict prevention principle was welcomed also in the World Summit Outcome Document of 2005 (cf. Doc.

The peaceful settlement function under Chapter VI: A) Preconditions   205 A/60/L.1, para. 74) but in practice it is struggling to take shape and has been the subject of criticism such as being hardly “visible” in the media. In fact, the media and public opinion are unfortunately much more concerned about on-going tragedies than prudential actions taken in advance.

The terms “dispute” and “situation” are used in Articles 33, 36 and 37 in a far from clear way. Article 33, in fact, only refers to “disputes”; Article 36, para. 1, on the other hand speaks also of “situations” of “like nature” to the ones referred to in Article 33, while paras. 2 and 3 of Article 36 itself speak only of disputes; finally, Article 37 refers only to “disputes” of the like “nature” referred to in Article 33. It is difficult to say where exactly the difference lies between “dispute” and “situation”. The preparatory work does not shed any light on the matter. As far as the definition of “situation” is concerned, the starting point is the fact that even a situation must be such as to endanger the peace. Consequently, a situation must have as a minimum the following characteristic: on the one hand, the claim of one or more States that others act in a certain way (either at the international level or—for cases where the limit of domestic jurisdiction does not exist—at the domestic level), and, on the other, the refusal to act in this way. The questions that have been brought before the Council up until now have all had this characteristic. However, demand and refusal (or resistance) are the classic elements of an international dispute, and one could therefore be tempted to say that, for purposes of the peaceful settlement function, a distinction between “dispute” and “situation” does not exist. In favor of this conclusion, one could note: firstly, that the States, in seizing the Council, usually speak of a “situation” even when they are clearly bringing their own very special disputes; secondly, that the Council has hardly ever been concerned with the difference; thirdly, that even the legal doctrine which has sought to examine the topic is abundant with theoretical observations but miserly with practical examples; and, lastly, that the classic notion of international dispute is so broad as to be able to take in any matter brought before the Council (see, on this point, § 27). Perhaps all that can be concluded, in simply adopting a quantitative criteria, is that in a dispute a claim to the effect that others act in a certain way comes from one or from few States, whereas in a situation (especially in the case of a domestic situation in a country) there are more or many States involved. The necessity that in any case there are opposing parties is found in the spirit of Chapter VI and, more simply, in the very fact that the function of the Council is limited to settling disputes. The prevalent opinion of the doctrine is that a “dispute” implies a claim of a State opposed by another State, while a “situation” suggests circumstances of a general nature which, without there being a disagreement between two or more States, is however relevant for the

206  The Functions purposes of the exercise of the Council’s powers. These two terms would denote the requirement that the Council may intervene even when there is not a real dispute but the circumstances are such to justify an intervention for the purposes of peace and international security. Even admitting that an abstract distinction as the one just described may have some legal relevance in practice, it seems that it would be out of place with regards to Chapter VI, which inevitably involves conflicting opinions (calling for conciliation) of different parties. Besides, it would be a mistake to identify situations with the attitude taken by a State in the sphere of domestic jurisdiction, i.e. internally rather than against one or more States. In the first place, a dispute between two given States may also touch upon matters of domestic jurisdiction, for example, the treatment of a minority in the light of the treaties in force between the two States. Secondly, when a domestic situation, for example, a situation arising from the failure to respect human rights, is not brought to the attention of the Council by a State or by a group of States but by the General Assembly or by the Secretary-General, there can still be identified a group, perhaps a very large group, of States, or even a group composed of all the States, who are pressing to have the “situation” settled. Obviously, since we are here dealing with domestic situations, we speak of situations for which the limit of domestic jurisdiction does not exist, or rather it has failed in practice (see § 45 III). In this regard, it might be recalled that, at Dumbarton Oaks, this limit had been originally provided for in exclusive connection to the conciliatory function and was later elevated to a general rule at the San Francisco Conference (see § 44).

Besides being fleeting, the difference between “dispute” and “situation” is also of no practical use. It is true that some articles of the Charter, set also outside Chapter VI, seem to assume such difference, in that their provisions are limited exclusively to disputes. This is the case of the above mentioned Articles, such as Article 27, para. 3, last part, according to which “in decisions under Chapter VI,…[a member of the Council] a party to a dispute [under consi­ deration by the Security Council] shall abstain from voting”; or similarly, Article 32 which gives the right to participate in Council sessions to any State which “is party to a dispute under consideration by the Security Council…”; or of others that we will deal with in detail later, and Article 37 which, in addressing the most important competence of the Council under the peaceful settlement function, the power to enter in the merits of a question (see § 54), refers solely to disputes. However, as far as the first two articles are concerned, we have already noted in ascertaining their exact rational, that their sphere of application is ultimately completely independent from the notion of dispute (see § 27 and § 29). As for Article 37, we shall see in a moment that practice has considerably widened its scope, so as to make it useless to strive for a precise determination of the factual circumstances set out by it. The difference between “disputes” and “situations”, for the purposes of Article 37, has occasionally been discussed in the Council, although without any practical result being reached, with the aim of establishing whether or not…the organ had to keep to the qualification of dispute or situation given to a certain case by the State bringing the issue. Cf. the cases of nationalization of the Suez Canal and of the Indo-Pakistani dispute (which India insisted

The peaceful settlement function under Chapter VI: A) Preconditions   207 on calling a “situation”) at the early stage of their dispute for the possession of the ter­ritories of Jammu and Kashmir: cf. SC Rep, Supp. 1956–1958, sub Chapter X, Part IV, nos. 7 and 9.

That being said about the terms “dispute” and “situation”, we should now focus on the fact that the peaceful settlement function is limited to disputes and situations “the continuance of which is like to endanger the maintenance of international peace and security”. With this redundant language, Articles 33 ff. basically require that matters brought before the Council have a certain gravity. The gravity may depend either on the matter being disputed, or on the means and intensity with which the States directly concerned claim to have their respective interests or points of view prevail. In any case, as can be seen in an even superficial reading of Article 33, para. 2 (“The Security Council shall…”) and Article 37, para. 2 (“If the Security Council deems…”), the Council enjoys broad discretionary power in deciding whether a question actually may endanger the peace and therefore deserves to be dealt with. It is up to the Council to decide if the gravity is “sufficient” to justify its intervention under Chapter VI. The only limit to the discretion of the organ is the fact that…some kind of difference, whatever it may be, exists between the States. If there are no differences between States, the peace cannot be endangered. In this respect, the behavior of the Council in examining the already mentioned Iranian question was to be considered unlawful (see § 50). In this case, the majority decided to keep the question on the agenda although Iran and the Soviet Union had together announced that they had resolved it by agreement, and that new elements had not appeared.

Given the discretion enjoyed by the organ in deciding whether or not a question may endanger the peace, Article 38 in the end borders on irrelevance. Under this article, the Council “may, if all the parties to a dispute so request, make recommendations…with a view to a pacific settlement of the dispute”. This means that the peaceful settlement function may also have as its subject  disputes that do not endanger the peace, when, and only when, all the parties—and therefore not only one of them or even a third State or the Secretary-General or the Assembly, as in the other cases (see § 50)—agree in bringing the matter before the Council. But, since it is up to the Council to establish gravity, the requirement that all parties agree and that it plays a conciliatory function is of scarce relevance. It would be a different matter if it were held that in the case of Article 38 the Council was obligated to be concerned with a question or at least to place it on the agenda, as long as all parties request it; but such a view would be contrary to the letter of Article 38 (“The Council may…”). Moreover, it would be unfounded from a general point of view, since it is inconceivable that UN organs could enter positive obligations to engage in a given course of conduct (see § 13). As a matter of fact, there is no trace of Article 38 in the practice of the Organization.

208  The Functions

53.  B) Indications to the States of “procedures or methods” for settling differences that may endanger the peace Select bibliography: see § 52.

Article 33, para. 1, which opens Chapter VI, obliges the parties to a dispute to seek a solution by peaceful means, consistent with Article 2, para. 3, it indicates, by way of example, negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements. Article 33, para. 2, and Article 36 give the Council the power to urge the parties to a dispute and, more generally, the States whose differences are likely to endanger the peace, to have recourse to procedures of this kind. The difference between Article 33, para. 2, and Article 36 is that the former refers to a general request by the Council while the latter provides that the organ indicate which specific means (“procedure or method”) among the ones in Article 33, para. 1, or among others of a similar nature, is appropriate for a given question. In both cases, as in the whole peaceful settlement function, the Council may issue only recommendations. Those do not bind the States to follow the recommended course of conduct. It is worth noting that the subjects regulated by Article 33, para. 2, and Article 36 are also dealt with in Chapter VII at Article 39. According to Article 39, the Council, faced with a threat to the peace, a breach of the peace, or an act of aggression not only may adopt enforcement measures but may also make recommendations to the States concerned, of the kind provided for in Chapter VI (see § 56). Actually, it may be difficult to establish whether a certain Council resolution comes within the framework of Article 33, para. 2, or Article 36, in that it refers to a mere dispute or situation likely to endanger the peace, or can be traced back to Article 39. It is mainly difficult to distinguish between a situation “likely to endanger the peace” and a situation that is a “threat to the peace”. What criterion should be adopted in practice? In accordance with what we have said previously regarding the delimitation between Chapter VI and Chapter VII (see § 49), Article 39 covers those resolutions which indicate not only procedures or methods for settling a dispute or a situation, but also adopt one of the measures for protecting the peace set out in Chapter VII, or expressly state they are confronted with conduct of States that can be considered a threat to the peace, a breach of the peace or an act of aggression, or, again, intervene in a situation characterized by the use of military force and therefore objectively definable as a breach of the peace.

Of the two articles, Article 36 is the more important. It authorizes the Council to intervene “at any stage” of a dispute or situation endangering the peace and it authorizes interventions of various kinds. The most simple intervention is the indication of the procedure or method to follow to reach a settlement, and therefore it operates as an invitation to the interested States, depending on the case, to negotiate, seek a solution by mediation, submit the dispute to arbitration, and so on. In addressing the States, the Council must take into account the procedures that have already been adopted by the parties (Article 36,

Indications to the States of “procedures or methods” for settlement   209

para. 2) and the necessity that when the disputes have a legal nature, recourse should be had to the International Court of Justice (Article 36, para. 3). Cf., for example, Res. 2 of January 30, 1946, regarding the already mentioned Iranian question in which, once it had been ascertained that the Soviet Union and Iran had begun negotiations, the parties were invited to continue and to inform the Council on their progress; Res. 22 of April 9, 1947, which invited the United Kingdom and Albania to submit to the International Court of Justice their dispute regarding the Corfu Channel the United Kingdom held Albania responsible for damage suffered by several of its ships which were passing through the waters of the Channel in October 1946, waters which had been mined by Albania; in turn, Albania claimed the violation of its sovereignty since British authorities had, in the following days, begun an operation of mine-removal; the decision was handed down by the Court on April 9, 1949, in ICJ Reports 1949, p. 4 ff.; Res. 93 of May 18, 1951, including an invitation to Israel and to Syria to bring questions regarding the implementation of the armistice agreement of July 20, 1949 before a mixed armistice Commission, created after the 1948 war between Arabs and Israelis and consisting of representatives of the two parties; Res. 144 of July 19, 1960, adopted in relation to the tension created between Cuba and the United States following the coming to power of the Castro regime and recommending that the members of the Organization of American States act as a mediator between the two countries; Res. 395 of August 25, 1976, which invited Greece and Turkey to negotiate an agreement for settling the dispute over the delimitation of their respective portions of the continental shelf, keeping in mind the competence of the International Court of Justice in legal matters; Res. 530 of May 19, 1983, which, having expressed concern about the danger of a military clash between Nicaragua and Honduras, recommended that they resolve their disputes through the mediation of the Contadora group (Columbia, Mexico, Panama and Venezuela); Res. 616 of July 20, 1988, which acknowledged the establishment of an ICAO Commission of investigation regarding the shooting down of an Iranian civilian aircraft by the United States naval forces in the Straits of Hormuz in 1988; Resolutions 658 of June 27, 1990, 690 of April 19, 1991, and 809 of March 2, 1993, inviting Morocco and the Polisario Front to co-operate with the Secretary-General to resolve the question of Western Sahara; Res. 1073 of September 28, 1996, calling, inter alia, for the immediate resumption of negotiations within the Middle East peace process (para. 3).

A second kind of intervention that can come within the framework of Article 36 is when the Council does not only invite the States to have recourse to a certain procedure or method, but itself provides for such procedure or method. This is the reason for the Council’s creation of subsidiary organs, under Article 29 of the Charter, which are composed in different way (by members of the organ, by Secretariat officials, by UN Member States) and which may assist the parties in settling disputes or situations. Examples of Commissions of good offices, of mediation, of conciliation, and so forth, are numerous in practice. However also in these cases, as in general in the exercise of the peaceful settlement function (see § 49), the protagonists remain the States concerned, with the Council’s task that of stimulating agreement among them. The role and the powers of the Commissions created by the Council do not differ in any way from those of similar organs set up outside of the United Nations and used by the States in accordance with Article 33, para. 1.

210  The Functions Cf., for example, the various resolutions adopted regarding the Indo-Pakistani and Middle East questions, in periods of truce: Res. 39 of January 20, 1948 (creation of a Commission of three members of the United Nations with the tasks of investigating and exercising “mediatory influence to smooth away difficulties” between India and Pakistan); Res. 47 of April 21, 1948 (Commission of five UN members with functions of good offices between the parties); Res. 107 of March 30, 1955 (invitation to Egypt and Israel to co-operate with the Chief of Staff of the UN Commission in charge of supervising the truce in the Middle East, and to discuss the situation existing along the armistice line between the two countries); Res. 242 of November 22, 1967, adopted several months after the Israeli Six-Day War and including a request addressed to the Secretary-General to send his own special representative to the Middle East (this was the beginning of the Jarring Mission which was to last several years) to favor the pacific settlement of the question. Cf. also, and again as examples, Res. 367, para. 6, of March 12, 1975, inviting the Secretary-General to exercise his good offices in order to reach a solution to the Cyprus question; Res. 457, para. 4, of December 4, 1979, containing the same invitation with regard to the taking and the detention of American Embassy staff in Tehran; Resolutions 765 of July 16, 1992 and 772 of August 17, 1992 (regarding the sending of a representative of the Secretary-General and of observers in South Africa); Resolutions 1398 of March 15, 2002, 1430 of August 14, 2002 and 1466 of March 14, 2003, regarding a boundary dispute between Ethiopia and Eritrea. See also the examples listed at § 51, concerning the groups of observers with functions both of mediation or conciliation and investigation.

Aside from the above mentioned cases, any recommendation, whose purpose is to facilitate agreement among the States directly concerned, can come within the scope of Article 36. The only thing that the Council cannot or, rather, should not do on the basis of Article 36 is to enter into the merits of questions, that is, to recommend how to resolve a given difference, to say who is wrong and who is right, or to express condemnation for certain conduct of a State and to request, as a consequence, that it cease. The power to recommend solutions on the merits (the so-called terms of settlement, as opposed to procedures and methods under Article 36) is provided by the following Article 37 and must, or, rather, should be exercised in the presence of special and more rigid conditions. We use the conditional tense because these prerequisites have been abandoned in practice and therefore can be considered eliminated by custom (see § 54). Today the Council is completely free, when faced with a dispute or situation which threatens to endanger the peace, both to indicate procedures and methods of settlement and to recommend solutions on the merits, during any stage of the dispute or situation. The procedures and methods of settlement under Article 36 are those, and only those, aimed at facilitating agreement among the States. It is absurd, considering the spirit of Chapter VI, to consider measures applying sanctions or involving the use of force, even as an exception and for very limited purposes, as procedures of “settlement”, and to bring them within the framework of Article 36. No merit has the view, held in legal doctrine as well as in the Security Council itself, that certain resolutions, such as recommendations addressed to

The indication of “terms of settlement”   211

the Member States to adopt economic measures against given States, or resolutions to set up UN armed forces, as for example peacekeeping forces, should come within the framework of Chapter VI and in particular of Article 36. This view holds that such resolutions would not come completely within the cases governed by Article 41, regarding economic sanctions, and Article 42, on ­measures involving the use of force. We will deal with this question when examining Chapter VII (see §§ 59 and 60); we will then see that a correct ­interpretation of Articles 41 and 42 brings the above mentioned resolutions within the framework of this Chapter and that the view in favor of Chapter VI has been upheld in the Council for political considerations rather than for legal reasons. 54.  C) The indication of “terms of settlement” Select bibliography: see § 52.

Recommending “terms of settlement” (“termes de règlement” in the French text), that is, suggesting to the States how to settle, in the merits, a given dispute, certainly comes within the framework of the peaceful settlement function. The powers of the Council on the subject are provided by Article 37, the rationale being that of specifying that amongst the means of settlement of disputes enshrined in Article 33, para. 1, there is recourse to the Security Council itself. As in the case of Article 33, para. 2, and Article 36, there is a problem of co-ordination of Article 37 with Article 39, which also authorizes the Council to recommend solutions on  the merits. The criterion for distinguishing the recommendations that come within Article 37, on the one hand, and Article 39 on the other, is the same criterion which should be used in order to distinguish between Article 39 and Article 33, para. 2, and Article 36. On this point, see § 57.

Article 37 contains, first of all, in para. 1, a provision of a procedural nature (“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”). This provision substitutes for the generic term may—which refers to the right of every State, on the basis of Article 35, to bring a matter before the Council (see § 50)— a precise obligation of the parties to a dispute likely to endanger the peace to refer it to the Council. This obligation arises only when the States are not able to settle the dispute by the means indicated by Article 33, para. 1 (and in spite of possible recommendations made by the Council on the basis of Article 33, para. 2, and Article 36). In other words, it arises only when the possibility of an agreement between the parties proves to be unrealistic. In disputes brought before the Council in this way, the Council may intervene, under para. 2 of Article 37, by recommending terms of settlement (“If the Security Council deems that the continuance of the dispute is in fact likely

212  The Functions

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”), and thus make proposals on the merits, deciding who is wrong and who is right, indicating the reciprocal concessions that the parties must make in the interests of peace, expressing condemnation of a given State conduct, such as, for instance, the gross and systematic violation of human rights, and then requesting that it ends. Article 37, para. 2, also provides that the Council may, instead of entering in the merits, decide to take action under Article 36. The indication of this second possibility is redundant, since it is already stated, in very broad terms, by Article 36 itself. In the Dumbarton Oaks proposals, no mention was made of the Council’s power to recommend terms of settlement (cf. para. 4 of Chapter VIII, section B, corresponding to the present Article 37). However, the Sponsoring Powers themselves proposed it at the San Francisco Conference (see U.N.C.I.O., vol. 12, p. 181).

It is therefore apparent that Article 37 subjects the power to enter in to the merits of questions to the following conditions: the existence of a dispute; recourse to the Council by the parties to the dispute (or at least by one of them); the proven impossibility of reaching agreement between the parties through the means available under Article 33, para. 1. Literally, para. 1 of Article 37 seems to require that all the parties to the dispute have recourse to the Council. However, during the proceedings of the San Francisco Conference, the possibility of a unilateral recourse was explicitly and unanimously allowed: see U.N.C.I.O., vol. 12, p. 47. Clearly, the phrase “should the parties to a dispute…fail to settle it by the means indicated” in Article 33 does not mean that… all these means (negotiation, mediation, conciliation, arbitration, etc.) must be attempted before the Council intervenes. It is enough that, given the circumstances, an agreement between the parties is not foreseeable. Cf., in this sense, the intervention of the Egyptian delegate during the examination by the Council, in 1947, of the dispute between Egypt and the United Kingdom regarding the presence of British troops in Egyptian territory. In protesting against a draft resolution (then not adopted) which stated (clearly for purposes of delay) that “the means of settlement provided by Article 33 of the Charter have not been exhausted”, the Egyptian representative pointed out the impossibility that the Charter could require prior resort to these means cumulatively considered (see SCOR, 2nd year, 193rd meet., p. 2165 f.).

It is hardly helpful to dwell on the conditions required by Article 37 for the Council to recommend terms of settlement. As all commentators usually point out, the Council practice, except for very rare cases, has clearly tended, since the early years of the United Nations, to give the organ a great amount of freedom on this matter. The Council has entered into the merits of questions, without encountering significant opposition of a procedural nature by the States involved, whenever it has wished to do so. It has done so in questions submitted to it as “situations” rather than as “disputes”, with regard to cases that were

The indication of “terms of settlement”   213

not brought before it by one of the parties to the action, and, finally, without being concerned with investigating if resort to the means under Article 33 was effectively impossible, but even intervening in the initial stage of a dispute. It is therefore possible to say that, owing to a custom, the power to indicate terms of settlement under Article 37 exists within the same broad limits with which Article 33, para. 2, and Article 36 grant the power to recommend and to indicate procedures or methods of settlement. Such custom has given the peaceful settlement function—a function which by nature does not adapt very well to procedural limits—a remarkable degree of effectiveness. Rather, it should be said, following the same trail of thought, that the provisions of Chapter VI on the peaceful settlement function are uselessly long-winded: it would have been sufficient to lay down in general terms the Council’s power to recommend how States should act in the case of situations likely to endanger the peace. Examples of resolutions indicating terms of settlement (sometimes together with pro­ cedures or methods of settlement) can be found, first, in the practice on the Middle East question, in periods of truce. Cf. Res. 42 of March 5, 1948, regarding implementation of the partition plan for Palestine prepared by the General Assembly with Res. 181-II of November 29, 1947; Res. 89 of November 17, 1950, on the regulation of passage of Bedouins through the demilitarized zone; Res. 95 of September 1, 1951, recommending Egypt to eliminate the restriction on traffic through the Suez Canal; Res. 242 of November 22, 1967, indicating some general points for the solution of the Middle East question, such as the withdrawal of Israel from the Arab territories occupied during the Six-Day War in the summer of 1967, the reciprocal obligation to respect territorial integrity, the freedom to navigate in international waterways in the region, etc.; and, more recently, Resolutions 607 of January 5, 1988, 608 of January 14, 1988, 636 of July 7, 1989, 672 of October 12, 1990, 681 of December 20, 1990, 694 of May 24, 1991, and 699 of June 17, 1991, concerning the obligation of Israel to respect, in the Arab territories, the rules on belligerent occupation and prescribing to end the deportation of Palestinian civilians. Various times, then, terms of settlement, and, in particular, the necessity of plebiscites under the aegis of the United Nations, have been proposed to India and Pakistan in order to settle their territorial disputes (cf., for example, Resolutions 47 of April 21, 1948, 80 of March 14, 1950, 91 of March 30, 1951 and 122 of January 24, 1957). With regard to other questions, cf. for example, Res. 3 of April 4, 1946, concerning the withdrawal of Russian troops from Iranian territory; Res. 138 of June 23, 1960, inviting Israel to “make appropriate reparation in accordance with the Charter of the United Nations and the rules of international law” to Argentina for the abduction of the Nazi criminal Eichmann by Israeli agents in Argentine territory; Resolutions 226 of October 14, 1966 and 241 of November 15, 1967, requesting Portugal to take appropriate measures so that its territory would not become a base of operations for mercenaries on their way to the Congo; Res. 264 of March 20, 1969, inviting South Africa to withdraw from the territory of Namibia; Res. 278 of May 11, 1970, incorporating a report of the Secretary-General, favorable to granting full independence to the Bahrain Islands, and the consequent rejection of the claims of the United Kingdom and Iran to exercising form of “protection” over such islands; Res. 348 of May 28, 1974, inviting Iran and Iraq to carry out the agreement concluded by the two States to resolve their border disputes; Res. 457 of December 4, 1979, requesting the Iranian government to immediately free staff of the American Embassy in Tehran (para. 1); Res. 573 of October 4, 1985,

214  The Functions requesting compensation for damage caused by Israel in an attack on Tunisian territory; Res. 637 of July 27, 1989, approving the agreement of Guatemala City of August 7, 1987 for peace, democratization, reconciliation, development and justice in Central America; Resolutions 649 of March 12, 1990 and 774 of August 26, 1992, on the settlement of the Cypriot problem through a bi-municipal and bi-zonal federation between the Greek and Turkish communities; Res. 731 of January 21, 1992, asking the Libyan government to agree to the request of the governments of the United States, the United Kingdom and France for co-operation in ascertaining responsibility for the terrorist attacks on the PAN AM 103 and UTA 772 flights, and, in particular, to deliver to these governments two Libyan citizens considered responsible for the attacks; Res. 825 of May 11, 1993, inviting the People’s Republic of Korea to respect the Treaty on the Non-proliferation of Nuclear Weapons (NPT); Res. 1044 of January 31, 1996, calling upon the government of Sudan to extradite to Ethiopia three suspects wanted in connection with the assassination attempt on the life of the President of Egypt occurred in Addis-Abeba; Res. 1117 of June 27, 1997, again on the settlement of the Cypriot problem trough a single bi-municipal State.

55.  Action with respect to maintenance of the peace under Chapter VII. General remarks Select bibliography: Hans Kelsen, ‘Collective Security and Collective Self-Defense under the Charter of the United Nations’, 42 AJ (1948) 783–96; Louis Cavaré, ‘Les sanctions dans le cadre de l’ONU’, 80 RC (1952-I) 191–291, especially 255 ff; Julius Stone, Aggression and World Order. A Critique of UN Theory of Aggression (London: Stevens, 1958); Myres S. McDougal and Michael W. Reisman, ‘Rhodesia and the United Nations: The Lawfulness of International Concern’, 62 AJ (1968) 1–19; Stephen Verosta, ‘Der Begriff “International Sicherheit” in der Satzung der Vereinten Nationen’, in Internationale Festschrift für Alfred Verdross (München: Fink, 1971) 533–47; Charles Chaumont (ed), Analyse de certain aspects concernant la sécurité collective dans le monde contemporain. Travaux effectués (Nancy: Faculté de droit et des sciences économiques, 1972); Pierre M. Eisemann, Les sanctions contre la Rhodésie (Paris: Pedone, 1972); Pierluigi Lamberti Zanardi, La legittima difesa nel diritto internazionale (Milano: Giuffrè, 1972), Chapters 4–6; Stephen M. Schwebel, ‘Aggression, Intervention and Self-Defence in Modern International Law’, 136 RC (1972-II) 411–98; Jean Combacau, Le pouvoir de sanction de l’ONU. Etude théorique de la coercition non militaire (Paris: Pedone, 1974); Benjamin B. Ferencz, Defining International Aggression. The Search for World Peace (Dobbs Ferry: Oceana Publication, 1976, 2 vols); Vernon Cassin, Whitney Debevoise, Howard Kailes, Terence W. Thompson, ‘The Definition of Aggression’, 16 HILJ (1975) 589–613; Patrick Rambaud, ‘La définition de l’agression par l’ONU’, 80 RGDIP (1976) 835–81; Jack I. Gargey, ‘The UN Definition of “Aggression”, Law and Illusion in the Context of Collective Security’, 17 Virg. JIL (1977) 177–99; Ahmed M. Rifaat, International Aggression. A Study of the Legal Concept: Its Development and Definition in International Law (Stockholm: Almquist & Wiksell, 1979); Von Thomas Bruha, Die Definition der Aggression. Faktizität und Normativitä des UN-Konsensbildungsprozesses der Jahre 1968 bis 1974; zugleich ein Beitrag zur Strukturanalyse des Völkerrechts (Berlin: Duncker Humblot, 1980); Michael Schäefer, Die Funktionsfähigkeit des Sicherheit­ smechanismus der Vereinten Nationen (Berlin: Springer, 1981); Elena Sciso, ‘L’aggressione indiretta nella definizione dell’Assemblea Generale delle Nazioni Unite’, 66 RDI (1983) 253–90; Giuseppe Cataldi, ‘Il ruolo del Consiglio di Sicurezza delle Nazioni Unite rispetto al conflitto armato’, in Natalino Ronzitti (ed), La questione delle Falkland-Malvinas nel diritto internazionale (Milano: Giuffrè, 1984) 269–82; Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Ground of Humanity (Dordrecht:

Action with respect to maintenance of the peace under Chapter VII   215 Nijhoff, 1985); Jean Combacau, ‘The Exception of Self-Defence in UN Practice’, in Antonio Cassese (ed), The Current Legal Regulation of the Use of Force (Dordrecht: Nijhoff, 1986) 22 ff; Elena Sciso, ‘Legittima difesa ed aggressione indiretta secondo la Corte internazionale di giustizia’, 70 RDI (1987) 627–40; Nicolas Nyiri, The United Nations’ Search for a Definition of Aggression (New York: Lang, 1989); Lori Fisler Damrosch (ed), Law and Force in the New International Order (Boulder: Westview Pr., 1991); D.W. Greig, ‘Self-Defence and the Security Council: What Does Article 51 Require?’, 40 ICLQ (1991) 366–402; Kathryn S. Elliott, ‘The New World Order and the Right of Self-Defence in the UN Charter’, 15 HastICLR (1991) 55–81; Louis R. Beres, ‘After the Scud Attacks: Israel, “Palestine”, and Anticipatory Self-Defense’, 6 EILR (1992) 71–104; Sompong Sucharitkul, ‘The Process of Peace-Making Following Operation “Desert Storm”’, 43 ZöRV (1992) 1–30; Mark Weller, ‘The Lockerbie case: A Premature End to the “New World Order”’, 4 RADIC (1992) 302–24; Maurizio Arcari, ‘Le risoluzioni 731 e 748 e i poteri del Consiglio di Sicurezza in materia di mantenimento della pace’, 75 RDI (1992) 932–65; Giorgio Gaja, ‘Réflexions sur le rôle du Conseil de Sécurité dans le nouvel ordre mondial: à propos des rapports entre maintien de la paix et crimes internationaux des ètats’, 97 RGDIP (1993) 297–320; Kaiyan H. Kaikobad, ‘Self-Defence, Enforcement, Action, and the Gulf Wars, 1980–88 and 1990–91’, 63 BYB (1992) 299–366; René J. Dupuy (ed), Le développement du rôle du Conseil de Sécurité: Colloque, La Haye, 21–21 juillet 1992 (Dordrecht: Martinus Nijhoff Publishers, 1993); David D. Caron, ‘The Legitimacy of the Collective Authority of the Security Council’, 87 AJ (1993) 552–88; Olivier Corten and Pierre Klein, ‘Action humanitaire et chapitre VII. La redéfinition du mandat et des moyens d’action des Forces des Nations Unies’, 39 AF (1993) 105–30; Helmut Fraudenschuß, ‘Article 39 of the UN Charter Revisited: Threats to the Peace and the Recent Practice of the UN Security Council’, 46 ZöRV (1993) 1–39; Torsen Stein, ‘Das Attentat von Lockerbie vordem Sicherheitsrat der Vereinten Nationen und dem Internationalen Gerichtshof ’, 31 AV (1993) 206–29; Sydney D. Bailey, The UN Security Council and Human Rights (New York: Macmillan, 1994); Yoram Dinstein, War, Aggression, and Self-Defence (Cambridge: Grotius, 1994); Paolo Picone (ed), Interventi delle Nazioni Unite e diritto internazionale (Padova: Cedam, 1995); Inger Österdahl, Threat to the Peace: The Interpretation by the Security Council of Article 39 of the UN Charter (Uppsala: Iustus Förlag, 1998); Ugo Villani, ‘La nuova crisi del Golfo e l’uso della forza contro l’Iraq’, 82 RDI (1999) 451–62; Bermelo Garcia, ‘Questiones actuales referentes al uso de la fuerza en el derecho internacional’, ADe (1999) 3 ff; Luigi Condorelli, ‘Les attentas du 11 septembre et leurs suites: où va le droit international?’, 105 RGDIP (2001) 829–48; Delroy Beckford, ‘“Confined Examination”: Judicial Review of the Determinations of the Security under Charter VII of the United Nations Charter’, 26 WInLJ (2001) 127–54; David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter. Legal Limits and the Role of the International Court of Justice (The Hague: Kluwer Law International, 2001); David Bederman, ‘Collective Security, Demilitarization and “Pariah” States’, 13 EJIL (2002) 121–38; Maria C. Ciciriello, L’aggressione in diritto internazionale (Napoli: Editoriale Scientifica, 2002); William M. Reisman, ‘The Definition of Aggression and the ICC’, 96 ASIL Proceed. (2002) 181–92; Carsten Stahn, ‘Collective Security and Self-Defence after the September 11 Attacks’, 10 TFLR (2002) 10–42; Nicholas Tsagourias, ‘The Shifting Laws on the Use of Force and the Trivialization of the UN Collective Security’, 34 NYIL (2003) 55–87; Mariano-Florentino Cuéllar, ‘Reflections on Sovereignty and Collective Security’, 40 StJIL (2004) 211–57; Mark Udall, ‘Collective Security and the United Nations’, 33 Denv J (2004) 1–6; Erika De Wet, The Chapter VII Powers of the United Nations Security Council (Oxford: Hart, 2004); David Hannay, ‘Collective Security and the Use of Force’, 2 IOLR (2005) 367–72; Habib Slim, ‘La Charte et la sécurité collective: de San Francisco à Baghdad’, in Société Française pour le Droit International, Les métamorphoses de la sécurité collective: droit, pratique et enjeux stratégiques (Paris: Pedone, 2005) 13–32; Nathalie Thomé, Les

216  The Functions p­ ouvoirs du Conseil de sécurité au regard de la pratique récente du chapitre VII de la Charte des Nations Unies (Aix-Marseille: Presses Universitaires d’Aix Marseille, 2005) 393–422; Thomas Franck, ‘Collective Security and UN Reform: Between the Necessary and UN Reform’, 6 CJIL (2006) 597–611; Ramesh C. Thakur, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge: Cambridge University Press, 2006); Valentín Bou Franch, ‘Acción e inacción del Consejo de Seguridad en el mantenimiento de la paz y la seguridad internacionales’, in Carlos Febres Pobeda, Carlos Febres Fajardo and Jorge Albornoz Oliver (eds), El derecho internacional en tiempos de globalizacion (Mérida: Publicaciones Vicerrectorado Académico, 2006) 151–226; Louis Balmond, ‘La contribution des organisations régionales à la sécurité collective. Entre Chapitre VIII et néorégionalisme’, in Louis Balmond and Jean-François Guilhaudis (eds), La sécurité internationale entre rupture et continuité. Mélanges en l’honneur du Professeur Jean François Guilhaudis (Bruxelles: Bruylant, 2007) 1–18; Laurence Boisson de Chazournes, ‘Collective Security and the Economic Interventionism of the UN’, 10 JIEL (2007) 51–86; Thomas M. Franck, ‘Rethinking Collective Security’, in Michael N. Schmitt and Yoram Dinstein (eds), International Law and Armed Conflict: Exploring the Faultlines: Essays in Honour of Yoram Dinstein (Leiden: Nijhoff, 2007) 21–7; Christine Gray, ‘A Crisis of Legitimacy for the UN Collective Security System?’, 56 ICLQ (2007) 157–70; Aiyaz Husain, ‘The United States and the Failure of UN Collective Security: Palestine, Kashmir and Indonesia, 1947–1948’, 101 AJ (2007) 581–99; Efthymios Papastavridis, ‘Interpretation of Security Council Resolutions under Charter VII in the Aftermath of the Iraqi Crisis’, 56 ICLQ (2007) 83–118; Ana Peyró Llopis, ‘Le système de sécurité collective entre anarchie et fiction: observations sur la pratique récente’, in Olivier Corten (ed), Droit du pouvoir, pouvoir du droit. Mélanges offerts à Jean Salmon (Bruxelles: Bruylant, 2007) 1383–421; Nico Schrijver, ‘Reforming the UN Security Council in Pursuance of Collective Security’, 12 JCSL (2007) 127–37; Oscar Solera, Defining the Crime of Aggression (London: Cameron May, 2007); Lucas J. Ruiz Díaz, ‘El sistema de seguridad colectiva de las Naciones Unidas y lo organismos regionales’, in Diego J. Liñán Nogueras and Immaculada Marrero Rocha (eds), El estatuto jurídico de las fuerzas armadas españolas en el exterior (Madrid: Plaza y Valdés, 2008) 159–94; Brian J. Foley, ‘Reforming the Security Council to Achieve Collective Security’, in Russell A. Miller and Rebecca M. Bratspies (eds), Progress in International Law (Leiden: Nijhoff, 2008) 571–90; Vera Gowlland-Debbas, ‘Reinterpreting the Charter’s Collective Security System’, in Jorge Cardona Llorens (ed), La ONU y el mantenimiento de la paz en el siglo XXI entre la adaptación y la reforma de la Carta (Valencia: Tirant lo Blanch, 2008) 273–87; Bryan C. Banks, ‘The Security Council as Global Legislator: Using Chapter VII Authority to Redefine the United Nations Role in Developing International Legal Norms’, in Abdul Ghafur Hamid Khin Maung Sei (ed), The Theory and Practice of International Law: Responses to a Variety of International Legal Issues (New Delhi: Serials Publications, 2009) 31–89; Patrik Johansson, ‘The Humdrum Use of Ultimate Authority: Defining and Analysing Chapter VII Resolutions’, 78 NoJIL (2009) 309–42; Musifiky Mwanasali, ‘Overheating Chapter VII? The Security Council and Africa’s Post-Cold War Conflicts’, in Adekeye Adebajo (ed), From Global Apartheid to Global Village: Africa and the United Nations (Scottsville: University of KwaZulu-Natal Press, 2009) 239–49; Hitoshi Nasu, ‘Who Guards the Guardian? Towards Regulation of the UN Security Council’s Chapter VII Powers Through Dialogue’, in Jeremy Farrall and Kim Rubenstein (eds), Sanctions, Accountability and Governance in a Globalised World (Cambridge: Cambridge University Press, 2009) 123–42; Torunn L. Tryggestad, ‘The UN Peacebuilding Commission and Gender: A Case of Norm Reinforcement’, 17 IP (2010) 159–71; Nicholas Tsagourias, ‘Cosmopolitan Legitimacy and UN Collective Security?’, in Roland Pierik and Wouter Werner (eds), Cosmopolitan in Context: Perspectives from International Law and Political Theory (Cambridge: Cambridge University Press, 2010) 129–54; Nigel D. White and Matthew Saul, ‘Legal Means of Dispute Settlement in the Field

Action with respect to maintenance of the peace under Chapter VII   217 of Collective Security: The Quasi-Judicial Powers of the Security Council’, in Duncan French, Matthew Saul and Nigel D. White (eds), International Law and Dispute Settlement: New Problems and Techniques (Oxford: Hart, 2010) 191–224; Alexander Orakhelashvili, Collective Security (Oxford: Oxford University Press, 2011); Erika De Wet, ‘The United Nations Collective Security System in the 21st Century: Increased Decentralization Through Regionalization and Reliance on Self-Defence’, in Holger P. Hestermeyer et al. (eds), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum (Leiden: Nijhoff, 2012) 1553–68; Maurizio Arcari and Louis Balmond (eds), La gouvernance globale face aux défis de la sécurité collective (Napoli: Editoriale Scientifica, 2012); Nico Krisch, Introduction to Chapter VII: The General Framework, in Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 2, 1237–71; Nicholas Tsagourias and Nigel D. White, Collective Security: Theory, Law and Practice (Cambridge: Cambridge University Press, 2013); James Cockayne, The UN Security Council and Organized Criminal Activity: Experiments in International Law Enforcement (Helsinki: WIDER, 2014); Rob Jenkins, Peacebuilding: From Concept to Commission (London: Routledge, 2013); Gary Wilson, The United Nations and Collective Security (London, Routledge, 2014).

Chapter VII covers the most important powers of the Security Council, which should serve the purpose of the maintenance of world order. It constitutes the basis for the adoption of enforcement measures regarding States responsible for breaching the peace and even for the establishment of armed forces in the service of the United Nations. The collective security system, as the powers given by Chapter VII to the Council are called, functioned poorly and rarely up until the fall of the Berlin Wall, owing to the Cold War and the reciprocal vetoes of the Soviet Union and the permanent Western members. Starting with the Gulf War of 1991, however, this system has had a second life and has once again become important. At the present time the Council actions taken on the basis of Chapter VII are the most relevant and important UN activities, in accordance, moreover, with what had been the idea of the framers of the Charter. Although the period of veto is not definitively over, particularly as far as large and important crises are concerned, the number of resolutions providing for very limited interventions of the Security Council under Chapter VII is, however, still impressive. One of the main features of the current action of the Security Council on the basis of Chapter VII is the intervention in a State’s domestic affairs. This could be where a civil war is going on or a massive violation of fundamental human rights has occurred or where a post-conflict situation arises which needs the assistance to the local authorities. The United Nations activities in the reconstruction of States has been recently institutionalized, even if only at an advisory level, with the creation of the Peacebuilding Commission as outlined in the report of the High-level Panel on the UN reform of 2004, the Report In Larger Freedom of 2005 (see paras. 114–18) and the World Summit Outcome Document of 2005 (para. 97) (see § 8). The Commission was established by the Security Council and the General Assembly, as their joint subsidiary organ, respectively, with Res. 1645 of December

218  The Functions 20, 2005 and with Res. 60/180 of December 30, 2005. It is composed of representatives from thirty-one States with a renewable term of two years, which includes seven members of the Security Council, including permanent Members, seven elected by the General Assembly and seven elected by the Economic and Social Council, five members selected among the ten largest contributors to the expenses of the United Nations and another five from the largest providers of military personnel and civilian police of UN missions. It meets in sessions specifically dedicated to a single country (Country-Specific Meetings) to which may be invited to participate, in addition to the country concerned, Member States belonging to the same region involved in the reconstruction process, the largest contributing States in financial, military and police terms, the major United Nations representatives operating in the field and the relevant regional and international institutions. Its main task is to work out, at the request of local authorities, strategies for post-conflict reconstruction and restoration of peace and co-ordinate the activities of the actors—whether belonging to the United Nations or not—involved in this process. The Commission may consider the reconstruction of a particular country provided that it has been concluded a peace agreement and there exists within the country a minimum level of security. It is also responsible for issuing opinions that may be required by the Security Council, General Assembly, the Secretary-General and the Economic and Social Council provided there is the consent of the State concerned and that the Security Council is not already dealing with it under Article 12 of the UN Charter (see § 64). The request for an opinion can also come from a Member State that is about to fall, or fall again, in a situation of conflict, and with which the Security Council is not already dealing. The Commission shall prepare an annual report concerning its activities which shall be examined and discussed by the General Assembly. In December 2006, the Commission established a Working Group on Lessons Learned to collect and develop best practices on peace-­building, a group which includes both representatives of Member States and specialized technical personnel. In October 2006 was also established by the Secretary-General at the request of the General Assembly, the Peacebuilding Fund, a fund the Commission may use in the early stages of the rebuilding process whereas funding has not yet been allocated or is not available, in order to intervene promptly. The Commission is currently working on the situations in Burundi, Guinea, Guinea-Bissau, Liberia, Central African Republic and Sierra Leone. It should be remembered that with Resolution 1947 of October 29, 2010, the Council unanimously approved the report on the “Review of Peacebuilding Architecture” requesting “all relevant UN actors to take forward, within their mandates and as appropriate, the recommendations of the report with the aim of further improving the effectiveness of the Peacebuilding Commission”. Although it remains to be seen whether the Commission will be able to function effectively and produce results worthy of note it should be reported the interest it arouses in its task to realize the obvious opinion that peace, in case of problems within States, it is not to be defended only by arms but by solving the serious economic and social problems that impede it.

Another important feature is the increasing number of measures which are taken by the Council without any justification in the light of the provisions of the Charter. Often, in taking such measures, the Council expressly states that it is acting in the framework of Chapter VII since a threat or a breach of the peace has occurred. In examining this practice from a legal point of view, it is necessary to ascertain whether the practice can be somehow fitted into one of the provisions of the chapter, even broadly interpreted, and, if not, whether it

The determination of a threat to, or of a breach of, the peace, or an of aggression   219

has brought about a customary rule, or whether it is legally justifiable only on a case-by-case basis depending on the reaction of the States as a whole, or it must simply be considered as illegal even if politically understandable. In the following pages we will firstly examine the provisions of Chapter VII and the related practice and then consider the practice which has no basis in such provisions. Chapter VII poses two main questions: (a) under what conditions the Council may take the measures therein specified; (b) after having determined that one of the conditions exists, what measures may the Council adopt. It is clear that the second problem does not arise, or the applicability of Chapter VII is not “triggered”, if the first issue is answered in the negative. Since, as we shall see, Chapter VII entrusts the Council with the determination of both issues, the question arises also as to whether the discretionary power with which the Council resolves them meets or not some limits. 56.  The determination of a threat to the peace, a breach of the peace, or an act of aggression Select bibliography: See § 55. Adde: Ruth Gordon, ‘United Nations Intervention in Internal Conflicts: Iraq, Somalia, and Beyond’, 15 MJIL (1993) 519–89; T.D. Gill, ‘Legal and Some Political Limitations on the Power of the Security Council to Exercise its Enforcement Powers Under Chapter VII of the Charter’, 26 NYIL (1995) 33–138; Jost Delbrück, ‘The Fight Against Global Terrorism: Self-Defense or Collective Security as International Policy Action?’, 44 GYIL (2001) 9–24; Mirko Zambelli, La constatation des situation de l’article 39 de la Charte des Nations Unies par le Conseil de sécurité: le champ d’application des pouvoirs prévus au chapitre VII de la Charte des Nations Unies (Genève/Bâle/Munich: Helbing & Lichtenhann, 2002); Géraard Chan, ‘La notion de pouvoir discrétionnaire appliqué aux organisations internationales’, 107 RGDIP (2003) 535–600; Erika De Wet, The Chapter VII Powers of the United Nations Security Council (Oxford: Hart, 2004) 133–77; Pierre D’Argent, Jean D’Aspremont Lynden, Frédéric Dopagne and Raphaël van Steenberghe, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed), vol. 1, 1131–170; Antonio Cassese, ibid., 1329–60; Valeria Santori, The UN Security Council’s (Broad) Interpretation of the Notion of the Threat to Peace in Counter-Terrorism, in Giuseppe Nesi (ed), International Cooperation in Counter-Terrorism: The United Nations and Regional Organizations in the Fight Against Terrorism (Aldershot: Ashgate, 2006) 89–111; Alexander Orakhelashvili, ‘The Power of the UN Security Council to Determine the Existence of a “Threat to the Peace”’, 1 IrYIL (2006) 61–99; Raffaele Cadin, I presupposti dell’azione del Consiglio di Sicurezza nell’art. 39 della Carta delle Nazioni Unite (Milano: Giuffrè, 2008); Mónica Lourdes de la Serna Galván, ‘Interpretation of Article 39 of the UN Charter (Threat to the Peace) by the Security Council: Is the Security Council a Legislator for the Entire International Community?’ 11 AmexDI (2011) 139–85; Nico Krisch, Article 39, in Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 2, 1272–96; Stephan Wollbrink, A Violation of International Law as a Necessary Element of a “Threat to the Peace” under the UN Charter (Baden-Baden: Nomos, 2014).

220  The Functions

Under Article 39, the first article in Chapter VII, the exercise of the powers set out under the article presumes the existence of a threat to the peace, a breach of the peace or an act of aggression. In determining whether or not, in a specific case, there exists a threat to the peace, a breach of the peace, or an act of aggression, the Security Council enjoys broad discretionary power (“The Council”, Article 39 simply states, “shall determine the existence…”, etc.). The discretionary power of the Council to interpret the terms “threat to the peace”, “breach of the peace” and “act of aggression” in Article 39 has been discussed at length by the doctrine. At the San Francisco Conference, various proposals were made that the Charter be more detailed with regard to the conditions for the applicability of Chapter VII and, in particular, that it define aggression or at least list a certain number of typical cases which would justify an intervention by the Council. There was also clear concern that wide discretion of the organ could be detrimental to small or middle-sized States, possibly targeted by the Council, whereas the major powers, shielded by their right of veto, would have nothing to fear even in the event of their being in the position of the accused. However, it was easy to object that the opening of such issues would have brought the Conference to a standstill, especially if one took into account the precedent of the heated and fruitless debates that had characterized the attempts at defining aggression in the League of Nations in the period between the two world wars (on these debates, see Stone, Aggression and World Order: A Critique of UN Theory of Aggression, London, 1958, p. 27 ff.) So, in the end, the present wording of Article 39 was preferred, with the stated purpose of allowing the Council to decide how to act on a case-by-case basis (cf. U.N.C.I.O., vol. 12, p. 505). It has been suggested, in favor of unlimited discretion, that the Charter does not define the three terms “threat to the peace”, “breach of the peace” and “act of aggression” and that the assessment requires an evaluation of both a factual and political nature, rather than legal, as demonstrated by the veto power which can be exercised by the five permanent Members and the absence of Council obligations. It has been argued, to the contrary, that the vagueness of the three terms does not prevent from defining them by means of interpretation, especially since it regards well known international law notions; that the very fact that Article 39 specifies three situations, instead of simply giving the Council a general power, indicates the intention of considering the Council discretion as limited; that an unlimited discretionary power would make the Council an authority capable of intervening in any situation internal to a State, even if insignificant; that the difference, set by the Charter, between the essential requirements of Chapter VI and Chapter VII, would otherwise fail (see § 49); and finally that the absence of obligations on the Council does not in itself amount to an unlimited discretionary power. It has already been said

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that the Council does not have any binding interpretative powers and that it must be consistent with the meaning objectively attributable to the Charter. What is then the meaning of the three key terms “threat to the peace”, “breach of the peace” and “act of aggression” in Article 39? First of all, one should ask oneself what Article 39 means by “peace”, the threat following which or the breach of which leads to the applicability of Chapter VII. Sometimes it is held, in a negative and restricted way, that peace is the absence of inter-State or internal conflicts. Other times, especially lately, concomitant with the development of the concept of “human security” (see § 74), by peace it is meant, in a positive and extensive way, a set of political, social and economic circumstances that obstruct the rising of future conflicts. The first meaning is still preferable, although nowadays a tendency in favor of the second one is making its mark: Article 39, when speaking of “threat of the peace” and “breach of the peace”, allows the Council to react to a conflict, whether threatened or carried through, rather than taking measures aimed at promoting general conditions to prevent (or at least to reduce the odds of) future conflicts. By “breach of the peace”, as opposed to “threat”, it is evidently meant that an international or internal conflict is taking place even though it might not reach (in the case of an international conflict) the more serious level of an “act of aggression”. The Security Council has rarely established a “breach of the peace”. It did so, for instance, in the case of the Korean War (Res. 82 of June 25, 1950), of the Falklands/Malvinas conflict (Res. 502 of April 3, 1982), of the Iran and Iraq War (Res. 598 of July 20, 1987) and of the Gulf War (Res. 660 of August 2, 1990); but never, to this day, has it done so for internal conflicts where it has always invoked the “threat to the peace”. The term “aggression”, the definition of which was deliberately avoided at the San Francisco Conference (cf. U.N.C.I.O., vol. 12th, p. 341 ff.), was discussed at length at the United Nations and then specified, after many years of work of an ad hoc Committee, in a Declaration of principles (on the characteristics of this kind of act, see § 94) on the definition of aggression adopted by the General Assembly with Res. 3314 of December 14, 1974. The 1974 General Assembly Declaration on the definition of aggression lists a series of cases of aggression. They range from military invasion or occupation, even if temporary, to bombardment by land, sea or air forces, to the blockade of ports or coasts, to the sending of irregular forces or of armed bands of mercenaries “of such gravity” as to amount to direct aggression or consisting in a “substantial involvement therein” (so-called indirect armed aggression), or to a State allowing its territory to be used for attacks against another State’s territory, and so on. Moreover, this is a list that does not affect Article 39 and the powers of the Security Council. Indeed, the Declaration recognizes that the Council may,

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taking into account the circumstances of each specific case, conclude that the commission of one of the acts listed does not justify its intervention (Article 2); that the Council may consider other acts not listed as aggression (Article 4); and that, more in general, the definition of aggression ­contained in the resolution shall not prejudice the functions of UN organs as they are provided for by the Charter. This being the situation, it is superfluous to raise the problem (which in any case would have to have a negative answer) of whether the Assembly has the power to bind the Council on this matter. The Council has not, as yet, declared the commission of an act of aggression under Article 39, as it has always preferred to speak of “breach of the peace”, even when, also in the case of the North Korean invasion of South Korea in 1950 and of the Iraqi invasion of Kuwait in 1990, it undoubtedly was an aggression. At times the Council used the wording “armed aggression” but only in order to condemn the behavior of a specific State, like in the case of the Israeli air raid against the PLO headquarters in Tunisia (Res. 573 of October 4, 1985) and the request to South Africa to cease the armed aggression against Angola in 1985 (Res. 577 of December 6, 1985). In the Turkish invasion of Cyprus case, in 1974, the Council even limited itself to defining it a “threat” to the peace and to international security (Res. 353 of July 20, 1964). A committee of 15 Member States for the study of aggression had been appointed by the General Assembly already in 1950 with Res. 688-VII of December 20, 1952 and was enlarged in 1954 to 19 members. However, its activity came to an end in 1957 because it proved impossible to reach an agreement. Only in 1967, with Res. 2330-XXII which created a new Committee composed of 35 members (“Special Committee for the Definition of Aggression”) was work resumed. The work’s successful conclusion in 1974 was due also to the fact that many controversial points were eliminated rather than resolved and that, ultimately, the Declaration defines and specifies only the most simple, although the most serious, form of aggression, i.e., armed aggression. The final report of the Special Committee appears in GAOR, 29th sess., Supp. no. 19. It should be noted that the “crime of aggression” is defined in Article 8 bis, para. 1, of the Statute of the International Criminal Court adopted by the First Review Conference held in Kampala from 30 May to 11 June 2010 (“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 which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”), as originally envisioned by Article 5, para. 1, letter d, which provided for the possibility of including aggression among the crimes over which the Court had jurisdiction. Other provisions of the amendments introduced at Kampala regard the conditions and procedures for the exercise of jurisdiction, which still remains subordinate to a further decision of the States Parties to be adopted by a two-thirds majority after 1 January 2017. However, this concerns the personal responsibility of the perpetrator of the crime of aggression and not the international responsibility of the State (cf. Art. 24, para. 4, of the Statute). Article 8 bis, para. 2 of the Statute, as amended, also defines the “act of aggression” as an illegal act of the State, restating what was established on the definition of aggression in the Declaration of 1974.

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The Council’s discretion can however be exercised especially in relation to the “threat to peace” scenario: it is such a vague and flexible hypothesis that, unlike aggression and breach of the peace, is not necessarily characterized by military operations and, more in general, by the use of military force, nor by an international unlawful act, therefore encompassing a wide range of State behavior. After all, in practice the Council has almost always invoked a “threat to peace” when it intended to adopt the measures under Chapter VII. Under “threat to peace” may fall also situations internal to a State, considered to be able to have a significant impact in the surrounding region, or behaviors of the State itself. In the practice the Council regarded an extended policy of racial segregation (apartheid) as a threat to the peace, like in the 1966 South Rhodesia and 1977 South Africa cases (see § 59); the violent persecution of a minority, like in the case of the Iraqi repression of the Curds and the Shiites in 1991, soon after the end of the Gulf war; the gross and systematic violation of human rights and of international humanitarian law in Bosnia-Herzegovina and in Croatia in 1993, in Albania in 1997 and in Kosovo in 1999; the genocide and the killing of civilians in Rwanda in 1994; a civil war situation, if not of real anarchy, in which eventually a State cannot even be identified, nor a legitimate government, but only factions fighting each other, along with gross violations of human rights, as in the cases of Congo in 1960, of Somalia since 1992 (see § 60), of Liberia since 1992, of Angola since 1993, of the Democratic Republic of Congo since 1996, of the Central African Republic since 1997, of Sierra Leone since 1997 or of Timor-Leste since 1999; a coup, the overthrowing of a head of State democratically elected and the establishment of an authoritarian regime, like in Haiti in 1994; the refusal to extradite (or the refuge granted to) alleged terrorists, as in the cases of Libya since 1992, of Sudan since 1996 and of Afghanistan since 1999; the perpetration of certain terrorist attacks, mainly through the adoption of the Council President’s statements, but sometimes (as in the 2003 attacks in Istanbul, the 2004 Madrid attacks, the 2005 London and Iraq attacks of 2005) also through resolutions; the engaging of certain States (especially Iran and the Democratic People’s Republic of Korea) of nuclear programs for military purposes, whether in violation or not of the 1968 Treaty on Nonproliferation of Nuclear Weapons (NPT); the support provided by a State (Eritrea) to armed groups undermining peace and reconciliation in another State (Somalia) in 2009; failure to protect the civilian population in an insurgency or internal disorder (Libya and Ivory Coast) in 2011; the proliferation of chemical weapons (Syria) in 2013 and the spread of the “Ebola” virus in West Africa in 2014. The Security Council has considered both international terrorism, now including ISIS (see §§ 59 and 61), and the proliferation of nuclear weapons as a threat to peace in favor of non-State entities (particularly of terrorist groups)

224  The Functions

in general, regardless of specific States and specific crises, giving rise to the problem—we will deal with later (see § 59)—of whether the Council can exercise global “legislative” powers. In some instances the Council has also considered as a “threat” to the peace ongoing conflict situations, regarding as such the continuation of the conflict, as in the 1974 Cyprus case, the Democratic Republic of Congo and the Ethiopia and Eritrea conflict of 2000; or post-war situations, as that of Bosnia in 1991 and 1995, Kosovo and Timor-Leste in 1999 and Iraq in 2003. More recently the Council has declared as a “threat to the peace” under Article 39 piracy and the acts of robbery at sea committed off the Somali coast. For South Rhodesia cf. Resolutions 217 of November 20, 1965 (condemnation of the usurpation of power by a racist minority), 221 of April 9, 1966 (request to Portugal and the United Kingdom to prevent the arrival in South Rhodesia of ships carrying oil coming from Beira), and 232 of December 16, 1966 (banning the import of products from Southern Rhodesia and the supply of weapons); for South Africa cf. Res. 418 of November 4, 1977 (weapons embargo for the apartheid policy). For the Gulf war cf. Res. 688 of April 5, 1991 (condemning the repression of civilians in Iraq). For Bosnia-Herzegovina and Croatia cf. Resolutions 713 of September 25, 1991 (embargo against Yugoslavia for breach of the ceasefire), 824 of May 6, 1993 (requesting to put an end to armed attacks and to any hostile action against the cities proclaimed to be safe areas including Sarajevo), and 827 of May 25, 1993 (establishing the International Criminal Tribunal for the former Yugoslavia); for Albania cf. Res. 1101 of March 28, 1997 (concerning the authorization of the Member States to grant the safety of the multinational force personnel); for Kosovo cf. Resolutions 1160 of March 31, 1998 (banning the supply of weapons to the Federal Republic of Yugoslavia), 1199 of September 23, 1998 (on the observance of the ceasefire), and 1244 of June 10, 1999 (condemning the use of force by the Federal Republic of Yugoslavia and the deployment of a civilian and security presence). For Rwanda cf. Resolutions 918 of May 17, 1991 (extending the mandate of the assistance mission in Rwanda and the imposition of an arms embargo), 929 of June 22, 1994 (establishing a temporary multinational operation with a humanitarian scope until the deployment of a UN assistance mission), 925 of June 8, 1994 (extending the mandate of the UN assistance mission), and 955 of November 8, 1994 (establishing the international Criminal Tribunal for Rwanda). For Somalia cf. Resolutions 733 of January 23, 1992 (arms embargo), 751 of April 24, 1992 (establishing a UN mission) 794 of December 3, 1992 (authorizing the SecretaryGeneral and Member States to resort to all the means necessary in order to grant a safe environment for the Somali operation), 814 of March 26, 1993 (extension of the UNOSOM mandate), 837 of June 6, 1993 (condemning the armed attack against the UNOSOM II personnel of June 5, 1993), 886 of November 18, 1993 (extension of UNOSOM II) and 923 of May 31, 1994 (extension of the UNOSOM II mission and national reconciliation process); for Liberia cf. Resolutions 788 of November 19, 1992 (arms embargo), 813 of March 26, 1993 (condemning the breach of the cease fire), and 1343 of March 7, 2001 (requesting the Liberian Government not to support the rebel armed groups, amongst which the RUF, and an arms embargo); for Angola cf. Res. 864 of September 15, 1993 (condemning the military actions of UNITA against the civil population and an arms embargo); for the Democratic Republic of Congo cf. Resolutions 1078 of November 9, 1996 (requesting a

The determination of a threat to, or of a breach of, the peace, or an of aggression   225 ceasefire in the Great Lakes region), 1234 of April 9, 1999 (requesting the withdrawal of foreign troupes), 1279 of November 30, 1999 (requesting the respect of the ceasefire agreement), 1291 of February 24, 2000 (extending the mandate of the MONUC mission functions), and 1304 June 16, 2000 (withdrawing foreign troupes, in particular of Uganda and Rwanda, and demanding the respect of the ceasefire); for the Central Africa Republic cf. Resolutions 1125 of August 6, 1997 (participation of the States to the MISAB mission in order to monitor the respect of the peace agreements), 1159 of March 27, 1998 (extending the mandate of the MISAB mission and the establishment of the MINURCA mission), 1230 of February 26, 1999 (extending the mandate of MINURCA), and 1271 of October 22, 1999 (extending the MINURCA mandate and the progressive transfer of the security functions performed by UN personnel to the local police forces); for Sierra Leone cf. Resolutions 1132 of October 8, 1997 (requesting the military junta illegally in power to stand down and on oil and arms embargo), 1156 of March 16, 1998 (restoring to power the democratically elected President and lifting of the oil embargo), 1171 of June 5, 1998 (arms embargo), 1181 of July 13, 1998 (condemning the acts of violence perpetrated by the RUF members against the civilian population and establishment of the UNOMSIL mission), 1231 of March 11, 1999 (extending of the UNOSMIL mission), 1270 of October 22, 1999 (establishing the UNASMIL mission), and 1306 of July 5, 2000 (banning Member States from importing diamonds from Sierra Leone without an origin certificate); for Timor Leste cf. Resolutions 1264 of September 15, 1999 (establishing a multinational force under unified command for the restoration of peace and security in Timor Leste), and 1272 of October 25, 1999 (establishing the UNTAET). Sanctions against Sierra Leone ceased with Res. 1940 of September 29, 2010, which also dissolved the Committee established by Res. 1132. For Haiti cf. Resolutions 841 of June 16, 1993 (oil and arms embargo), 873 of October 13, 1993 (lifting of the embargo), and 940 of July 30, 1994 (establishing a multinational force under unified command for granting the return to power of the democratically elected President and extending the mandate of the UNMIH mission). For Libya cf. Resolutions 748 of March 31, 1992 (embargo for the assistance of the government to acts of terrorism), and 883 of November 11,1993 (freezing by the Member States of the funds and financial resources linked to the Libyan government); for Sudan cf. Resolutions 1044 of January 31, 1996 (condemning the failed attack against the Egyptian President, in Addis Ababa on June 26, 1995, and requesting the extradition of the alleged perpetrators), 1054 of April 26, 1996 (concerning the failure to comply with the extradition request of the alleged perpetrators of the attacks and the request of ceasing any type of support to terrorists), and 1070 of August 16, 1996 (prohibiting landing and taking-off of Sudanese aircrafts in the territory of Member States as a reaction to Sudan’s non compliance with the required measures); for Afghanistan cf. Resolutions 1267 of October 15, 1999 (requesting the Taliban to adopt the necessary measures for not allowing terrorist organizations to operate within their territories and to turn over Osama bin Laden), and 1333 of December 19, 2000 (arms embargo, ban to provide assistance in military actions against Afghanistan and the request to States to freeze Osama Bin Laden’s funds and financial assets and those of individuals and entities associated with him). For the statements of the President of the Security Council condemning specific terrorist attacks, linking them to the repressive regimes of terrorism established with the previous resolutions of a general and binding nature, including Res. 1373 of September 28, 2001, see for example, amongst the most recent, Statements S/PRST/2006/30 of July 12, 2006 (attacks in India), S/PRST/2008/19 of June 2, 2008 (attack against the Danish Embassy in Islamabad), S/PRST/2008/31 of August 19, 2008 (attack in Algeri), S/PRST/2008/32 of August 21, 2008 (attack in Pakistan), S/PRST/2008/35 of September 22, 2008 (attack in Islamabad), S/ PRST/2008/41 of October 30, 2008 (attack in Somalia), S/PRST/2009/22 of July 17, 2009 (attack in Jakarta), S/PRST/2009/28 of October 29, 2009 (attack in Kabul), S/PRST/2009/30

226  The Functions of November 16, 2009 (attacks in Baghdad); for similar statements in the resolutions of the Council see Resolutions 1516 of November 20, 2003 (attack in Istanbul), 1530 of March 11, 2004 (attack in Madrid), 1611 of July 7, 2005 (attack in London), and 1618 of August 4, 2005 (attack in Iraq). On the legal meaning of the Presidential Statements see Paul Tavernier, ‘Les declarations du Président du Conseil de sécurité’, 39 AF (1994), pp. 86–104; Stefan Talmon, ‘The Legal Character of Statements by the President of the Security Council’, 2 ChJIL (2003) 419–67. As regards the development of nuclear weapons by the Democratic People’s Republic of Korea and Iran (the former has withdrawn from the Non-Proliferation Treaty in 2003, albeit not in an entirely orthodox way from a formal point of view, and is therefore not bound by its provisions) cf., for North Korea, Resolutions 1695 of July 15, 2006, 1718 of October 14, 2006, and 1874 of June 12, 2009; and, for Iran, Resolutions 1747 of March 24, 2007, 1803 of March 3, 2008, 1835 of September 27, 2008 and 1929 of June 9, 2010. As far as the condemnation of international terrorism as such, as a threat to the peace, after the September 11, 2001 attacks in the United States, Res.1373 of September 28, 2001 is fundamental; for non-proliferation in favor of non-State entities Res. 1540 of April 28, 2004 is of key importance. This latter was reaffirmed by Res. 1887 of September 24, 2009, adopted in a historic summit meeting presided over by US President Barack Obama and addressed by 13 other Heads of State and Government (cf. Doc. S/PV.6191). For ongoing conflicts cf. Res. 353 of July 20, 1974 regarding Cyprus (requesting to cease the Turkish military intervention), Res. 1304 of June 16, 2000 regarding the Democratic Republic of Congo (requesting to cease hostilities between the Rwandan and Ugandan forces) and Res. 1298 of May 17, 2000 regarding the conflict between Ethiopia and Eritrea (immediate ceasefire and obligation for the States to prevent the supply of weapons to the parties involved in the conflict). For post-conflict situations cf., with regard to Iraq, Res. 687 of April 3, 1991(respect of the borders between Iraq and Kuwait of 1963 and the obligation for Iraq to destroy the weapons of mass-destruction); as to Bosnia, Res. 1031 of December 15, 1995 (on implementation of the Peace Agreement for Bosnia and Herzegovina and transfer of authority to the IFOR); as to Kosovo, Res. 1244 of June 10, 1999 (condemning the use of force by the Federal Republic of Yugoslavia and deployment of the civil and security); for Timor Leste, Res. 1272 of October 25, 1999 (establishing UNTAET); again relating to Iraq Resolutions 1472 of March 28, 2003 (relating to the Geneva Conventions and the Hague Regulations), 1483 of May 22, 2003 (requesting the Coalition Provisional Authority (CPA) to promote the wellbeing of the Iraqi people through the effective administration of the territory and to respect international humanitarian law), 1500 of August 14, 2003 (establishment of UNAMI), 1511 of October 16, 2003 (reaffirming the sovereignty and territorial integrity of Iraq, and of the CPA), 1546 of June 8, 2004 (approving the ad interim government of Iraq and the end of the occupation by the CPA). For the repression of piracy off the Somali coast cf. Resolutions 1816 of June 2, 2008, 1838 of October 7, 2008, 1846 of December 2, 2008, 1851 of December 16, 2008, 1897 of November 30, 2009 and 1950 of November 23, 2010 (see § 61). For the claim that for the purpose of verifying a “threat to peace” Eritrea had supported armed Somali Islamic groups (accused of links with Al Qaeda) threatening peace by opposing the transitional government of Somalia and had failed to withdraw from a strip of Djibouti’s territory ordered by the Security Council, see Res. 1962 of January 14, 2009 and 1907 of December 23, 2009 (see § 59). In Res. 1970 of February 26, 2011, in adopting sanctions expressly based on Chapter VII of the Charter, in particular Article 41 (see § 59), the Security Council evidently assumed that violence and the use of force against civilians and the systematic violation of human rights by the leadership of Gaddafi’s Libyan government, in addition to acts to be

The determination of a threat to, or of a breach of, the peace, or an of aggression   227 considered as crimes against humanity, were at the very least a “threat to peace” within the meaning of Article 39. Then, in Res. 1973 of March 17, 2011, in adopting additional ­measures (see § 61) under Chapter VII, the Council said that “the situation in the Libyan Arab Jamahiriya continues to constitute a threat to international peace and security”. With Res. 1975 of March 30, 2011, the Security Council, acting in accordance with Chapter VII, adopted a series of sanctions (see § 59) on the assumption that the violence unleashed in Ivory Coast and acts of incitement to discrimination, hatred and violence, as well as “the serious abuses and violations of international law in Côte d’Ivoire, including humanitarian, human rights and refugee law”, constituted a “threat to international peace and security”. With Res. 2118 of September 27, 2013 on chemical weapons in Syria, the Council repeated that “the use of chemical weapons anywhere constitutes a threat to international peace and security” (see. § 59), as well as “a serious violation of international law”. With Res. 2177 of September 18, 2014, the Security Council described “the unprecedented extent of the Ebola outbreak in Africa” as a threat to peace and international security, asking States to send medical experts and medicines to the most affected regions in Africa to face the health emergency and asked the worst hit States (Guinea, Sierra Leone and Liberia) to adequately inform the population about the risks and precautions to be taken. The resolution, which follows General Assembly Res. 69/1 of September 23, 2014, set up a UN health emergency mission, the United Nations Mission for Ebola Emergency Response (UN-MEER) for the first time. This is the second case in which the Council has been involved in public health, after Res. 1308 of July 17, 2000 on the spread of HIV. The actions of the Assembly and the Council regarding the Ebola virus in particular seem to show the growing impact that public health is having in the sphere of international security, so that today this phenomenon is known as the “securitization of public health” (see Gian Luca Burci and Jakob Quirin, ‘Ebola, WHO, and the United Nations: Con­ vergence  of Global Public Health and International Peace and Security’, ASIL Insights, November 14, 2014).

From the foregoing discussion it is understandable that by now one of the outstanding features of the current practice of intervention of the Council under Chapter VII is underlain by the humanitarian nature of the interventions and by the elimination of any distinction between international war and internal war: in either case it concerns a violation of the peace for the cessation of which, in order to protect human persons victims of the barbarous use of war violence and often subjected to serious violations of human rights, such as genocide, ethnic cleansing, torture, etc., the international community is directly involved. And it goes without saying that the plea of domestic jurisdiction cannot be invoked for any of the matters we are dealing with: first, such an exception is expressly excluded by Article 2, para. 7, last part, with regard to decisions on enforcement measures; secondly, also for the other resolutions referable to Chapter VII, which, as we shall soon see, consist mainly of recommendations set out in that Article 39 (see § 57), the limit of domestic jurisdiction fell in the practice with regard to domestic situations in which human rights are at stake in the broadest sense of the term (see § 45 III).

228  The Functions

It should be noted that—like the concept of “act of aggression” under Article 39 and of the ban to resort to the use of force under Article 2, para. 4, of the Charter—there is no correspondence between the “threat to the peace” under Article 39, regarding the Security Council, and the “threat to resort to the use of force” forbidden for the States under Article 2, para. 4. The prohibition of the threat of the use of force under Article. 2, par. 4, has been pegged by the International Court of Justice to the ban to use force. In its 1996 Opinion on the Legality of the Threat or Use of Nuclear Weapons the Court in fact stated that “the notions of ‘threat’ and ‘use’ of force under Article 2, para. 4 of the Charter stand together” insofar as “if the use of force itself in a given case is illegal—for whatever reason—the threat to use such force will be likewise illegal”. In other words, “if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter”. The Court has therefore pointed out, with specific reference to the nuclear debate, that if on the one hand “in order to be effective, the policy of deterrence” put in place “by those States possessing nuclear weapons or that under the umbrella of nuclear weapons seek to discourage military aggression by demonstrating that it will serve no purpose”, necessitates that “the intention to use nuclear weapons be credible”, on the other, nuclear deterrence may still constitute “a ‘threat’ contrary to Article 2, para. 4, of the Charter” in those cases where “the particular use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the Purposes of the United Nations” or “intended as a means of defense, it would necessarily violate the principles of necessity and proportionality” (ICJ Reports 1996, paras. 47–48). There substantially is no doubt that the Council may consider as a threat to peace, and adopt the measures of Chapter VII, a situation that is not a threat to use force forbidden to the States under Article 2, para. 4, and vice versa. Moreover, in practice, while the “threat to the peace” under Article 39 has been broadly applied by the Security Council, the “threat of force” under Article 2, para. 4, remains an undefined notion. See Marco Roscini, ‘Threats of Armed Force and Contemporary International Law’, 54 NILR (2007) 229–77; Nikolas Stürchler, The Threat of Force in International Law (Cambridge: Cambridge University Press, 2007).

Is the Council’s broad discretion unlimited? In our view some limits may be deduced from the overall system. Let us distinguish between a situation characterized by military operations and, more in general, by the use of military force—whether this occurs abroad (international war) or within a country (civil war) does not matter—and a situation characterized by conduct which, although serious, does not involve armed violence (for example, the violation of human rights). When faced with a situation of use of military force, whether international or internal, we believe that, since the use of military force is in itself at least a threat to the peace, the only limit that the Council may meet can be drawn implicitly from the principle of individual or collective self-defense provided for by Article 51: the Council may not consider as a threat to the peace, a breach of the peace, or an act of aggression the use of armed force in individual or collective self-defense, and intervene against a State which is defending itself or against States which are helping it to defend itself. This, however, is a

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limit whose relevance depends on how widely is the self-defense notion understood. In our view self-defense is to be understood as defined by Article 51, to the restricted hypothesis of a reaction to an “armed attack” [“agression armée” in the French text] already launched and at most about to strike the target even if it has not yet been hit (the so-called “interceptive” self-defense, on which see Yoram Dinstein, War, Aggression and Self-defence (Cambridge: Cambridge University Press, 2011, 5th ed), 203 ff.). It is, in fact, unthinkable, and it has never happened, that the Council has taken action against States that have resorted to the use of force (fulfilling in the abstract the provisions of Article 39) but to defend themselves from an armed attack. In this sense, selfdefense is in fact a rather theoretical limit. Instead, it would be a different matter if we were also to accept the view favorable to preventive self-defense, that is to say the use of force when in danger of being attacked, or if the use of force were admitted also against grave violations of international law such as gross violations of human rights (the so called humanitarian intervention) or complicity in terrorist activities or in drug traffic, etc. Similar views, tending to broaden the concept of self-defense and therefore to the (supposedly) legitimate use of armed force, usually upheld by the stronger States (in particular by the United States and its closest allies) but never accepted by the weaker ones, in our opinion are unfounded in the light of Article 51 and of general international law. Among other things, especially if one considers self-defense as a limit on the Council’s action, as we are here, one immediately realizes that such allegations are also dangerous, because they could limit the action of the Council—that would find itself precluded from challenging a breach of the peace or an act of aggression or a threat to peace, precisely because it would be a matter of self defense—throughout a number of situations in which it would be rather desirable for the Council to act. Article 51 restricts, without possibility of misunderstanding, the use of force in self-defense to the very specific case of the reaction to an armed attack; that is, of an attack that has already been launched by one State (with regular forces, or, under the above-cited 1974 Declaration on the definition of aggression, with irregulars or mercenaries of equivalence strength) against another State. Only in this case could an act of self-defense not be considered as a threat to the peace or breach of the peace for purposes of the application of enforcement measures. Article 51 speaks of both individual and collective self-defense. The latter refers to cases in which the reaction to an armed attack comes not only from the State that has been attacked but also from third States, provided the request and/or the consent of the attacked State. Collective self-defense was introduced at San Francisco to give room to the reciprocal assistance agreements that at the time were being drawn up on the American continent (cf., the Act of Chapultepec of March 3, 1945, in AJ 1945, Supp. p. 108 ff.) and that later were to proliferate with the establishment of regional organizations such as NATO, the Warsaw Pact, and so on. The organized collective self-defense action under Article 51 must not be confused, however, with the collective measures that

230  The Functions a regional organization may take under the direction of the Security Council in accordance with Article 53, para. 1 (see § 69).

The views that self-defense would justify preventive attacks, or attacks aimed at saving human lives (attacks with humanitarian purposes) or at counteracting States encouraging terrorism (for example, the bombing of Libya by the United States in 1986, the air war of NATO against the Federal Republic of Yugoslavia during the Kosovo crisis in 1999, which lasted about three months, the war against Afghanistan in October/November 2002, the war against Iraq in 2003) or illegal drug traffic (the invasion of Panama by the United States in 1989 and the resulting removal of General Noriega), have no basis in the Charter. The prohibition of the use of force, in fact, is expressed by Article 2, para. 4, in a way such as not to tolerate exceptions beyond the ones in Article 51 and the measures involving the use of force adopted by the Security Council envisaged by Article 42 (see § 61). Moreover, at San Francisco, the absolute character of the prohibition of the use of force was clearly confirmed, apart from the exceptions provided by other rules of the Charter (see U.N.C.I.O., vol. 6, pp. 334 and 400). Also the practice is against such theories. For example, in 1951 the Security Council, pointing out the absence of an armed attack, rejected Egypt’s view that its measures restricting the passage of ships directed towards Israel through the Suez Canal were justified as selfdefense (see SCOR, 6th year, 550th meet. ff.). Likewise, it has always rejected Israel’s and South Africa’s attempts to justify attacks against neighboring States on the grounds that such attacks were reactions to threats to their territorial integrity. UN practice, in short, has never endorsed a notion of selfdefence other than the one in Article 51 (cf., on this point, Combacau, op. cit., p. 22 ff., and see, especially, Res. 487 of 19 June 1981, condemning Israel for the bombing of nuclear plants in Iraq), and recourse to this notion in the other above-mentioned cases has always been used by States which, for however powerful, remain a minority group. For the full discussion in the Council on the possibility of interpreting the American bombing of Libya in 1986 as self-defense, cf. Doc. S/PV.2674 of April 15, 1986, S/PV.2674 and S/PV.2680 of April 15–18, 1986 and S/PV.2682 of April 21, 1986. A draft resolution condemning the bombing obtained the majority of nine votes necessary for the adoption of a resolution, but it was blocked by the veto of the United States, the United Kingdom and France (cf. S/PV.2682). On the Kosovo, Afghanistan and Iraq wars, see §§ 61 and 69.

The doctrine of preventive self-defense has been explicitly included in the document entitled “The National Security Strategy of the United States of America” (the so-called Bush Doctrine) officially presented by the President of the United States to the Congress in September 2002 and conceived as a reaction to the brutal terrorist attack on the Twin Towers on September 11, 2001,

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moreover reiterated in the “National Security Strategy” of 2006 (see AJ (2006), p. 690 f.). According to this document, preventive self-defense will be exercised by the United States whenever it is deemed necessary in order to prevent an imminent threat of attack with weapons of mass destruction or terrorist acts. The Bush doctrine has been condemned or criticized by many States and also by the Secretary- General of UN before the General Assembly (see GAOR, 58th sess., Pl. meet., September 23, 2003). The National Security Strategy of 2010 no longer expressly mentioned pre-emptive strikes and clearly tried to distance itself from the Bush doctrine, which was not acceptable from a legal point of view and corresponded to a crude and arrogant show of strength. On the 2006 strategy for the national security of the United States, see Christine D. Gray, ‘The Bush Doctrine Revisited: The 2006 National Security Strategy of the USA’, 5 ChJIL (2006) 555–78. In the National Security Strategy of May 26, 2010, President Barak Obama, while not excluding the possibility of striking first, if necessary, “to defend our nation and our interests”, no longer mentioned pre-emptive attacks and expressed the intention to “seek broad international support” and “seek to adhere to standards that govern the use of force”. The document includes, among other things, the doctrine of the responsibility to protect (see § 66) and humanitarian intervention (see § 56). See. , at pp. 22 and 48.

In our opinion, the reaction against terrorism should not consist of the use of armed force against a State, involving the death of innocent people but rather in the adoption of preventive and repressive measures against the individuals committing or organizing such crimes. Worth noting is the fact that, even after September 11, the Security Council, acting in the framework of Chapter VII, only requested the States to take a series of measures, including financial measures, against individuals and groups of individuals, like Al Qaida. The Council never authorized the war conducted by the Unites States and their allies in Afghanistan (see § 61). It is true that in some resolutions which adopted such measures (particularly in Resolutions 1368 of September 12, 2001 and 1373 of September 28, 2001) it is stated, among the “whereas”, that the Council “reaffirms the inherent right of individual or collective self-defense as recognized by the Charter of the UN…”; however, this statement must be read in the context of the measures against terrorists as listed in the resolutions; it cannot be interpreted as authorizing a war, since any time the Council has wanted to authorize the use of armed force by States it has done so expressly (see § 61). Regarding the “imminent” threat of the use of weapons of mass destruction, it is known that this casus belli was relied upon by the United States and the United Kingdom at the time of the war to Iraq in 2003. However, it is also well known that the war was condemned by the overwhelming majority of the other States, even when it had not yet been ascertained that the weapons of mass destruction… did not exist.

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Those who tend to extend the lawfulness of the use of force beyond the case of self-defense against armed attack usually emphasize the deficiencies in the collective security system provided for by Chapter VII. In particular, they emphasize the possibility that the Security Council can be paralyzed by the exercise of the veto. They say that if the Charter guarantees such paralysis by allowing the veto power, it cannot be interpreted in the sense of prohibiting a State from using any other possibility of defending itself beyond the provision of Article 51. In fact such an observation is not decisive for purposes of increasing the cases of self-defense but rather gives us the opportunity to ask whether there can be drawn from Article 2, para. 4, on the prohibition of the use of armed force, and from Article 51 itself, real obligations and rights that can be invoked by the States between themselves, outside of the institutional framework of the United Nations. In other words, it seems to us that in such a sensitive subject, as is maintenance of the peace, the Charter must be seen primarily as a set of rules regulating certain powers of the organs. In this perspective, Article 51 should not come into play as a norm sanctioning a right of the States, but rather as a norm which places a limit on the power of the Security Council to adopt enforcement measures against a State on the basis of Chapter VII, as we are treating it here. If, then, the Council is paralyzed, this means that the Charter, including Article 51, has exhausted its function, which is only that of limiting the power of the Council. Another question is then whether and how a State can defend itself in case the Council is paralyzed, a matter to be resolved, such as any of the same type, on the basis of general international law. That said about the situations of military violence, it is now worth considering the limits to the discretion of the Council to assess the existence of a threat to the peace, a breach of the peace or an act of aggression in situations characterized by military operations. This second hypothesis, which by definition is limited to the establishment of a “threat to the peace”, seems particularly relevant in practice. Considering the vague and elastic nature of the notion of threat to the peace, and taking into account the fact that the enforcement measures of Chapter VII fall outside the exception of domestic jurisdiction, it could be held that the Council could consider, as a threat to the peace and therefore subject to the enforcement measures of Chapter VII, any conduct whatsoever, either within or outside a State, such as the adoption of a certain political regime, a treatment of the economic interests of aliens that is not in conformity with international standards, the closing of ports to foreign ships, the lack of adoption of adequate measures against the spreading of a contagious disease, the corruption of the elite in power, the election victory of a certain political party judged (rightly or wrongly) a threat to peace and international security, the inability to manage certain public services decently, and the like. Clearly all this does not make much sense. Then, what is the criterion

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for establishing the limit beyond which the Council cannot go? Article 39 does not set any limits and pour cause: it would be impossible to enumerate exhaustively the limits of the Council to its assessment of whether a situation could threaten peace and international security. In theory anything could be a threat to the peace and to international security, especially in today’s globalized world where situations influence each other from one side to the other of the globe at impressive speed. Although anything can in the abstract constitute a threat under Article 39, not everything constitutes at any given time a threat to peace and international security. This is why the Council is invested with the power to determine it on a case-by-case basis. In our view, the only conceivable limit in these circumstances is that which derives from the belief of the generality of States of the international community. Article 39 does not set the limits and the Council, which has the primary responsibility in maintaining the peace, must necessarily be able to “suggest”, due to the vagueness of Article 39, its assessments on behalf of the international community: it is then up to the States in their entirety—not certainly to the individual State the Council sees as a threat, or to the few States linked to it—to react or not to the suggestions the Council makes “on their behalf ” (Article 24). The Council can predict what evaluations can provoke a stern opposition of the community of States or not: drawing useful indications from the resolutions of the General Assembly, as well as from any other international instrument on which there is a strong unanimous consensus. This also explains the great importance of the resolutions of the General Assembly, although not legally binding—as we shall see (see § 96)— neither for the States, nor the Council. In the absence of significant protests, to be evaluated on a case-by-case basis, the Council’s assessment is “legitimate”, or better it is legitimated by all Member States on whose behalf the Council exercises its responsibility. The support of the community of Member States is not evidently equivalent to a formal vote, which in case is taken or shall be taken by the General Assembly; but rather it is an informal support, below which it cannot be said that the Council is operating on behalf of the Member States under Article 24. It is in fact unthinkable that UN Members, which indeed wanted to grant the Council the widest discretion to evaluate any situation as a potential threat to the peace, intended to grant a blank mandate. Nor should we ignore that the Council cannot do anything it wants simply because it needs the consent of the States as a whole for implementing its decisions. The provisions of the Charter on the majorities necessary for the adoption of acts allow however the Council Member States, especially permanent Members, to oppose themselves to the attempts of the others to declare a “threat to the peace” situations that may not be so, and not be therefore assessed by a significant number of other States non-Members of the Council. For example, in the recent practice, the Council found itself twice in the position of not being able to declare as a “threat to the peace” the internal situation of a

234  The Functions State (in both the Myanmar and Zimbabwe situations) due to the veto of two permanent Members (Russia Federation and China). In both cases the two States held—also on the basis of the declarations of the States of the interested region stating that they suffered no repercussions—that the human rights violations there perpetrated did not threaten peace and “international” security, as on the other hand held western States, but rather that the vetoed resolution amounted to an internal interference banned by the Charter. For draft resolutions and debates cf., respectively, Doc. S/PV.5619 of January 12, 2007 and S/PV.5933 of July 11, 2008. Previously, during the debate on Myanmar at the Security Council, China had already pointed out that “neither the immediate neighbors, nor the majority of Asian States considered the situation in Myanmar to be a threat to peace and security” (Doc. S/PV.5526, p. 2) Also the renewal of Resolutions 1422 of July 12, 2002 and 1487 of June 12, 2003 aiming at removing the abstract possibility for the International Criminal Court (see §§ 37, 60 and 62) to investigate (at the moment neither imminent, nor a real prospect) military forces of third States (precisely of the US) has not reached the majority and was rejected in 2004 (see § 60). For the disputes on Resolutions 1422 and 1487 cf. for example the letters addressed to the President of the Security Council from Brazil, Canada, New Zealand and South Africa (Doc. S/2002/754). It is worth noting that notwithstanding Res. 1487 was not renewed in general terms, a similar exemption was included by the Council in Res. 1497 of August 1, 2003 authorizing a multinational force in Liberia and in Res. 1593 of March 31, 2005 submitting the Darfur question to the International Criminal Court (see § 62).

Our contention is not equivalent to saying that the limits to discretion under Article 39 are crystallized into customary norms (internal to the UN and of an universal nature), supplementary to and specificative of Article 39. On the contrary, we believe that this issue should be resolved on a case-by-case basis, without a customary rule constraining, so to speak, the next case; and that the whole argument is based, including the limits set by the Charter, on the informal support of the generality of States, which gives the Council’s assessments the legitimacy needed to ensure that its resolutions are actually taken “on behalf ” of the Member States and are therefore valid. The possibility that the Security Council can consider certain situations as a threat to the peace which are not so considered by the majority of States can more easily occur today owing to the present hyper-activity of the Council. During the Cold War things were different. Indeed, at that time, only twice did the Council take action, with enforcement measures under Chapter VII, in situations not characterized by military operations. We are referring to Resolutions 232 of December 16, 1966 and 253 of May 5, 1968 against Southern Rhodesia and 418 of November 4, 1977 against South Africa. These resolutions were adopted to penalize the apartheid policy of these two States (see § 59). In both cases it certainly cannot be said that the decisions of the Council did not correspond to the ­common opinion of the majority of the States especially if we consider the numerous ­resolutions adopted by the General Assembly specifically to induce the Council to take decisive action. As for the new phase which opened with the end of the Cold War and which began with the resolutions against Iraq, some doubt may already arise regarding the legality of some of the decisions or parts of the decisions taken by the Council. This is the case of Res. 687 of April 3, 1991, which put an end to the Gulf War, establishing a series of conditions for the ceasefire between Iraq on one side and Kuwait and its allies on the other. Res. 687 was based

The determination of a threat to, or of a breach of, the peace, or an of aggression   235 expressly, as nearly all the other resolutions against Iraq, on Chapter VII. Since it was passed when the Iraqi armed aggression had been driven back, all the decisions contained in it postulate that a threat to the peace is implicit in the subsequent conduct of Saddam Hussein’s government. For some parts of the resolution, it is doubtful whether this ascertainment corresponds to the general opinion of the States. In particular, Part E of the resolution which requires Iraq to pay compensation for the damage caused by the invasion and the unlawful occupation of Kuwait, and to accept that this damage be evaluated by a special Commission encharged with managing a compensation fund (cf. also subsequent Res. 692 of May 20, 1991, which set up the Fund and the Commission and Res. 705 of August 15, 1991, which set the minimum amount due from Iraq at 30% of the annual value of its oil exports). Part F, para. 22, of the resolution concerns the obligation to pay the compensation. Under this part, Iraq’s failure to accept this would result in maintenance of the embargo (under Article 41 of the Charter) on Iraqi exports ordered by previous Res. 661 of August 6, 1990 (see § 58). The only possible interpretation of Part E and Part F, para. 22, of the resolution is that refusal to pay compensation for war damages—compensation which, incidentally, finds little precedent in practice—constitutes a threat to the peace. Exactly such an interpretation does not seem to correspond to what is generally thought in the international community. Another action of the Council over which there may arise some doubt as to the legality of the Council’s own ascertainment of the existence of a threat to the peace, is contained in Res. 748 of March 31, 1992. This imposed on the States the blocking of air communication with Libya and an embargo on the supplying of aircraft and weapons to that country. The resolution, expressly based on Chapter VII (and coming within the framework of Article 41: see § 59), justified these enforcement measures both by the fact that Libya had not agreed to the request of the United States, the United Kingdom and France to hand over two of its citizens accused of having taken part in acts of terrorism which led to the destruction in flight of two planes belonging to PAN AM (flight 103) and UTA (flight 772) and by the fact that Libya had not yet completely ended its participation in terrorist acts or in giving assistance to groups of terrorists. The resolution also provided (at para. 3) that sanctions were to be applied until the Council had ascertained that Libya had put an end to its refusal to hand over the two suspected terrorists and to its involvement in terrorist activities. It is evident that the resolution (subsequently reaffirmed and enlarged by Res. 883 of November 11, 1993) started (as it would have to start, under Article 39) from the assumption that participation in terrorist acts and the refusal to hand over presumed terrorists constitutes a threat to the peace. The first point meets no objection: a State which encourages international terrorism may well be considered, according to international communis opinio (various times also expressed by the General Assembly), as threatening the peace among nations, and may well be subject to sanctions until it has shown that it has changed its mind. By contrast, serious doubts may arise over the part of the resolution which considered the failure to extradite Libyan citizens as a threat to the peace, and made the ending of sanctions contingent upon the ending of this behavior of the Libyan government. It is questionable whether the failure to extradite two alleged criminals may actually, according to general opinion, be considered a threat to the peace. This is all the more so in that, under the Montreal Convention of September 23, 1971 on the suppression of unlawful acts against the safety of civil aviation, which was applicable to the case and under general international law, a State which detains a person presumed responsible for acts of terrorism is free to choose between extradition to other States for punishment or to prosecution and trial before its own judicial authorities (the aut dedere aut judicare principle). In the Lockerbie judgment the International Court of Justice implied, according to some commentators, that the two resolutions could not be considered illegal prima facie, but as known it is hard to draw clear-cut conclusions from the statements of the Court (cf. ICJ

236  The Functions Reports 1992, p. 126). The sanctions were suspended in 1999, after the transfer of the accused to Netherlands to appear before a Scottish court setting there (see Security Council Res. 1192 of August 27, 1998 and the Statement by the President of the Security Council on Lockerbie suspects of April 8, 1999 in ILM (1999), p. 949) and were abolished in 2003 (Res. 1506 of September 12, 2003) after the settlement of the dispute between Libya, the United States and the United Kingdom. The same must be said of Res. 1054 of April 26, 1996 which decides that all States must significantly reduce the Sudanese diplomatic and consular staff in their territories and restrict the entry to, or the transit through, their territories of Sudanese officials, due to the refusal of Sudan to extradite to Ethiopia three suspects wanted in connection with the assassination attempt against Mubarak, the President of Egypt (see § 59). See also Res. 1070 of August 16, 1996 which, for the same reasons, imposes to all States an air traffic blockade against the Sudanese airlines. All these measures have been terminated once the Sudan decided to comply with the said resolutions (see Res. 1372 of September 28, 2001).

The discretionary power of the Security Council in the assessment of the existence or not of a threat to the peace, of a breach of the peace or of an act of aggression has no other limitations. The opinion has been expressed in legal literature that the Council must abide by general international law, in particular by the rules of jus cogens. In our opinion, apart from the possibility to take into consideration jus cogens as an indicator of the general expectations of the international community which can assist the Council in predicting and preventing reactions to its findings “on behalf ” of the Member States, no such limit exists as far as the determination of a threat to the peace, a breach of the peace or an act of aggression is concerned. The framer of the Charter did not express such a view; on the contrary, Article 1, par. 1 of the Charter limits the respect of international law to the UN function of settlement of disputes. A different question is whether, once a threat to the peace or the breach of the peace or an act of aggression is determined, the application of enforcement measures under Articles 40, 41 and 42 of the Charter, also subject to the discretionary power of the Council, encounters some limits, in particular if it must comply with general international law (on this question see §§ 59, 60 and 61), a question also arising with regard the measures of administration of territories (see § 62). 57.  The measures provided for by the Charter. A) Recommendations under Article 39 Select bibliography: see § 55. Adde: Massimo Starita, Processi di riconciliazione nazionale e diritto internazionale (Napoli: Editoriale Scientifica, 2003).

Article 39 provides that, when faced with a threat to the peace, a breach of the peace or an act of aggression, the Council may either decide what enforcement measures to take under Articles 41 and 42 or (alternatively or simultaneously) “make recommendations”. As can be very clearly drawn from the preparatory

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work, these recommendations may be identical to the recommendations under Chapter VI. In other words, the intention in Article 39 is to confirm that, also in situations coming under Chapter VII, the Council may exercise its peaceful settlement function, indicating to the States concerned procedures and methods of settlement (like those regulated by Article 33, para. 2 and Article 36) or terms of settlement (like those regulated by Article 37). The only difference between the peaceful settlement function in Chapter VI and the one under Article 39 is procedural, in that only in the first case does the obligation exist that a directly concerned Council member must abstain from the vote (Article 27, para. 3, last part) (see § 27). The content and the nature of recommendations under Article 39 were discussed in Committee 3 of Commission III of the San Francisco Conference, which was concerned with Chapter VII, Sec. B, of the Dumbarton Oaks proposals (present Chapter VII of the Charter). In the final report of the Committee we read: “In using the word ‘recommendations’ in Section B, as already found in paragraph 5, Section A [the latter corresponds to the present Chapter VI], the Committee had intended to show that the action of the Council so far as it relates to the peaceful settlement of a dispute or to situation giving rise to a threat of war, a breach of the peace, or aggression, should be considered as governed by the provisions contained in Section A. Under such an hypothesis, the Council would in reality pursue simultaneously two distinct actions, one having for its object the settlement of the dispute or the difficulty, and the other, the enforcement or provisional measures, each of which is governed by an appropriate section in Chapter VII” (see U.N.C.I.O., vol. 11, p. 19 and vol. 12, p. 507). Committee 3 did not raise the problem of the voting procedure for the adoption of recommendations under Article 39. This problem was raised by the Netherlands in Committee 1 of Commission III, to which questions regarding procedure had been referred, including the so-called Yalta formula, that is, the present Article 27. The Netherlands proposed, with an amendment to the whole of Chapter VIII, sections A and B (the amendment is reproduced in U.N.C.I.O., vol. 3, p. 325 f.), that the provision corresponding to the present Article 39 be inserted in Sec. A (today, Chapter VI) instead of in Sec. B (today Chapter VII), specifically in order to guarantee that both in deciding the existence of a threat to the peace, a breach of the peace or an act of aggression and in making recommendations, the Council would be bound by the rule, set out only with regard to Sec. A, that an interested Member State must abstain from the vote. However, the Dutch amendment was not even put to the vote, because the provision of the present Article 27, the provision agreed upon at Yalta by the Great Powers (see § 1 A), was considered unchangeable. Cf. U.N.C.I.O., vol. 11, p. 327 ff., p. 455 and p. 517. Considering the preparatory work and considering the very clear text of Article 27, para. 3, last part, which limits the obligation to abstain of the interested member to decisions under Chapter VI, it is to be excluded that the same obligation exists with regard to Article 39.

Being recommendations and procedures or methods of settlement of the same  type (negotiations, investigations, mediation, conciliation, arbitration, judicial settlement, recourse to regional organizations, etc.), and being at the same time legally relevant if such measures are recommended under Chapter VI or Chapter VII for the purposes of the obligations to abstain (see § 27), it is

238  The Functions

necessary to distinguish if a recommendation can be referred to Article 39 rather than Chapter VI. To this end, we suggest that the following criteria be evaluated. First, the principle that acts of the Council must be identified mainly on the basis of their operative part (see § 49), should be applied. This means that Article 39 comprises of those resolutions which, in indicating procedures or terms of settlement, simultaneously adopt one of the other measures governed by Chapter VII (provisional measures under Article 40, measures involving or not involving the use of armed force under Articles 41 and 42). If the operative part does not allow an unambiguous identification, one must look at the reasoning and refer to Article 39 those resolutions which expressly declare that they concern a threat to the peace, a breach of the peace or an act of aggression. Lastly, one can look at the objective situation and consider Article 39 as applicable if the resolution refers to a crisis provoked by the use of military force (it does not matter whether it is in a situation of international or internal conflict) and thus objectively qualifying as a breach of the peace. For recommendations under Article 39, as for the recommendations governed by Chapter VI, the domestic jurisdiction clause, which is excluded by Article 2, para. 7, last part, only with regard to the enforcement measures, is applicable. Obviously, the erosion that this limit has undergone in practice (see § 45 III), an erosion that has been shown specifically in civil war situations, has to be taken into account. As far as civil wars are concerned, the peaceful settlement of disputes on the basis of Article 39 particularly covers cases where some form of national reconciliation is going on. The Security Council intervenes in these procedures, through the Secretary-General, in order to promote, and monitor the execution of, agreements among the different factions which have participated in the war. Normally such agreements contain provisions on the future constitutional regime of the country, the assistance of the United Nations in the democratic orientation of local institutions, in the monitoring and organizing of political elections, in the economic reconstruction of the country, and so on. In so far as they refer to a situation that can be qualified objectively as a threat to the peace or a breach of the peace, Article 39 covers, first of all, the resolutions (on “terms of settlement”) with which the Council has condemned acts of armed reprisal or actual invasions, inviting the States (or the factions) responsible not to repeat them and threatening (but then not implementing) enforcement measures in case of repeated offences. There have been a great many resolutions of this kind adopted against Israel: cf., for example, Resolutions 171 of April 9, 1962, 228 of November 25, 1966, 248 of March 24, 1968, 256 of August 16, 1968, 262 of December 31, 1968 (in this case the Council also invited Israel, which had attacked the Beirut airport and destroyed several civilian aircraft, to pay appropriate compensation to Lebanon), 265 of April 1, 1969, 270 of August 26, 1969, 280 of May 19, 1970, 316 of June 26, 1972, 337 of August 15, 1973, 347 of April 24, 1974, 509 of June 6, 1982. Cf. also Resolutions 178 of April 24, 1963 and 204 of May 19, 1965, relating to armed actions of Portugal in Senegalese territory; 290 of December 8, 1970, which condemned

Recommendations under Article 39  239 Portugal for having “invaded” Guinea, and requested it to pay compensation for damage caused to the lives and to the property of the local inhabitants; 384 of December 22, 1975 and 389 of April 22, 1976, containing the invitation to Indonesia to withdraw its armed forces which had invaded East Timor; 387 of July 30, 1976, 393 of July 30, 1976, 428 of May 6, 1978, 447 of March 28, 1979, and 454 of November 2, 1979, on South Africa’s invasion of the territories of neighboring States (Angola, Zambia, etc.); 1177 of June 26, 1998, urging Ethiopia and Eritrea to cease hostilities and to achieve a peaceful settlement of their dispute; 1339 of January 31, 2001 (on a comprehensive settlement of the conflict in Abkhazia, Georgia). As examples of recommendations under Article 39 combined with one of the other measures governed by Chapter VII, cf., among many, Resolutions 50 of May 29, 1948 and 338 of October 22, 1973, which, concerned with the armed conflicts between Israel and the Arab States, invited the parties to a ceasefire (a measure under Article 40) and to have recourse to mediation; Res. 186 of March 4, 1964 which, considering the situation in Cyprus a threat to the peace, authorized the Secretary-General to establish a UN force for the purposes of preventing fighting on Cyprus territory and invited him to appoint a mediator in agreement with the Cypriot, British, Greek and Turkish governments; Res. 425 of March 19, 1978 which, besides deciding to send a United Nations force in Southern Lebanon, requested Israel to end its military action against Lebanon; Res. 450 of June 14, 1979, again on the Lebanese situation, containing the same request to Israel as well as an invitation to the parties to negotiate within the Armistice Commission; Res. 502 of April 3, 1982 relating to the Falklands war, which “demanded” an end to hostilities and “asked” Argentina and the United Kingdom to seek a diplomatic solution to their dispute; Resolutions 514 of July 12, 1982 and 522 of October 4, 1982 on the ending of hostilities, on the sending of observers and on recourse to the mediation of the Secretary-General, with regard to the war between Iran and Iraq; Res. 660 of August 2, 1990 which, expressly referring to Article 39 and Article 40 of the Charter, condemned the invasion of Kuwait by Iraq, and, for the part that can be referred to Article 39, “obliged” the two countries to settle their disputes by negotiation; Res. 674 of October 29, 1990, on the treatment of foreign citizens  by Iraq; Res. 687 of April 3, 1991 which, besides maintaining the embargo (under Article 41) against Iraq after the Gulf War, contains (in para. 3 of part A) an invitation to the Secretary-General to co-operate in the delimitation of the frontier between Iraq and Kuwait; Res. 713 of September 25, 1991, which, besides decreeing the embargo on arms export to Yugoslavia, requested the Secretary-General to offer his assistance in reaching a definitive end to hostilities in that country; Res. 773 of August 26, 1992, which contains an invitation to Iraq and Kuwait to co-operate fully with the Commission for the delimitation of the boundary, appointed by the Secretary-General in May 1992; Res. 1160 of March 31, 1998 (reiterated by Resolutions 1199 of September 23, 1998, 1203 of October 24, 1998 and others) on the achievement of a political solution of the Kosovo crisis; Resolutions 1337 of March 12, 2002 and 1435 of September 24, 2002 (cessation of acts of violence and acts of terrorism in Palestine and in Israel; withdrawal of Israel forces from Palestinian cities occupied after September 2000); Res. 1515 of November 19, 2003 (endorsement of the roadmap to a Two-States solution to the conflict between Israel and Palestine). For examples of indications of “terms of settlement” to factions in post-civil war situations, see the pertinent parts of Res. 788 of November 19, 1992, on the situation in Liberia; of Resolutions 797 of December 16, 1992, and 863 of September 13, 1993, on the situation in Mozambique; of Resolutions 804 of January 29, 1993, 811 of Mars 12, 1993, 823 of April 30, 1993, 834 of June 1, 1993, 851 of July 15, 1993, 922 of May 31, 1994, 932 of September 29, 1994, 945 of September 29, 1994, and 966 of December 8, 1994, on the situation in Angola; of Res. 861 of August 27, 1993, on the situation in Haiti; of Resolutions 1234 of April 9, 1999, 1273 of November 5, 1999, 1279 of November 30, 1999, 1291 of February 24,

240  The Functions 2000, and 1304 of June 16, 2000, on the situation in the Democratic Republic of Congo; of Resolutions 1245 of June 11, 1999 and 1270 of October 22, 1999, on the situation in Sierra Leone; of Res. 1491, of July 7, 2003 (situation in Bosnia Herzegovina). For the consideration of these, and other similar cases concerning the function of settlement of disputes, see Massimo Starita, Processi di riconciliazione nazionale e diritto internazionale (Napoli: Editoriale Scientifica, 2003), p. 200 ff.

It is worth stressing that we are talking of recommendations regarding the settlement of disputes through peaceful means under Article 33, para. 1, of the Charter; other are those acts with which, as we shall see, the Council has “authorized”, in the practice, States to resort to armed force to deal with international crises. It has actually been maintained in legal doctrine and in practice that Article 39 authorizes the Council also to recommend measures like those regulated by Articles 41 and 42 (measures involving and not involving the use of armed force). Indeed, some observers hold that the power of recommendation set forth in Article 39 would exactly and exclusively serve this purpose. Aside from this last view, which cannot be retained in that it is clearly belied by the above cited preparatory work, the examination of the problem can be postponed to when Articles 41 and 42 will be discussed, as the interpretation of these two articles is indispensable for reaching a correct solution. 58.  B) Provisional measures (Article 40) Select bibliography: see § 55. Adde: Francesco Fabbri, ‘Le misure provvisorie nel sistema di sicurezza delle Nazioni Unite’, 48 RDI (1964) 186–230; Sydney D. Bailey, ‘CeaseFires, Truces and Armistices in the Practice of the UN Security Council’, 71 AJ (1977) 461–73; Id., How Wars End: The United Nations and the Termination of Armed Conflict 1949–1964 (Oxford: Clarendon Press, 1982); R. Narayana Rao, ‘Is Art. 39 Action Necessary for Taking Provisional Measures Contemplated Under Art. 40 of the UN Charter?’, 37 InJIL (1997) 62–78; Peter Kooijmans, ‘Provisional Measures of the UN Security Council’, in Erik Denters and Paul J.I.M. de Waart (eds), Reflections on International Law from the Low Countries: In Honour of Paul de Waart (The Hague: Nijhoff, 1998) 289–300; Maurizio Arcari, ‘L’articolo 40 della Carta delle Nazioni Unite e le misure provvisorie del Consiglio di Sicurezza’, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz (Napoli: Editoriale Scientifica, 2004), vol. 3, 1467–526; Jean-Marc Sorel, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed) vol. 1, 1171–94; Hitoshi Nasu, International Law on Peacekeeping: A Study of Article 40 of the UN Charter (Leiden: Nijhoff, 2009); Nico Krisch, Article 40, in Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 2, 1297–304.

Article 40 of the Charter reads as follows: “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

Provisional measures (Article 40)   241

the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures”. The provisional measures in Article 40 constitute the typical measures of Chapter VII, together with measures not involving (Article 41) or involving (Article 42) the use of armed force. Their provisional nature is related both to the aim pursued, which is only that of preventing a worsening of a situation, and to the limits placed on their content, since they must not prejudge “the rights, claims or positions of the parties concerned”. As one can see, Article 40 does not specify what concrete provisional measures it is referring to, but from the practice it can be easily inferred a list of examples, although approximate. These are the request to cease hostilities and to cease fire, to withdraw the troops, to create demilitarized zones and humanitarian corridors to ensure humanitarian assistance and the protection of civilians, to sign a truce or armistice, and other instrumental measures such as the request to comply with ceasefire agreements or of truce already reached between the parties, to release prisoners or hostages, or to refrain from those actions considered likely to exacerbate the situation. Given these characteristics, the provisional measures were clearly meant to be emergency measures preliminary to any other resolution adopted on the basis of Chapter VII. This is why Article 40 provides that the Council resorts to them “before making the recommendations or deciding upon the measures provided for in Article 39”. However, it would be out of place to say that the Council is rigidly bound from a chronological point of view. Indeed, a crisis which is characterizable as a threat to the peace, breach of the peace or act of aggression can develop over long periods of time, and with alternating turns of events, so that interventions of different intensity may be necessary at different times. The Council thus could be compelled both to adopt several measures at the same time and to again take up provisional measures also after having adopted other resolutions on the basis of Chapter VII, for example, after having recommended settlement procedures on the basis of Article 39 or after having decided upon measures not involving, or even involving, the use of armed force. Taking into account the spirit and purposes of the collective security system under Chapter VII, it does not seem that such conduct of the Council (recurrent in the practice) should be considered illegal. Likewise, the opinion must be rejected that provisional measures are an indispensable stage before passing to the measures in Articles 41 and 42. The San Francisco Conference which drew up Article 40 (which does not appear in the Dumbarton Oaks proposals) unanimously agreed that neither provisional measures nor recommendations under Article 39 were to be considered as a necessary prerequisite to enforcement measures (see the already cited report of Committee 3 of Commission III, in U.N.C.I.O., vol. 11, p. 19). The Chinese proposal to introduce Article 40 (ibid., vol. 3, p. 625 f.) was the subject of an interpretative declaration where it is specified, not without ambiguity, that conservatory

242  The Functions measures referred “above all to the presumption of a threat of war” and that “on the ­contrary, in the case of flagrant aggression imperiling the existence of a member of the Organization, enforcement measures should be taken without delay, and to the full extent required by the circumstances, except that the Council should at the same time endeavour to persuade the aggressor to abandon its venture” through the measures on the settlement of disputes “and by prescribing conservatory measures” (ibid. vol. 12, p. 505 ff.). The Covenant of the League of Nations did not provide for the indication of provisional measures, but in the practice the Council adopted them on several occasions. Cf. Edward Dumbauld, Interim Measures of Protection in International Controversies (The Hague: Nijhoff, 1932), p. 105 ff.

The provisional measures form the object of recommendations by the Council (“The Council”, Article 40 states, may “call upon the parties concerned to ­comply with such provisional measures…”). Not only the term “invite” in Article 40, but also the fact that Article 39 refers binding decisions to Articles 41 and 42 and not to Article 40 (“the Security Council shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42”), bears witness to the merely exhortative nature of provisional measures. Once again, then, we are in the presence of acts that do not bind the parties to keep to the prescribed conduct. In legal doctrine and in practice, an attempt has been made to give a binding nature to the “invitation”. Such view is linked, first of all, to a more general tendency to maintain the obligatory nature of any resolution of the Council, and especially those envisaged by Chapter VII, therefore giving a specific meaning to the provisional measures of Chapter VII compared to the ones that could already be recommended under Chapter VI; this is a tendency, however, that, as we shall see when we examine the acts of the United Nations in general, must be rejected (see § 92). The same view is also based on a specific argument that would be offered by Article 40, specifically in the last part of the article, which states, “the Security Council shall duly take account of failure to comply with such provisional measures”. In other words, the last part of Article 40, referring to the possibility of sanctions (evidently the ones under Articles 41 and 42) would make the requested conduct obligatory. Also this reasoning is not acceptable as it casts too wide a net: in fact the Security Council may duly take account of any conduct of a State, considering it to be a threat to the peace a breach of the peace or an act of aggression for the purposes of the measures of Chapter VII, regardless of whether it might be lawful or not, and therefore also regardless of whether Article 40 provides or not for an obligation to conform to the provisional measures. Also the thesis according to which Article 40 would allow for both decisions and recommendations, based on the expression “desirable or necessary” in Article 40, meaning that the provisional measures regarded by the Council as “necessary” would be binding, while those “desirable” would only amount to an exhortation, is rather weak. Neither does it seem, in our

Provisional measures (Article 40)   243

opinion, that the subsequent practice and in particular the terminology that the Council uses in adopting resolutions regarding provisional measures affects their non-binding nature. Especially in recent times, this terminology denotes the intention of the organ to give its invitations an urgent nature: “The Council…urgently requests…”, “…the Council…urges…”, “The Council… demands…” are the formulas which occur in many resolutions coming under Article 40. It is true that States have not raised any objections to such expressions and that some of the resolutions adopted under Article 40 presuppose the binding nature of the provisional measures they provide for, but it concerns occasional cases where it is not clear whether the binding nature attributed to the resolutions is nothing but the reflex of the primary obligation which was violated. It would be risky to try to take from these often ambivalent formulas, even if they certainly can be connected to the threat of sanctions contained in the last part of the article, an unwritten rule on their binding nature. As far as the meaning to be attributed to the sentence “the Council will take in due account the failure to implement such provisional measures” is concerned, in the practice the Council has sometimes specified that the missed implementation of provisional measures by the addressees could demonstrate the existence of a “threat to the peace” for the purposes of the adoption of coercive measures under Chapter VII (cf. Resolutions 50 off May 29, 1948 and 54 of July 15, 1948 on the Palestinian question). However, the Council has always avoided reacting through coercive measures to the non-implementation of its provisional measures. Amongst the rare provisional measures intended to impose an implementation obligation it is worth mentioning Res. 54 of July 15, 1948 on the Palestinian Question, the wording of which included the term “orders”, as emphasized by some States (SCOR, 3rd year, 334th meet., pp. 39–40; 335th meet., p. 5; 336th meet., pp. 21–22), and whose binding effect is indicated by subsequent resolutions (cf. Resolutions 56 of August 19, 1948 and 59 of October 19, 1948); Res. 598 of July 20, 1987 on the Iran-Iraq conflict, which was attributed binding force by some States (cf. Doc. S/PV.2750, pp. 16, 21–22 and 27–28), by the President of the Security Council (cf. Doc. S/19626 of March 16, 1988), and by Iraq itself (cf. Doc. S/19045 of August 14, 1987), while Iran accepted it unconditionally without specifying whether it considered it binding or not (cf. Doc. S/20094 of August 8, 1988). In the 1995 Tadić case decision, the International Criminal Tribunal for the former Yugoslavia (see § 62) observed that the question on the binding or exhortative nature of provisional measures under Article 40 is controversial, without taking a stand on the matter (cf. , para. 33).

A typical provisional measure under Article 40 is the ceasefire adopted by the Council during international or civil wars. Considering the objective circumstances and the nature of the measure, in our opinion, the invitation to cease fire falls in any case in the realm of Article 40. For examples of resolutions containing a ceasefire, or the cessation of acts of violence, in international or civil wars cf. Res. 27 of August 1, 1947 (Indonesian war of independence); Resolutions 50 of May 29, 1948 and 54 of July 15, 1948 (Arab-Israeli conflict); Res. 63 of

244  The Functions December 24, 1948 (Indonesia); Res. 92 of May 8, 1951 (Middle East); Res. 104 of June 20, 1954 (Guatemala); Res. 164 of July 22, 1961 (Franco-Tunisian conflict); Res. 205 of May 22, 1965 (Dominican Republic); Res. 210 of September 6, 1965 (Indo-Pakistani conflict); resolutions nos. 233, 234, and 235 of June 6, 7 and 9, 1967 (Israeli Six-Day War); Res. 307 of December 21, 1971 (India-Pakistan); Res. 338 of October 22, 1973 (Middle East); Resolutions 353 of July 20, 1974 and 357 of August 14, 1974 (Cyprus); Res. 502 of April 3, 1982 (Falklands-Malvinas war); Res. 508 of June 5, 1982 (Lebanon); Res. 514 of July 12, 1982 (war between Iran and Iraq); Res. 517 of August 4, 1982 (Lebanon); Res. 582 of February 24, 1986 (war between Iran and Iraq); Res. 812 of March 12, 1993 (Ruanda); Res. 1052 of April 18, 1996 (Lebanon); Res. 1097 of February 18, 1997 (Eastern Zaire and Great Lakes region); Resolutions 1286 of January 19, 2000 and 1375 of October 29, 2001 (Burundi); Resolutions 1322 of October 7, 2000 and 1397 of March 12, 2002, 1402 of March 30, 2002 and 1435 of September 24, 2002 (cessation of acts of violence between Israel and Palestine); Resolutions 1468 of March 20, 2003 and 1484 of May 30, 2003 (Democratic Republic of Congo). For more recent examples cf. Resolutions 1701 of August 11, 2006 (conflict between Israel and Lebanon) and 1860 of January 8, 2009 (Gaza conflict); and Res. 1862 of January 14, 2009 (border disputes between Eritrea and Gibuti). After the end of the Cold War, a ceasefire has been requested several times, together with the adoption of measures within the framework of Articles 41 and 42. Cf., for example, Resolutions 713 of September 25, 1991 (para. 2), 724 of December 15, 1991 (para. 7), 743 of February 21, 1992 (para. 8), and 762 of June 30, 1992 (para. 2) (all on the war in the former Yugoslavia); Resolutions 733 of January 1, 1992 (para. 4), 746 of March 17, 1992 (para. 2), and 767 of July 24, 1992 (para. 9) (civil war in Somalia); Res. 788 of November 19 (para. 6), 1992 (civil war in Liberia); Resolutions 1076 of October 22, 1996, 1193 of August 27, 1998, and 1214 of December 8, 1998 (civil war in Afghanistan); Res. 1199 of September 23, 1998 (civil war in Kosovo); and Res. 1227 of February 10, 1999 (war between Ethiopia and Eritrea).

It is true that, occasionally, some of the Member States of the Council have said they were acting in the framework of Chapter VI, but such intention has been clearly necessitated by political reasons, that is, by the desire to alienate their partners involved in the crisis as little as possible, bearing in mind that Chapter VI (unlike Chapter VII) recalls the idea that the crisis must resolve with the consent of the interested parties. It would however be out of place to maintain this from the viewpoint of a correct interpretation of the Charter if it is true, as it is, that the provisional measures of Article 40 are clearly aimed at maintaining the peace and international security as envisaged by Chapter VII and not at the mere peaceful settlement of disputes as envisaged by Chapter VI. The question of whether the adoption of provisional measures requires or not the determination of the requirements for the application of Chapter VII listed in Article 39, or just those for the application of Chapter VI, has been discussed at length. It was observed, in favor of only the requirements under Chapter VI, that in the preparatory work reference was made to a “presumption of a threat of war”, which seems to indicate a lower threshold than a “threat to the peace” under Article 39, and that Article 39 refers only to Articles 41 and 42. However it was argued that the collocation of Article 40 in Chapter VII and the term “situation” which seems to indicate the requirements set by Article 39, come down against such thesis. In the practice, the States that have proposed resolutions indicating provisional measures have often provided for the explicit determination of any of the

Provisional measures (Article 40)   245 situations referred to in Article 39, precisely in order to frame the whole issue within Chapter VII, clearly envisaging the possible adoption of coercive measures, although just as often these proposals have encountered opposition from other States, which, conversely, had an interest in excluding the possibility that the issue could fall within Chapter VII and would therefore justify any coercive measures. Faced with these differences, the Council has come to adopt resolutions indicating provisional measures, not only without specifying the conditions but without mentioning Article 40, thus leaving open the question whether the issue in the specific case fell within Chapter VI or Chapter VII. Already on the occasion of the Greek border incidents a draft resolution proposed by Australia was disputed by some States of the Socialist bloc. This draft resolution contemplated the existence of a “threat to the peace” under Article 39, and asked, under Article 40, some States suspected of supporting the armed activities of the Greek rebels against the Greek government (Albania, Bulgaria and Yugoslavia) and Greece to enter into negotiations for the settlement of the dispute (SCOR, 2nd year, 177th meet., p. 1808). The Socialist bloc States argued that there was no threat to peace, considered necessary for the purposes of Chapter VII and proposed to remove all references to Articles 39 and 40, so that the resolution (then still not approved because of the Soviet veto) would not be placed under Chapter VI (SCOR, 2nd year, 180th meet., p. 1912; 183rd meet., pp. 1968 and 1976, 188th meet., pp. 2083 and 2085–86). On the occasion of the Indonesian question in the period 1947–1949, Res. 27 of August 1, 1947 was adopted, which invited the parties to cease hostilities and to settle their dispute through peaceful means, but omitting any reference—present, on the contrary, in the draft resolution presented by Australia—to the requirements of Article 39 and avoiding any mention of Article 40. Res. 27 of August 1, 1947 was the subject of a later interesting, but indecisive, disagreement about its interpretation in some statements made by a few States. Particularly relevant is the statement of the United States, according to which the resolution was implicitly adopted under Chapter VII, Article 40 (SCOR, 2nd year, 193rd meet., p. 2175 f.; 209th meet., p. 2526 f.), and the diametrically opposite statement of Belgium, maintaining that the resolution did not make the slightest reference to Article 40 and that, therefore, an explicit statement by the Council justifying the adoption of measures of such gravity, as the ones of Chapter VII, would be necessary (SCOR, 4th year, 398 meet., p. 11). The whole discussion was ultimately intended to conclude, or to exclude, that the provisional measures were binding and forcing the Netherlands to comply. As far as the Palestinian question is concerned, in the early years of the Organization the Council adopted resolutions indicating provisional measures which did not mention neither Article 39, nor Article 40, although they were expressed in terms very similar to those of Article 40, this until the previously mentioned Res. 54 of July 15, 1948 established that the situation in Palestine “constitutes a threat to the peace within the meaning of Article 39” and “order[ed]…pursuant to Art. 40” the cessation of hostilities. The reference to Articles 39 and 40, was clearly connected to the alleged binding nature of the measures, as highlighted by the term “orders” there present. Later, in relation to the Falklands-Malvinas conflict, the Council adopted Res. 502 of April 3, 1982 calling for the cessation of hostilities and the withdrawal of Argentinean troops believing that it was a question concerning Article 40 and falling within Chapter VII, and thus admitting the United Kingdom to vote which should have otherwise abstained from voting (as “party to the dispute”) if the resolution were to fall under Chapter VI, issue raised by Panama, as already noted (see § 27). As to the war between Iran and Iraq in the period 1980–1987, the Council adopted several resolutions calling for the cessation of hostilities without invoking neither Article 39, nor Article 40 (see Resolutions 479 of September 28, 1980, 514 of July 12, 1982, 540 of October 31, 1983 and 582 of February 24, 1986), this until with Res. 598 of July 20, 1987 the Council placed itself, as it were, midway, confirming the existence of a breach of peace, calling upon Articles 39 and 40, but using the term “asking” rather than “ordering” the ceasefire, as a first

246  The Functions step towards a negotiated solution. On the occasion of the Gulf War of 1991, with Res. 660 of August 2, 1990 the Council explicitly invoked both Article 39 and Article 40 “asking” for the withdrawal of Iraq from Kuwaiti territory and the two States to commence negotiations for resolving the dispute. In general, the Council has adopted and continues to take a large number of resolutions indicating provisional measures without calling upon Articles 39 and 40 and indicating the “threat” that justifies them in rather uncertain terms, often using formulas midway between those of Articles. 33, 36 and 37, on the one hand, and those of Article 39, on the other. For the many resolutions subsequent to the 1991 Gulf War, indicating provisional measures with no reference to Articles 39 and 40 and indicating the “threat” in undetermined terms see Maurizio Arcari, ‘L’articolo 40 della Carta delle Nazioni Unite e le misure provvisorie del Consiglio di Sicurezza’, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz (Napoli: Editoriale Scientifica, 2004), vol. 3, p.1484 ff.

It is not always easy to distinguish between an invitation to apply a provisional measure and a recommendation on “terms of settlement” (within the meaning of Article 39 or Article 37), as the former may consist in a partial settlement of the question which set off the crisis. A framing within Article 40 should be preferred when the predominant purpose of the resolution is the preventive and conservatory end not to aggravate the situation, together with the temporary and urgent nature of the adopted measures, compared to that of the peaceful and friendly settlement, basically definitive, of the dispute. In particular, due to the impartiality that characterizes provisional measures, is to be read in the light of the terms of Article 37 any determination of the Council as to the merits of the dispute. Even the distinction between provisional Measures and measures not involving the use of force under Article 41—of particular relevance when the Council recommends or imposes an arms embargo, to the obvious end of not aggravating the situation—must be made on the basis of the predominant goal, which in Article 41 is sanctionary and it involves all Member States, while the measures envisaged by Article 40 are not directed against the addressees and in principle they entrust only to them their concrete implementation. Aside from resolutions on ceasefires, the following resolutions can be considered as indicating provisional measures: those which, in the case of civil wars or wars of independence, urge the liberation of political prisoners (for example, Res. 63 of December 24, 1948 on the war in Indonesia); or those which invite States not involved in an international or domestic conflict not to support the parties in conflict and not to furnish them with armed troops or war materials (for example, Resolutions 50 of May 29, 1948 on the Middle East, 104 of June 20, 1954 on the domestic situation in Guatemala, 61 of February 21, 1961 and 169 of November 24, 1961 on the domestic situation in the Congo and inviting the States not to send mercenaries and not to introduce weapons in Congolese territory); or those which request the withdrawal of foreign troops from territories in a state of civil war (for example, Res. 143 of July 14, 1960 with a request to the Belgian government to withdraw its troops from the Congo); or, lastly, those which request one of the States involved in a war to withdraw its own troops to certain positions (for example, Res. 660 of August 2, 1990, expressly

Provisional measures (Article 40)   247 based on Articles 39 and 40, which “demanded” that Iraq withdraw its forces to the positions occupied on August 1, 1990). Sometimes the Council has made only a general appeal, addressed to all the States, which also can be referred to Article 40, not to aggravate a situation. It did so, for example, in 1971 in relation to the Indo-Pakistani conflict (Res. 307, para. 2, of December 21, 1971). As a provisional measure can also be considered the one contained in Res. 250 of April 27, 1968, which requested Israel, in order not to aggravate tension with Jordan, not to hold a military parade set for the following May 2 in Jerusalem. The reason Israel relied upon in order to justify, in this specific case, non-performance, is unacceptable. According to its view the resolution involved a matter of Israeli domestic jurisdiction (cf. SCOR, 23rd year, 1417th meet.). As we have already seen, measures under Article 40 in any case fall outside the exception of domestic jurisdiction (see § 47). The impartiality inherent in the phrase “such provisional measures should not prejudice the rights, claims or position of the parties” poses problems in all cases where the action is directed to a single party or, even if addressed at all parties, in fact, imply a major disadvantage to one of them. For instance, when the Council invites an invader State to withdraw its troops, without consulting the other party, one might think—such as the invaders often claim—that the measure requested is not impartial and presupposes a determination of merit to the detriment of one of the parties. This is the case or Resolutions 82 of June 25, 1950 on the Korean War, 502 of April 3, 1982 on the conflict in the Falklands-Malvinas and 660 of August 2, 1990 on the Gulf War, inviting all invaders to withdraw their troops from occupied territories. In these cases it may be assumed that the request, apparently impartial, is merely a way to reaffirm the commission of an international illegal act. Even when directed to all parties, provisional measures may in fact benefit those who currently hold the major territorial advantages in the field, in which case usually all parties, depending on the circumstances, challenge the measures and they remain unimplemented, as happened in the conflict between Iran and Iraq and the one between Ethiopia and Eritrea (cf. Resolutions 1226 of January 29, 1999, 1227 of February 10, 1999, 1297 of May 12, 2000 and 1298 of May 17, 2000). Another problem concerns the measures of embargo on arms and military equipment, whose purpose is to avoid the aggravation of the situation, but that may actually prove more detrimental to one of the parties, e.g., to the extent that prevents it from reacting in self-defense to the attacks, or even to acts of genocide, on the one hand, on the other (for the latter hypothesis see the separate opinion of the ad hoc Judge Elihu Lauterpacht in the case concerning the Application of the Convention on Genocide in Bosnia-Herzegovina before the International Court of Justice, in ICJ Reports 1993, para. 102). These measures, however, having as a predominant aim that of sanctioning and since they involve all Member States, must be framed under Article 41. The provisional nature and urgency of provisional measures under Article 40, aimed at the mere “cooling” of the situation was underlined by the International Criminal Tribunal for the former Yugoslavia (see § 62) in the 1995 decision in the Tadić case in order to exclude that it shall constitute a “provisional measure” adopted by the Council under Article 40 (cf. , para. 33). .

Provisional measures under Article 40 cannot be of a military nature. It follows, in particular, that the Council’s power to recommend provisional measures under Article 40, does not include the power to ensure by force, through peace enforcement operations, that these measures are followed. The coercive measures to implement the provisional measures, as we shall see, are based on

248  The Functions

an ad hoc customary rule supplementary to or in derogation from Chapter VII of the Charter. 59.  C) Measures not involving the use of force (Article 41) Select bibliography: see § 55. Adde: Louis Cavaré, ‘Les sanctions dans le Pacte de la S.D.N. et dans la Charte des N.U.’, 54 RGDIP (1950) 647–74; David Ruzié, ‘Les sanctions économiques contre la Rhodésie’, 97 JDI (1970) 20–56; Id., Organisations internationales et sanctions internationales (Paris: Armand Colin, 1971); Krzysztof Skubiszewski, ‘Recommendations of the UN and Municipal Courts’, 46 BYB (1972–73) 353–64; Willem Riphagen, ‘The Legal Consequences of Illegal Acts under Public International Law’, 20 NTIR (1973) 27–36; Clive Brown-John, Multilateral Sanctions in International Law. A Comparative Analysis (New York: Praeger, 1975); Ronald A. Brand, ‘Security Council Resolutions: When do they give Rise to Enforceable Legal Rights? The United Nations Charter, the Byrd Amendment and Self-executing Treaty Analysis’, 9 CoILJ (1976) 298–316; Giuliana Ziccardi Capaldo, Le situazioni territoriali illegittime nel diritto internazionale (Napoli: Editoriale Scientifica, 1977) 99 ff; Vera Gowlland-Debbas, Collective Responses to Illegal Acts in International Law: United Nations Action in the Question of Southern Rhodesia (Dordrecht: Nijhoff, 1990); Christopher C. Joyner, ‘Sanctions, Compliance and International Law: Reflections on the UN Experience Against Iraq’, 32 VaJTL (1991) 1–46; Benedetto Conforti, ‘Non-Coercive Sanctions in the UN Charter: Some Lessons from the Gulf War’, 2 EJIL (1991) 110–13; Gianluca Burci, ‘L’azione del Consiglio di Sicurezza delle N.U. nella crisi del Golfo’, 46 CI (1991) 278–315; Ruth Lapidoth, ‘Some Reflections on the Law and Practice Concerning Imposition of Sanctions by the Security Council’, 30 AV (1992) 114– 27; Eckart Klein, ‘Sanctions by International Organizations and Economic Communities’, 30 AV (1992) 101–13; A.G. Lopez Martin, ‘Embargo y bloqueo aéreo en práctica del Consejo de Seguridad: del conflicto del Golfo al caso de Libia’, 46 ReD (1994) 39–59; Vera Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’, 43 ICLQ (1994) 55–98; Margaret P. Doxey, International Sanctions in Contemporary Perspective (Houndmills: Macmillan, 1996, 2nd ed); Ulrich Beyerlin, ‘Sanctions’, in Rüdiger Wolfrum and Christiane Philipp (eds), United Nations: Law, Policies and Practice (Munich, 1995) 1111–28; Paul Conlon, ‘The Humanitarian Mitigation of UN Sanctions’, 39 GYIL (1996) 249–84; Lori Fisler Damrosch, ‘Enforcing International Law through Non-Forcible Measures’, 269 RC (1997) 13–250; Serena Forlati, ‘Sanzioni economiche e tutela umanitaria’, 80 RDI (1997) 705–39; Michael W. Reisman and Douglas L. Stenvick, ‘The Applicability of International Law Standards to United Nations Economic Sanctions Programmes’, 9 EJIL (1998) 86–141; Farid Wahid Dahmane, ‘Les mesures prise par le Conseil de Sécurité contre les entités non-étatiques. Une tentative de cerner l’application du chapitre VII aux crises internes’, 11 Afr J (1999) 227–44; François Alabrune, ‘La pratique des comites des sanctions du Conseil de Sécurité depuis 1990’, 45 AF (1999) 226–79; Mohamed Bennouna, ‘L’embargo dans la pratique des Nations Unies: Radioscopie d’un moyen de pression’, in Emile Yakpo and Tahar Boumedra (eds), Liber Amicorum Mohammed Bedjaoui (The Hague: Kluwer Law International, 1999) 555–83; David Cortright and George A. Lopez (eds), The Sanctions Decade: Assessing UN Strategies in the 1990s (Boulder: Rienner, 2000); Hans-Konrad Ress, Das Handelsembargo: Volker-, Europa- und außenwirtschaftsrechtliche Rahmenbedingungen, Praxis und Entschädigung (Berlin/Heidelberg: Springer, 2000); Paul W. Kahn, ‘American Hegemony and International Law: Speaking Law to Power: Popular Sovereignty, Human Rights, and the New International Order’, 1 CJIL (2000) 1–18; Dorothee Starck, Die Rechtmäßigkeit von UNO-Wirtschafssanktionen in Anbetracht ihrer Auswirkungen auf die Zivilbevölkerung (Berlin: Duncker & Humblot, 2000); André De Hoogh, ‘Attribution or

Measures not involving the use of force (Article 41)   249 Delegation of (Legislative) Power by the Security Council? The Case of the UNTAET’, 7 IP (2001) 7–41; Vera Gowlland-Debbas and Mariano G. Rubio (eds), United Nations Sanctions and International Law (The Hague: Kluwer Law International, 2001); Erika De Wet, ‘Human Rights Limitations to Economic Enforcement Measures under Article 41 of the United Nations Charter and the Iraqi Sanctions Regime’, 14 LJIL (2001) 277–300; August Reinisch, ‘Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition on Economic Sanctions’, 95 AJ (2001) 851–72; Detlev F. Vagts, ‘Hegemonic International Law’, 95 AJ (2001) 843–48; Paul C. Szasz, ‘The Security Council Starts Legislating’, 96 AJ (2002) 901–05; Matthew Craven, ‘Humanitarianism and the Quest for Smarter Sanctions’, 13 EJIL (2002) 43–61; Mary E. O’Connell, ‘Debating the Law of Sanctions’, ibid., 63–79; Iain Cameron, ‘UN Targeted Sanctions, Legal Safeguards and the European Convention on Human Rights’, 72 NoJIL (2003) 151–214; Elias Davidsson, ‘Legal Boundaries to UN Sanctions’, 7 IJHR (2003) 1–50; Matthew Happold, ‘Security Council Resolution 1373 and the Constitution of the United Nations’, 16 LJIL (2003) 593–610; Göran Lysén, ‘Targeted UN Sanctions: Application of Legal Sources and Procedural Matters’, 72 NoJIL (2003) 291–304; Antonio Remiro Brotóns, ‘New Imperial Order or (Hegemonic) International Law?’, 8 ARIEL (2003) 25–34; Dimitri K. Simes, ‘America’s Imperial Dilemma’, 82 FA (2003) 91–100; Slim Laghmani, ‘Du droit international au droit impérial? Réflexions sur la guerre contre l’Irak’, Act.DI (avril 2003), at ; José E. Alvarez, ‘Hegemonic International Law Revisited’, 97 AJ (2003) 873–88; Michael Byers and Georg Nolte (eds), United States Hegemony and the Foundations of International Law (Cambridge: Cambridge University Press, 2003); John F. Murphy, The United States and the Rule of Law in International Affairs (Cambridge: Cambrisge University Press, 2004); Mohamed Bennouna, ‘Les sanctions économiques des Nations Unies’, 300 RC (2004) 9–77; Laura Picchio Forlati and Linos-Alexander Sicilianos (eds), Les sanctions économiques en droit international (Leiden: Nijhoff, 2004); Vera Gowlland-Debbas (ed), National Implementation of United Nations Sanctions. A Comparative Study (Leiden: Nijhoff, 2004); Roberto Lavalle, ‘A Novel, if Awkward Exercise in International LawMaking: Security Council Resolution 1540 (2004)’, 51 NILR (2004) 411–37; Josiane Tercinet and Théodore Christakis, ‘Le pouvoir normatif du Conseil de sécurité: Le Conseil de sécurité peut-il légiférer?’, 37 RBDI (2004) 528–51; Gerry Simpson, Great Powers and Outlaw States (Cambridge: Cambridge University Press, 2004); Evelyne Lagrange and Pierre Michel Eisemann, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed), vol. 1, 1195–242; Björn Elberling, ‘The Ultra Vires Character of Legislative Action by the Security Council’, 2 IOLR (2005) 337–60; Eric Rosand, ‘The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative?’, 28 FoILJ (2005) 542–90; Stefan Talmon, ‘The Security Council as World Legislature’, 99 AJ (2005) 175–93; Tiziana Carmelitano, ‘I “poteri legislativi” del Consiglio di sicurezza delle Nazioni Unite nella prassi più recente’, 3 In.Law (2006) 109–17; Benedetto Conforti, ‘Decisioni del Consiglio di sicurezza e diritti fondamentali in una bizzarra sentenza del Tribunale comunitario di primo grado’, 11 DUE (2006) 333–45; Maurizio Arcari, ‘Sviluppi in tema di tutela dei diritti di individui iscritti nelle liste dei Comitati delle sanzioni del Consiglio di sicurezza’, 90 RDI (2007) 657–80; Annalisa Ciampi, Sanzioni del Consiglio di sicurezza e diritti umani (Milano: Giuffrè, 2007); Elizabeth F. Defeis, ‘Targeted Sanctions, Human Rights, and the Court of First Instance of the European Community’, 30 FoILJ (2007) 1449–62; Jeremy M. Farrall, United Nations Sanctions and the Rule of Law (Cambridge: Cambridge University Press, 2007); Lavranos Nikolaos, ‘UN Sanctions and Judicial Review’, 76 NoJIL (2007) 1–17; Martin Nettesheim, ‘U.N. Sanctions against Individuals. A Challenge to the Architecture of European Union Governance’, 44 CMLR (2007) 567–600; Larissa J. Van den Herik, ‘The Security Council’s Targeted Sanctions Regimes. In Need of Better Protection of the Individual’, 20 LJIL (2007) 797–807; Michael

250  The Functions Bothe, ‘Security Council’s Targeted Sanctions against Presumed Terrorists. The Need to Comply with Human Rights Standards’, 6 JICJ (2008) 541–55; Annalisa Ciampi, ‘Individual Remedies against Security Council Targeted Sanctions’, 17 IYIL (2008) 55–77; Emmanuel Decaux, ‘The Definition of Traditional Sanctions. Their Scope and Characteristics’, 90 IRRC (2008) 249–57; Carlo Focarelli, ‘Promotional Jus Cogens: A Critical Appraisal of Jus Cogens’ Legal Effects’, 77 NoJIL (2008) 429–59; Marco Gestri, ‘Legal Remedies against Security Council Targeted Sanctions. “De Lege Lata” and “De Lege Ferenda” Options for Enhancing the Protection of the Individual’, in IYIL (2008) 25–53; Johannes Reich, ‘Due Process and Sanctions Targeted against Individuals pursuant to U.N. Resolution 1267 (1999)’, 33 YaJIL (2008) 505–11; Farideh Shaygan, La compatibilité des sanctions économiques du Conseil de sécurité avec les droits de l’homme et le droit international humanitaire (Bruxelles: Bruylant, 2008); Ian Johnstone, ‘Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit’, 102 AJ (2008) 275–308; Balakrishnan Rajagopal, ‘CounterHegemonic International Law: Rethinking Human Rights and Development as a Third World Strategy’, in Richard A. Falk, Balakrishnan Rajagopal and Jaqueline Stevens (eds), International Law and the Third World: Reshaping Justice (London: Routledge, 2008) 63 ff; Robert Kolb, ‘Le contrôle de Résolutions contraignantes du Conseil de sécurité des Nations Unies sous l’angle du respect du jus cogens’, 18 Schw.Z (2008) 401–11; Takis Tridimas and Jose A. Gutierrez-Fons, ‘EU Law, International Law, and Economic Sanctions against Terrorism’, 32 FoILJ (2008/09) 660–730; Jeremy Farrall, ‘Should the United Nations Security Council Leave it to the Experts? The Governance and Accountability of UN Sanctions Monitoring’, in Jeremy Farrall and Kim Rubenstein (eds), Sanctions, Accountability and Governance in a Globalised World (Cambridge: Cambridge University Press, 2009) 191– 214; Helen Keller and Andreas Fischer, ‘The UN Anti-Terror Sanctions Regime Under Pressure’, 9 HRLR (2009) 257–66; Torsten Stein, ‘Protecting Human Rights vis-à-vis Targeted UN Security Council Sanctions’, in Aristotle Constantinides and Nikos Zaikos (eds), The Diversity of International Law: Essays in Honour of Professor Kalliopi K. Koufa (Leiden: Nijhoff, 2009) 207–16; Clemens A. Finäugle, ‘The UN Security Council Al-Qaida and Taliban Sanctions Committee: Emerging Principles of International Institutional Law for the Protection of Individuals?’, in Armin von Bogdandy et al. (eds), The Exercise of Public Authority by International Institutions: Advancing International Institutional Law (Heidelberg: Springer, 2010) 101–31; Roberto Lavalle, ‘The “Acting Under Chapter VII” Clause in Security Council Resolutions Under Article 41 of the United Nations Charter: A Misconceived and Harmful Way to Invoke Authority’, 19 IYIL (2010) 233–52; Fran­ cesco Salerno (ed), Sanzioni “individuali” del Consiglio di sicurezza e garanzie processuali fondamentali (Padova: Cedam, 2010); Tade Matthias Spranger, ‘Terrorismus und “Smart Sanctions”: die Umsetzung von UN-Sanktionsbeschlüssen vor dem Europäischen Gericht­ shof ‘, 52 NZW (2010) 221–35; Antonios Tzanakopoulos, ‘Domestic Court Reactions to UN Security Council Sanctions’, in August Reinisch (ed), Challenging Acts of International Organizations Before National Courts (Oxford: Oxford University Press, 2010) 54–76; Andrea Charron, UN Sanctions and Conflict: Responding to Peace and Security Threats (London: Routledge, 2011); Annalisa Ciampi, ‘Security Council Targeted Sanctions and Human Rights’, in Bardo Fassbender (ed), Securing Human Rights? Achievements and Challenges of the UN Security Council (Oxford: Oxford University Press, 2011) 98–140; Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures Against Wrongful Sanctions (Oxford: Oxford University Press, 2011); Grant L. Willis, ‘Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson’, 42 GeJIL (2011) 673–745; Torsten Stein, ‘Too “Smart” for Legal Protection? UN Security Council’s Targeted Sanctions and a Pladoyer for Another UN Tribunal, in Holger P. Hestermeyer et al. (eds), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum (Leiden: Nijhoff, 2012) 1527–41; George A. Lopez, ‘In Defense of Smart Sanctions: A Response to Joy

Measures not involving the use of force (Article 41)   251 Gordon’, 26 EIA (2012) 135–46; Nico Krisch, Article 41, in Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 2, 1305–29; François Finck, ‘L’application de sanctions individuelles du Conseil de Sécurité des Nations unies devant la Cour européenne des droits de l’homme’, 24 RTDH (2013) 457–76; Martin D. Fink, ‘Maritime Embargo Operations: Naval Implementation of UN Sanctions at Sea under Articles 41 and 42 of the UN Charter’, 60 NILR (2013) 73–92; Christopher Michaelsen, ‘The Competence of the Security Council under the UN Charter to Adopt Sanctions Targeting Private Individuals’, in Andrew Byrnes, Mika Hayashi and Christopher Michaelsen (eds), International Law in the New Age of Globalization (Leiden: Nijhoff, 2013) 11–39; Rafael A. Prieto Sanjuán, ‘Les groupes armés non étatiques comme destinataires des sanctions n’impliquant pas l’emploi de la force’, in Jean-François Akandji-Kombé (ed), L’homme dans la société internationale. Mélanges en hommage au Professeur Paul Tavernier (Bruxelles : Bruylant, 2013) 315–29; Erika de Wet, ‘From Kadi to Nada: Judicial Techniques Favouring Human Rights over United Nations Security Council Sanctions’, 12 ChJIL (2013) 787–807; Armin Cuyvers, ‘“Give Me One Good Reason”: The Unified Standard of Review for Sanctions after Kadi II’, 51 CMLR (2014) 1759–88; Sufyan El Droubi, Resisting United Nations Security Council Resolutions (London: Routledge, 2014); Golnoosh Hakimdavar, A Strategic Understanding of UN Economic Sanctions: International Relations, Law, and Development (New York: Routledge, 2014); Joris Larik, ‘The Kadi Saga as a Tale of “Strict Observance” of International Law: Obligations under the UN Charter, Targeted Sanctions and Judicial Review in the European Union’, 61 NILR (2014) 23–42; Patrícia Pinto Soares, ‘UN Sanctions that Safeguard, Undermine, or Both, Human Rights’, in Juan Pablo Bohoslavsky and Jernej Letnar Černič (eds), Making Sovereign Financing and Human Rights Work (Oxford: Hart, 2014) 33–46; Ramin Tehrani, Die “Smart Sanctions” im Kampf gegen den Terrorismus und als Vorbild einer präventiven Vermögensabschöpfung (Berlin and Freiburg: Duncker & Humblot, 2014); Auke Willems, ‘The European Court of Human Rights on the UN Individual Counter-terrorist Sanctions Regime: Safeguarding Convention Rights and Harmonising Conflicting Norms in Nada v. Switzerland’, 83 NoJIL (2014) 39–60; Stephan Hollenberg, ‘The Security Council’s 1267/1989 Targeted Sanctions Regime and the Use of Confidential Information: A Proposal for Decentralization of Review’, 28 LJIL (2015) 49–71; Ali Z. Marossi and Marisa R. Bassett (eds), Economic Sanctions under International Law: Unilateralism, Multilateralism, Legitimacy, and Consequences (The Hague: T.M.C. Asser Press, 2015); Natalino Ronzitti (ed), Coercive Diplomacy, Sanctions and International Law (Leiden/Boston: Brill Nijhoff, 2016).

According to 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”. The measures not involving the use of armed force as provided for by Article 41 definitely have the nature of sanctions as they are imposed against a State which, in the judgment of the Security Council, has broken or threatened the peace or is to be considered an aggressor, regardless of whether such threat constitutes or not an international illegal act. In practice, it is the Member States of the United Nations (all the members or even only some of them: see Article 48, para. 1) that adopt the measures under Article 41, at the request of the Council. The list

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of measures in Article 41 (complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic and other means of communication, as well as the severance of diplomatic relations), as confirmed by the preparatory work and reaffirmed by the International Criminal Tribunal for the former Yugoslavia (see § 62) in the 1995 Tadić case (cf. , para. 35), includes some examples but it is not exclusive, as the Council may order any other measure whose purpose is to provide a sanction and which does not involve the use of armed force. As we shall see, military measures are of a different nature and, as such, they fall under Article 42. The Council has sometimes adopted them in order to ensure the respect of peaceful measures under Article 41 (see § 60). It is obvious that the cumulative application of all the measures listed will result in the total isolation of the State they are issued against. It is worth mentioning that the measures under Article 41, undisputedly falling under the “coercive measures” of Article 2, para. 7, last part, are not subject to the exception of domestic jurisdiction (see § 47). Indeed, it is especially in internal conflicts, and for the purpose of protecting the civilian population, that the Council usually intervenes. Sometimes the sanctions are even imposed by the Council against armed political groups. In recent times, ­measures not involving the use of force have been imposed on all States with regard to the fight against groups committing acts of terrorism. International terrorism is regarded as an offence against the international community as a whole, which justifies the action of the Security Council. Economic sanctions were also set out by the Covenant of the League of Nations, at art, 16, para. 1. However, they were, first of all, restricted to a very specific possibility, the possibility that a Member State had resorted to war in contempt of the Covenant provisions. Secondly, they were to be applied autonomously by the Member States, without any decision (and therefore without exercising any discretion) by the League organs. In 1921 the Assembly adopted some guidelines that envisaged the power of the Council to recommend an action plan and some amendments to the Covenant, which however where never ratified by Member States and remained non-binding (cf. League of Nations, Official Journal, Special Supp., no. 6, p. 25). As is well known, such sanctions were adopted only on one occasion, in 1935–1936, against Italy during the Ethiopian conflict, on the basis of recommendations adopted by an ad hoc Committee established by the Assembly and after the Council had declared, on October 10, 1935, that Italy had breached Article 12 of the Covenant (ibid. no. 150, p. 2 ff.). Faced with a disappointing outcome, the Committee recommended the lifting of sanctions on July 6, 1936.

By definition, measures not involving the use of armed force are the object of a Council decision, that is, of an act which binds the Member States to adopt them (although the possibility exists that a State may inform the Council, under Article 50, if it has “special” economic difficulties, amongst which those relating to the commercial relationships with third States). This can be drawn

Measures not involving the use of force (Article 41)   253

from Article 39 which provides that decisions under Article 41 are binding and which contrasts them to recommendations (“The Council…shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42”). It can also unambiguously be found in the preparatory work, if we consider that Article 41, together with Article 42, were conceived of at Dumbarton Oaks and were accepted by the San Francisco Conference as the most important innovation in the Charter as compared to the Covenant of  the League of Nations. This innovation was characteristic of the broad ­decision-making powers attributed to the Council (cf. U.N.C.I.O., vol. 12, p. 278). The fact that Article 41 allows for the adoption of binding decisions is confirmed by the practice, in particular, in those cases in which the Council recalls the “obligations” established by previous resolutions (as it did, for instance, with Res. 670 of September 25, 1990 and with Res. 1306 of July 5, 2000), as well as by international case law (e.g., the orders of the International Court of Justice in the 1992 Lockerbie case and of the International Criminal Tribunal for the former Yugoslavia in the 1995 Tadić case, respectively found in ICJ Reports 1992, paras. 35–40, and (cf. , para. 31); for the Tribunal see § 62). Given these elements, no weight should be given to an apparent inconsistency in the wording of Article 41 which, on one hand, provides that “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, on the other hand, adds that the Council may call upon the Member States to apply such measures. Article 41 deals with sanctions and with sanctions only. The Council may take measures not listed, since the list is not exhaustive, provided that they are sanctions and that they do not involve the use of armed force. The opinion has been held (by de Hoogh) according to which Article 41 gives the Council a double power, one implied, the other express: on the one hand, the (implied) power to make “decisions” for maintaining or restoring peace and, on the other hand, the power to “decide what measures not involving the use of armed force are to be employed to give effect to its decisions”. Using the first power, the Council could take no matter what decision provided that it is aimed at maintaining or restoring the peace; using the second one, the Council could impose the sanctions listed, or sanctions not listed, in Article 41. This opinion, which has been upheld in order to justify the institution of international criminal courts, like the International Criminal Tribunals for the former Yugoslavia and Rwanda, has no basis in the preparatory work of the Charter and in the Article 41 read in conjunction with Article 39. Article 39 is clear in the sense that, after the determination of a threat to, or a breach of, the peace, the measures that shall be taken “to maintain or restore international peace and security”, are either recommendations or decisions taken in accordance with Article 41 and 42. It would be very strange if Chapter VII empowered the Council to take decisions of such importance as to be assisted by sanctions without saying a word about their content and limits: for instance, are these decisions subject to the domestic jurisdiction exception, an exception which indeed is excluded by Article 2, para. 7, with regard the “enforcement measures under Chapter VII” only? As we have seen, the doctrine of implied powers must be used with caution (see § 5), and this is

254  The Functions especially true in a sensible matter as the one we are dealing with now. Having said that, the formulation of Article 41 (“The Security Council may decide what measures…are to be employed to give effect to its decisions…”), is certainly redundant, but not more redundant than the last part of the first sentence of Article 41 (“… call upon the members…to apply such measures”) and many other articles of the Charter. Regarding the institution of criminal tribunals, it must be simply recognized that it is a measure not considered by the Charter (see § 62). In its opinion on Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo of July 22, 2010, the International Court of Justice reaffirmed that the Security Council may adopt binding decisions (“resolutions imposing obligations under international law”) under Chapter VII, and Articles 24 and 25 of the Charter, stating in particular that Resolution 1244 (1999) on Kosovo “was expressly adopted by the Security Council on the basis of Chapter VII of the United Nations Charter, and therefore clearly imposes international legal obligations” (at , para. 85). But it should be observed that although Chapter VII allows binding decisions, it is also true that not all the measures taken in the light of Chapter VII are binding (authorizations to use force are not binding for example, although they may have a sanction character insofar as they are adopted without the consent or against the will of the State concerned). Another passage in the opinion on Kosovo deserves particular attention, where the Court points out the procedures for interpreting Security Council Resolutions. According to the Court, Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties can serve as an initial guide, but, in view of the differences between the Council resolutions and the treaties, other factors must also be taken into account; in particular the statements made by representatives of the Member States of the Security Council at the time when the resolution to be ininterpreted was adopted, as well as other Council resolutions on the same issue, and the subsequent practice of the relevant bodies of the United Nations and States affected by the resolutions (para. 94).

During the Cold War period, there were not a great many binding decisions made by the Council under Article 41. More generally, there were not many measures of an enforcement nature, truly able to discourage breaches of the peace. In fact, there were only two cases that came within the framework of Article 41 as binding decisions! This is the case of Resolutions 232 of December 16, 1966 and 253 of May 29, 1968 against Southern Rhodesia (repealed by Res. 460 of December 21, 1979 following the establishment of a government representative of the majority of the population) and of Res. 418 of November 4, 1977 (repealed by Res. 919 of May 26, 1994) against South Africa because of their apartheid policy. The resolutions against Southern Rhodesia imposed a series of measures (prevention of import and export, interruption of air services, closing of borders to Rhodesian citizens or to residents in Rhodesia, and so on) and aimed at the total isolation of the Rhodesian government at the time. In the case of South Africa, the 1977 resolution was restricted to imposing an embargo on any supplying of weapons to the South African government. Resolutions 232 and 253 against Southern Rhodesia were reaffirmed, in particular, by Resolutions 277 of March 18, 1970, 314 of February 28, 1972, 320 of September 29, 1972,

Measures not involving the use of force (Article 41)   255 333 of May 22, 1973, 388 of April 6, 1976, 409 of May 25, 1977; Res. 418 of November 4, 1977 against South Africa was reaffirmed, as well as interpreted broadly, in particular by Res. 591 of November 28, 1986.

After the end of the Cold War, Council resolutions coming under Article 41 have proliferated. The Council has intervened with measures not involving the use of armed force (in addition to those involving such use) in many important international and domestic crises that have occurred in recent times. In so far as these crises were characterized by violence and by gross violations of human rights, they have interested the international community as a whole. Sanctions have been adopted and renewed many times—sometimes they were even made stricter, by modifying the mandates of the committees and control Panels established by them, as we shall see—in subsequent years, against States, natural or legal persons in situations involving Iraq since 1990, the former Yugoslavia since 1991, Somalia since 1992, Libya since 1992, Liberia since 1992, Haiti since 1993, Angola since 1993, Rwanda since 1994, Sudan since 1996, Sierra Leone since 1997, Afghanistan, the terrorist organization Al Qaeda and other organizations like today Da’esh or ISIS (“Islamic State of Iraq and Syria”, also known as ISIL, “Islamic State of Iraq and Levant”, proclaiming itself a “Caliphate” on June 29, 2014) as well as the Taliban since 1999, Ethiopia and Eritrea since 2000, the Democratic Republic of Congo since 2003, the Ivory Coast since 2004, Lebanon since 2006, the Democratic People’s Republic of Korea and Iran since 2006 and more recently Eritrea since 2009, Libya and Ivory Coast in 2011, Guinea-Bissau in 2012, the Central African Republic in 2013, Yemen in 2014 and South Sudan since 2015. In 2013 the Council also decided, with unanimously adopted Resolution 2118 of September 27, 2013, on a series of measures to dismantle chemical weapons in Syria, stressing that “the use of chemical weapons in the Syrian Arab Republic constitutes a threat to international peace and security” and that “Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Council’s decisions”. Beginning with the Gulf crisis (a crisis which, as we shall see, mainly provoked the adoption of measures involving the use of force), the fundamental resolution was no. 661 of August 6, 1990, adopted against Iraq immediately after its invasion of Kuwait. Res. 661 obliged all States to break off all economic relations with Iraq, and, in particular, placed an embargo on imports and exports from and towards this country and prohibited all financial operations with the Iraqi government (excluding operations necessary for payment of medicines) and with firms under its control. Worth mentioning are also, among the many resolutions that are linked to Res. 661: Res. 670 of September 25, 1990, binding the States to the so-called air blockade, that is, to prohibiting in their territory (and therefore in the exercise of normal police activity under territorial sovereignty) the taking off, landing and flying over of aircraft suspected of breaking the embargo; and Res. 687 of April 2, 1991, which established, at sec. F, that the measures provided by Res. 661 shall be maintained

256  The Functions until Iraq has carried out what has been required by the resolutions, such as payment of compensation, elimination of military arsenals, and so on (for more details see §56). All prohibitions related to trade with Iraq, with the exception of prohibitions related to the sale or supply of arms and related material including however the arms embargo and the ­military arsenal necessary to the Iraqi government or to the multinational Force in Iraq under Res. 1546 of June 8, 2004 have been abolished by Res. 1483 of May 22, 2003. For the revocation of the remaining sanctions, see Res. 1956 of December 15, 2010. With regard to the Yugoslav crisis, the first resolution, no. 713 of September 25, 1991, adopted when the civil war still seemed to be a war of secession, was restricted to providing an embargo on weapons intended for (all of) Yugoslavia. Later, an important decision among those which come under Article 41, was Res. 757 of May 30, 1992 which, after having reiterated condemnation of the intervention of the Yugoslav Republic (SerbiaMontenegro) in Bosnia-Herzegovina, already expressed in a previous resolution (Res. 752 of May 15, 1992), bound all States to adopt a series of economic sanctions against this Republic, from the embargo on imports and exports, to the blocking of financial operations, to the suspension of all co-operation in scientific and technical fields, as well as to prohibit aircrafts coming from or directed towards Serbia-Montenegrin territory from taking off, landing and flying over their territory. In turn, Res. 820 (part B) of April 17, 1993 extended the embargo to the territories of Croatia and to those of Bosnia-Herzegovina controlled by the Serbs, and also provided for the prohibition of commercial traffic with the Republic of Yugoslavia along the Danube; the interruption of land traffic and the obligation of the States where there were ships in port which had broken the embargo to confiscate the ships and their loads. The economic sanctions against the Federal Republic of Yugoslavia (Serbia-Montenegro) were terminated by Res. 1074 of October 1, 1996. During the Kosovo crisis, in 1998–1999, the Security Council was unable to take any decisions against this country with the exception of an embargo on arms and related material (Res. 1160 of March 31, 1998, reiterated by Resolutions 1199 of September 23, 1998 and 1203 of October 24, 1998). In the case of the crisis in Somalia—another crisis which saw the Council take measures mainly involving the use of armed force—Res. 733 of January 23, 1992, prohibiting the export of arms to Somalia, as well as Res. 1844 of November 20, 2008 which adds to the adopted measures wit Res. 733 restrictions to circulation and the freezing of financial resources. With Res. 1916 of March 19, 2010 the Council eased some restrictions and obligations regarding sanctions against Somalia. With Res. 1972 of March 17, 2011, the Council made some changes to the sanctions on humanitarian grounds, establishing that for a period of sixteen months, the obligations set out in Resolutions 733 and 1844 will not apply to the payments necessary to ensure prompt humanitarian assistance in Somalia on the part of the United Nations, the specialized agencies and the humanitarian organizations operating there. Among those resolutions by which the Security Council has decided a number of measures in order to prevent and repress acts of terrorism, see especially Res. 1373 of September 28, 2001, as well as Resolutions 1377 of November 12, 2001, 1455 of January 17, 2003 and 1456 of January 20, 2003. With Res. 1373 of 2001 the Council imposed on Member States of the UN a series of obligations, many of which correspond to the ones enshrined in the 1999 Convention for the Suppression of the Financing of Terrorism, not yet into force at the time, as the obligation to prevent and repress the financing of terrorist acts by freezing the funds and other financial and economic resources of people who commit or try to commit terrorist acts. Under Res. 1373 Member States have also the duty to ban their citizens or people operating within their territory may put funds, economic and financial resources to the disposal and for the benefit of people who commit or try to commit terrorist act. The States

Measures not involving the use of force (Article 41)   257 are also obliged to abstain from giving any type of assistance, active or passive, to entities or people involved in terrorist acts, preventing the recruitment of the members of the terrorist groups and abolishing the supply of weapons to terrorists, as well as granting that any person contributing to the funding, planning or commission of acts of terrorism be judged before its judges. As to Al Qaeda and the Taliban regime cf. Resolutions 1267 of October 15, 1999, 1333 of December 19, 2000, 1390 of January 28, 2002 and 1526 of January 30, 2004. With Resolutions 1988 and 1989 of June 17, 2011, the Council divided the measures against the Taliban and Al-Qaeda. Of note are the more recent Resolutions against ISIS, particularly Resolutions 2161 of June 17, 2014 (para. 1), 2170 of August 15, 2014, 2178 of September 24, 2014, 2199 of February 12, 2015, 2214 of March 27, 2015 and 2249 of November 20, 2015. In Res. 2161, reaffirming that “All States…have an obligation to take the measures described in paragraph 1 with respect to all individuals, groups, undertakings and entities included on the Al-Qaida Sanctions List, regardless of the nationality or residence” (preamble) and that “all States shall take the measures as previously imposed” by Resolutions 1333 (para. 8, letter. C), 1390 (paras. 1 and 2) and 1989 (paras. 1 and 4) “with respect to Al-Qaida and other individuals, groups, undertakings and entities associated with them”. Res. 2170, “[n]oting with concern the continued threat posed to international peace and security by ISIL, ANF and all other individuals, groups, undertakings and entities associated with Al-Qaida” (preamble and para. 18), applies sanctions to the individuals listed in the appropriate Annex (para. 19). Taking up the content of Res. 2170, Res. 2178 expresses “particular concern that foreign terrorist fighters are being recruited by and are joining entities such as the Islamic State in Iraq and the Levant (ISIL), the Al-Nusrah Front (ANF) and other cells, affiliates, splinter groups or derivatives of Al-Qaida” and decides among other things that “Member States shall, consistent with international human rights law, international refugee law, and international humanitarian law, prevent and suppress the recruiting, organizing, transporting or equipping of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, and the financing of their travel and of their activities” (para. 5). In Res. 2199, in addition to condemning a series of acts performed by ISIS and other organizations linked to Al-Qaeda, the Council reaffirms the obligations of States established by Resolution 2161, stating that “any engagement in direct or indirect trade, in particular of oil and oil products, and modular refineries and related material, with ISIL, ANF and any other individuals, groups, undertakings and entities designated as associated with Al-Qaida by the Committee pursuant to resolutions 1267 (1999) and 1989 (2011)” and reiterating that “such engagement would constitute support for such individuals, groups, undertakings and entities and may lead to further [sanction] listings by the Committee” (para. 1). Res. 2214, after emphasizing in the preamble that “sanctions are an important tool under the Charter of the United Nations in the maintenance and restoration of international peace and security, including countering terrorism, and…the importance of prompt and effective implementation of relevant resolutions…as key instruments in the fight against terrorism” and “[n]oting with grave concern the continued threat posed to international peace and security by ISIL, Ansar Al Charia, and all other individuals, groups, undertakings and entities associated with Al-Qaida operating in Libya”, “[u]rges Member States to combat by all means, in accordance with the Charter of the United Nations and International Law, threats to international peace and security caused by terrorist acts, including those committed by ISIL, groups that pledged allegiance to ISIL, Ansar Al Charia, and all other individuals, groups, undertakings and entities associated with Al-Qaida operating in Libya in coordination with the Government of Libya” (para. 3). Res. 2249, after pointing out in the preamble that “the Islamic State in Iraq and the Levant (ISIL, also known as Da’esh), constitutes a global and

258  The Functions unprecedented threat to international peace and security”, also because of “its control over significant parts and natural resources across Iraq and Syria”, “[c]alls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law…on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL…and other terrorist groups” (para. 5). For other examples of decisions containing measures under Article 41, cf. the already cited Resolutions 748 of March 31, 1992 and 883 of November 11, 1993 against Libya which, in so far as the Libyan government had refused to hand over two Libyan citizens accused of grave acts of terrorism (a handing over requested with prior Res. 731 of January 21, 1992, within the framework of Chapter VI: see § 54), ordered the interruption of air traffic and of the supplying of aircraft or parts of aircraft as well as of weapons to that country and a series of other economic restrictions (the sanctions were suspended in April 1999 an abolished in September 2003: see § 56). As regards Liberia, cf. Res. 788 of November 19, 1992 (confirmed by subsequent Res. 813 of March 26, 1993) on the embargo on the sale of arms to Liberia, because of the civil war underway there; Res. 1343 of March 7, 2003 on the ban to export diamonds; Res. 1521 of December 22, 2003, forbidding also entrance and transit of the people affected; Res. 1532 of March 12, 2004, imposing sanctions against the former President C. Taylor and to other people, as well as the freezing of financial resources; Resolution 1683 of June 13, 2006 that changes the arms embargo regime; Res. 1731 of December 20, 2006, introducing further restrictions on diamond trading; Res. 1753 of April 27, 2007, revoking the sanctions on diamonds established by Res. 1521 of 2003; Res. 1760, of June 20, 2007, imposing a ban to enter Liberia on relatives, friend and collaborators of former President C. Taylor and on whoever may represent a threat to the security of Liberia and of that region; Res. 1903 of December 17, 2009, that puts an end to the weapons embargo against the Government of Liberia and imposes another one against non-State entities operating there. The sanctions have been renewed several times, most recently with Resolutions 2128 of 10th December 2013 and 2188 of 9th December 2014. Cf. also Resolutions 841 of June 16, 1993 (arms and oil embargo), 873 of October 13, 1993 (suspending some of the sanctions provided for by Res. 841), 875 of October 16, 1993 (invitation to implement the measures already imposed), 917 of May 6, 1994 (interrupting air traffic), and 944 of September 29, 1994 (revoking the sanctions) against the military junta in Haiti; Res. 864 of September 15, 1993 (on the embargo on the sale of arms and oil products to UNITA, the Angolan armed political party), followed by Resolutions 1127 of August 28, 1997 sec. B (restricting the transit of officials and members of the respective families, as well as aircrafts, ships, etc., belonging to UNITA), 1173 of June 12, 1998 (again against UNITA), and 1448 of December 9, 2002, all against Angola; Res. 918 of May 17, 1994 on the arms embargo in Rwanda; Res. 1054 of April 26, 1996, ordering the reduction of the Sudanese diplomatic and consular staff and the restriction of the entry into, or the transit through, the territory of all States of Sudanese officials, due to the refusal of the Sudan to extradite to Ethiopia the suspects wanted in connection with the assassination attempt on the life of the President of Egypt Mubarak occurred in Addis Ababa; all these measures have been abolished in September 2001 (see § 56), as well as Resolutions 1591 of March 29, 2005 (completely isolating Sudan), 1672 of April 25, 2006 (restriction on free movement and financial sanctions against four Sudanese citizens); Res. 1132 of October 8, 1997 (sanctions against the military junta in Sierra Leone: the sanctions were terminated by Res. 1156 of March 16, 1998, due to the restoration of a democratic government in this country); Res. 1171 of June 5, 1998 (embargo on arms to be sent to non-governmental forces in Sierra Leone); and Res. 1306 of July 5, 2000 (banning the export of diamonds) against Sierra Leone; the above mentioned Resolutions 1267 of October 15, 1999 and 1333

Measures not involving the use of force (Article 41)   259 of December 19, 2000 against Afghanistan (blocking the goods and air embargo); Res. 1298 of May 17, 2000 (arms embargo) and the declaration of the President of the Security Council no. 14 of May 15, 2001 against Ethiopia and Eritrea; Resolutions 1493 of July 28, 2003 (arms embargo), 1533 of March 12, 2004, 1596 of April 18, 2005 (transit ban and freezing of financial resources), 1698 of July 31, 2006 (extending the measures provided by Res. 1596 to other individuals), 1896 of November 30, 2009 (renewing and expanding the  arms embargo) reaffirmed in Resolutions 1952 of November 29, 2010, 2021 of November 29, 2011, 2078 of November 28, 2012, 2136 of January 30, 2014 and 2198 of November 29, 2015 against the Democratic Republic of Congo; Resolutions 1572 of November 11, 2004 (arms embargo, transit ban and freezing of financial resources) and 1643 of December 15, 2005 (ban on imports of rough diamonds) against the Ivory Coast; Resolutions 1636 of October 31, 2005 (sanctioning the suspects of the attack against the former Lebanese Prime Minister R. Hariri and another 22 people) and 1701 of August 11, 2006 (forbidding the sale or supply to the Lebanese of weaponry, except for those authorized by Lebanon and by UNIFIL); Resolutions no. 1718 of October 14, 2006 (arms embargo and on equipments that can contribute to the nuclear proliferation program, transit ban in the territory of Member States and freezing of financial assets) and 1874 of June 12, 2009 (exacerbation of the arms embargo and the right to inspect ships at sea from and towards North Korea suspected of being in breach of the embargo and condemnation of the nuclear test of May 25, 2009, in defiance of Res. 1718 of October 14, 2006) against North Korea; Resolutions 1737 of December 23, 2006 (arms embargo and on other goods that could contribute to the Iranian nuclear proliferation program and freezing of financial resources), 1747 of March 24, 2007, 1803 March 3, 2008, 1835 of September 27, 2008 and 1929 of June 9, 2010 against Iran. In a statement of April 16, 2012, the President of the Security Council condemned the launch, on April 13, 2012, of a satellite by North Korea (which in any case exploded in the air) as a violation of the sanctions against States that make use of ballistic missiles. With Res. 2087 of 22 January 2013, the Security Council condemned the launch of another ballistic missile by North Korea, carried out on December 12, 2012, in violation of Resolutions 1718 and 1874. With Resolution 2094 of July 2, 2013, the Council condemned the nuclear test conducted by North Korea on February 12, 2013 in violation of Resolutions 1718, 1874 and 2087, extending the scope of the sanctions, in particular naming further parties subject to sanctions (para. 8 and Annexes I and II). Concerning Eritrea, Res. 1907 of December 23, 2009, following findings that Eritrea had provided support to armed groups undermining peace and reconciliation in Somalia and that it had not withdrawn its forces following clashes with Djibouti in June 2008, imposed an arms embargo on the country, in addition to travel restrictions on and a freeze on the assets of its political and military leaders, and demanded inter alia that the Eritrea cease all efforts to destabilize or overthrow, directly or indirectly, the Transitional Federal Government of Somalia. Of particular note are the sanctions adopted by the Security Council against Libya in early 2011. With Res. 1970 of February 26, 2011, the Council condemned the use of force by government militias and armed groups controlled by the Gaddafi regime against the civilian population during the ongoing insurgency—including human rights violations and the possible commission of crimes against humanity—as a “threat to peace” pursuant to Article 39 of the Charter and assuming (in line with the doctrine of the responsibility to protect: see § 66), that it was primarily up to the Libyan authorities to protect the population. In addition to referring the situation in Libya to the International Criminal Court (see § 62), it agreed to an arms embargo and a prohibition of movement and a freezing of the assets of several members of the Libyan regime or related to it, starting with Colonel Gaddafi and some members of his family, and ordered that the goods seized should be used to the benefit of the population. Res. 1970 also set up a committee to monitor the

260  The Functions implementation of sanctions, to investigate violations and to impose other sanctions “targeted” against other individuals or legal entities. Only after twenty days, as the situation in Libya had worsened, did the Council adopt Res. 1973 of March 17, 2011 by a majority of 10 members (with the abstention, among the permanent members, of China and Russia), calling for an immediate ceasefire and authorising the use of force for the protection of the civilian population (in addition to imposing a no-fly zone over Libyan airspace), but expressly “excluding a foreign occupation force of any form on any part of Libyan territory”, and requested the strengthening, expansion and imposition of sanctions (see § 61). The sanctions against Libya, and the obligations relating to their implementation, were partly removed by Resolutions 2009 of September 16, 2011, 2040 of March 12, 2012, and 2095 of March 14, 2013. Other measures were taken under Resolutions 2144 of March 14, 2146 of March 19, 2014 (measures against the illegal export of crude oil) and 2174 of August 27, 2014 (strengthening of the arms embargo and expanding the criteria for designating persons subject to sanctions). With Res. 2214 of March 27, 2015, the Security Council called on the Sanctions Committee to examine the requests for exemptions to the arms embargo by the Government of Libya so that weapons could be used by its armed forces against terrorist groups such as ISIL, Ansar Al Sharia and Al-Qaeda. Moreover, with Res. 2146 of March 19, 2014, as extended by Resolution 2213 of March 27, 2015, the Council authorized Member States “to inspect on the high seas vessels designated by the Committee”, attempting to export illegal mind-crude oil from Libya and “to use all measures commensurate to  the specific circumstances, in full compliance with international humanitarian law and international human rights law, as may be applicable, to carry out such inspections” (paras. 5 and 8) applying various measures against them (para. 10). On the fate of the frozen assets, see Conor McCarthy, ‘What Happens To The Frozen Fortune? The Libya Situation and Claims for Reparation’, 16 EHRLR (2011) 318–28. As for Ivory Coast, with Res. 1975 of March 30, 2011, the Council, again referring to the doctrine of the responsibility to protect (see § 66), called on the Ivorian government to immediately cease all forms of violence against the civilian population and imposed “targeted” sanctions against President Laurent Gbagbo, his wife and other collaborators (embargo, travel ban, and freezing of assets). Res. 1975 called upon Gbagbo to step down immediately in compliance with the outcome of the November 2010 presidential elections won by his opponent, Alassane Ouattara. On April 11, 2011, Gbagbo was arrested and the International Criminal Court (see § 62) charged him with crimes against humanity, appearing before the Court on November 29, 2012. The Security Council, “[a]cting under Chapter VII of the Charter of the United Nations”, imposed on Member States the obligation to freeze assets, impose travel restrictions and an arms embargo (para. 1) against the Taliban and their associates “constituting a threat to the peace, stability and security of Afghanistan”, with Res. 1988 of June 17, 2011, reiterated in Resolutions 2082 of December 17, 2012 and 2160 of June 17, 2014. Regarding Guinea-Bissau, with Res. 2048 of May 18, 2012 the Security Council, “[a]cting under article 41 of Chapter VII of the Charter of the United Nations”, imposed on Member States the obligation to adopt restrictions on travel for specific persons (para. 4 and Appendix) or those designated by the especially implemented Sanctions Committee (para. 9). As for the Central African Republic, with Res. 2127 of May 12, 2013, the Security Council, “[d]etermining that the situation in the CAR constitutes a threat to international peace and security”, imposed on Member States the obligation to adopt an arms embargo (para. 54) and authorized them to punish violations through measures such as confiscation and destruction (para. 55), as well authorizing “the French forces in the CAR, within the limits of their capacities and areas of deployment, and for a temporary period, to take all necessary measures to support MISCA” established by the same resolution (para. 28).

Measures not involving the use of force (Article 41)   261 Res. 2134 of January 28, 2014 added travelling restrictions (para 30) and the freezing of assets  (para. 32) also for persons acting in violation of the arms embargo or “planning, directing, or committing acts that violate international human rights law or international humanitarian law” in addition to other acts such as the recruitment of children and the obstruction of humanitarian assistance (para. 37), and the authorization of he European Union to deploy an operation in the CAR “to take all necessary measures within the limits of its capacities” (paras. 43–44). The sanctions regime was confirmed in the more recent Res. 2196 of 22 January, 2015 (paras. 1, 2, 4 and 7). Cf. . Regarding Yemen, with Res. 2140 of February 26, 2014, the Security Council, “­[d]etermining that the situation in Yemen constitutes a threat to international peace and security in the region” and “Acting under Chapter VII of the Charter of the United Nations”, imposed on Member States the obligation to impose the freezing of assets (para. 11), an arms embargo (para. 14) and travelling restrictions (para. 15) on persons designated by the specially set up Committee (para. 19). Regarding South Sudan, with Res. 2206 of March 3, 2015, the Security Council “[d]etermining that the situation in South Sudan continues to constitute a threat to international peace and security in the region” and “[a]cting under Article 41 of Chapter VII of the Charter of the United Nations” imposed on Member States the obligation to adopt ‘smart sanctions’, namely travel restrictions (para. 9) and the freezing of assets (para. 12), against people involved in acts threatening “actions or policies that threatened the country’s peace, security or stability” and designated by the specially set up Sanctions Committee (para. 16). In the provision of Res. 2118 of September 27, 2013 on the dismantling of chemical weapons in Syria, the Council reaffirmed that “the use of chemical weapons anywhere constitutes a threat to international peace and security” (para. 1), and condemned “in the strongest terms any use of chemical weapons in the Syrian Arab Republic, in particular the attack on 21 August 2013, in violation of international law” (para. 2) and decided, furthermore, that “the Syrian Arab Republic shall not use, develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to other States or non-State actors” (para. 4). Other draft resolutions presented from 2012 to date by Western members of the Security Council and envisaging sanctions and the referral of the situation in Syria to the International Criminal Court—of whose Statute Syria is not a party—have been systematically blocked by the veto of the Russian Federation and China.

The same is to be said about the measures adopted to defeat international terrorism and to counteract nuclear proliferation among non-State entities, especially among terrorist groups, against which, however, as already noted, the Council does not limit itself to impose sanctions on specific issues, but has taken steps to establish a general and abstract regulation (in particular with Resolutions 1373 of September 28, 2001 and 1540 of April 28, 2004, both adopted unanimously) that has raised the issue of new powers, of a “legislative” nature, taken by the Council itself. The characteristic of these resolutions is indeed the provision of a series of measures—sometimes envisaged in specific treaties, but that ultimately impose themselves, under Article 41, also on the UN Member States who are not and do not want be parties to them—to be adopted against international terrorism and/or the safeguard of nuclear nonproliferation, regardless of concrete crises and without time limits. It has been

262  The Functions

questioned whether such resolutions fall within the powers conferred on the Council by Article. 41. In favor of their legality it has been argued—as is ­routine whenever one is facing an innovative practice of the Security Council—that the Charter is the Constitution of the international community and should be interpreted as a “living instrument” in an evolutionary and teleological way, and in accordance with the relevant practice (see § 4). The negative argument is more convincing, both because Article 41—as well as Article 39 where it evokes a “threat to peace”—clearly refers to concrete issues, and because Res. 1540 (even though not Res. 1343, which certainly reflects the unique climate immediately following the attacks of September 11, 2001) has raised several reservations by the States, and finally because the two resolutions have remained isolated. It was argued in the doctrine that the two resolutions would reflect a form of “legalized hegemony”. The concept of “legalized hegemony” (Simpson), or more generally that of “hegemonic international law” (Vagts), although interesting from a geopolitical point of view, does not seem useful in terms of positive law. To say that the law conceals (or “legitimates”) the hegemony of the strongest, on the one hand, does not say anything particularly new and, on the other, does not help to identify existing norms from moment to moment, whoever the hegemons might be. Res. 1540, which also set up a committee responsible for monitoring implementation (the so-called “1540 Committee”, whose mandate has been extended several times, most recently by Res. 1977 of April 20, 2011), has been repeatedly confirmed (most recently with Res. 2055 of June 29, 2012). It has been noted in the literature that similar “quasi-legislative” characteristics are shared by the aforementioned Resolution 2178 of 2014 which provides for a of sanctions regime against members of ISIS. The concept of “legislative powers” of the Council, like that of “quasi-judicial powers” of which it is spoken also with regard to acts of the Committees established by the Council qualified to deal with individuals, lends itself to confusion. The term is in fact clearly taken from domestic legal systems but it is clear that whatever the Council does, legitimately or not, has nothing to do with what State organs normally do, not only the Parliament and the courts but also governments themselves. It will suffice to note that the Council does not formally answer (based on a relationship of confidence similar to that of parliamentary States) to the General Assembly, except for the Assembly the power to influence the decisions of the Council through the approval of the budget (see § 88), that the Assembly does not adopt legally binding acts (if not exceptionally), that in the United Nations there is neither separation of powers nor adequate checks and balances, to understand how the whole argument, including the most basic which conceives the Charter as the Constitution of the international community (see § 4), has little meaning. Apart from the instinctive, but in fact erroneous associations with domestic legal systems, the real problem is to identify, each time, what the Council can do under the Charter in accordance with the interpretive criteria of international law as accepted and applied by the generality of States and by international organs.

Measures not involving the use of force (Article 41)   263 The fact is that several States have challenged the legality of the exercise of “global” l­egislative powers by the Security Council, which may impose obligations on all States without their specific consent, i.e. beyond that consent “originally” given to United Nations Charter, noting that such powers can undermine the stability of international order, that the Charter does not grant to Members of the Council a mandate to legislate (in particular by “creating treaties”, i.e., rules based on treaties and in this manner imposed on Member States regardless of their intention not to ratify) on behalf of the international community, where at best one is dealing with temporary exceptional measures intended to strengthen (not replace) the existing treaties and destined to remain in force until the conclusion of the treaties, and, finally, that it is still left full freedom to the States to choose the means to achieve the purposes of the resolutions. Overall, if it is true, as it is often repeated, that today “global solutions to global problems” are needed, it is also true that the trend of stronger States to impose their own will on other States “stepping over” their consent, in particular on the basis of alleged global needs and acting “on behalf ” of the international community, even where it objectively appears that several States are not in favor, it is a practice that, although it can also be seen as physiological in the competition for power, from a legal standpoint requires some degree of caution. International law is the set of sufficiently objective rules that are supported by the practice and by the opinio juris of the generality of States. In particular, for the strong criticism against Res. 1540 of April 28, 2004, cf. the statements of the Philippines, Algeria, Pakistan, India, Cuba, Indonesia, Iran (Doc. S/PV.4950, of April 22, 2004, pp. 3, 5, 15, 24, 30, 31, 32), and again Pakistan and Algeria (S/PV.4956, of April 28, 2004, pp. 3–4 and 7), Mexico, Nepal and Namibia (Doc. S/PV.4950 Resumption 1, pp. 5, 14 and 17). Some doubt has been expressed also by Japan, in whose view “the Security Council assumes a lawmaking function” and “should, therefore, be cautious not to undermine the stability of the international legal framework” (S/PV.4950, p. 28) and by Switzerland, according to whom “[i]n principle, legislative obligations, such as those foreseen in the draft resolution under discussion, should be established through multilateral treaties, in whose elaboration all States can participate”, therefore “[i]t is acceptable for the Security Council to assume such a legislative role only in exceptional circumstances and in response to an urgent need” (ibid., p. 28). Angola has stressed that it was an “unprecedented step” (ibid., p. 9); Mexico said to be “concerned about the precedent” (S/PV.4950 Resumption 1, p. 5). In the sense that the resolution was merely to fill a gap and did not change (nor conflicted with) the existing treaties, especially the Nuclear Non-Proliferation Treaty of 1968, cf. the statements of the Philippines, Brazil, Spain, the United Kingdom, Benin, the United States, Ireland (S/PV.4950, pp. 3, 7, 12–13, 17–18, 26), France, the United States, Chile, the United Kingdom, Spain, Romania, Philippines, Germany (S/PV.4956, pp. 2 and 5–10) and Mexico (S/PV.4950 Resumption 1, p. 4). Some States have criticized the use of Chapter VII, fearing among other things that this could be interpreted as an authorization to use force against States that had not complied with the resolution, among them, for example, Brazil and Algeria (S/PV.4950, pp. 4–5) and especially Pakistan, according to whom “there is no justification for the adoption of this resolution under Chapter VII of the Charter. The threat…may be real but it is not imminent. Is not a threat to the peace within the meaning of Article 39 of the United Nations Charter” (ibid., p. 15). Other States have clearly ruled out that the resolution authorized the use of force: the Philippines (ibid., p. 3); the United Kingdom (ibid., p. 12); Pakistan (ibid., p. 15) and Switzerland (ibid., p. 28). Only Spain has openly admitted that “the Council is legislating for the entire international community” and had the power to do so (ibid., p. 7; S/PV.4956, p. 8). Overall, as was clearly pointed out by Costa Rica, under the Charter the Council’s mandate “is confined to specific situations or specific disputes that endanger international peace and security” while “the adoption of norms with general application is the prerogative of the international community as a whole, and is accomplished by negotiating treaties or through the formation of binding

264  The Functions customary law” (see Doc. 5/PV.5059 Resumption 1, p. 23, no. 3). In the literature v. Daniel H. Joyner, ‘Non-Proliferation Law and the United Nations System: Resolution 1540 and the Limits of the Power of the Security Council’, 20 LJIL (2007) 489–518.

Assuming that the sanctions in Article 41 can be adopted by binding decision, A weak point in the measures governed by Article 41 lies in the fact that, once the Council has imposed an obligation on the States to adopt such measures, this obligation must be fulfilled in practice. In other words, if it is true that the States are obligated by the United Nations Charter to carry out the decisions regarding measures not involving the use of armed force, it is also true that often various States, for political or economic reasons, tend to disregard this legal obligation. Usually when the Council orders sanctions under art, 41, it appoints a Committee to see that the sanctions are carried out (cf., merely as examples, para. 6 of the cited Res. 661 of August 6, 1990 against Iraq and paragraphs 12 and 13 of the cited Res. 757 of May 30, 1992 against the Federal Republic of Yugoslavia). However it is not difficult to get around this supervision, since it is mainly carried out through reports sent by the States themselves. We see reflected in this matter the perpetual problem of international law, that is, law within whose sphere rules are created, but are often not applied. The vicissitudes regarding the implementation of sanctions against Southern Rhodesia within the legal systems of Member States, particularly the Western Powers, were not exemplary. The most striking—and openly carried out—case of the non-application of economic sanctions concerned the United States. Between 1971 and the end of 1976 a special law in the United States authorized the import of Rhodesian chromium (the law was justified by the U.S. delegate in the Council with the claim… that it was identical to the practice of some other States! Cf., for example, SCOR, 27th year, 1645th meet., no. 29 ff.). Only at the beginning of 1977, under pressure from the Carter Administration was this law abrogated (the relevant acts appeared in ILM (1972), p. 178 ff., and 1977, p. 425 ff.). Aside from those of the United States, there were many violations by the States of the economic blockade which, if not authorized, were at least tolerated. In one of the various reports to the special Committee appointed by the Council to investigate them, about 135 were ­mentioned (cf. the 5th Report of the Committee, in SCOR, 27th year, Special Supp., no. 2, p. 27 ff.). Still in 1998 the Security Council, in a resolution couched in very general terms, was forced to urge all States and other organizations to report on possible violations of arms embargoes established by the Council (see Res. 1196 of September 16, 1998). Also regarding the embargo on arms intended for South Africa, violations were often denounced, even in General Assembly resolutions. For an interesting list of the loopholes  devised by various States to elude the spirit, if not the letter, of cited Res. 418 of November 4, 1977, cf. the Report of the Committee for Sanctions against South Africa (Doc. S/14179 of September 19, 1980), examined by the Security Council in its sessions of September 20 and 23, 1982. Reported violations of sanctions have remained frequent. In 1998 the Security Council, in a resolution couched in very general terms, was forced to urge all States and other organizations to report on possible violations of arms embargoes established by the Council (see Res. 1196 of September 16, 1998). More recently, on December 10, 2009, the Committee which monitors sanctions on Iran reported the Security Council “pattern of violations”

Measures not involving the use of force (Article 41)   265 concerning the arms embargo imposed under Res. 1747 of March 24, 2007 (cf. Doc. S/ PV.6235). In the same sense, see also the Security Council Committee Report and ensuing debate of December 21, 2012 (Doc. S/PV.6737).

As hinted above, concomitantly with the adoption of sanctions, the Council often establishes a Control Committee composed of Members of the Security Council, designed to ensure that sanctions are enforced, as well as to perform various other functions related to the overall management of the sanctions, by renewing the mandate (sometimes with modifications) later (cf. ). It has done it so far, by restraining itself to simply mentioning the sanctions Committees currently operating, or recently disbanded, in terms of sanctions against States and/or persons expressly named (or nameable) in relation to the situtations in Iraq (Res. 661 of August 6, 1990, replaced by the one created with the Res. 1518 of November  24, 2003), in Somalia (Res. 751, April 24, 1992), in Sierra Leone (Res. 1132 of October 8, 1997, halted by Res. 1940 of September 29, 2010), against Al Qaeda and the Taliban (Res. 1267 of October 15, 1999 and Res. 1988 of June 17, 2011), against international terrorism (Res. 1373 of September 28, 2001), in Liberia (Res. 1521 of December 22, 2003, which replaced two previous Committees established by Resolutions 1343 of March 7, 2001 and 985 of April 13, 1995), in the Democratic Republic of Congo (Res. 1533 of March 12, 2004), against the proliferation of weapons of mass destruction in terrorist groups (Res. 1540 of April 28, 2004), in the Ivory Coast (Res. 1572 of November 15, 2004), against Sudan (Res. 1591 of March 29, 2005), in Lebanon (Res. 1636 of October 31, 2005), in the Democratic Republic of Korea (Res. 1718 of October 14, 2006), in Iran (Res. 1737 of December 23, 2006), in Libya (Res. 1970 of February 26, 2011), in Guinea-Bissau (Res. 2048 of May 18, 2012), in the Central African Republic (2127 of December 5, 2013), in Yemen (Res. 2140 of February 26, 2014) and South Sudan (Res. 2226 of March 3, 2015). One of the most interesting powers, but as we shall see also problematic, of the control Committees is the administration of “lists” of people mentioned by name and made public even on the Internet (), against whom the Security Council adopted sanctions. Committee 571 on Somalia, set up with Res. 751 of April 24, 1992, monitors the implementation by Member States of the arms embargo imposed on Somalia with Res. 733 of January 23, 1992 (subsequently renewed or amended by Resolutions 1356 of June 19, 2001, 1725 of December, 6 2006, 1744 of February 21, 2007, 1772 of August 20, 2007, 1846 of December  2, 2008, 1851 of December 16, 2008, 1907 of December 23, 2009, 1972 of March 17, 2011, 2023 of December 5, 2011, 2036 of February 22, 2012, 2060 of July 25, 2012, 2093 of March 6, 2013, 2111 of July 24, 2013, 2142 of March 5, 2014 and 2182 of October 24, 2014) and in case of violations, makes recommendations on the most appropriate measures to be taken. Cf. .

266  The Functions Committee 1132 on Sierra Leone monitored the implementation by Member States of the arms embargo (as amended by Res. 1171 of June 5, 1998) imposed on non-governmental forces in the territory, as well as the obligation on Member States to ban entry into its territory and the transit of representatives of rebel groups whose names have been included by the Committee in a separate list periodically updated and distributed to the Member States. They must also notify to the Committee all exports of arms to Sierra Leone and so must the latter with regard to imports. The Committee is also required to submit to the Security Council periodic reports indicating the persons and entities involved in violations of the embargo. Recently, the Committee agreed with the Registrar of the Special Court for Sierra Leone (see § 62) the procedures to be followed regarding the transfer of individuals who are included in the list whose presence is required in the proceedings of the Special Court. Cf. . The Committee ceased its activities with Res. 1940 of September 29, 2010, with immediate effect. Committee 1267 on Al Qaeda and the Taliban, set up with Res. 1267 of October 15, 1999, monitors if the States adopt the measures decided by the Council, it does so also by visiting the individual States, it receives reports from the States on the implementation of the ­measures subject to sanctions, it takes care of the list of individuals or entities against whom the sanctions decided by the Council have been taken, as well as the de-listing ­procedures (i.e., cancellation from the list) of individuals or entities previously listed, it assist those States which request it in the identification of recipients of economic sanctions and examines the requests for exceptions to such measures put forward by States for humanitarian reasons as determined by Res. 1452 of December 20, 2002, as amended by Res. 1735 of December 22, 2006. Cf. . Committee 1373 on Terrorism (referred to as the Counter-Terrorism Committee), set up with Resolution 1373 of September 28, 2001, monitors the implementation of the measures imposed on States to fight international terrorism, receiving reports from the States, making visits to individual states to follow the implementation of measures or to assess the level of technical assistance a specific State may need to adjust to sanctions and it distributes to States a preliminary assessment of implementation of the measures (a so called Preliminary Implementation Assessment, PIA). So far the Committee has received at least one report from all 193 UN Member States. The Council also established an Executive Steering Committee against Terrorism (Counter-Terrorism Committee Executive Directorate, CTED), also composed of 40 experts with the task of assisting the Committee. On the basis of the information contained in the PIAs the CTED has prepared in 2008, 2009 e 2011 a global survey on the implementation of Resolution 1373 e nel 2009 una « Guida tecnica all’attuazione della risoluzione 1373 del Consiglio di sicurezza » (cfr. ). Cfr. . Committee 1518, set up with Res. 1518 of November 24, 2003 has competence to identify the former officials of Saddam Hussein’s regime or entities controlled by them in respect of which the States must proceed to freeze the assets under Res. 1483 of May 22, 2003 to then transfer them to the Development Fund for Iraq and may be authorized by the Council to monitor compliance by the States of their obligations under para. 10 of Res. 1483. Currently the main activity of the Committee is to decide on requests for inclusion in (or cancellation from) the list of persons against whom the measures decided by the Council were adopted. Cf. . Committee 1521, set up with Res. 1521 of December 22, 2003, monitors the implementation by Member States of the arms embargo imposed on Liberia, in a separate list it indicates the persons who violate the embargo, or those who constitute a threat to the Liberian peace process and to stability in the region or who offer support to armed rebel groups in Liberia or in another country in the region. States have the obligation to ban entry and transit of such persons within their territory and to freeze their financial resources (as

Measures not involving the use of force (Article 41)   267 determined in the following Resolutions 1532 of March 12, 2004, 1683 of June 13, 2006 and 1854 of December 19, 2008). The committee should regularly update the list of individuals affected by the sanctions and periodically send a report to the Security Council concerning its activities with its observations and recommendations. Cf. . Committee 1533 on the Congo Democratic Republic, set up with Res. 1533 of March 12, 2004 monitors the implementation of the arms embargo decided by Res. 1493 of July 28, 2003 against the militias and armed groups operating in the Kivu and Ituri regions and then extended to the entire Congolese territory with Res. 1857 of December 22, 2008, which has also imposed the freeze of the financial resources and the transit ban of those individuals who violate the embargo, for political and military leaders who recruit children and for individuals who impede humanitarian assistance and provide support to illegal armed groups operating in the eastern area of the Congo through the illicit trade of natural resources. Cf. . Committee 1540 on non-proliferation, set up with Res. 1540 of April 28, 2004, monitors the implementation of measures imposed to the States, which include a ban imposed on Member States to provide any support to non-State entities that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons. To this end, States have the obligation to adopt adequate laws and to create internal control measures. Cf. . Committee 1572 on the Ivory Coast, set up with Res. 1572 of November 15, 2004, monitors the implementation by Member States of the arms embargo and the ban on import of diamonds, in a separate list indicates the names of people who are considered a threat to  peace and to the reconciliation process in Ivory Coast or who have been guilty of gross violations of human rights and international humanitarian law, or which are responsible for inciting the population to hatred and violence. Cf. . Committee 1591 on Sudan, set up with Resolution 1591 of March 29, 2005, monitors the implementation by Member States of the arms embargo, the ban on transit and the freezing of financial resources of the parties to the conflict in Darfur. Cf. . Committee 1636 on Lebanon, set up with Res. 1636 of October 31, 2005, enters in a register the names of individuals that the international Commission of Inquiry (see § 51) or the Lebanese government consider to be involved in the terrorist attack occurred on February 14, 2005 in Beirut, where the then Prime Minister of Lebanon R. Hariri and 22 others were killed. States have the obligation to ban these people from entering into or transit through their territory and to freeze their financial resources. The Committee is empowered to approve on a case-by-case basis, any exceptions to the measures and to  take  a person off the list after the Commission of Inquiry or the Lebanese government  has  determined that it was not involved in attack. Cf. . Committee 1718 on North Korea, istituito con la ris. 14.10.2006 n. 1718, monitors the performance of the arms embargo, except for small arms (on which it receives reports from the States), the ban on transit and the freezing of assets against individuals or entities engaged in activities to support the Korean nuclear program. Its functions were increased under Resolutions 1874 of June 12, 2009, 1928 of June 7, 2010, 2087 of January 22, 2013 and 2094 of March 7, 2013. Cf. . Committee 1737 on Iran, set up with Res. 1737 of December 23, 2006, monitors the implementation of the embargo on nuclear programs, the ban on arms exports from Iran and other sanctions, such as the ban on transit and the freezing of assets of specific individuals or institutions that are involved or provide support to Iran’s nuclear programs.

268  The Functions The Committee shall receive reports from States on the implementation of these measures and information from the International Atomic Energy Agency (IAEA) on the state of cooperation with the Iranian government. It may also consider any requests for exceptions to the sanctions decided upon and identify the recipients of the sanctions by establishing a list that it keeps updated. Its functions have been gradually extended to monitor the sanctions adopted by Resolutions 1747 of March 24, 2007, 1803 of March 3, 2008 and 1929 of June 9, 2010. Cf. . Committee 1970 on Libya, in addition to monitoring the measures taken under Res. 1970 (2011), carries out the tasks set out in para. 24 of the Resolution, as extended by Res. 1973 of March 17, 2011, with the assistance of a panel of experts. On March 7, 2012, July 25, 2012 and September 10, 2012, with updates on September 11, 2014, the Committee issued Implementation Assistance Notices concerning freezing measures in . Its mandate was extened with Res. 2146 of March 19, 2014. Cf. . Committee 1988 on the Taliban perform the functions set out in para. 30 of Res. 1988 of June 17, 2011, which separates the sanction regime against the Taliban from that against Al Qaeda, confirmed by Resolutions 2081 of December 17, 2012 and 2160 of June 17, 2014. Cf. . Committee 2048 on Guinea-Bissau, set up with Res. 2048 of May 18, 2012, monitors the sanctions regime set out in para. 4 of the Resolution, establishes guidelines to facilitate the implementation of the sanctions, reports regularly to the Security Council, and is active in the event of non-compliance with the Resolution (para. 9). Cf. . Committee 2127 on the Central African Republic, set up with Res. 2127 on May 12, 2013, monitors the sanctions regime referred to in paras. 54 and 55 of the resolution, establishes guidelines to facilitate the implementation of the sanctions, reports regularly to the Security Council and is active in the event of non-compliance of the Resolution (para. 57). Res. 2134 of January 28, 2014 has added restrictions on travel (para. 30) and the freezing of assets (para. 32), by extending to Committee mandate to these (para. 41). The Committee’s mandate was reaffirmed, along with the sanctions regime, by the more recent Resolutions 2196 of January 22, 2015 and 2217 of April 28, 2015. Cf. . Committee 2140 on Yemen was set up with Res. 2140 of February 26, 2014 in order to monitor the system of penalties referred to in par. 11 and 15 of the resolution, to designate the persons subject to sanctions, to establish guidelines to facilitate the enforcement of sanctions, to report regularly to the Security Council and to take action in the event of non-compliance with the resolution (paras. 19–20). Its functions were extended by Res. 2216 of April 14, 2015 (para. 20), designating other persons placed under sanctions (para. 3 and Annex) and further designation criteria (para. 19). Cf. . Among the tasks of Committee 2206 on South Sudan, established by Res. 2206 of March 3, 2015, it has to monitor the measures taken by the Security Council under paras. 9 and 12 of the resolution, to designate the persons subject to disciplinary rules, and examine requests for exemption, as well as to establish guidelines to facilitate the enforcement of sanctions, and to report regularly to the Security Council and take action in the event of non-compliance with the resolution. Cf. .

The monitoring of the applications of sanctions is also necessary to ensure that no useless suffering is inflicted by economic measures to the population of the target State, a necessity which has become increasingly evident especially over

Measures not involving the use of force (Article 41)   269

the past two decades, since the action against Iraq during and after the Gulf war. In various resolutions the Security Council has authorized derogation, mainly regarding food and medicines, on the duty of States to apply economic or others sanctions. Derogations had been already authorized at the time of Cold War, in the case of sanctions against Rhodesia (for the practice, see Craven, art. cit., p. 49). For the Gulf war of 1991 and the subsequent period see Resolutions 661 of August 6, 1990 (para. 4) and 670 of September 25, 1990 (para. 3), as well as Res. 666 of September 13, 1990, which provided the possibility that, through the United Nations, in agreement with the International Red Cross or other entities with humanitarian purposes, foodstuffs could be delivered to Iraq (para. 6); and other resolutions authorizing States to derogate, only under certain circumstance and for humanitarian reasons, to the Iraqi oil embargo (the so-called Oil for Food Program), such as Resolutions 986 of April 14, 1995, 1111 of June 4, 1997, 1143 of December 4, 1997 and 1153 of February 20, 1988. For humanitarian derogations to other sanctioning measures taken to date cf. for example, Resolutions 757 of May 30, 1992 (paras. 5 c and 7 a) and 820 of April 17, 1993 (para. 12 b and para. 22 a and b) for the former Yugoslavia; Res. 748 of March 31, 1992 for Libya (para. 4 a); Resolutions 1521 of December 22, 2003 (para. 4 c) and 1532 of March 12, 2004 (para. 2 a) for Liberia; Res. 917 of May 6, 1994 for Haiti (para. 2); Resolutions 1127 of August 28, 1997 (para. 5 b) and 1173 of June 12, 1998 (para. 13) for Angola; Res. 1591 of March 29, 2005 for Sudan (para. 3 a, d, e and f); Res. 1132 of October 8, 1997 for Sierra Leone (paras. 5, 6, 7 and 10); Res. 1298 of May 17, 2000 for Ethiopia and Eritrea (para. 7); Resolutions 1493 of July 28, 2003 (para. 21) and 1596 of April 18, 2005 (para. 14) for the Democratic Republic of Congo; Res. 1572 of November 11, 2004 for the Ivory Coast (para. 10); Resolutions 1718 of October 14, 2006 (para. 9 a and para. 10) and 1874 of June 12, 2009 (paras. 17 and 19) for North Korea; Resolutions 1737 of December 23, 2006 (paras. 9, 11 and 13 a), 1747 of March 24, 2007 (paras. 3 and 7) and 1803 of March 3, 2008 (paras. 4 and 6) for Iran; Res. 1844 of November 20, 2008 for Somalia (para. 2 b and para. 4 a); Res. 1907 of December 23, 2009 for Eritrea (para. 14); and Resolutions 1970 of February 26, 2011 (para. 16, lett. a) and 1973 of March 17, 2011 (para. 7) against Libya; Resolutions 1988 of June 17, 2011 (para. 30, lett. g), 2082 of December 17, 2012 (paras. 8–11) and 2160 of June 17, 2014 (paras. 12–15) regarding Talebans and their associates; Res. 2048 of May 18, 2012 (para. 5 a) concerning Guinea-Bissau; Resolutions 2134 of January 28, 2014 (para. 31 a, and para. 33 a) and 2196 of January 22, 2015 (para. 5 a, and para. 8 a) for the Central African Republic; Res. 2140 of February 26, 2014 (paras. 12 a and 16 a) for Yemen; and Res. 2206 of March 3, 2015 (para. 11 a and 13 a) for South Sudan. For a recent discussion on the question concerning limitations to, and implementation of, sanctions imposed by the United Nations see the Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization of March 7, 2008 (Doc. A/63/33, available at ).

The practice quoted above shows a clear trend towards the duty of the Secu­ rity  Council to comply with general international law, at least with international humanitarian law, when deciding on economic sanctions. The question

270  The Functions

is whether self-restraint is dictated by the conviction of the Council to comply with a legal obligation, under the Charter or general international law, including jus cogens, or rather a unilateral manifestation felt as free. This is the problem of limits to the discretion of the Security Council to adopt measures under Article 41. First of all, it is difficult to deny that the Council, when acting in the light of Chapter VII, has the discretion to “depart” from international law, both general and treaty law. It is worth remembering that Article 1, para. 1, of the Charter restricts the principle of respect of international law to the mere settlement of disputes referred under Chapter VI (see § 97). It would be rather peculiar if the Security Council was obliged to respect, or rather to make the Member States comply, always and no matter what, when carrying out the measures under Article 41, with existing international law in general. For instance, trade embargo measures usually involve violations of trade treaties, the blocking of bank accounts may lead to a violation of the rules on the treatment of aliens, and so on. It is clear that Article 41 must be interpreted as meaning that the Council may recommend or require of States measures which, in themselves, are contrary to international law, otherwise its sanctioning would altogether fail. Moreover, the fact that the Council may take all the measures of Chapter VII, at least in principle, without necessarily following an increasing order of coercion, means that it is not even required to respect the principle of proportionality, which would suggest only taking those measures that seem to have in turn less impact among those that nevertheless ensure maintenance of the peace and international security. If this is true, it is also true that the Council must be subject to some limits; if it was not, Member States (especially permanent Members) could make it do things that to them are prohibited, thus getting around their responsibilities. The question that therefore arises is not so much as to whether the powers given to the Council by the Charter are limited by international law, as they certainly are not, but rather whether the undoubted power of the Council to depart from international law is somehow limited, that is to say whether certain international rules exist from which, unlike all others, the Council cannot depart. The question thus defined, jus cogens (also known as “peremptory” international law) appears to qualify. As is well-known jus cogens is defined as a core of international norms which, unlike all others, cannot be “derogated from”. Non-derogation was historically established first of all in the international law of treaties, in Article 53 of the 1969 Vienna Convention on the Law of Treaties, but it was then extended to other areas of international law—particularly State international responsibility and individual international crimes—and it seems to lend itself well to being used as a limit to the powers of the Security Council.

Measures not involving the use of force (Article 41)   271

In this sense, for instance, the Court of First Instance of the European Communities pronounced itself, in the Yusuf and Kadi judgments of 2005 (in ECR, 2005, II, 3533 ff and 3649 ff), even though the two judgments were later annulled by the EU Court of Justice without considering the point on jus cogens relevant to the issue to be resolved. On the basis of Article 53, of the Vienna Convention, the resolutions of the Security Council could be seen as specifications of the Charter and their provisions contrary to jus cogens as invalid, just as the Charter would be invalid if it had expressly contained what they state. It is true that the Vienna Convention speaks of invalidity of the entire treaty if there is a conflict with jus cogens (Article 44, para. 5), but an effect restricted to the conflicting provision could be also suggested, as some have claimed. According to this reasoning, the resolutions of the Security Council contrary to jus cogens, or rather, Council resolutions requiring Member States to act contrary to jus cogens, being invalid, would produce no effects and would not bind Member States. However, jus cogens raises a number of problems which are not of a minor nature. The best known is that it is not clear which rules are peremptory. One can agree that human rights and international humanitarian law, as is repeatedly affirmed in international and domestic jurisprudence, are, at least at their core, peremptory, but it remains difficult to determine how that core can be identified with sufficient accuracy and objectivity. Certainly, as it is often said, the Council cannot order States to commit genocide, but from here to determining what rules fall under jus cogens, and what do not, and why, there is a difference. Furthermore, it is more plausible to imagine that the Council orders a behavior that in itself is not genocide, but may indirectly imply it or it can be so regarded by one of the parties, as in the case in which the Council were to impose an arms embargo that may prove decisive in preventing one party from defending itself against a genocide committed by the other party to the conflict (see § 58). A second problem with jus cogens pertains to the prohibition of the use of force which is generally considered to be peremptory and one therefore wonders what happens when the Council adopts measures hypothetically conflicting with peremptory norms on human rights for the purpose of countering an aggressor State, i.e. to preserve another peremptory norm. Which one prevails: jus cogens on human rights or jus cogens prohibiting acts of aggression? The system of the Charter, in such a case would seem to attribute prevalence to the need to fight the aggressor, but, according to this reasoning, we end up admitting that even jus cogens may fail, and cease to operate as a limit to the Council, when a simple provision of the Charter is involved. If human rights were to prevail, the problem would be the same in reverse: in that case it would be the binding nature of the prohibition to resort to the use of force to fail, giving way to that of human rights.

272  The Functions

From the above, in our opinion, the only limits that can be applied on the powers of the Council are those laid down as such by the Charter and/or by additional or special customary rules supplementing or derogating from the Charter. Article 103 provides for the overriding nature of the Charter (and, according to communis opinio, of the resolutions of the Council) on other treaty obligations of Member States (see § 4), but a resolution ultra vires adopted outside of the hypotheses provided by the Charter or by any customary norms is illegal, having no effects and creating no obligations. The problem then is reduced to asking what are the legitimate powers of the Council, regardless of whether in their exercise the Council adopts acts departing from international law, or acts which if carried out by Member States shall result in unlawful conduct. These limits are above all those examined in this book and it is not necessary to go over them again here, starting with those of a procedural nature, as the majorities required for the adoption of resolutions. To these we must add a “humanitarian” limit specific to the measures under Article 41, since the practice must be considered as constant, consistent and sufficiently uniform to the point of having given rise to a customary rule that requires the Council to remove from the measures goods essential for survival. The existence of a customary rule means that the Council is bound to respect this limit, created with its practice, otherwise its resolutions would be invalid. It is sometimes argued that the humanitarian limit is derived from the principle of respect for human rights enshrined in the Charter, but this would subject the limit to the priority need for peace and international security. It is certainly going too far to see, as some today do, the Charter as a treaty giving top priority to human rights even at the price of sacrificing, if need be, the demands of international peace and security. But it seems excessive to see the Charter as a treaty that totally prioritizes human rights even at the cost of sacrificing, where appropriate, the requirements of international peace and security. This is why a minimum and insurmountable humanitarian limit of survival irrespective of the security need to be safeguarded goes beyond the Charter and is based on a internal customary rule which has come into being after its entry into force. While the national case-law relating to Security Council sanctions against terrorism affirms the principle of the primacy of the UN Charter and the binding resolutions of the Council, it has sometimes avoided drawing all the possible consequences at least as regards the protection of human rights, showing a tendency to “resistance”, or “disobedience” (see Antonios Tzanakopoulos, Disobeying the Security Council, op. cit.; Sufyan El Droubi, Resisting United Nations Security Council Resolutions, op. cit.) to the Council, while safeguarding at least some individual fundamental rights. This is supported by the case law of the European Court of Justice, as we will see, in Kadi and substantially also in the more recent European Court of Human Rights cases Al-Jedda, Nada and Al-Dulimi, which deserve to be summarized here. In the Al-Jedda judgment of 2011, the European Court stated that because

Measures not involving the use of force (Article 41)   273 human rights are promoted by the UN Charter, it must be assumed, until proven otherwise, that a resolution of the Security Council does not lead to their violation and there is therefore no conflict under Article 103 (cf. Al-Jedda v. The United Kingdom, judgment of July 7, 2011 [GC], Appl. 27021/08, para. 102). In the Nada judgment of 2012, the Court confirmed what was established in the Al-Jedda judgment but noted that in this case “the… presumption is rebutted…, having regard to the clear and explicit language, imposing an obligation to take measures capable of breaching human rights” (clarifying that “[t]reaty commitments entered into by a State subsequent to the entry into force of the Convention in respect of that State may…engage its responsibility for Convention purposes”), but decided not to pronounce in the abstract on the hierarchy with regard to the UN Charter and human rights norms. The Court concluded that the actual implementation of Security Council resolutions in the circumstances of the case (given the existence of the “admittedly limited but nevertheless real” discretion by the Swiss authorities regarding other enforcement measures less harmful to human rights) violated the right to respect for private and family life and the right to an effective remedy as enshrined in Articles. 8 and 13 of the European Convention (cf. Nada v. Switzerland, judgment of 12 September 2012 [GC], Appl. 10593/08, paras. 168, 170, 172, 180, 183, 195 and 197–98). In the Al-Dulimi judgment of 2013, the Court, without ruling expressly on Article 103 contended that, in the event of conflict between the UN Charter and the European Convention, and in the absence of any margin of discretion on the part of the State, the UN Charter, or rather the binding resolutions of the Security Council contemplating sanctions against alleged terrorists named on specific lists, prevails only if it provides protective mechanisms for human rights “equivalent” to those required by the Convention (cf. Al-Dulimi and Montana Management Inc. v. Switzerland, judgment of November 26, 2013, Appl. 5809/08, paras. 120–21 and 134–35).

A State whose economy is linked to the economy of the target State may also be damaged by economic sanctions. According to Article 50 of the Charter, it has the right to consult the Security Council for taking appropriate measures. In 1995 attention has been drawn to this matter by the General Assembly (see Res. 50/51 of December 11, 1995). On the monitoring of the humanitarian aspects of the sanctions attention was also called by the former UN Secretary-General B. Boutros Ghali in his Supplement to an Agenda for Peace of January 3, 1995 (cf. , para. 69 ff.). The Secretary-General suggests setting up a mechanism in order inter alia: to measure the effects of the sanctions in order to enable the Security Council to take decisions with a view to maximizing their political impact and minimizing collateral damages to the population; to ensure the delivery of humanitarian assistance to vulnerable groups within the target State; and to explore ways of assisting third States that are suffering collateral damages, etc. Similar considerations can be found in the Millennium Reports (Doc. A/54/2000, of April 3, 2000, p. 50).

At this point, it is worth remarking that the Security Council has taken steps in recent years to remedy the damage caused by the sanctions to local populations, not only by providing for exceptions that would guarantee compliance with a minimum humanitarian and indispensable survival threshold, but also by making structural changes to the sanctions themselves, in particular, adopting sanctions targeted only at those responsible, leaving out other people (the

274  The Functions

so called “smart sanctions”), managed by the Sanctions Committees which we have already dealt with. However, “smart” sanctions have proved to be very problematic from the point of view of their capacity to prevent human rights violations, particularly the rights of those to whom they are addressed rather than of the population as a whole. The entry in the “lists” of alleged terrorists in fact is done on the basis of secret information and of discretionary procedures, especially on the initiative of the United States to whom the greatest number of names on the lists is owed. The entry in the list is normally done without the need for justification and without the opportunity for stakeholders to bring an action to defend their case. It is true that in 2006 the Security Council with Resolutions 1730 of December 19, 2006 and 1735 of December 22, 2006, has shown, after receiving much criticism, the will to ensure a greater respect for the human rights of the people involved by introducing some corrections to the procedure of listing and de-listing, including a Focal Point, in order to enable interested parties to be able to contest the entry or require cancellation, but these measures are not that significant and are ultimately left to the discretion of the States. Relatively stronger measures to avoid arbitrariness have been recently adopted by the Security Council with Res. 1904 of December 17, 2009, authorizing inter alia the establishment of an Office of the Ombudsperson (see ) to assist the 1267 Committee in its consideration of delisting requests (renewed with Res. 1989 of June 17, 2011), which also introduced provisions for making known the reasons for inclusion in the lists of sanctions against Al-Qaeda (paras. 12–20). In its Resolutions 1988 and 1989 of June 17, 2011, the Security Council decided to divide the sanctions regime into two groups creating an additional mechanism to manage the new regime (see Djacoba Liva Tehindrazanarivelo, ‘Targeted Sanctions and Obligations of States on Listing and De-listing Procedures’, cit.). A position of caution was also expressed by the European Court of Human Rights in the 2011 Al-Jedda judgment, in the 2012 Nada judgement, and in Al-Dulimi in 2013 mentioned above in relation to Article 103 of the Charter. Res. 1730 of December 19, 2006 directs the sanctions committees to revise their guidelines accordingly, by including a de-listing procedure. De-listing requests from individuals or groups, on the Sanctions Committee’s lists, should be addressed to the Secretary-General, either directly or through the authorities of their State of residence or citizenship and shall be dealt with by the Focal Point, which evaluates whether the request is new or repeated (rejecting it if it does not contain additional information), informs the person concerned of the general procedure for processing the request, activates consultation between the designating State and the States of citizenship and residence, who may recommend the de-listing procedure or reject it, informing the Committee of it. If within three months, none of the governments which reviewed the request comment, or if any of them requires an additional definite period of time, the Focal Point will notify all Committee members who may,

Measures not involving the use of force (Article 41)   275 after consultations with the governments concerned, propose the de-listing procedure (only one member of the Committee needs to recommend de-listing in order to place the issue on the Committee’s agenda). If after one month, no Committee member recommends de-listing, then it shall be deemed rejected and the Chairman of the Committee shall inform the focal point and the individual or the entity concerned accordingly. Res. 1735 of December 22, 2006 provides that, when proposing names to the Committee for inclusion on the Consolidated List, of a person or an entity, States shall provide as much detail as possible on the basis for the listing and identify those parts of the statement of case which may be publicly released for the purposes of notifying the listed individual or entity. Within two weeks of the name being added to the list, the Secretary-General must notify the Permanent Mission of the country or countries where the individual or entity is believed to be located and, in the case of individuals, the country of which the person is a national, and include with this notification a copy of the publicly releasable portion of the statement of case. As far as the de-listing procedure is concerned, the Council provides that the Committees, in determining whether to remove names from the Consolidated List, may consider, among other things, (i) whether the individual or entity was placed on the Consolidated List due to a mistake of identity, or (ii) whether the individual or entity no longer meets the criteria that initially justified inclusion and shall inform the Council itself, at least every 9 months, of its work. Res. 1904 of December 17, 2009, the Security Council, after directing the 1267 Sanctions Committee “to ensure that humanitarian exemptions would be granted expeditiously and transparently”, provides for measures to streamline the listing process of names of individuals and entities onto the Consolidated List, among other things by calling on Member States, when proposing names to the Committee for inclusion on the List, to provide the Committee with as much relevant information as possible, in particular sufficient identifying information, and also directing the Committee to make accessible on its website a narrative summary of reasons for listing. Besides authorizing the establishment of an Office of the Ombudsperson, to be appointed by the Secretary-General for an initial period of 18 months to assist the Committee in its consideration of delisting requests, Res. 1904 directs the Committee to complete its review of all names on the “consolidated list” by June 30, 2010 and, upon completion of that review, to conduct an annual review of all names that had not been reviewed in three or more years. It further directs the Committee to conduct a comprehensive review of all pending issues before it and urges the panel to resolve such issues, to the extent possible, by December 31, 2010. According to Res. 1904, after the appointment of the Ombudsperson, the Focal Point mechanism established in resolution 1730 (2006) shall no longer receive requests from individuals and entities seeking to be removed from the Consolidated List, but shall continue to receive requests from individuals and entities seeking to be removed from other sanctions lists. The problem was posed at the judicial level in a particularly relevant way in the above mentioned Yusuf and Kadi cases, in which the Court of First Instance of the European Communities (today the “General Court” of the European Union) had to verify whether certain EU regulations, which transposed and implemented within the States of the European Union the resolutions of the Security Council providing for the inclusion in the list of suspected terrorists, were compatible with the fundamental rights protected by EU law (Cases T-315/01 and T-306/01). In the two judgments of 2005 the Court held that it could not rule on the issue, as it was held to be restricted to the “primary responsibility” of the Security Council under Article 24 of the Charter, unless there was a violation of fundamental rights (including defense rights) belonging to jus cogens. According to the Court, in fact, jus cogens has precedence over the resolutions of the Security Council, even if the latter would prevail per se over obligations imposed on Member States by other treaties under Article 103 of the Charter (see § 4). The Court nevertheless concluded that jus cogens was

276  The Functions not violated because the restrictions on fundamental rights did not seem likely to weigh more than the priority need to safeguard global security. As mentioned, the two judgments were annulled by the European Court of Justice in 2008 which held, more correctly, that the entry on the lists violated the fundamental rights forming an integral part of EU law, without it being necessary to rule on the question of jus cogens (Case C-415/05 P, C-402/05 P). On the decisions of 2005 see Benedetto Conforti, Decisioni del Consiglio di sicurezza e diritti fondamentali in una bizzarra sentenza del Tribunale comunitario di primo grado, 11 DUE (2006), pp. 333–45. The Court, however, did pronounce on the Kadi case in its judgment of 2013 annulling a new Commission regulation whereby, after receiving observations from Kadi on the reasons for his inclusion on the list of persons targeted by the sanctions, it was decided to keep him on the list because of his links with international terrorism (Cf. Commission, Council, UK v. Kadi, judgment of 18 July 2013, joint cases C-584/10 P, C-593/10 P and C −595/10 P). Worthy of note is also the decision of the EU Court in the 2006 People’s Mojahedin Organization of Iran case, in which for the first time an EU decision was annulled because the procedure for entering applicant organization in the lists had violated its fundamental defense rights, on the assumption that, unlike the Yusuf and Kadi cases, it was up to the Community, rather than the Security Council, to identify the persons and/or the entities whose funds must be frozen and therefore, in this sense, human rights were to be guaranteed by the EC institutions (Case T-228/02). In its judgment of 2013 in Abdulrahim, the European Court of Justice upheld an appeal by an individual enrolled in the the European Union list even though his name had been erased later, deeming that his legitimate interest in obtaining recognition by judges that he should never have been included in the list still existed and in order to obtain “some form of reparation for the non-material harm suffered by him” (see Emanuele Cimiotta, ‘Rimozione dall’elenco di sospetti terroristi e interesse a proseguire l’azione di annullamento del provvedimento di listing: il caso Abdulrahim davanti alla Corte di giustizia dell’Unione europea’, 8 DUDI (2014) 451–72). One might also recall the Hamas judgment of the General Court of the European Union in 2014 ordering the annulment of EU Council Regulation no. 2580/2001 classifiying Hamas as a terrorist organization (Hamas v. Council, judgment of December 17, 2014, case T-400/10). The Court held that the inclusion of Hamas in the list of terrorist groups infringes Article 1 of Common Position No. 2001/931 () and the obligation to state reasons, while specifying that “the annulment of those measures, on basic procedural grounds, does not entail any substantive assessment of the question of the applicant’s description as a terrorist group within the meaning of Common Position 2001/931” (para. 142). The Court found in particular that the Council had not resorted to decisions by the competent authorities based on specific facts in order to ascertain whether the acts committed by Hamas were really “terrorist acts” and whether the group in question was really a “group” according to the provisions of Article 1 of Common Position 2001/931 (para. 114), but in fact on the basis of their own considerations, arising from the attribution to Hamas of acts of violence obtained from the press and the Internet (para. 115). Hence the violation of the obligation to state reasons whereby the Council is required to state the decisions of national authorities who have actually examined and assessed the terrorist acts in the grounds for its decisions to freeze capital (par.130). Particularly relevant is also the decision of the Human Rights Committee (see § 79) in the 2008 Sayadi case, in which the Committee ruled against Belgium for not doing everything in its power to remove the applicants from the lists after that the Belgian court had ordered the State to start the de-listing procedure (cf. Doc. CCPR/C/94/D/1472/2006). On the Human Rights Committee’s views in the Sayadi case see Marko Milanović, ‘The Human Rights Committee’s Views in Sayadi v. Belgium: A Missed Opportunity’ 1 GJIL (2009),

Measures not involving the use of force (Article 41)   277 pp. 519–38. On July 20, 2009, the Sanctions Committee decided to strike the name of Mr. Sayadi from the UN sanctions list (cf. ). For an discussion on the recent trend in the courts favorable to the review of UN Security Council resolutions see, e.g., Robert Kolb, ‘Le contrôle de Résolutions contraignantes du Conseil de sécurité des Nations Unies sous l’angle du respect du jus cogens’, 18 Schw.Z (2008), pp. 401–11; Monica Lugato, ‘Sono le sanzioni individuali del Consiglio di sicurezza incompatibili con il rispetto delle garanzie procedurali?’, 93 RDI (2010) 309–42; Id., ‘Gli obblighi degli Stati fra primato della Carta e primato dei diritti umani’, in Francesco Salerno (ed), in Sanzioni “individuali” del Consiglio di sicurezza e garanzie processuali fondamentali (Padova: Cedam, 2010) 127–57. Some commentators have noted that the practice of targeted sanctions is tantamount to a sort of “judicial activity” by the Security Council (cfr. Ian Johnstone, ‘Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit’, 102 AJ (2008) 275–387). However, the procedures for inclusion or cancellation from the lists are subject to assessment of a political nature by the Council, without adequate judicial review, so it is misleading to define them as “judicial” or “quasi-judicial”.

With regard to smart sanctions it is often spoken of the Council’s power to impose sanctions “against” individuals. It should be noted that in this regard, the Council has so far taken measures Under Chapter VII not only, obviously, against States, but also against non-State entities such as rebel groups fighting within a State, including individuals. But formal and material recipients of the measures should not be confused. When the Council imposes on States the obligation to freeze the bank accounts or the ban to the right of travel abroad of certain individuals, the formal recipients are the States, which are obliged to carry out the sanctions, while the individuals are only the material, or indirect, recipients of the sanctions. In other words, such resolutions do not impose obligations on individuals but on States, although the obligations imposed concern the treatment of individuals. Instead, when the Council refers to rebel groups or factions fighting within a State, its provisions, and the obligations therein contained, are directed precisely to those entities. May the Council restrict itself to recommending measures not involving the use of armed force, and thereby leave the States free to adopt them or not? Even if the measures were conceived at Dumbarton Oaks and at San Francisco as the expression of a true decision-making power of the Council with regard to the Member States, it seems to us that the possibility of adopting recommendations must be recognized according to the spirit of Article 41. In fact, the power to recommend is included within the larger power to decide. Since Article 41 lists measures of various kinds and intensity (from the very bland sanction of severing diplomatic relations to the strong measures of economic blockade), it implicitly allows the Council to soften the intensity of one of its decisions by giving it the mere nature of a recommendation. In our opinion, recommendations on measures not involving the use of armed force—i.e. the hypotheses in which the Council limits itself to

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­recommend, rather than impose, to Member States the interruption of diplomatic relationships or communication, trade embargos on single goods (e.g., weapons) or sanctions of a general nature, etc.—may be considered lawful only if they are traced back to Article 41, as we trace them—if only by means of a broad interpretation—to Article 41, and therefore only at the conditions the latter is subject to. On the contrary, in legal doctrine and in practice there is a widespread tendency to seek a different legal basis for the recommendations on the assumption that Article 41 (just like the following Article 42) is concerned only with binding decisions deemed to be binding, as only binding decisions are adequate for the effective collective security system that is the core of Chapter VII. Reference is sometimes made to Article 39, but more often to Chapter VI as the chapter characterized by the Council’s power to recommend, or Article 24 which confers on the Council “primary responsibility for the maintenance of the peace” and thus seems to enable it to undertake any type of action (not otherwise specified) if necessary to the exercise of this responsibility. Except that, as already argued, Article 39 was conceived solely with regard to the peaceful settlement function, i.e. only to those recommendations whose aim is that of a peaceful and friendly settlement (i.e. consensual) of disputes; moreover, neither the letter nor the spirit of Chapter VI justify any resolution intending to impose sanctions; finally, Article 24 cannot be the basis for specific powers (see § 61). In our opinion, the tendency of the doctrine contradicts itself. If Article 41 were to picture the system of sanctions not involving the use of armed force as inextricably tied to the full decisionmaking power of the Council; if, in other words, Article 41 were to recognize as indispensable for purposes of collective security the fact that the power to decide sanctions is centralized in the Council so as to guarantee both the objectivity of a decision and the general applicability of measures involving sanctions, then recommendations on actions for the maintenance of the peace should not be admitted and the act with which the organ makes only a recommendation, deferring the final decision to the discretion of the individual State, should logically be considered illegal. Actually, for the reasons we have given before, Article 41 does not demand as much and it is this article which furnishes the legal basis for sanctions which are recommended as well as for those which are imposed as mandatory. In order to determine whether a measure under Article 41 is a recommendation or a decision, the Council’s intention is decisive. The intention is made evident, first, by the rest of the resolution, and, secondly, from the discussions and the vote which came before and after the resolution was adopted. In our opinion, the view held by the International Court of Justice in this matter is prone to criticism. According to this view the reference, in the preamble to a resolution, to Article

Measures not involving the use of force (Article 41)   279 25 of the Charter (“The members of the United Nations agree to accept and to carry out the decisions of the Security Council in accordance with the present Charter”), would constitute positive proof of the Council’s intention to issue a binding decision. This view, contained in the Opinion of June 21, 1971 on Namibia (in ICJ Reports 1971, p. 53, para. 115) will be discussed later on (see § 92), since it was put forward by the Court with reference not to Article 41 but to the problem of the meaning of Article 25 with regard to Council acts in general. On the other hand what the Court states, in the same Opinion, about how best to proceed in the interpretation of a general resolution in order to determine whether it provides a decision or a recommendation, is shareable, namely that “[t]he language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect” and that “whether they [the decision-making powers of the Council] 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, al1 circumstances that might assist in determining the legal consequences of the resolution of the Security Council” (ibid., para. 114).

Examples of simple recommendations within the framework of Article 41 are seen mainly, but not exclusively, in the practice relating to the Cold War era. At that time the Council was not able to take decisions. Cf. Resolutions 180 of July 31, 1963 and 218 of November 23, 1965 against Portugal for its colonialist policy and Resolutions 181 of August 7, 1963, 182 of December 4, 1963, 191 of June 18, 1964, 282 of July 23, 1970, 311 of February 4, 1972 and 569 of July 26, 1985 against South Africa for its apartheid policy, all inviting the States to prohibit the sale of weapons, or of certain types of weapons to the two countries; as well as Res. 1227 of February 10, 1999 on Eritrea and Ethiopia and Res. 1295 of April 18, 2000 on Angola. As recommendations can also be seen Resolutions 276 of January 30, 1970, 283 of July 29, 1970 and 301 of October 20, 1971 on Namibia, confirmed by subsequent resolutions, in the parts in which they invited the States to sever diplomatic and commercial relations with South Africa “as far as they extend to Namibia”, a territory held by South Africa since the time of the League of Nations and now independent (see § 81). No serious doubts can be raised about the nature of a mere recommendation of all these acts. This nature can been seen from the formulation of the text, as compared to the text of binding decisions, and also from statements made at the time of the vote by some Western permanent members, members who would have been able to prevent the adoption of decisions with their veto. The statements meant to emphasize the non-binding effect of the acts. All the above recommendations avoided speaking, in their statement of reasons, of a threat or breach of the peace, or acts of aggression and used terms that were somewhat more toned down, such as “disturbance of the peace”, “very grave situation”, and so on. This does not affect their coming within the framework of Article 41 since, as we have often repeated, it is not the reasoning but rather the operative part which characterizes a decision (see § 49). Lastly, it should be recalled that some permanent (and non-permanent) members of the Council, the Western powers, used to declare that they held these resolutions to be extraneous to Article 41 and to Chapter VII. We have already discussed the fallacy of this point of view and need not return to it here. Actually, the statements of the Western States essentially had the purpose of confirming the non-binding nature of the resolution and their intention to vote for them (or, at least, not to prevent their adoption with a veto) on the condition that they were not considered binding. In short, all that can be obtained from these statements is the certainty that they were mere recommendations. For references, cf., for example, the statements of the US and British delegates regarding Res. 181 of August 7,

280  The Functions 1963 against South Africa, in SCOR, 18th year, 1056th meet., p. 6 f. and p. 8 f.; of the British delegate in reference to Res. 191 of June 18, 1964, again against South Africa, in SCOR, 19th year, 1135th meet., p. 10; of the Belgian delegate in reference to Res. 218 of November 23, 1965 against Portugal, in SCOR, 29th year, 1268th meet, p. 5, no. 23; again of the British delegate after the adoption of Res. 282 of July 23, 1970 against South Africa, in SCOR, 25th year, 1549th meet.; of the French, British and Belgian delegates regarding  Res. 301 of October 20, l971 on Namibia, in SCOR, 26th year, 1588th, 1589th and 1994th meets. As examples of recommendations in more recent practice see: Res. 1076 of October 22, 1996, (para. 4), where the Security Council calls upon all States to end the supply of arms to all parties to the conflict in Afghanistan; Res. 1227 of February 10, 1999, urging all States to end immediately all sales of arms and munitions to Ethiopia and Eritrea; Res. 1695 of July 15, 2006, condemning the nuclear experiments of North Korea and inviting Member States to suspend the import and export of missiles and of any other equipment that can be used to build arms of mass destruction.

As we have noted, the list of measures which do not involve the use of armed force, is not exhaustive in Article 41. Therefore, any decision or recommendation of the Security Council which calls upon the States, explicitly or implicitly, to take actions which have the outward character of sanctions with regard to a certain State, or to an armed political group within a State, come within the framework of this article. Such an atypical measure can be found in those resolutions often used by the Council in order to declare certain domestic acts “invalid”. This is the case, for example of: Res. 252 of May 21, 1968, adopted against Israel and confirmed in subsequent decisions (cf., for example, Res. 478 of August 20, 1980) which stated that the Council “considers that all legislative and administrative measures and actions taken by Israel, including expropriation of land and properties thereon, which tend to change the status of Jerusalem, are invalid…”; Res. 276 of January 30, 1970, concerning Namibia, also reiterated in the following years but now obsolete owing to the independence acquired by the country, which “declared” the entire presence of South African authorities in Namibian territory “invalid and illegal”; Res. 446 of March 22, 1979, which considered the Israeli practice of establishing colonies in occupied Arab territories to be without any “legal validity”; Res. 554 of August 17, 1984, which declared invalid the South African constitution enacted in November 1983; Res. 662, now obsolete, of August 9, 1990, which declared Iraq’s proclaimed annexation of Kuwait “null and void”. Such statements could appear ultra vires, since invalidity inflicted by the Council has no possibility of being effective within the legal orders of the target States. In our opinion, the meaning ascribable to them is that of an implicit request made by the Council to the Member States to refuse to recognize the “invalid” measures, and therefore not to apply them if in any way they acquire relevance before their State organs, for example, legal actions before their courts where the lawfulness of provisions involving the expropriation of property made in the territory

Measures involving the use of force (Articles 42 ff.). (a) Peacekeeping operations   281

affected by the declaration of invalidity of the Council must be assessed. In this sense, they are acts coming within the framework of Article 41. Also for atypical measures, it will be necessary to establish case by case, with the usual methods of interpretation, whether the Council has intended to make them the object of binding decisions or of recommendations. With regard to the resolutions we have just cited, it seems that, with the exception of Res. 662 of 1990 against Iraq, the hypothesis of a recommendation is the one to be preferred. To be persuaded of this, it is sufficient to examine the discussions that preceded the resolutions and to bear in mind the atmosphere of compromise in which they were carried out. Even if it is now a closed matter, worthy of mention is the already cited Advisory Opinion of June 21, 1971 of the International Court of Justice, which was concerned with Res. 276 of January 30, 1970 on Namibia. The Opinion does not frame the Council resolution within Article 41, but considers it (cf. ICJ Reports 1971, p. 51 f., para. 110) as the expression of a presumed residual power of the Council, supported by Article 24 of the Charter, on the maintenance of the peace (for a critique of this Opinion, see § 62). When it goes on to establish the legal consequences of the declaration of “invalidity” and “illegality” of South Africa’s presence in Namibia, however, the Opinion ultimately identifies such consequences in the non-recognition of the situation by the other States (ICJ Reports 1971, p. 54 ff.), that is, in sanctioning measures that are clearly based, in our view, on Article 41.

The creation by the Council of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, was also considered as an atypical measure under Article 41. On this view, which is supported by both Tribunals, see § 62. 60.  D) Measures involving the use of force (Articles 42 ff.). (a) Peacekeeping operations Select bibliography: see § 55. Adde: E.M. Miller, ‘Legal Aspects of the UN Action in the Congo’, 55 AJ (1961) 1–28; Derek W. Bowett, United Nations Forces. A Legal Study of United Nations Practice (London: Stevens, 1964) 153 ff and 552 ff; Finn Seyersted, United Nations Forces in the Law of Peace and War (Leiden: Sijthoff, 1966); James M. Boyd, UN Peace-Keeping Operations: A Military and Political Appraisal (New York: Praeger, 1971); J. Theodorides, ‘The United Nations Peace-Keeping Force in Cyprus (UNFICYP)’, 31 ICLQ (1982) 765–83; Jerzy Rzymanek, ‘Some Legal Problems of UN Peacekeeping: UNEF-2 and UNDOF Experiences’, 16 PYIL (1987) 85–102; Pierre Le Peillet, Les bérets bleus de l’ ONU: à travers 40 ans de conflit israelo-arabe (Paris: Editions France-Empire, 1988); Robert C.R. Siekmann, National Contingents in UN Peacekeeping Forces (Dordrecht: Nijhoff, 1991); I. C. Maijer, ‘UN Peace-Keeping Forces: The Conditions of Change’, 7 LJIL (1994) 63 ff; Daniel Warner (ed), New Dimensions of Peacekeeping (Dordrecht: Nijhoff, 1995); Paolo Picone, ‘Il peace-keeping nel mondo attuale: tra militarizzazione e amministrazione fiduciaria’, 79 RDI (1996) 5–33; Laura Pineschi, Le operazioni di peacekeeping delle Nazioni Unite per il mantenimento della pace. Le competenze degli organi delle Nazioni Unite (Padova: Cedam, 1998), Part 1, Chapters 1–2; Giovanni Cellamare, Le operazioni di peace-keeping multifunzionali (Torino: Giappichelli, 1999); Dan Sarooshi, The UN and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford:

282  The Functions Oxford University Press, 1999); Natalino Ronzitti, ‘Comando e controllo nella Carta delle Nazioni Unite’, in Natalino Ronzitti (ed), Comando e controllo nelle forze di pace e nelle coalizioni militari (Milano: FrancoAngeli, 1999) 31–44; Paolo Benvenuti, ‘Forze multinazionali e diritto internazionale umanitario’, ibid., 222–50; Pietro Gargiulo, ‘Il controverso rapporto tra Corte penale internazionale e Consiglio di Sicurezza per la repressione dei crimini di diritto internazionale’, 54 CI (1999) 428–73; Robert Wundeh Eno, ‘UN Peacekeeping Operations and Respect for Human Rights’, 24 SAYB (1999) 76–106; Luigi Condorelli, ‘Le azioni dell’ONU e l’applicazione del diritto internazionale umanitario: il “Bollettino” del Segretario Generale del 6 agosto 1999’, 82 RDI (1999) 1049–53; Paolo Benvenuti, ‘Recenti sviluppi in tema di osservanza del diritto internazionale umanitario da parte delle forze delle Nazioni Unite: il Bollettino del Segretario Generale’, 55 CI (2000) 379–99; James. A. Burger, ‘Legal Issues in Peacekeeping and Humanitarian Assistance’, 7 IP (2001) 425–35; Dieter Fleck, ‘Civil and Military Administrations in International Peacekeeping Operations. Focus on Kosovo’, ibid., 409–15; Micaela Frulli, ‘Le operazioni di peacekeeping delle Nazioni Unite e l’uso della forza’, 84 RDI (2001) 347–92; Maurice Kamto, ‘Le cadre juridique des opérations de maintien de la paix des Nations Unies’, 3 ILF (2001) 95–104; Dan Sarooshi, ‘Aspects of the Relationship between the International Criminal Court and the UN’, 32 NYIL (2001) 27–53; Jean-Marc Sorel, ‘La responsabilité des Nations Unies dans les opérations de maintien de la paix’, 3 ILF (2001) 127–38; Maurizio Arcari, ‘Quelques remarques à propos de l’action du Conseil de Sécurité dans le domaine de la Justice pénale internationale’, 18 ADe (2002) 207–28; Steven Brayton, ‘Outsourcing War: Mercenaries and the Privatization of Peacekeeping’, 55 JIF (2002) 303–29; Stefano Dorigo, ‘Imputazione e responsabilità internazionale per l’attività delle forze di peacekeeping delle Nazioni Unite’, 85 RDI (2002) 903–45; Sebastian Heselhaus, ‘Resolution 1422 (2002) des Sicherheitsrates zur Begrenzung der Tätigkeit des Internationalen Strafgerichtshofs’, 62 ZöRV (2002) 907–40; Mari Katayanagi, Human Rights Functions of UN Peacekeeping Operations (The Hague: Nijhoff, 2002); Alexander Orakhelashvili, ‘The Legal Basis of the UN Operations’, 43 Virg JIL (2003) 485–524; Michael Bothe, Jochen A. Frowein and Nico Krisch, ibid., 749–59; Claudia Fritsche, ‘Security Council Resolution 1422: Peacekeeping and the International Criminal Court’, Verhandeln für den Frieden (2003) 107–20; Ray Murphy, ‘United States Peacekeeping in Lebanon and Somalia, And the Use of Force’, 8 JCSL (2003) 71–99; Robert Kolb, ‘Quelques réflexions sur le droit relatif au maintien de la pax au début du XXIème siècle’, 11 AfYIL (2003) 193–215; Michael G. Smith and Moreen Dee, Peacekeeping in East Timor. The Path to Independence (London: Rienner, 2003); Rafâa Ben Achour, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed), vol. 1, 265–83; Patrick Daillier, ibid., 1243–59; Marie-François Furet, ibid., 1261–76; Jean-Claude Martinez, ibid., 1277–94; Christian Dominicé, ibid., 141–62; John Terence O’Neill and Nicholas Rees, United Nations Peacekeeping in the Post-Cold War Era (London: Routledge, 2005); Nina M. Serafino, Peacekeeping and Related Stability Operations (New York: Novinka Books, 2005); David S. Sorenson (ed), The Politics of Peacekeeping in the Post-Cold War Era (London: Cass, 2005); Paul D. Williams, ‘International Peacekeeping: The Challenges of State-Building and Regionalization’, 81 IA (2005) 163–74; Annika Björkdahl, ‘Promotion Norms through Peacekeeping: UNPREDEP and Conflict Prevention’, 13 IP (2006) 214–28; Todd Howland, ‘Peacekeeping and Conformity with Human Rights Law: How MINUSTAH Falls Short in Haiti’, ibid. (2006) 462–76; Robert Kolb, Droit humanitaire et opérations de paix internationales. Les modalités d’application du drout international humanitaire dans les opérations de maintien ou de rétablissement de la paix auxquelles concourt une organi­ sation internationale (en particulier les Nations Unies) (Genève/Bâle/Munich: Helbing Lichtenhahn, 2006); Norrie Mac Queen, Peacekeeping and the International System (London: Routledge, 2006); Andrzej Sitkowski, UN Peacekeeping. Mith and Reality

Measures involving the use of force (Articles 42 ff.). (a) Peacekeeping operations   283 (Westport: Praeger Security International, 2006); Michael W. Doyle and Nicholas Sambanis, ‘The UN Record on Peacekeeping Operations’, 62 IJ (2006–2007) 495–518; Miltiadis Sarigiannidis, ‘Legal Discourse on Peacemaking/Peacekeeping/Peacebuilding. International Law as a New Topos for Human Security’, ibid., 519–37; Chiyuki Aoi (ed), Unintended Consequences of Peacekeeping Operations (Tokyo: United Nations University Press, 2007); David Curran and Tom Woodhouse, ‘Cosmopolitan Peacekeeping and Peacebuilding in Sierra Leone. What can Africa Contribute?’, 83 IA (2007) 1055–70; Keith D. Gerbick, Peacekeeping and Stability Issues (New York: Novinka Books, 2007); Boris Kondoch (ed), International Peacekeeping (Aldershot: Ashgate, 2007); Ray Murphy, UN Peacekeeping in Lebanon, Somalia and Kosovo. Operational and Legal Issues in Practice (Cambridge: Cambridge University Press, 2007); James P. Sloan, ‘The Use of Offensive Force in U.N. Peacekeeping’, 30 HastICLR (2007) 385–452; Valorie K. Vojdik, ‘Sexual Abuse and Exploitation of Women and Girls by U.N. Peacekeeping Troops’, 15 JIL (2007) 157–68; Sharon Wiharta, ‘Peacekeeping. Keeping Pace with Changes in Conflict’, SIPRI Yearbook (2007) 107–64; N. Carlson Scott, ‘Legal and Judicial Rule of Law Work in Multi-dimensional Peacekeeping Operations: Lessons-Learned Study’, 12 IP (2008) 111–37; Virginia P. Fortna, Does Peacekeeping Work? Shaping Belligerent’s Choices after Civil War (Princeton: Princeton University Press, 2008); Matt Halling and Blaine Bookey, ‘Peacekeeping in Name Alone. Accountability for the United Nations in Haiti’, 31 HastICLR (2008) 461–86; Michael Hanrahan, ‘The Special Committee on Peacekeeping Operations’, 12 IP (2008) 23–37; Sascha R. Lüder, ‘Responsibility of States and International Organisations in Respect to United Nations Peace-Keeping Missions’, ibid., 83–92; Norrie Mc Queen, ‘Judging Peacekeeping Outcomes. Three Perspectives on UN Operations’, ibid., 1–21; Ray Murphy and Katarina Månsson (eds), Peace Operations and Human Rights (London: Routledge, 2008); Hikaru Yamashita, ‘“Impartial” Use of Force in United Nations Peacekeeping’, 15 IP (2008) 615–30; Laura Zanotti, ‘Imagining Democracy, Building Unsustainable Institutions. The UN Peacekeeping Operation in Haiti’, 39 SD (2008) 539–61; A. Vaughan Lowe (ed), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford: Oxford University Press, 2008); Paul Higate and Marsha Henry, Insecure Spaces: Peacekeeping, Power and Performance in Haiti, Kosovo and Liberia (London: Zed Books, 2009); Lise M. Howard, UN Peacekeeping in Civil Wars (Cambridge: Cambridge University Press, 2009); Heike Krieger, ‘A Credibility Gap: The Behrami and Saramati Decision of the European Court of Human Rights’, 13 IP (2009) 159–80; Marko Milanović and Tatjana Papić, ‘As Bad as it Gets: The European Court of Human Rights’s Behrami and Saramati Decision and General International Law’ 58 ICLQ (2009) 267–96; Marko Milanović, Tatjana Papić, ‘As Bad as it Gets: The European Court of Human Rights’s Behrami and Saramati Decision and General International Law’, 58 ICLQ (2009) 267–96; Hitoshi Nasu, International Law on Peacekeeping: A Study of Article 40 of the UN Charter (Leiden: Nijhoff, 2009); Muna Ndulo, ‘The United Nations Responses to the Sexual Abuse and Exploitation of Women and Girls by Peacekeepers During Peacekeeping Mission’, 27 BeJIA (2009) 127–61; Otto Spijkers, ‘The Immunity of the United Nations in Relation to the Genocide in Srebrenica in the Eyes of a Dutch District Court’, 13 IP (2009) 197–219; Olivia Q. Swaak-Goldman, ‘Peacekeeping Operations and the International Criminal Court’, in Gianluca Beruto (ed), International Humanitarian Law, Human Rights and Peace Opera­ tions, Institute of Humanitarian Law (Sanremo: International Institute of Humanitarian Law, 2009) 232–38; Siobhán Wills, Protecting Civilians: The Obligations of Peacekeepers (Oxford: Oxford University Press, 2009); John W. Lango, ‘Military Operations by Armed UN Peacekeeping Missions: An Application of Generalized Just War Principles’, in Theo­ door Arthur van Baarda and Désirée Elisabeth Maria Verweij (eds), The Moral Dimension of Asymmetrical Warfare: Counter-Terrorism, Democratic Values and Military Ethics (Leiden: Nijhoff, 2009) 115–33; Christopher Leck, ‘International Responsibility in United

284  The Functions Nations Peacekeeping Operations: Command and Control Arrangements and the Attribution of Conduct’, 10 MeJIL (2009) 316–64; Alex J. Bellamy and Paul D. Williams, Understanding Peacekeeping (Cambridge: Polity, 2010, 2nd edn); Jaïr van der Lijn, ‘Success and Failure of UN Peacekeeping Operations: UNMIS in Sudan, 14 JInP (2010) 27–59; Marco Odello, ‘Tackling Criminal Acts in Peacekeeping Operations’, 15 JCSL (2010) 347– 91; Fred Tanner, ‘Addressing the Perils of Peace Operations: Toward a Global Peacekeeping System’, 16 GlG (2010) 209–18; Róisín Burke, ‘Status of Forces Deployed on UN Peacekeeping Operations: Jurisdictional Immunity’, 16 JCSL (2011) 63–104; David M. Horner, Australia and the “New World Order”: From Peacekeeping to Peace Enforcement (Port Melbourne: Cambridge University Press, 2011); Ian Johnstone, ‘Managing Consent in Contemporary Peacekeeping Operations’, 18 IP (2011) 168–82; Sylvia Maus, ‘Institutionalising Human Rights in United Nations Peacekeeping Operations: Critique of the Status Quo and a Call for a Human Rights Law Post Bellum’, in Wolfgang Benedek, Matthias C. Kettemann and Markus Möstl (eds), Mainstreaming Human Security in Peace Operations and Crisis Management: Policies, Problems, Potential (London: Routledge, 2011) 57–82; Andrés B. Muñoz Mosquera, Democratization Through UN Peacekeeping Operations? Peacekeeping Regimes (Nijmegen: Wolf Legal Publishers, 2011); Hitoshi Nasu, ‘The UN Security Council’s “Responsibility to Protect”’, 15 MP YUNL (2011) 377–418; Anne Peters, ‘The Security Council’s Responsibility to Protect’, 8 IOLR (2011) 15–54; Noelle Quénivet, ‘Human Rights Law and Peacekeeping Operations’, in Marco Odello and Ryszard Piotrowicz (eds), International Military Missions and International Law (Leiden: Nijhoff, 2011) 99–143; Nigel D. White, Towards Integrated Peace Operations: The Evolution of Peacekeeping and Coalitions of the Willing, ibid., 1–23; Thierry Tardy, ‘A Critique of Robust Peacekeeping in Contemporary Peace Operations’, in Charles Webel and Jørgen Johansen (eds), Peace and Conflict Studies: A Reader (London, 2012) 331–44; Ademola Abass, ‘UN Cooperation with Regional Organisations in Peacekeeping Operations’, in Philippe de Lombaerde, Francis Baert and Tania Felício (eds), The United Nations and the Regions (Dordrecht and Heidelberg: Springer, 2012) 109–28; Michael Bothe, Peacekeeping, in Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 1, 1171–99; Nico Krisch, Articles 42–43, ibid., vol. 2, 1330–56; Bérénice Boutin, ‘Responsibility of the Netherlands for the Acts of Dutchbat in Nuhanović and Mustafić: The Continuous Quest for a Tangible Meaning for “Effective Control” in the Context of Peacekeeping, 25 LJIL (2012) 521–35; Russell Buchan, ‘UN Peacekeeping Operations: When Can Unlawful Acts Committed by Peacekeeping Forces be Attributed to the UN’, 32 LS (2012) 282–301; Roger Stenson Clark, ‘Peacekeeping Forces, Jurisdiction and Immunity: A Tribute to George Barton’, 43 VULR (2012) 77–101; Micaela Frulli, Le operazioni di “peacekeeping” delle Nazioni Unite: continuità di un modello normative (Napoli: Editoriale Scientifica, 2012); Chris Johnson, ‘Peacemaking and Peacekeeping: Reflections from Abyei’, 19 IP (2012) 640–54; Michael Lipson, ‘Peacekeeping Reform: Managing Change in an Organized Anarchy’, 6 JIS (2012) 279–98; Olivera Simić, Regulation of Sexual Conduct in UN Peacekeeping Operations (Berlin and Heidelberg: Springer, 2012); Hikaru Yamashita, ‘Peacekeeping Cooperation between the United Nations and Regional Organisations’, 38 RIS (2012) 165–86; Alex J. Bellamy (ed), Providing Peacekeepers: The Politics, Challenges, and Future of United Nations Peacekeeping Contributions (Oxford: Oxford University Press, 2013); Ronald Hatto, ‘From Peacekeeping to Peacebuilding: The Evolution of the Role of the United Nations in Peace Operations’, 95 IRRC (2013) 495–515; Åse GIlje Østensen, ‘In the Business of Peace: The Political Influence of Private Military and Security Companies on UN Peacekeeping’, 20 IP (2013) 33–47; Haidi Willmot and Scott Sheeran, ‘The Protection of Civilians Mandate in UN Peacekeeping Operations: Reconciling Protection Concepts and Practices’, 95 IRRC (2013) 517–38; Róisín Burke, Sexual Exploitation and Abuse by UN

Measures involving the use of force (Articles 42 ff.). (a) Peacekeeping operations   285 Military Contingents: Moving Beyond the Current “Status Quo” and Responsibility under International Law (Leiden: Nijhoff, 2014); Kofi Nsia-Pepra, UN Robust Peacekeeping: Civilian Protection in Violent Civil Wars (Basingstoke: Palgrave Macmillan, 2014); Kate Seaman, UN-tied Nations: The United Nations, Peacekeeping and Global Governance (Farnham: Ashgate, 2014); Silke Weinlich, The UN Secretariat’s Influence on the Evolution of Peacekeeping (Basingstoke: Palgrave Macmillan, 2014); Paul D. Williams and Arthur Boutellis, ‘Partnership Peacekeeping: Challenges and Opportunities in the United NationsAfrican Union Relationship’, 113 African Affairs (2014) 254–78; Amit Mishra, United Nations Peacekeeping: Dimensions of Post-Cold War Era and Emerging Challenges (New Delhi: YS Books International, 2015); Melina Garcin, ‘The Haitian Cholera Victims’ Complaints against the United Nations, in Bruns’Z 75 (2015) 671–705.

Articles 42 and those following concern the possibility that the Security Council may decide to use force against a State responsible for aggression, or responsible for a threat to the peace or for a breach of the peace. Or it may decide to use force within a State by intervening in a civil war, where it deems that the domestic situation constitutes a threat to the peace (as often occurs in the case of civil war with its tragic consequences for the local population). The domestic nature of a situation does not constitute an obstacle to Council action, since the enforcement measures under Chapter VII do not come under the limit of domestic jurisdiction (Article 2, para. 7, last part). Indeed, as we have often said, it is exactly in domestic crises, and mainly for humanitarian purposes, that the Council today has the most opportunity to intervene. Resort to military measures by the Security Council is clearly seen by Article 42 as an international police action. (“The Council…may take such action by air, sea or land forces as may be necessary to maintain or restore…peace”). The decision of the Council thus belongs to the kind of operational measure through which the Organization does not order or recommend a specific conduct to the States, but acts directly (see § 94). As specified by Articles 43 and following and in line with what was decided at the San Francisco Conference as the principal characteristic of the United Nations collective security system (cf. U.N.C.I.O., vol. 12, p. 279), direct action consists of the use of national armed contingents which are under an international command depending on the Security Council. It is easy to understand the purpose pursued by Articles 42 and those following when they concentrate not only the power to decide that force is to be used but also the supervision of the military operations in the hands of the Security Council. This is, on the one hand, to guarantee the objectivity and impartiality of the operation—or more precisely, the greatest objectivity and impartiality possible when the Council follows the rules enshrined in the Charter—as well as to see that such action remains within the limits strictly necessary for ­maintenance of the peace; and, on the other hand, to remove any military initiative from the individual States which is not justifiable, under Article 51, for ­reasons of individual or collective self-defense (on this, see § 56).

286  The Functions

As for the ways in which, under the Charter, the Security Council may take action, Articles 43, 44 and 45 lay down the obligation on the Member States to enter into agreements with the Council in order to establish the number, the degree of readiness, the deployment, and so on, of the armed forces to be utilized, totally or partially, by the organ (cf. also Article 48, para. 1) as the necessity arises. Under Articles 46 and 47, the actual use of the various national contingents is to be decided by a Military Staff Committee, composed of the Chiefs of Staff of the five permanent members and under the authority of the Council. The special agreements to be concluded between the UN Member States and the Council are considered by the Charter as the preconditions and the cornerstone of the system. These agreements are, moreover, the subject of a true de contrahendo obligation on the States. Indeed, it was clearly and expressly said at San Francisco that the Council would never be able to demand any assistance from the States, with weapons and with soldiers, which was not provided for by the special agreements (see U.N.C.I.O., vol. 12, p. 508). Articles 43 ff. have never, from 1945 until today, been applied. The agreements for making national military contingents available to the Council, under Article 43, which were to be concluded “as soon as possible”, have never seen the light, nor has the Military Staff Committee of the Council ever functioned. In previous editions of this book we consequently held the view that Articles 43 ff. and the de contrahendo obligation on the Member States had been abrogated by custom. Now, the revitalization of the Council after the end of the Cold War entails a reappraisal of this view in the sense that a “revival” (which has not yet taken place) of these articles cannot be excluded. This at least was the widespread feeling immediately after the end of the Cold War, as evidenced by the cited An Agenda for Peace report presented by SecretaryGeneral B. Boutros-Ghali to the Security Council in June 1992 (cf. ): the report, dealing with the strengthening of the UN role in the area of maintenance of the peace (see § 8), provided that the agreements under Article 43 of the Charter might be concluded in the future (cf., para. 43 of the report). Up until today, and especially after the end of the Cold War, the Council has usually intervened in international or domestic crises with measures of a military or police nature in two different ways, sometimes combining them. It either has created United Nations Forces (routinely referred to as “blue helmets”) who are engaged, although initially with very limited tasks, in peacekeeping operations or it has authorized the use of force by the Member States, either individually or within regional organizations. The use of force by regional organizations will be discussed later, in Section V (see § 69). Here, we will deal firstly with peacekeeping operations and then with the authorization

Measures involving the use of force (Articles 42 ff.). (a) Peacekeeping operations   287

of the use of force by Member States (see § 61) and finally of the administration of the territories by the United Nations (see § 62). As far as peacekeeping operations are concerned, there were very few forces with peacekeeping capacity organized between 1945 and 1987 and many more in the years after 1988. As of August 31, 2015, according to UN statistics, there were 16 missions (excluding “political missions”, regarding which see § 88) involving 106,245 “uniformed” people (military and police), 16,791 “civilian” people (of which 5,315 international and 11,476 local), and 1,710 “volunteers” of the United Nations, to a total of 124,746 personnel units. So this is a major phenomenon. 122 States are participating in at least one of the peacekeeping operations worldwide (cfr. ). The principal ones are, or have been, the following: ONUC (Opération des Nations Unies au Congo), which was active in the Congo in the sixties to help the Congo out of its state of civil war and anarchy (Res. 143 of July 14, 1960); UNFICYP (United Nations Force in Cyprus), established in 1964 and still operating in Cyprus (Res. 186 of March 4, 1964); UNEF II (United Nations Emergency Force), established in 1973, as a buffer between Egypt and Israel (Res. 340 of October 25, 1973), and dissolved in 1979 (not to be confused with UNEF I, set up by the General Assembly in 1956: see § 65); UNDOF (United Nations Disengagement Observation Force), stationed since 1974 in the Golan Heights between Israel and Syria (Res. 350 of May 31, 1974); UNIFIL (United Nations Interim Force in Lebanon), established in 1978 and operating in Southern Lebanon (Resolutions 425 and 426 of March 19, 1978); UNAVEM II and III (United Nations Angola Verification Missions), operating from 1991 to 1997 in Angola (Resolutions 696 of May 30, 1991 and 976 of February 8, 1995); UNPROFOR (United Nations Protection Force), established in 1992 in the former Yugoslavia and operating particularly in Bosnia-Herzegovina until December 1995 (Res. 743 of February 21, 1992); UNOSOM I (United Nations Operation in Somalia), which has been operating, between 1992 and 1993, in Somalia (Res. 751 April 24, 1992); UNOSOM II, also operating in Somalia from 1993 to 1995 (Res. 814 of March 26, 1993); UNOMOZ (United Nations Operation in Mozambique), stationed in Mozambique from 1992 to 1994 (Res. 782 of October 13, 1992, and 797 of December 16, 1992); UNOMSIL (United Nations Mission in Sierra Leone), operating in Sierra Leone between 1998 and 1999 (Res. 1181 of July 13, 1998); MINURCA (United Nations in the Central Africa Republic), operating in the Central Africa Republic since 1998 up until 2000 (Res. 1159 of March 27, 1997); UNAMSIL (United Nations Mission in Sierra Leone), created in 1999 and operating in Sierra Leone from 1999 to 2005 (Res. 1270 of October 22, 1999), MONUC (United Nations Organization Mission in the Democratic Republic of Congo), created in 1999 and operating in the Democratic Republic of Congo until 2010 (Res. 1279 of November 30, 1999), replaced by MONUSCO (United Nations Organization Stabilization Mission in the Democratic Republic of the Congo) with Res. 1925 of May 28, 2010 and still in place; UNMEE (United Nations Mission in Ethiopia and Eritrea), operating in Ethiopia and Eritrea from 2000 al 2008 to 2008 (Res. 1312 of July 31, 2000) to 2008 (Res. 1827 of July 30, 2008); ISAF (International Security Assistance Force in Afghanistan), a multinational force led by NATO and authorized by the Security Council under Res. 1386 of December 20, 2001, which operated in Afghanistan until December 28, 2014, and was then replaced by the NATO Resolute Support mission; UNMISET (United Nations Mission of Support in East Timor), created in 2002 and ended in 2005 (Res. 1410 of May 17, 2002);

288  The Functions MINURSO (United Nations Mission for the Referendum in Western Sahara), established in 1991 and still operating in Western Sahara (Res. 690 of April 29, 1991); UNAMA (United Nations Assistance Mission in Afghanistan), established in 2004 and still operating in Afghanistan (Res. 1401 of March 28, 2002); UNMIL (United Nations Mission in Liberia), established in Liberia in 2003 and operating (Res. 1509 of September 19, 2003) until 2011 when it ceased its activities as a consequence of Res. 1971 of March 3, 2011; UNAMI (United Nations Assistance Mission for Iraq), a “political” mission set up in 2003 and still operating in Iraq (Res. 1500 of August 14, 2003); MINUCI (United Nations Mission in Côte d’Ivoire), established in 2003 and still operating in Côte d’Ivoire (Res. 1514 November 13, 2003), succeeded in 2004 by UNOCI (United Nations Operation in Côte d’Ivoire), established in 2004 and still operating (Res. 1528 of February 27, 2004); MINUSTAH (United Nations Stabilization Mission in Haiti), established in 2004 and still operating in Haiti (Res. 1542 of April 30, 2004); ONUB (United Nations Operation in Burundi), established in 2004 and operating in Burundi (Res. 1545 of May 21, 2004), succeeded by BINUB (Bureau Intégré des Nations Unies au Burundi) established in 2006 (Res. 1719 of October 25, 2006), later replaced by the BNUB (United Nations Office in Burundi) with Res. 1959 of December 16, 2010; UNAMIS (United Nations Advance Mission in Sudan), established in 2004 (res. n. 1547 of June 11, 2004) and succeeded in 2005 by UNMIS (United Nations Mission in Sudan), operating in Sudan until 2011 (Res. 1590 of March 24, 2005); UNOTIL (United Nations Office in Timor-Leste), established in 2005 (Res. 1599 of April 28, 2005) and succeeded by UNMIT (United Nations Integrated Mission in Timor-Leste) (Res. 1704 of August 25, 2006), operating in Timor-Leste until December 31, 2012 (Res. 2037 of February 22, 2012); UNMIN (United Nations Political Mission in Nepal), established in 2007 (Res. 1740 of January 23, 2007) and still operating in Nepal until January 15, 2011 (Res. 1939 of September 15, 2010); UNAMID (AU/UN Hybrid Operation in Darfur), a hybrid UN and African Union mission established in 2007 and still operating in Sudan (Res. 1769 of July 31, 2007); MINURCAT (United Nations Mission in the Central African Republic and Chad), established in 2007 and operating between the Central African Republic and Chad until 2010 (Res. 1778 of September 25, 2007); the UNISFA (United Nations Interim Security Force for Abyei), still operating in Sudan after the declaration of independence of South Sudan and established with Res. 1990 of June 27, 2011, which among other things allows the use of any means, including the use of armed force, to protect the civilian population and the humanitarian personnel in Abyei; UNSMIS (United Nations Supervision Mission in Syria) operating in Syria from April to August 2012 (Res. 2043 of April 21, 2012); MINUSCA, (the United Nations Integrated Multidimensional Stabilization Mission in the Central African Republic) that incorporated the BINUCA (United Nations Integrated Peacebuilding Office in the Central African Republic), already operating since January 1, 2010, in the Central African Republic since April 2014 (Res. 2149 of April 10, 2014); MINUSMA (the United Nations Multidimensional Integrated Stabilization Mission in Mali) operating in Mali since April 2013 (Res. 2100 of April 25, 2013, specified by Res. 2164 of June 25, 2014). It is worthy of note that the UNSMIL (United Nations Support Mission in Libya), currently operating in Libya and established by the Security Council with Res. 2009 of September 16, 2011 is defined as a “special poltical mission” and not included by the United Nations among the peacekeeping missions. Its tasks include assistance to the new Libyan authorities in restoring security, public order and the rule of law, the promotion of political dialogue, national reconciliation and the electoral process, as well as the formation of the Constitution, the strengthening of answerable institutions and the reactivation of public services, the protection of human rights (especially of the most vulnerable groups), support for justice in the transitional phase, economic recovery and coordination with other actors at both multilateral and bilateral level (cf. ).

Measures involving the use of force (Articles 42 ff.). (a) Peacekeeping operations   289 Aside from the case of the Congo, the practice followed by the Security Council in the other cases has been to limit the duration of the mandate of the Forces it has established, and then to gradually extend it, always for limited periods (usually six, nine or twelve months). This practice has its roots in the disagreements which occurred in the Council at the time of the Congo action when, since the Council had not set any limit and could not decide for a certain period of time, the Secretary-General (who is appointed by the Council to head the Forces) in the end had to decide what to do (see § 65). With the system of extension and therefore of automatic expiration of the mandate of the Force in the event of the Council’s inactivity, the intention is to strengthen the principle (strenuously defended by the Socialist States of East Europe in the Cold War period) that the Forces’ operations, even if they are carried out under the direction of the Secretary-General, remain entirely under the “authority” of the Council. The observation of the principle is also assured by continual close contact between the Secretary and the Council, contact maintained through periodic reports, request for approval of the appointment of high-level officers, and so on. Peacekeeping missions in the strict sense, excluding so-called “political missions” (see ) in place at the time of wrting are operating in the following countries: Israel and Syria (the Golan Heights), Cyprus, Ivory Coast, Haiti, India and Pakistan, Kosovo, Lebanon, Liberia, Mali, Central African Republic, Democratic Republic of Congo, Western Sahara and Sudan.

The peacekeeping practice, although not lacking in the Cold War period, has expanded considerably thereafter. It is common to distinguish four “generations” of UN peacekeeping that mark an evolution in time but that still coexist today. This is a classification valid only in first approximation, useful in highlighting the most general features of peacekeeping operations also in relation to time. It should be said that the principal characteristic of peacekeeping operations is the Security Council’s delegation to the Secretary-General of both provision and command of the UN Forces, through agreements with the Member States. The delegation provided for in Article 98 (“The Secretary-General…must exercise the functions entrusted to him [by the Security Council]…”) is not a private mandate, which may be given by one individual to another. The Secretary-General is the head of the UN administration and one of its main tasks is precisely to carry out the decisions of the Security Council as well as those of the other decision-making bodies. The relationship with the Council is always an inter-organic one within the United Nations system. The relationship between the Council and the Member States is different when they are called to act on its behalf (see § 61).

The missions of “first generation”, whose original model is represented by UNEF I, exceptionally established by the General Assembly in 1956 (see § 65), are aimed at the interposition between parties in conflict to monitor and/or ensure the implementation of the ceasefire measures and to prevent the resumption of hostilities. These missions are characterized by (a) the necessity of consent of the State or of the local authorities, (b) the maintenance of neutrality between the conflicting parties, (c) the use of force limited to the legitimate defense of the military and the protection of the mission and (d) the

290  The Functions

recruitment of the military through agreements concluded between the UN and the Member States. Leadership is entrusted to a Commander-in-Chief appointed by the Secretary-General. As is evident, the model does not match the original design of the Charter, both because the contingents are found on a case-by-case basis, rather than being permanently available to the Council, and because it requires the consent of the State of deployment, thus excluding the possibility of them being operations of a coercive nature, and finally because the use of force is limited to self-defense of individual peacekeepers or to the protection of the mission. These operations, in fact, corresponded to the typical needs of the Cold War to interpose military forces in local or minor conflicts when the two Super Powers could not confront each other directly. After the end of the Cold War peacekeeping has evolved, or rather it has enriched with other functions, to encompass the exercise of “sovereign” functions which vary in number and intensity from case to case. In the missions of “second generation”, created after 1989, the objectives of the missions were extended to the “civil” sphere, i.e. socio-political, such as the repatriation of refugees, humanitarian assistance, monitoring of the respect of human rights, promotion and monitoring of free elections or referendums, monitoring the execution of agreements concluded by different factions within the framework of procedures of national reconciliation (see § 56), relief in natural disaster (see, in particular, Res. 1908 of January 19, 2010, increasing the overall force levels of MINUSTAH to support the immediate recovery, reconstruction and stability efforts to face the circumstances of a devastating earthquake in Haiti), etc. (so-called “multidimensional” or “multifunctional” peacekeeping). In some cases, referred to by the doctrine as “third generation” operations, the objectives of the missions were extended to peace enforcement, namely the “enforcement of peace”—in general as additional phases or of reinforcement of other failed operations (such as UNOSOM II in Somalia, UNPROFOR in Bosnia-Herzegovina and Croatia)—reached through the use of military force. The traditional requirements of neutrality and of consent of the State of deployment thereby also failed. An attempt at peace-enforcement can be seen in the recently established (with Res. 2098 of March 28, 2013) “Intervention Brigade”, an offensive fighting force to be used for military operations against armed groups in the Democratic Republic of Congo. In the abstract, there have also been talks on “forth generation” operations to indicate operations carried out by an institutional and permanent UN “army”, which however has not yet seen the light and is unlikely to see the light in the near future. Amongst peace enforcing operations it is worth mentioning the Congo as well as the former Yugoslavia and Somalia examples. In the case of the Congo, the Security Council, in Res. 143 of July 14, 1960, “authorized” the Secretary-General to provide military assistance to the Congolese government until the

Measures involving the use of force (Articles 42 ff.). (a) Peacekeeping operations   291 Congo was able to maintain domestic order by itself. Subsequently, the United Nations Force (ONUC) was set up with contingents offered voluntarily by the Member States and was placed under the authority of the Secretary-General. In the meantime, a series of very serious events had occurred, such as the establishment of various centers of power in the country, the killing of the leader Lumumba, the secession of the Katanga province, and the death of the then Secretary-General Hammarskjold. The Council then adopted other resolutions confirming the purposes of the Force and authorizing the use of weapons to prevent civil war (Res. 161 of February 21, 1961) and to eliminate the presence of foreign mercenaries in the country, particularly in the Katanga province (Res. 169 of November 24, 1961). As a result, ONUC carried out what was a real, although brief, war of liberation in the Katanga province. In the case of Yugoslavia, the first resolution concerning UNPROFOR (United Nations Protection Force) was Res. 743 of February 21, 1992, which decided to establish the Force “under the authority” of the Council in order to “create the conditions of peace and security required for the negotiation of an overall settlement of the Yugoslav crisis” (para. 5) and invited the Secretary to take the necessary measures. A long series of subsequent resolutions then specified, in relation to developments in the crisis, the various tasks of the Force. For the main ones cf. Resolutions 761 of June 29, 1992 and 764 of July 13, 1992 which (respectively, para. 1 and para. 2) authorized the Force to “ensure the security and functioning of Sarajevo airport and the delivery of humanitarian assistance”; Res. 779 of October 6, 1992, which authorized it to monitor the complete withdrawal of the Yugoslav army from Croatia and the demilitarization of the Prevlaka peninsula; Res. 807 of February 19, 1993 which called upon the Secretary-General to equip the Force with suitable weapons for its defense; Res.836 of June 4, 1993 which entrusted the force with the task of defending several Bosnian cities, and their surrounding areas, which had been declared “safe areas” in previous resolutions; Res. 913 of April 22, 1994, which invited the Secretary-General to take all the necessary measures in order to enable the UNPROFOR to control the situation and the respect of the ceasefire in Gorazde. These resolutions provide evidence that even if UNPROFOR was not engaged in true military actions, it cannot be considered a mere instrument of peaceful measures. By Res. 1031 of December 15, 1995 the Security Council put an end to the mandate of UNPROFOR, following the Dayton Agreement. With regard to Somalia, ONUSOM was initially established with Res. 751 (paras. 2 and 7) of April 24, 1992, with the task of “supporting” the Secretary-General’s efforts to facilitate the ceasefire between the factions at war in the country and to furnish humanitarian assistance to the population. However, subsequently, with Res. 814 (part B, paras. 5 and 14) of March 26, 1993, it took on the functions that had formerly been exercised by a group of States under United States unified command. In particular, it took on the function of consolidating, extending and maintaining the security of the whole country. Res. 837 of June 6, 1993, adopted after a Somali attack on a group of Pakistani blue helmets, entrusted the Force (now called ONUSOM II) with the task of taking “any measure against all those responsible for the armed attacks”. Unfortunately, this resolution constituted the legal grounds for a brutal attack against the districts controlled by the Somali General Aidid, an attack which, in the name of the United Nations, provoked the killing of innocent victims and was thus deplored by the civilized world. Nobody can deny that this action constitutes use of force. In March 1995 ONUSOM was withdrawn from the territory of Somalia, as demanded by Res. 954 of November 4, 1994. The “Intervention Brigade” established by Res. 2098 of March 28, 2013 works under the direction of the MONUSCO peacekeeping mission. Under paras. 9, 10 and 12 b, the Brigade can “carry out targeted offensive operations…with the responsibility of neutralizing armed groups” and stabilize the country. Coomentators have asked whether, in the case of offensive operations, the brigade is part of the conflict, and as such, obliged to comply

292  The Functions with international humanitarian law, and what is the possible meaning in practice of the term “neutralize” (see Bruce ‘Ossie’ Oswald, ‘The Security Council and the Intervention Brigade: Some Legal Issues’, ASIL Insights, June 6, 2013).

By Res. 1327 of November 13, 2000 with Annex, the Security Council has laid down some general “decisions and recommendations” on the establishment and behavior of the peacekeeping forces. This was with the aim of strengthening the peacekeeping operations and giving them “clear, credible and achievable mandates” as well as “a credible deterrent capability”. Worth noting is the recommendation contained in Part IV of the Annex, according to which the peacekeeping operations should be deployed within 30 days, and in case of complex operations, within 90 days of the Security Council resolution establishing them. In Part I of the Annex, the Council urges the parties to a “prospective peace agreement” where peacekeeping operations are envisaged, to bear in mind the need for any provision regarding such operations “for the… compliance with the rules and principles of international law, in particular international, humanitarian, human rights and refugee law”. Needless to say that the peacekeeping forces have to comply with these rules even more closely. The above cited case of the attack of the ONUSOM II in 1993 is a clear case of non compliance with humanitarian law and should never be repeated. The case just mentioned of the brutal UNOSOM II attack in Somalia in 1993 is precisely such a case of violation of international humanitarian law and must not happen again.

Res. 1327 shows a clear trend towards the duty of the Security Council to comply with international law when a peacekeeping operation is set up. This duty is parallel to the Council’s duty with regard to those measures not involving the use of force (see § 59). Subsequent Res. 1353 of June 13, 2001 specifies the relationship between the Security Council, the Secretariat and the States providing military contingents. More recently, with Res. 2086 of January 21, 2013, the Council confirmed its intention to ensure a “multidimensional” approach to peacekeeping operations dictating the criteria for characterization in this direction for future peacekeeping operations. In particular, the Council “[r]ecognizes the important role of multidimensional peacekeeping missions to: (a) assist host countries in developing critical peacebuilding priorities and strategies; (b) help to create an enabling environment for relevant national and international actors to perform peacebuilding tasks; and (c) implement early peacebuilding tasks themselves” (para. 5). With Res. 2185 of November 20, 2014, the Council underlined the need to adopt measures to allow greater integration of the peacekeeping forces and national/local police in all states that are home to a peacekeeping force to ensure their support in terms of logistics and security in order to ensure coordinated action and greater protection for the civilian population.

Measures involving the use of force (Articles 42 ff.). (a) Peacekeeping operations   293 In 2008 the Department of Peace Keeping Operations (DPKO) and the Department of Field Support (DFS) (see § 8) issued a document, for the internal use of the Organization personnel, enunciating “principles and guidelines” on the peacekeeping operations of the United Nations (cf ). In this document it is inter alia emphasized that peacekeeping “is not envisaged by the Charter” but it established itself in the practice since the missions of observers dispatched by the Organization in 1948 in the Middle East (p. 20). Interesting debates on the role and the current problems of peacekeeping took place at the Security Council on January 23, 2009 (Doc. S/PV.6075), on June 29, 2009 (Doc. S/PV.6153 and S/PV.6153 Resumption 1), on August 5, 2009 (Doc. S/PV.6178 and S/PV.6178 Resumption 1), on February 12, 2010 (Doc. S/PV.6270 and S/PV.6270 Resumption 1), on June 29, 2009 (cf. Doc. S/PV.6153 and S/PV.6153 Resumption 1), on August 5, 2009 (cf. Doc. S/PV.6178 and S/PV.6178 Resump­ tion 1), on February 12, 2010 (cf. Doc. S/PV.6270 and S/PV.6270 Resumption 1), on January 21, 2013 (cf. Doc. S/PV.6903 and Res. 2086), on June 11, 2014 on “trends” of peacekeeping (cf. Doc. S/PV.7196), on July 28, 2014 (cf. Doc. S/PV.7228 and Res. 2167) and on July 20, 2014 (cf. Doc. S/PV.7317 and Res. 2185) The guidelines and other instruments intended to set the principles to be followed in peacekeeping operations have been also previously adopted, for example the reports of the Special Committee for Peace-Keeping Operations established by the General Assembly in 1965 (cf. the reports of July 12, 1990, Doc. A/45/330, and of June 18, 1991, Doc. A/46/254); the Requirements for peacekeeping operations of May 8, 1990 (Doc. A/45/217), the ­training Manuals of October 5, 1990 (Doc. A/45/572), the Model of Status of Forces Agreement (SOFA) of October 9, 1990 (Doc. A/45/594), the operative Procedures of October 10, 1990 (Doc. A/45/602) and the Model of Agreement with participating States of June 3, 1991 (Doc. A/46/185) of the Secretary-General. Of relevance is also the Agenda for Peace report of the Secretary-General of June 17, 1992, and Supplement of January 3, 1995 (see § 8), and the Brahimi report of September 7, 2000 (Doc. A/55/305-S/2000/809, at ). Also worth mentioning are the debates that periodically take place at the Security Council on various aspects of peacekeeping: cf. Doc. S/PV.4970 of May 17, 2004 (rules of engagement and military resources), S/PV.5556 (strengthening the role of women in peacekeeping), ­ S/PV.5705 of June 25, 2007 (assistance in preventing that the illegal exploitation of natural resources, such as diamonds and timber, may foment conflicts) and S/PV.6153 of September 26, 2009 (strengthening of the relationship between UN and contributing States). See also Res. 1888 of September 30, 2009, mandating peacekeeping missions to protect women and children from rampant sexual violence during armed conflict. On October 31, 2014 the Secretary-General established a High-Level Independent Panel on Peace Operations ­composed of 14 members, with the task of reviewing the system and structure of peacekeeping. In particular, the Panel “will make a comprehensive assessment of the state of United Nations peace operations today and the emerging needs of the future. It will consider a broad range of issues facing peace operations, including the changing nature of conflict, evolving mandates, good offices and peacebuilding challenges, managerial and administrative arrangements, planning, partnerships, human rights and protection of civilians, uniformed capabilities for peacekeeping operations and performance” (see ­ ). One question needs to be treated here which is mainly linked to the limits of the Security Council in establishing and regulating peacekeeping operations concerning the relation between the Security Council itself and the International Criminal Court (see §§ 37 and 62). By Res. 1422 of July 12, 2002 (and then by the identical Res. 1487 of June 12, 2003), the Security Council, referring to Article 16 of the Rome Statute and acting under Chapter VII, has requested the Court not to commence or proceed with investigation or prosecution

294  The Functions against current or former officials or personnel involved in UN operations for acts relating to such operations, unless the Security Council decides otherwise. The immunity is requested for a period of twelve months starting from 1 July 2003, but the Council “expresses the intention” to renew the request for further 12-month periods, if necessary. According to Article 16 of the Rome Statute “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council has requested the Court to that effect; that request may be renewed by the Council under the same conditions”. In fact, the request has not been reiterated on June 2004, due to the events in Iraq and the gross violation of humanitarian rules by US soldiers. A draft resolution drawn up by United States has not been presented since it would not have the required majority within the Council. In legal doctrine the question of whether Res. 1422 and 1487 are compatible with the powers of the Security Council under the Charter is the object of sharp debate. Doubts about the legality of the resolutions have been raised, as Chapter VII does not deal with the relations between the Security Council and international tribunals. Doubts have also been raised about the possibility of considering the activity of the Court as a threat to the peace, the previous determination of such threat being indispensable for any decision of the Security Council under Chapter VII. In particular, the general immunity requested for all members of peacekeeping forces coming from non-Member States of the Statute of the Court, instead of a request made on a case-by-case basis, has been considered ultra vires. In our opinion, leaving aside the sad impression created by resolutions imposed by only one Member State of the Council, the United States, and the setback thus suffered by International justice, the decision of the Security Council cannot be considered contrary to the Charter. It is not a question of finding a special provision of the Charter which deals with this specific case. It is not a question of the lack of determination about a specific threat to the peace in order to justify the request of immunity. The Security Council has not only the power to create military forces but also the power to enact all regulations governing them and their status: the immunity granted to the members of these forces is exactly the expression of the latter. Having said that, the resolutions on immunity have to be evaluated from another point of view. No doubt the Council is bound by humanitarian and human rights law, as well as some other international rules of jus cogens. Moreover, in the already quoted Res. 1327 of November 13, 2000 with Annex, as we have seen, the Council has recognized the importance of humanitarian and human rights rules by committing the UN Forces to their observance. We can consequently wonder whether the general request for immunity, contained within Resolutions 1422 and 1487, does comply with such rules as it goes beyond the limit of the respect of international law, precisely the obligation to prosecute the alleged perpetrators of the crimes falling under the jurisdiction of the International Criminal Court. Indeed, the power granted to the Security Council by Article 16 of the Statute of the Court has been considered as contrary to humanitarian law by some Non Governmental Organizations, during the preparatory work of the Statute (see Amnesty International, The International Criminal Court Making the Right Choice—Part I, London, 1997, p. 95 ff.; Human Rights Watch, Commentary for the August 1997 Preparatory Committee Meeting on the Establishment of an International Criminal Court, 1997, p. 9 f.). However, even if this is the way of dealing with the question of the legality of the resolutions on immunity, the answer to the question is still positive. In fact, the resolutions do not grant an absolute immunity, since it notes that “States not party to the Rome Statute will continue to fulfill their responsibilities in their national jurisdictions in relation to international crimes”. What is at stake, therefore, is not immunity but simply international immunity. It is contentious whether there is an international obligation to prosecute the alleged perpetrators of international crimes. But even if it should hold good, one must still ask whether it is an

Measures involving the use of force (Articles 42 ff.). (a) Peacekeeping operations   295 obligation which limits the Council rather than an obligation that the Council may derogate from, in accordance with the needs of peacekeeping and international security.

In light of the above, in what legal framework can peacekeeping operations be put? What are their basic domestic rules? When, in other words, are they intra vires and when ultra vires? International lawyers usually try to either relate them to Charter provisions outside Chapter VII, especially—on the basis of the International Court of Justice Advisory Opinion of July 20, 1962 on Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (see § 88)—under the norms on peaceful settlement envisaged by Chapter VI, or they speak of the formation of unwritten rules which have now taken root with  the acquiescence of all the Member States. Secretary-General Dag Hammarskjöld even referred to peacekeeping as belonging to “Chapter Six and a Half ” of the Charter, placing it somewhere between peaceful methods of settling disputes (Chapter VI) and coercive action (Chapter VII). The first of these views is clearly out of place, as the peaceful settlement function also belongs to the General Assembly and no one any longer today dares to hold that the Assembly (which only in one remote case created a Force for maintenance of the peace: see § 65) is competent in this matter. The second thesis seems to have been shared by Secretary-General B. Boutros-Ghali in the often cited An Agenda for Peace report (cf. , para. 46), where peacekeeping operations are defined as an “invention” of the United Nations, even though it is not clear whether the “invention” falls under Chapter “Chapter Six and a Half ” or under a specific customary norm that came into being under Chapter VII, or outside the Charter altogether. In our opinion, it should firstly be pointed out that notwithstanding their usually limited tasks, peacekeeping forces operate with weapons in conflict zones. The idea that they are engaged in “peace” missions—an idea that is widespread in some quarters, as in Italy—corresponds to the truth when it is intended that they are not engaged in traditional war operations, directed against a State and aimed at destroying it, but rather their role is that of preventing the intensification of the conflict or of assisting the State in the aftermath of a conflict in restoring its institutional and political life. But such idea is out of line when it implies, or it suggests, that peacekeeping forces carry out peaceful operations since it is quite likely not only that the military are struck but also that they, in turn, may strike (inter alia) innocents; a fortiori, when the operation is presented—in order to make it more appreciable to public opinion and/or in order to avoid any complication as to the respect of constitutional constraints regulating the deployment of national military forces—as essentially destined for the good of the assisted people, if not even to the peace and good of humanity. It should not be underestimated that peacekeeping operations are voluntary, as well as expensive, and the States taking part to them

296  The Functions

would not participate, putting at risk the life of their soldiers, and enormous financial resources, if there was not a gain, whether of a practical nature (like the direct or indirect control over certain areas of the world, strategically crucial as far as natural resources are concerned) or even just relating to their image and reputation for other ends. Although having—or rather having to have, in order to be effective—a military nature, it should be noted that the consent requirement, however critical and uncertain in some cases, has remained an essential distinctive element of peacekeeping and that the favor of the generality of States towards peacekeeping is based on the fact that it exists, or it should wherever possible exist, the consent of local authorities. The past peace enforcement operations themselves (in particular UNOSOM II and UNPROFOR) have remained isolated cases and moreover their failure has reinforced, over the last years, the need for the consent of the affected States. It follows that peacekeeping does not fall under Chapter VI, since it is not directed, or not exclusively, to the peaceful settlement of a controversy between States, nor under the not better defined limbo of Chapter VI ½, but neither does it fulfill the enforcement measures of Article 42 precisely because, although being everything but peaceful, they require the consent of the local sovereign or of the factions fighting on the ground. It is however because of these hybrid characteristics, or rather for being characterized by a “low-level” use of force, that peacekeeping is accepted by the generality of States. It seems then that the better view is to base it into a specific customary norm under Chapter VII—in the light of which the Security Council has always acted when setting up a mission—which has come into being in order to integrate the Charter. True, the existence of such a norm leads—considering that peacekeeping operations are extremely expensive (8,47 billion dollars have been approved for the period from July 1, 2014 to June 30, 2015) and that all the Member States are called upon to participate, according to Article 17, in the expenses for carrying them out—to admitting that there is an obligation to take part to the costs of operations not having any reference to a specific Charter provision. But also on this point Member States, which in the past have been quite sensitive to this topic (see § 88), do not raise any significant objections any more. Even if their functions are limited, the UN Forces, in so far as they are actual military forces operating in permanent crisis situations, must be distinguished from UN observer corps, which come under the function of investigation (see § 51). However, the two forces, in borderline cases, tend to overlap. In fact, the difference lies more in quantity than in quality, the military presence being normally assured by single armed persons in the case of observer corps.

As the peacekeeping forces are UN organs, their acts are attributed to the Organization, which then is accountable for their unlawful acts, including

Measures involving the use of force (Articles 42 ff.). (a) Peacekeeping operations   297

v­ iolations of human rights and international humanitarian law. This does not necessarily exclude joint responsibility of the States that have sent peacekeepers, and, in general, it may be shared the view that the acts of peacekeepers should be attributed both to the State and to the Organization, for the part in which each exercise effective control over them. The problem has arisen in practice in relation to the mission deployed in Kosovo, which would be more properly placed within the UN regional administrations we will deal with later (see § 62). Recently, the spread of cholera, apparently by the Nepalese contingent, in Haiti has sparked a lively debate. As mentioned above, a class action brought by Haitian nationals against the United Nations was rejected in 2015 by a US court on the grounds of the immunity enjoyed by the Organisation (see § 35). That the organs of the UN should respect the most essential core of international humanitarian law has been repeatedly affirmed by the Organization and specified by the SecretaryGeneral in a “Bulletin” of August 6, 1999, whose legal status is unclear. The Bulletin, which applies “to the enforcement action or peacekeeping operations where the use of force is permitted in self-defense” (sec. I), indicates the rules of international humanitarian law that the United Nations forces shall apply in situations of “armed conflict” (without drawing a distinction between international and internal armed conflict) in which they are engaged as “combatants” (sec. 1), stating that its provisions “shall not constitute an exhaustive list of principles and rules of international humanitarian law” or replace national law to which military personnel continue to be bound for the entire duration of the operations (sec. 2). The Bulletin also states that military personnel of a United Nations force in case of violations of international humanitarian law will be subject to prosecution before the courts of their own national State (sec. 4). The rules contained in the Bulletin to be met by military personnel regard the protection of civilians (sec. 5), means and methods of combat (sec. 6), treatment of civilians and persons hors de combat (sec. 7) and the treatment of prisoners of war (sec. 8) and the protection of the wounded, the sick and medical and relief personnel (sec. 9).

Different from the responsibility of the United Nations is the personal liability of individual peacekeepers who are responsible of misconduct and, in particular, of international crimes. Unfortunately there is a trend at national level, also in Italy, which is totally unjustified to seek to avoid prosecution, or when trials are celebrated, not to impose penalties proportionate to the seriousness of the offenses committed. The problem is being studied at the United Nations for some years now, in order to reach an agreement regulating the matter. This has happened, for example, in Italy for acts of torture of which two Italian peacekeepers on a mission in Somalia in 1993, were accused (application of electrodes to the testicles of a Somali man and attempted rape of a young Somali woman with an illuminating bomb). Except for some disciplinary actions, the Court of Livorno had one of the defendants sentenced only to one year and six months imprisonment (with a suspended sentence and no mention) for abuse of authority, but the offense ceased to be valid under a statute of limitation during the appeal trial. On the matter a government commission of inquiry ruled, in

298  The Functions its final report of 1998, that although constituting “sporadic and localized outbreaks of violence”, “the gravity of accepting or tolerating as ‘goliardic’ boorish behavior, expression of a subculture that the Armed Forces must reject in principle” remained (for the report in the original Italian version see ). As far as the works at the United Nations are concerned, it should be noted that during the 61st Session of the General Assembly, the Sixth Commission has been asked to discuss a report presented in 2006 by a group of experts, established in 2005, in order to arrive at drafting a Convention (see Res. 61/29 of December 4, 2006 of the General Assembly and, for the report, Doc. A/60/980). The draft Convention, as recommended by the Expert Group includes territorial jurisdiction of the State or, when it cannot be exercised, that of the State of the alleged offender; or still, if the State of the offender cannot exercise it, that of the national state (or of residence, if stateless) of the victim, or of the State of residence of the offender if stateless (Article 4, paras. 1 and 2). Some States have criticized the criterion of the territorial jurisdiction of the territorial State, voting in favor of that of the national State of the victim and claiming that the States in which peacekeeping operations are performed frequently are incapable of ensuring a fair trial. The draft includes among the persons to whom it applies “officials and experts on mission of the United Nations”, except the soldiers of national contingents that remain under the jurisdiction of the sending State (Article 2, para. 2). This too has been criticized by some States, partly because it excludes the military, for which the problem arises, partly because, conversely, the armed forces cannot be excluded completely. Finally, the draft applies not only to sex offenses, but also, more generally, to “serious crimes” (Article 3, para. 1), although it was then raised the issue of defining gravity. The General Assembly adopted the draft submitted by the VI Commission with Res. 62/63 of December 6, 2007. The Report of the Ad Hoc Committee on criminal accountability of United Nations Officials and experts on mission (Doc. A/63/54, April 7, 9 and 11, 2008) contains a series of largely critical opinions of States. With Res. 63/119 of December 11, 2008, the General Assembly moved towards a search for new ways of cooperation “in accordance with their domestic laws and applicable United Nations rules and regulations” (see also Res. 64/110 of December 16, 2009, 65/20 of June 12, 2010, 66/93 of December 9, 2011, 67/88 of December 14, 2012, 68/105 of December 16, 2013, and 69/114 of December 10, 2014). The question has currently reached a stalemate and it seems that the States are unlikely to conclude a Convention (cf. ). The Security Council has discussed and condemned the abuses committed by peacekeepers on several occasions: cf., e.g., the declaration of the President of the Council S/ PRST/2005/21, of May 31, 2005 and the debate, again in the Council, of February 23, 2006 (Doc. S/PV.8649).

61.  (b) The authorization of the use of force by States Select bibliography: see § 55. Adde: Giorgio Gaja, ‘Il Consiglio di Sicurezza di fronte all’occupazione del Kuwait: il significato di un’autorizzazione’, 3 RDI (1990) 696–703; Joe Verhoeven, ‘Etats alliés ou Nations Unies? L’ONU face au conflit entre l’Irak et le Kuweit’, 36 AF (1990) 145–94; Gianluca Burci, ‘L’azione del Consiglio di Sicurezza delle N.U. nella crisi del Golfo’, 46 CI (1991) 278–315; ‘Agora: The Gulf Crisis in International and Foreign Relations Law’, 85 AJ (1991) 63 ff and 506 ff; Alissa Pyrich, ‘United Nations: Authorisations of Use of Force: Security Council Resolution 665 and Security Council Resolution 678’, 32 HILJ (1991) 265–74; Christian Dominicé, ‘La sécurité collective et la crise du Golfe’, 2 EJIL (1991) 85–109; Oscar Schachter, ‘UN Law in the Gulf Conflict’, 85 AJ (1991) 452–73; Ugo

The authorization of the use of force by States   299 Villani, Lezioni su l’ONU e la crisi del Golfo (Bari: Cacucci, 1991); Jules Lobel and Michael Ratner, ‘Bypassing the Security Council: Ambiguous Authorisations to Use Force, Ceasefires and the Iraqi Inspection Regime’, 93 AJ (1999) 124–54; Paolo Benvenuti, ‘Forze multinazionali e diritto internazionale umanitario’, in Natalino Ronzitti (ed), Comando e controllo nelle forze di pace e nelle coalizioni militari (Milano: Angeli, 1999) 222–50; Dan Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (Oxford: Clarendon Press, 1999); Niels Blokker, ‘Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of force by Coalitions of the Able and Willing’, 11 EJIL (2000) 541–68; Frédéric Dopagne, ‘Le recours à la force armée autorisé par le Conseil de sécurité’, 60 ADL (2000) 189–244; Linos-Alexandre Sicilianos, ‘L’autorisation par le Conseil de Sécurité de recourir à la force: une tentative d’évaluation’, 106 RGDIP (2002) 5–50; Paolo Picone, ‘La guerra contro l’Iraq e le degenerazioni dell’unilateralismo’, 86 RDI (2003) 329–93; Alexandra Novosseloff, Le Conseil de sécurité des Nations Unies et la maîtrise de la force armée. Dialectique du politique et du militaire en matière de paix et de sécurité internationales (Bruxelles: Bruylant, 2003); Maurizio Arcari, ‘L’intervention armée contre l’Iraq et la question de l’autorisation du Conseil de sécurité’, 19 ADI (2003) 5–39; Franck Berman, ‘The Authorization Model: Resolution 678 and Its Effects’, in David M. Malone (ed), The UN Security Council: From the Cold War to the 21st Century (Boulder: Rienner, 2004) 153–66; Théodore Christakis and Karine Mollard Bannelier, ‘Acteur vigilant ou spectateur impuissant? Le contrôle exercé par le Conseil de sécurité sur les États autorisés à recourir à la force’, 37 RBDI (2004) 498–527; Robert Kolb, ‘Does Article 103 of the Charter of the United Nations Apply only to Decisions or also to Authorizations Adopted by the Security Council?’, 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2004) 21–35; Nico Schrijver, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: 2005, 3rd ed), vol. 1, 454–9; Neils M. Blokker and Nico Schrijver (eds), The Security Council and the Use of Force. Theory and Reality: A Need for Change? (Leiden: Nijhoff, 2005); Mary E. O’Connell, ‘The United Nations Security Council and the Authorization of Force: Renewing the Council through Law Reform’, ibid., 47–63; Paolo Picone, ‘Le autorizzazioni all’uso della forza tra sistema delle Nazioni Unite e diritto internazionale generale’, 88 RDI (2005) 5–75; Erik Voeten, ‘The Political Origins of the UN Security Council’s Ability to Legitimize Force’, 59 Int Org. (2005) 527–57; Maurizio Arcari, ‘Autorizzazioni del Consiglio di sicurezza, tutela dei diritti dell’uomo e occupazione militare in Iraq. Il caso Al-Jedda di fronte ai giudici britannici’, 89 RDI (2006) 1083–92; Rosemary Durward, ‘Security Council Authorization for Regional Peace Operations: A Critical Analysis’, 13 IP (2006) 359–65; Ion Gâlea, ‘Authorization of Security Council, An Exception from the Rule Prohibiting the Use of Force’, 2 RRDI (2006) 38–47; Amina Maneggia, ‘Attori non statali, uso della forza e legittima difesa nella giurisprudenza più recente della Corte internazionale di giustizia’, 4 In.Law (2006) 156–74; Letizia Cinti, ‘La legittima difesa contro entità non statali e il recente conflitto israelo-palestinese’, ibid., 175–90; Enzo Cannizzaro, ‘Entité non-étatiques et régime international de l’emploi de la force: une étude sur le cas de la réaction israélienne au Liban’, 111 RGDIP (2007) 333–54; Bruno Grandi, ‘Considerazioni sulle tendenze della disciplina dell’uso della forza nel diritto internazionale’, 23 CS (2007) 375–414; Monica Hakimi, ‘To Condone or Condemn?: Regional Enforcement Actions in the Absence of Security Council Authorization’, 40 VaJTL (2007) 643–85; Jörg Kammerhofer, ‘The Armed Activities Case and Non-State Actors in Self-Defence Law’, 20 LJIL (2007) 89–113; Justin Morris and Nicholas J. Wheeler, ‘The Security Council’s Crisis of Legitimacy and the Use of Force’, 44 Int. Pol. (2007) 214–31; Antonello Tancredi, ‘Il problema della legittima difesa nei confronti di milizie non statali alla luce dell’ultima crisi tra Israele e Libano’, 90 RDI (2007)

300  The Functions 909–1007; Dan Sarooshi, ‘The Security Council’s Authorization of Regional Arrangements to Use Force: The Case of NATO’, in A. Vaughan Lowe (ed), ‘The United Nations Security Council and War: The Evolution of Thought and Practice since 1945’ (Oxford: Oxford University Press, 2008) 226–47; James D. Fearon, ‘International Institutions and Collective Authorization of the use of Force’, in Alan S. Alexandroff (ed), Can the World be Governed? Possibilities for Effective Multilateralism (Waterloo: Wilfrid Laurier University Press, 2008) 160–95; Victor Kattan, ‘The Use and Abuse of Self-Defence in Israel-Hezbollah Conflict as a Case Study’, 12 YIMEL (2008) 31–50; Alain Pellet, ‘Le recours à la force, le droit et la légitimité. Notes sur les problèmes posés par le principe de l’interdiction du recours à la force armée en cas de carence du Conseil de sécurité’, in Frieden in Freiheit (2008) 249–68; Sarah V. Percy, ‘The Security Council and the Use of Private Force’, in Lowe (ed), The United Nations Security Council and War: The Evolution of Thought and Practice Since 1945 (Oxford: Oxford University Press, 2008) 624–40; Linos-Alexandre Sicilianos, ‘Entre multilatéralisme et unilatéralisme: l’autorisation par le Conseil de sécurité de recourir à la force’, 339 RC (2008) 9–436; Antonello Tancredi, ‘Di pirati e Stati “falliti”: il Consiglio di sicurezza autorizza il ricorso alla forza nelle acque territoriali della Somalia’, 91 RDI (2008) 937–66; Matthew C. Houghton, ‘Walking the Plank: How United Nations Security Council Resolution 1816, While Progressive, Fails to Provide a Comprehensive Solution to Somali Piracy’, 16 TJCIL (2009) 253–86; Carlo Focarelli, ‘Common Article 1 of the 1949 Geneva Conventions: A Soap Bubble?’, 21 EJIL (2010) 125–71; Matthew C. Houghton, ‘Walking the Plank: How United Nations Security Council Resolution 1816, While Progressive, Fails to Provide a Comprehensive Solution to Somali Piracy’, 16 TJCIL (2009) 253–86; Chin Leng Lim, ‘The Recent Tendency Towards Unilateral Use of Force and the Future Roles of the Security Council’, in R.K. Dixit, International Law: Issues and Challenges (Gurgaon: Hope India Publications, 2009), vol. 1, 164–81; Francesco Messineo, ‘The House of Lords in Al-Jedda and Public International Law: Attribution of Conduct to Un-Authorized Forces and the Power of the Security Council to Displace Human Rights’, 56 NILR (2009) 35–62; Ilias Bantekas, ‘The Permissibility of Defiance and Self-Defence against Chapter VII Authorisations’, 12 ARIEL (2010) 3–16; Carlo Focarelli, ‘Libya: a Turning Point for the Responsibility to Protect Doctrine?’, 6 April 2011, at ; Alex J. Bellamy, ‘Libya and the Responsibility to Protect: The Exception and the Norm’, 25 EIL (2011) 263–69; Simon Chesterman, ‘“Leading from Behind”: The Responsibility to Protect, the Obama Doctrine, and Humanitarian Intervention after Libya’, ibid., 279–85; Jennifer Welsh, ‘Civilian Protection in Libya: Putting Coercion and Controversy Back into RtoP’, ibid., 255–62; Thomas G. Weiss, ‘RtoP Alive and Well after Libya’, ibid., 287–92; James Pattison, ‘The Ethics of Humanitarian Intervention in Libya’, ibid., 271–7; Alex J. Bellamy, Paul D. Williams, ‘The New Politics of Protection? Côte d’Ivoire, Libya and the Responsibility to Protect’, ibid., 825–50; Enzo Cannizzaro, ‘Responsabilità di proteggere e intervento delle Nazioni Unite in Libia’, 94 RDI (2011) 821–24; Christian Henderson, ‘International Measures for the Protection of Civilians in Libya and Côte d’Ivoire’, 60 ICLQ (2011) 767– 78; Marie Joe Domestici-Met, ‘Protecting in Libya on Behalf of the International Community’, 3 GöJIL (2011) 861–90; Nico Krisch, Articles 42–43, in Bruno Simma, DanielErasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 2, 1330–56; August Reinisch and Gregor Novak, Articles 44–50, ibid., 1357–96; Mehrdad Payandeh, ‘The United Nations, Military Intervention, and Regime Change in Libya’, 52 Virg.JIL (2012) 355–403; Paolo Picone, Comunità internazionale e obblighi “erga omnes”: Studi critici di diritto internazionale (Napoli: Jovene, 2006, 3rd edn); Christian Henderson, ‘Authority without Accountability? The UN Security Council’s Authorization Method and Institutional Mechanisms of Accountability’, 19 JCSL (2014) 489–509.

The authorization of the use of force by States   301

The deployment of peace enforcement has proved, as demonstrated by the experience of 1992 in Somalia and of 1994–1995 in the former Yugoslavia, rather unfeasible for political, military, and logistic reasons. Therefore the Council has opted on several occasions, as well as for the more circumscribed peacekeeping, for conferring the task of conducting military operations for the maintenance of peace and security to the Member States, acting individually or through regional organizations (on regional actions see § 69). It should be said at once that nothing in Chapter VII expressly allows for the Council to authorize Member States to resort to the use of force. On the contrary, the Charter is clearly designed to take away the use of force from the States and to centralize it in the Council, similarly to what happens in the national legal orders in which legitimate use of force is prohibited to individuals, except for self-defense, and centralized in the police. Of an “authorization” to the use of force, as we shall see, the Charter speaks only in Chapter VIII, admitting that the Council can rely, upon authorization, on regional organizations. The failure of the peace enforcement operations is very well illustrated by the above cited Res. 954 of November 4, 1994 on the withdrawal of UNOSOM II from Somalia, starting from March 1995, where the Council recognizes that “the lack of progress in the Somali peace process and in national reconciliation, in particular the lack of sufficient co-­ operation from the Somali parties over security issues, has fundamentally undermined the United Nations objectives in Somalia…” and that “the people of Somalia bear the ultimate responsibility for achieving national reconciliation and bringing peace in Somalia”.

Twice during the Cold War and several times since the beginning of the nineties, the Council has “authorized” Member States to use force against a State or within a State and placed, although “under its authority”, the command and the supervision of military operations in their hands. This practice, given the silence of the Charter, has caused a broad doctrinal debate. One point that seems helpful to clarify the issue is the distinction between “recommendations”, “authorizations” and “delegations”. The Council “recommends” when it exhorts States to adopt a conduct in itself lawful; it “authorizes” when it makes lawful a conduct that, if held by a Member State, would otherwise be unlawful, without necessarily suggesting the State should pursue it; it “delegates” when it transfers one of its powers, established by the Charter, or by internal customary rules which supplement or derogate from it, to the States submitting their whole regime to the norms that apply to it rather than to those that otherwise would apply to States. It follows that a recommendation is simply to indicate to the individual States what lawful conduct, according to the Council, it is desirable that they take, still remaining free not to pursue it. An authorization has the effect of making lawful an otherwise unlawful conduct, the States remaining free not to behave in the manner authorized, but

302  The Functions

knowing that if they do the authorization exempts them from any responsibility which they would otherwise incur. It should be noted that when the Council authorizes or recommends it is not necessary for the conduct recommended or authorized to fall within its powers; if an act were to “recommend” States to adopt a wrongful act, making it legal, it would be an authorization which also contains an exhortation. But when the Council “delegates” a power, then the delegated conduct must fall within its powers, or the delegation being ultra vires, and the States operate, within the powers conferred by the delegation, as “decentralized organs” of the Council: the legal regime is therefore the one applicable to the Council that carries out directly the delegated function, in particular for the attribution of the conduct to the States or the Council in case of an unlawful act. In this sense an “authorization” of the Council to carry out acts in themselves unlawful, but considered to be a lawful ground for exclusion of the unlawful act—such as when a self-defense military action is authorized or it is carried out with the consent of the State concerned—it means to emphasize that the action is still conducted by the United Nations, under the rules of the Charter, regardless of whether the States could have done it themselves independently, in whole or in part. It is as if the Council intends to “authorize” States to act on its behalf, which technically amounts to a delegation. As we shall see, it is in the latter sense that the “authorization” of the Security Council necessary for the actions of regional organizations in order to preserve the peace is to be intended (see § 69). A criterion for distinguishing between “authorization” and “delegation”—but in the different relationship between the organs of the United Nations (see below and § 95)—was outlined by the International Court of Justice in its Advisory Opinion on the Appeal for Review of Decision No. 158 of the United Nations Administrative Tribunal (ICJ Reports 1973, p. 174 ff.). The Court was called to determine whether the Committee on Application for Review of Administrative Tribunal Judgements, a subsidiary organ of the General Assembly, whose role was to review the decisions of the UN Administrative Tribunal regarding the employment of staff (see § 35), had the competence to request an Opinion from the Court itself. As we shall see, Article 96, para. 2, of the UN Charter provides that the organs of the United Nations other than the General Assembly and the Security Council may request the Court di gove advisory opinions on legal questions arising within the scope of their activities if “authorized” by the General Assembly while para. 1 of Article 96 provides that the General Assembly and the Security Council can request them “on any legal question” (see § 87). It was argued that “legal questions” on which the Committee could request an advisory opinion of the Court according to its Statute were not pertinent to “its activities”, but to those of the Administrative Tribunal. According o the Court “[t]his is not a delegation by the General Assembly of its own power to request an advisory opinion; it is the creation of a subsidiary organ having a particular task and invested it with the power to request advisory opinions in the performance of that task” (para. 20). The Committee therefore requested the opinion on the basis of its power, authorized by the Assembly, and not on the basis of a power that it did not have, but that the Assembly had delegated to it. In the legal literature the inference has been drawn that an authorization differs from a delegation as it gives a

The authorization of the use of force by States   303 more limited power, with the further consequence that the Council may—even if it have done so very rarely—limit itself to authorizing the use of force when this is already provided for by way of self-defense, in which case the authorization would have the effect of making the continuation of self-defense, under Article 51 of the Charter, possible (Sarooshi). Apart from the concerns that arise from allowing the enduring of selfdefense—Article 51 does not require authorization to continue the self-defense, but rather the Council’s intervention to stop it—it seems to us in any case inappropriate to apply the reasoning of the Court outside of the scenario where (as in this case) it had to be established the competence of a United Nations organ, particularly in the event in which it is the States that are “authorized”. Even the Grand Chamber of the European Court of Human Rights has distinguished in the Behrami and Saramati v. Germany and Norway decision of May 2, 2007, which we shall see later, between authorization and delegation arguing that the delegation “refers to the assignment by the Security Council of a power to another entity in order to exercise one of its functions”, while the authorization concerns “those functions that the Council could exercise itself ” (para. 43). Framing the case in terms of “delegation” (paras. 129, 133–34 and 141), the Court derives from them that “the challenged action [of KFOR] was, in principle, attributable to the United Nations” (cf. ). We are speaking here of actions of States authorized, or recommended, or delegated, etc., by the Council, therefore, of actions in which the individual States are free to participate or not to participate. The problem of Council decisions which obliges Member States to use force has never arisen. In the absence of practice and in the light of the Charter text, this type of decision would certainly be illegitimate.

In two cases apparent authorization was given to conduct a full-fledged war to counteract outside aggression. The first was the Korean War, which took place in 1950 when the Member States were “invited” to help South Korea defend itself from an attack by North Korea, which at the time was not a UN Member. The second case was the Gulf War, carried out in 1991 by a coalition of Member States “authorized” by the Council to help the Kuwait government take back its territory occupied by Iraq. As attested by the term used, the Council “recommended” the intervention in the Korean War, that is to say that it urged States to participate in the operation of collective self-defense against North Korea. It neither authorized an operation that did not require any authorization to be lawful, since it probably already was, nor did it delegate its power, given that, in fact, the war was conducted independently by the States participating in the hostilities. The problem with regard to the Gulf War is more complex. Here, as it has later, the Council used the word “authorize” and the operation was once again a collective self-defense one, so in itself already lawful. However, the Council accompanied the authorization with a series of measures to ensure its control over military operations, also in order, if necessary, to withdraw the authorization, which would seem to militate in favor of a “delegation”, i.e. a transfer to the States of its function, with control by the delegator on the conduct of the delegate. The authorization would have thus meant—apart from making lawful any operation conducted outside the material and temporal

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limits of self-defense, as has been mainly argued—to attribute the operation to the United Nations and not to the intervening Member States, although from their point of view the operation itself was lawful and did not require an authorization in the strict sense. That the Council uses the term “authorization” to technically mean a “delegation” is standard practice in the many cases where the Council “authorizes” (in this case, however, within the Organization in its inter-organic relationships) the Secretary-General to undertake tasks that cannot but be “delegated” under Article 98 of the Charter (see § 67 on the hierarchical nature of inter-organic delegation and § 95 for the consequences of the ultra vires exercise of delegated powers) and, as stated above, the term may be considered appropriate if it is meant in the sense that the Council “authorizes” the States (or the Secretary-General) to act on its behalf, which is precisely the technical meaning of a delegation. In the case of Korea, in a first resolution, no. 83 of June 27, 1950, the Council “recommended” that the Member States furnish assistance to South Korea. In a subsequent resolution, no. 84 of July 7, 1950, it expressed satisfaction with the support given by a certain number of States to the recommendation of June 27, further recommending that “all Member States providing military forces and other assistance…make such forces and other assistance available to a unified command under the United States of America” and “authorizing” use of the UN flag. The two resolutions were contested by the Soviet Union but only regarding their procedural aspect, as they had been adopted in its absence (see § 25). That the UK operated “on behalf of the Security Council” in support of South Korea, with no mention to the right of collective self-defense, it was stated by the British Prime Minister in the House of Commons on June 28, 1950 (see SCOR, 5th year, 476th meet., 1950, p. 11). However, war was carried out independently by the States, particularly by the United States. In the case of the Gulf crisis, after having taken several decisions under Article 41 (see §59), the Council passed Res. 678 of November 29, 1990 in an effort to induce Iraq to leave Kuwait. This resolution authorized the Member States, if Iraq were not to have retreated within January 15, 1991, to use “all necessary means” to reach this aim and to restore peace and security in the Gulf area. Among the necessary means—according to the terminology which thereafter became standard in order to indicate also the use of armed force—­ military action was included and it punctually began on the date set.

In other cases Member States have been authorized to use military force in internal crises, essentially for the purposes of maintaining public order, i.e. police purposes, and within the framework of UN peacekeeping operations. One important example is INTERFET (International Force in East Timor), a multinational force led by Australia and entrusted by the Security Council (Res. 1264 of September 15, 1999) with the task of restoring peace and security in East Timor. The action of the Force, which faced serious troubles following the result of the referendum in favor of the independence of this country from Indonesia, was very successful and lasted until the replacement of the Force by the military personnel of the UNTAET (United Nations Transitional Adminis­ tration in East Timor), created by Res. 1272 of October 25, 1999 (see § 62). In

The authorization of the use of force by States   305

this hypothesis, as evident, the authorization not only does no longer concern the use of international force, but it tends to blend in with the powers of peacekeeping and State-building, more or less broad, delegated to UN organs, in turn operating through contingents supplied by the States and, at least in principle, with the consent of the territorial State or of the factions involved in the conflict in the territory of deployment of the mission. Authorization to the States as such and delegation to UN organs (operating by means of contingents supplied by the States or autonomously) overlap and make the difference between peacekeeping, peacebuilding, State-building and authorization to use force by States increasingly blurred. This holds true also, and more generally, between activities conducted by government officials working for UN organs and government officials operating within the national military contingents. In fact, the dividing line between the actions of States under the control and authority of the Council, and the actions of the Secretary-General under the control and authority of the Council tends to fade. On the other hand, even if the second type of action is preferred, its superiority over the other type should not be exaggerated from the point of view of impartiality and objectivity. Particularly brutal operations carried out by UNOSOM in Somalia (see § 60 above), show that the use of military violence, also by the United Nations, should always be discouraged. In other words, war always has odious consequences, whoever conducts it. But then, how can the fundamental problem of peacekeeping be solved? In our view, as we shall state at the end of this section the only solution would be to provide the UN with effective tools to prevent the development of dangerous situations, and this could only be done by putting it in a position where it can carry out serious, continuous and effective arms control. This is a totally utopian solution considering the actual behavior of States, but one worth fighting for.

In 2003, after the unauthorized war conducted by the coalition led by the United States, the deployment in Iraq of Member States military forces was authorized by Res. 1511, of October 16, 2003, the Security Council, at para. 13 “authorizes a multinational force under unified command [the forces of occupying Powers were already on the ground!] to take all necessary measures to contribute to the maintenance of security and stability in Iraq” and at para. 14 “urges Member States to contribute assistance under this mandate, including military forces, to the multinational force referred to in para. 13 above”. The authorization was reiterated by Res. 1546 of June 8, 2004. This time, the mandate of the multinational force would be reviewed after twelve months from the date of resolution and would terminate earlier at the request of the Interim Government of Iraq (para. 12 of the resolution) a Government installed in June 2004. Of utmost interest against the existence of a Security Council authorization in the Iraq War, as well as on a variety of other issues concerning the legality of the war in light of both international and German constitutional law, is the decision of the German Federal Administrative Court (the highest German court for administrative law matters) of June

306  The Functions 21, 2005, summarized and commented by Nikolaus Schultz, ‘Was The War on Iraq Illegal? The German Federal Administrative Court’s Judgement of 21st June 2005’, 7 GLJ (2005), pp. 25–44, available at . Against the backing of a UN mandate is also a 551-page report released on January 12, 2010 by an independent Dutch commission chaired by the former head of the Dutch Supreme Court Willibrord Davis (Commission Report on Investigation of Decision Making on Iraq, or simply “Davids Commission”) on the Dutch government’s decisions surrounding the invasion of Iraq. While the report is in Dutch, a “Summary” and its 49 conclusions are provided in English, available at , pp. 517–33. Accor­ ding to the report “[t]he Security Council resolutions passed during the 1990s did not constitute a mandate” and “Resolution 1441 cannot reasonably be interpreted (as the government did) as authorizing individual Member States to use military force” (conclusion no. 18); hence “the military action had no sound mandate under international law” (conclusion no. 20). As of February 11, 2010, also in the United Kingdom an inquiry is underway, launched on July 30, 2009 and conducted by a 5-member committee of Privy Counsellors, this one into the UK’s involvement in the Iraq War and, arguably, into the legality thereof (“Iraq Inquiry”). On May 28, 2014 an agreement was reached on the principles for selecting the documents that may be made public. On October 28, 2015 the Iraq Inquiry has published a letter that the Chair of the Inquiry sent to the Prime Minister stating that the Inquiry expects to be able to complete the text of its report in the week of April 18, 2016 (for developments, see ). There are numerous other examples of authorization of the use of force in internal crises. As far as the war in Bosnia-Herzegovina, see, for instance: Resolutions 816 of March 31, 1993 and 836 of June 4, 1993, which authorized the Member States to use their air forces individually or within the framework of a regional organizations; Res. 1031 of December 15, 1995, which acknowledged the transfer of functions from UNPROFOR (see § 59) to the Multinational Implementation Force (IFOR) created by the Dayton Agreement; Res. 1087 of December 11, 1996, para. 18, which authorizes the Member States to establish a Multinational Stabilization Force (SFOR) as a successor of IFOR. With regard to the Somali crisis, the Res. 794 of December 3, 1992 can be cited. By it the Council authorized the Member States to co-operate in carrying out the “offer” of a UN member (read: the United States) to use the necessary means (read: use of force) in order to establish “a secure environment for humanitarian relief operations” by providing their military forces. As we have already had occasion to note, the functions thus entrusted to the Member States were subsequently transferred to the United Nations Force operating in Somalia, which absorbed the national military contingents (see § 59). For other examples cf. Res. 929 of June 22, 1994, authorizing a French force to intervene in Rwanda; Res. 940 of July 31, 1994, authorizing the USA to intervene in Haiti and lead the Multinational Force in Haiti (MFH); Res. 998 of June 6, 1995, authorizing the constitution of a “Rapid Reaction Force” (RRF) in the former Yugoslavia with contingents from France, the Netherlands and the United Kingdom; Res. 1080 of November 15, 1996, authorizing the creation of a temporary multinational force to intervene for humanitarian reasons in the Eastern Zaire; Res. 1101 of March 28, 1998 (Multinational Protection Force for Albania, led by Italy); Resolutions 1386 of December 20, 2001 and 1444 of November 27, 2002 (International Security Assistance Force in Afghanistan); Res. 1464 of February 4, 2003 (French forces, together with ECOWAS forces—see § 70—in Ivory Coast); Res. 1484 of May 30, 2003 (Interim Emergency Multinational Force in Bunia, Democratic Republic of Congo); Res. 1497 of August 1st, 2003 (Multinational Force in Liberia); Res. 1529 of February 29, 2004 (Multinational Interim Force in Haiti), Res. 1575 of November 22, 2004

The authorization of the use of force by States   307 (EUFOR replacing SFOR); Res. 1778 of September 25, 2007 (Multidimensional force to control the border between Chad and Central African Republic to act as border police). Among the more recent cases of authorization the resolutions adopted by the Security Council, in 2008, for the suppression of acts of piracy and robbery at sea off the coast of Somalia stand out (Resolutions 1816 of June 2, 2008, 1838 of October 7, 2008, 1846 of December 2, 2008, 1851 of December 16, 2008, 1897 of November 30, 2009, 1950 of November 23, 2010, 2020 of November 22, 2011, and 2125 of November 18, 2013; the authorization was renewed for 12 months by Res. 1897 of November 30, 2009). In particular, Res. 1816 of June 2, 2008 “decides” that, for a period of six months, the States “cooperating with the Transitional Federal Government” expressly declared as unable to repress piracy (7th point of the Preamble), “may” enter the territorial waters of Somalia and exercise, in compliance with international law and specifically with the right of inoffensive passage, “for the purpose of repressing acts of piracy and armed robbery at sea” (para. 7). The resolution, which clearly provides for an “authorization” (as specified in paras. 8 and 9), justified by the inability of Somalia to provide independently for the suppression of piracy in its territorial waters, is expressly based on the consent of the Somali Transitional Government (whose representativeness and effectiveness is in fact questionable), is valid only within the limits of Somali consent and for the sole case of Somalia, precluding it from being invoked in the sense of establishing a precedent for the formation of customary international law (para. 9). Res. 1838 of October 7, 2008, merely calls on States to exercise the powers provided for by resolution 1816 (para. 3) and reiterates its limits (para. 8). Res. 1846 of December 2, 2008, after welcoming the initiatives of States and regional organizations (including NATO and the EU) to pursue the fight against piracy in Somalia (para. 6), has “decided” that, for a further period of twelve months, States and regional organizations “who co-operate with the Transitional Federal Government” in the fight against piracy “may” exercise the powers already established by resolution 1816 (para. 10), stressing the limits of this “authorization” (para. 11). The authorization, and the exhortation to act on it, has been repeated with Res. 1851 of December 16, 2008, following a request by the Somali Transitional Federal Government (para. 6), again reiterating its limits (para. 10). All these resolutions are certainly “recommendations” designed to encourage States and regional organizations to combat piracy off the Somali coast; in favor of their classification as “delegations” rather than as “authorizations” it could be argued that since only valid within the limits of consent by the Transitional Federal Government of Somalia—considered obviously (rightly or wrongly) able to provide valid consent and supported by the Council (see Doc. S/PV.8773 of July 13, 2006)—and the other applicable international maritime law, the repressive actions are in themselves already lawful. It must however be stressed that to be authorized, subject to the consent of the local sovereign, is the force of internal police, rather than an international force, therefore the authorization is fairly close to those authorizing multinational “presence” engaged in peacekeeping operations (see § 60). It emerges that from 2013 Somali piracy has decreased sharply (cf. ). It should be added that in recent years several countries, including Italy—as emerged from the Enrica Lexie case and the 2011 arrest of two riflemen of the Italian Navy involved in the killing of two Indian fishermen off the coast of India—have adopted laws that permit merchant ships to make use of armed escorts against piracy. These laws accommodate various solutions, often providing for the engagement of private contractors and sometimes (as in the case of Italy) soldiers of the Armed Forces. With Res. 1973 of March 17, 2011, adopted by a majority of 10 members (with the abstention, among the permanent members of China and the Russian Federation), the Security Council called for a immediate ceasefire in Libya, imposed a no-fly zone in Libyan

308  The Functions airspace and authorized the use of force for the protection of the civilian population, but expressly “excluding a foreign occupation force of any form on any part of Libyan territory”, and the strengthening, expansion and implementation of sanctions (see § 59). Res. 1973 is based in part on the doctrine of the responsibility to protect (see § 66). For a brief comment. See Carlo Focarelli, ‘Libya: a Turning Point for the Responsibility to Protect Doctrine?’ April 6, 2011, at .

Measures short of war, but still definable as measures involving the use of armed force, have been authorized or recommended to Member States. Among them are those authorizing the establishment of naval blockades, which, also through the use of force, are designed to prevent trade by ships of any nationality (and in derogation of the principle that on the high seas a ship is subject only to the flag State) with certain ports. A precedent of a naval blockade, at the time of the Cold War, can be found in Res. 221 of April 9, 1966, which, to strengthen the prohibition on the sale of oil to Southern Rhodesia (see § 59), “called upon” Great Britain to prevent “by the use of force if necessary” the arrival of oil in the port of Beira (Mozambique) which was intended to continue by land for Rhodesia. Much larger naval blockades have been set up more recently, and precisely during the Gulf crisis, before the outbreak of hostilities against Iraq, and during the Yugoslav crisis. In the first case, Res. 665 of August 25, 1990 “called upon” the Member States to prevent any ship coming from, or directed towards, the coasts of Iraq and of occupied Kuwait, from violating the embargo established by previous Res. 661 of August 6, 1990 (see § 59). In the Yugoslav crisis similar measures were ordered against the Federal Republic of Yugoslavia (Serbia-Montenegro) with Res. 787 of November 16, 1992 (para. 12). More recently, Res. 1874 of June 12, 2009, called on Member States to inspect ships on the high seas heading for, or coming from, North Korea suspected of violating the arms embargo against the State, and authorizing them to confiscate and destroy the cargo in the case they found goods covered by the embargo (para. 14). Res. 2127 of May 12, 2013, on Central African Republic, imposed the obligation on Member States to adopt an arms embargo (para. 54), authorizing them to punish violations through measures such as confiscation and destruction (para. 55), and authorized “the French forces in the CAR, within the limits of their capacities and areas of deployment, and for a temporary period, to take all necessary measures to support MISCA in the discharge of its mandate” established by the same resolution (para. 28). Resolution 2146 of March 19, 2014, concerning Libya, authorized Member States “to inspect on the high seas vessels designated by the [Sanctions] Committee…to use all measures commensurate to the specific circumstances” by warships or stateowned vessels intended solely for non-commercial government use. All these measures are classified as measures involving the use of force of a war-type, the naval blockade being in particular one of the classic instruments of the law of war.

The authorization of the use of force by States   309 The more recent Res. 2146 of March 19, 2014, as extended by Res. 2213 of March 27, 2015, authorized the Member States to inspect vessels on the high seas designated by the Sanctions Committee as attempting to illegally export crude oil from Libya and “to use all measures commensurate to the specific circumstances, in full compliance with international humanitarian law and international human rights law, as may be applicable, to carry out such inspections and direct the vessel to take appropriate actions to return the crude oil, with the consent of and in coordination with the Government of Libya, to Libya” (paras. 5 and 8). The authorization “shall not affect the rights or obligations or responsibilities of Member States under international law, including rights or obligations under the United Nations Convention on the Law of the Sea, including the general principle of exclusive jurisdiction of a flag State over its vessels on the high seas, with respect to other vessels and in any other situation” and “shall not be considered as establishing customary international law” (para. 9).

Finally, Res. 2249 of November 20, 2015 deserves few words. The Resolution “[c]alls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law…on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL…and other terrorist groups” (para. 5) (see § 59). In effect, this resolution has been variously interpreted in on-the-spot comments. It does not mention Chapter VII, nor does it contain the term “authorize” and/or “self-defense”, but describes ISIS as “a global and unprecedented threat to international peace and security” and does refer to “all necessary measures”, thus sounding like previous authorizing resolutions, so it lends itself to being understood as an exercise of “constructive ambiguity” (Dapo Akande & Marko Milanovic, ‘The Constructive Ambiguity of the Security Council’s ISIS Resolution’, EJIL: Talk!, November 21, 2015); others have emphasized that Res. 2249, by “identifying ISIL, al-Nusra and (potentially) other groups specifically as the common enemy of all mankind”, authoritatively attests that the immediacy requirement of self-defense under general international law is fulfilled where it refers to “the capability and intention [of ISIS] to carry out further attacks” or, more specifically, that “the Council appears to relieve individual states from having to fulfill the criteria for self-defense when considering armed action in Syria” (Marc Weller, ‘Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups’, ibid., November 25, 2015); still others have argued that Res. 2249 “adds a new approach” insofar as “‘[t]o call upon’ is more of an imperative act than a permissive one”, “not much dissimilar from ‘to require’” and “here the use of force is not permitted but pretended” (Peter Hilpold, ‘The Security Council and the Fight Against Terrorisms: Does SC Resolution 2249 (2015) Lead to a More Hobbesian or a More Kantian International Society?’, December 16, 2015, at ). In our view, a certain confusion emerges

310  The Functions

in this debate between (binding) decisions and (permissive) authorizations (in fact the Security Council has never decided the use of force, which—unlike peaceful sanctions—has always been only permitted for those States willing to make recourse to it), although both are based on Chapter VII; and, more importantly, between authorizations and recommendations, as defined above. Res. 2249 is simply a recommendation exhorting States to take “all necessary measures” (apparently including forceful measures) which are per se in accordance with international law, without making such measures lawful when otherwise they are not and without automatically relieving States of the obligation to fulfill the correlative requirements such as those concerning self-defense or the consent of the territorial State. During the debate preceding the adoption of Res. 2249 the United Kingdom stressed that “[t]his resolution…call[s] for all lawful actions and measure to combat [ISIS]” (our italics). In fact, the British position seems to rely on the (questionable) lawfulness of self-defense against non-state actors (on which see below), as a memorandum sent by the UK Prime Minister to the Foreign Affairs Select Committee in November 2015 apparently implies where it states that “[t]here is a clear legal basis for military action against ISIL in Syria”, i.e. “the right of self defence as it is recognized in Article 51 of the Charter…provided such activity meets the ongoing requirements of necessity and proportionality” (at 15–17). The memorandum carefully avoids relying on Res. 2249 as a distinct justification for the use of force in Syria (at ). During the same debate France referred to “collective action [that] could be based on Article 51 of the United Nations Charter”. The United States underlined that it “was working with Iraq, and leading an international mission, in line with the United Nations Charter, taking necessary and proportionate military action to deny ISIL safe haven” (for the debate cf. ).

At this point, we should ask ourselves if the “authorization” of the use of force by the Council to the States is legitimate. The question of the legality of the delegation of the use of force to States has been considered in legal doctrine, in the light of general principles of domestic law regarding the mandate. The opinion has been held that Article 24 of the Charter (“… Members confer on the Security Council primary responsibility for the maintenance of international peace and security…”) embodies a delegation of power from Member States to the Security Council. The consequence should then be the impossibility for the Council itself to delegate, since a well established general principle of law states that delegatus non potest delegare. In other words, if Article 24 contains a delegation of the Member States to the Council, then the Council may not sub-delegate the powers received other, let alone to the Member States themselves. We do not believe, however, that Article 24 can be interpreted as containing a true delegation in the meaning this term has in domestic law. The terminology used in the article cannot be

The authorization of the use of force by States   311

read in a literal sense. It is rather a way of stating that the Security Council has the monopoly of the use of military force, with the exception of self-defense. If Article 24 were interpreted as referring to “delegation”, the Member States, at least collectively, could decide to use force whenever they deemed it appropriate, as the delegation may always be revoked. This is clearly untenable and, in particular, contrary to the general prohibition of the use of force. Worthy of note is also that Article 24 has not only been interpreted as containing a delegation of power, with the consequence of the applicability of the principle delegatus non potest delegare, but also in the quite opposite sense, i.e. as a rule which, being couched in very general terms, could justify all actions of the Security Council not expressly set forth by the Charter provided that they are necessary in order to maintain international peace and security. If the Council has a general delegation for peacekeeping under Article 24, then—it is argued—it may in turn delegate any of its powers to others so as to exercise, in one way or another, even indirectly, the powers received. The attempt has been made (by Sarooshi, op. cit., pp. 22–46) to reconcile the principle “delegatus non potest delegare”, with the delegation of the use of force by the Security Council to States. This author also starts from the assumption that Article 24 of the Charter embodies a true delegation to the Council. However, he holds that the principle does not prevent the (sub)delegation to States, but only implies that the (sub)delegation is subject to certain conditions, namely that it does not include: the determination of the threat to the peace, the breach of the peace or an act of aggression; an unrestricted power of command; broad powers of discretion; the exercise of powers in a way other than that specified by the Charter. Moreover, the terms of the (sub)delegation should be construed narrowly. The attempt is not convincing, since the principle “delegatus non potest delegare” as a general principle of law suffers no other exception than the express authorization on the part of the delegans to proceed with a sub-delegation.

In our opinion, it is correct to say that the Charter does not permit the delegation of military force by the Council to the States. However, the reason for that is simply because the founders of the United Nations wanted to centralize the international police power in the hands of the Organization with the consequent guarantee of objectivity and impartiality of military actions, without having to rely on Article 24. According to the Charter the starting point is that Chapter VII—unlike Chapter VIII with respect to regional organizations (see  § 69)—does not expressly provide neither for recommendations, nor authorizations, nor delegations to Member States to use force. Indeed, the ­recommendations under Article 39 concern only the conciliatory function, the recommendations under Article 41 relate to the adoption of peaceful ­measures, while Article 42 concerns military actions taken directly by the Council. It f­ ollows that the Council must be grounded, as the basis of the legitimacy of it resolutions on a internal domestic customary rule possibly formed

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in ­derogation from the Charter and always referable to Chapter VII, under which the Council has always acted when authorizing the use of force. As a matter of fact, as time went by, having established the inefficiency of the system of collective security, the practice of delegation to the States begun. The Council has followed this practice more and more, tending to assume more and more directive rather than operative functions, while maintaining its control over operations without any opposition to such practice from individual Member States. The belief that an authorization of the Council is capable of making lawful military operations whose legality would otherwise be questionable, if not to be excluded, is indeed widespread among States. For example in the debates at the UN on the responsibility to protect (see § 66) and the admissibility of humanitarian intervention, the vast majority of States was in favor of intervention when there is the authorization of the Council, but equally widespread is the belief, especially among the weaker States, that unilateral humanitarian intervention—both by individual States and by regional organizations without the authorization of the Security Council, as was the NATO intervention in Kosovo in 1999—is illegal. Also in the case of the authorization of the intervention in Libya, with Res. 1973 of March 3, 2011, whatever may be the judgment on possible violations of international law in the course of military operations, especially regarding going beyond the declared aim of the authorization (to protect the civilian population) and assistance provided to insurgents against the so-called “legitimate” government notwithstanding the traditional principle of non-interference by third States in civil wars, the Member States reiterated that intervention would be lawful only if authorized by the Security Council. In conclusion, what the Security Council does (and may do according to the Charter only thanks to a permissive internal customary rule) is to simply make lawful what otherwise would not be, within the limits of what it “authorizes”, and any conduct going beyond the authoriation would be without (this) justification. In the practice it was reiterated that the Security Council should retain “control” operations through a series of expedients, ranging from limited duration to the provision of informative reports, although the individual operations have shown a highly variable degree of effective control by the Council. Cf., for example, on the occasion of the adoption of Res. 794 of December 3, 1992, the statements on Somalia of Zimbabwe (clarity of the mandate, supervision of the Council), Ecuador (delimited and narrowly defined objective and supervision of the Council through reports on the progress of the operation also for the termination of the mandate), Belgium (decision-making power of the Council on the duration of the mission) and Austria (importance of staff reports to the Council) (Doc. S/PV.3145, pp. 7, 13–14, 24, 32); on adopting Res. 1031 of December 15, 1995, on Bosnia-Herzegovina, see the statements of China (inadmissibility of a mandate aiming at allowing unlimited use of force and need for reports to the Council to enable adequate control and direction of the operation), France (exclusive powers of authorization of the Security Council, definiteness

The authorization of the use of force by States   313 of the mandate and importance of reports to the Council for the renewal or otherwise of the mission), of the Russian Federation (limited term and reports to the Council for control over the mission) and of Ukraine (importance of reports to the Council in order to monitor the operation) (Doc. S/PV.3607, p. 14, 21–22, 25, 29); on adopting Res. 1511 of October 16, 2003 on the post-war situation in Iraq, see, yet again, the statement of the Russian Federation (need for reports for monitoring the operation) (Doc. S/PV.4844, p. 3). It may be mentioned also the statement by the President of the Security Council of November 30, 1998 according to whom “in general operations should have a clear mandate, including a statement of objectives, rules of engagement, a well-developed plan of action, a time-frame for disengagement, and arrangements for regular reporting to the Council” (see Doc. S/PRST/1998/35, p. 2). Other times, States have sought greater control by the Council or have denounced the fact that the control is not enough: cf. debates concerning Resolutions 678 of November 29, 1990 and 686 of March 2, 1991 on Iraq (Doc. S/ PV.2963 and S/PV.2978), 794 of December 3, 1992 on Somalia (Doc. S/PV.3145), 929 of June 22, 1994 on Haiti (Doc. S/PV.3413) and 1031 of December 15, 1995 on BosniaHerzegovina (Doc. S/PV.3607). It has been argued that supervision by the Security Council over the conduct of military operations is a necessary and sufficient condition to “ascribe” the latter to the United Nations, referring to “delegation” rather than “authorization” in the sense described above. In fact, the Council is informed of it, directly or through the Secretary General’s reports, so it can provide such directives as deemed appropriate. Control, however, although it certainly shows the will of the Council to direct operations in some way, as mentioned, does not necessarily imply delegation: the Council may wish to monitor the operation in order to change or withdraw, if and when deemed appropriate, the permission to use force to ensure that the use of force (or certain aspects of it) become unlawful once more if continued autonomously by the Member States. On the other hand, the problem of attributing conduct to the United Nations and/or the Member States remains distinct from “effect of lawfulness” of the permissions to be asessed on a case by case basis depending on the degree of involvement (or effective control) of the Organization and/or the Member States with regard to specific operations. A response in favor of “delegation”, relating to the hypothesis of Council authorization to exercise governing powers over a territory (see § 62), was welcomed by the Grand Chamber of the European Court of Human Rights in the aforementioned Behrami and Saramati v. Germany and Norway case of May 2, 2007 (paras. 43, 129 and 133–34). The decision was also widely and rightly criticized in the literature because it attributes to the Security Council conduct that in the applicants’ view should have been attributed to the accused States—namely that of failure to remove mines from an area, leading to the death of a child and the arrest of a person, acts considered contrary to Articles 2 and 5 of the 1950 European Convention of Human Rights, which enshrines the right to life and the prohibition of arbitrary arrests—and discounting their responsibility for transferring to the Council the power to carry out such acts, the Court in effect ruled that no-one is responsible for violations of the European Convention during the course of operations authorized by the Security Council. It is common knowledge that the UN is not, and cannot be, party to human rights treaties and international humanitarian law (open only to States) and, while tending to respect international humanitarian law (see § 60), in reality there are no international mechanisms that can call it to answer for breaches nor may domestic courts act against it because of jurisdictional immunity (see § 35). A far more convincing solution supporting responsibility, where appropriate, of both the Organization and the Member States, was provided by the European Court of Human Rights itself in its judgment of July 7, 2011 in the Al-Jedda case (see § 62).

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Once accepted that an ad hoc customary rule generally in favor of Council authorizations and delegations exists, which is in favor of the right to make lawful (albeit for different reasons) otherwise unlawful conduct by States, it should be asked whether, according to this rule, the Council’s power to authorize or delegate the use of force, and the resulting “effect of lawfulness”, have any limitations. If the practice and the Charter are taken into account, it can first of all be inferred that the authorization or the delegation to States, in order to have the desired effects, must be couched in express (including all-encompassing) terms, such as “the Council demands Member States to use all necessary means” in order to maintain or restore the peace, a terminology introduced with the Gulf War. No resolution of the Council can be interpreted as implicitly authorizing the use of force by States if it does not contain a clear authorization or a clear delegation. The events which preceded the Iraq War by a coalition led by the United States in 2003 is very meaningful in this sense. Res. 1441 of November 8, 2002, authorized UN inspectors to be sent to Iraq to investigate possible weapons of mass destruction. It deplored the continuous violations by Iraq of its obligations vis-à-vis the United Nations, and warned Iraq once again “that it will face serious consequences” as a result of these violations. Even the coalition Members pointed out at the Security Council— although stating the contrary before national public opinion—that such expression was sufficient to justify the subsequent war. Actually, the resolution was adopted, unanimously, on the basis that it did not imply an automatic recourse to the use of force and that it was necessary to convene again the Security Council to eventually authorize the use of force. The resolutions adopted by the Security Council at the time of the war in Afghanistan also cannot be interpreted as authorizing this war. Some of these resolutions (particularly Resolutions 1368 of September 12, 2001 and 1373 of September 28, 2001) after having requested the States to take a series of measures, including financial measures, against terrorists and terrorist organizations, like Al Qaeda, embodied a “whereas” reaffirming “the inherent right of individual and collective self-defense”. References to self-defense, made in resolutions whose operative parts were clearly applying measures not involving the use of military force, do not seem sufficient to justify military actions by States. It is true that the two resolutions declared international terrorism as a “threat to the peace”, but this meant only that the Council could have adopted the measures under Chapter VII. Another thing is the recourse to self-defense regardless of the authorization of the Security Council. As mentioned, self-defense is possible under Article. 51 of the Charter only in response to an armed attack (see § 56). The traditional interpretation is in the sense that the attack that justifies the self-defense response comes from a State. In the case of Afghanistan the “attack” could hardly be attributed to the Afghani State, having to prove that the perpetrators had committed the attacks of September 11, 2001 on behalf of that State. However, we should add that in recent years the view has been spreading that self-defense is permissible against “non-State actors”, such as terrorists or rebels who launch attacks from the territory of

The authorization of the use of force by States   315 another State. The thesis, defended by part of the doctrine and by some States, even in light of the fact that the war in Afghanistan in 2001 was justified as self-defense by the vast majority of States (see § 59), raises concerns—since terrorism is an organized crime phenomenon to be fought by means of criminal law enforcement rather than war violence, which inevitably affects innocent people—and has not as yet been accepted by the International Court of Justice, despite the contrary views of some judges in their individual opinions. Some signal in favor is showed when the attacks come from a territory where the State fails to exercise governmental authority sufficient to prevent and suppress the attacks, as appears from the debates at the Security Council relating to the Israeli-Lebanese conflict of August 2006 (on this matter, see Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice (Oxford: Oxford University Press, 2012) 368 ff.).

Always according to the norm which has emerged from practice, the illegality of war cannot be removed by a subsequent (implicit) ratification, e.g., with resolutions that provide for post-conflict measures. It is also maintained that the control on the way operations are carried out by States must remain in the hands of the Security Council. This is clearly a minimum which is necessary in order to say that military action is still carried out in the framework of the United Nations. But, as seen above, the lack of control by the Council does not exclude an “authorization” and, conversely, the existence of control by the Security Council does not necessarily imply a “delegation”. As a matter of fact, in the practice States have often criticized possible implicit authorizations or delegations and/or ex post. The case of the Kosovo crisis can be cited in this regard. After three months of the unauthorized air war by NATO forces in 1999 (see § 69), by Res. 1244 of June 10, 1999 the Council established UNMIK, the UN Interim Administration in Kosovo (see § 62) still in charge, with some of the NATO forces (the KFOR) ensuring the external security of the territory. The resolution clearly governs the post-war situation and has been welcome within the Security Council as a way of restoring the authority of the Council (See Doc. S/PV. 4011 of June 10, 1999). However, it does not embody any express ratification of the aerial bombing. Even the European Court of Human Rights emphasized, in the above-mentioned Behrami and Saramati decision, that the delegation of Resolution 1244 “was neither assumed, nor implicit, but rather prior and explicit” (para. 134). The same must be said of Resolutions 1483 of May 22, 2003 and 1511 of October 16, 2003 concerning the post-war situation in Iraq and recognizing the “authority” of the occupying coalition forces led by the United States. What we say about unauthorized military actions is strictly linked to the United Nations system including customary rules which have emerged within the system. It is more difficult to establish to what extent the prohibition of the use of force is effective when the United Nations system is not working. It is clear that the waiver of the use of force by the States, from which the ban comes, is closely linked to the guarantee that their safety is effectively ensured (as well as in a more impartial and objective way than leaving it to

316  The Functions ­ nilateral action) by the Security Council. One could therefore realistically maintain that u when the UN system does not work, then general international law, although formally providing for the ban, is by itself unable to govern the jus ad bellum, showing a de facto “lacuna” (or a lack of effectiveness) which opens the way to discussion of the problem of war in the context of natural law as a problem of “just” or “unjust” war, namely in extralegal terms on the best legal order to fight for or oppose to. See on this point, Benedetto Conforti, The Doctrine of “Just War” and Contemporary International Law, 12 IYIL (2002), p. 3 ff. According to another view (Picone), when the UN system of collective security does not work or works imperfectly, unauthorized military action by Member States can be permitted on the basis of customary international law, provided that countries react against violations of obligations erga omnes, in particular International crimes. The Member States are then acting uti universi, i.e. in the name of international community as a whole. In some cases, namely when it is evident that the intervention of the Security Council has no other aim but to legitimize an action already decided by single States, the UN Organization is in these States’ service and becomes itself an organ of the international community. In our view, the equation of breaches of obligations erga omnes with the right of every State military to react is unpersuasive and finds little if any support in state practice. For our view, see § 56 on the limits to the discretionary power of the Security Council to establish that there is a “threat to peace” when military operations of various kinds are taking place, from preventive legitimate defense to humanitarian aid, etc.

A further question that arises is whether the Council may “delegate” to the States any power on the use of force conferred to it by Chapter VII. The answer is in the negative, in line with the guiding principles of the Charter (Council centralization of the legitimate use of force, except for self-defense) and the reasons that in recent years have justified the practice of authorization or ­delegation (unavailability of a Council army). In principle, the Council may delegate only those powers which, though envisaged by the Charter, is as a matter of fact unable to exercise, while it cannot delegate the ones it is fully able to exercise even though it does not dispose of its own military forces. In particular, it has never happened that the Council has authorized Member States to carry out their investigation of the conditions for the application of Chapter VII and the recourse to armed force. To this end, the lack of an army at the disposal of the Council is totally irrelevant because all that is needed of the Council is to meet and deliberate, thus respecting the centralization desired by the Charter without there being grounds for derogation. The same can be said of the Council decision to authorize or not, the use of force once it is established that one of the conditions set out in Article 39 is fulfilled, since even in this case it is sufficient to meet and deliberate. All this deserves to be emphasized to prevent the States desiring to wage a war from “auto-investing” themselves with the power to take such decisions and claim to act on behalf of the United Nations and the international community that the UN represents. It must therefore be rejected the argument made by the United States and its allies

The authorization of the use of force by States   317

during the war in Iraq, in 2003, according to which, in order to defend… the credibility of the UN, it was for them to decide whether to intervene once the Council had determined that the alleged (later proved unfounded) possession of weapons of mass destruction by Saddam Hussein constituted a “threat to the peace”. In fact, the Council should have determined not only that there was a threat to the peace, but also that it was appropriate to respond to this threat with military action, but it had not yet done it (while reserving the right to do so possibly in the future) and even less had the Council authorized Member States intending to make the decision to intervene on its behalf. Lastly, the forces of Member States whose creation is authorized by the Security Council must comply, in principle, with general international law, especially humanitarian law. When authorized, the States must respect all their international obligations, with the only exception of the rule prohibiting the use of force, whereas in the case of delegation, being the behavior of States (at least within the limits of delegation) attributable to the Council, the States must respect the limits imposed on the Council—including the respect of international humanitarian law (see § 60)—by the Charter and the customary rule from which its power of delegation derives. It should be noted that States are free to participate in the authorized or delegated operations, but if they do the mandate may be compulsory, so that any deviation from the requirements of the mandate goes beyond the delegation and the State shall be made answerable. For example, in the Behrami case, admitting that we are dealing with a delegation, as argued by the European Court, it can be suggested that the State accused of failure to demine (France) was required to comply with the European Convention. If, in fact, the mandate of the Council expects to provide assistance for mine clearance of certain areas, then the States, while remaining free to join the mission, in case they decide to do so must demine, and if they do not their failure to act (and its legal consequences) cannot be attributed to the Council, to whom only to the operation as a whole is attributable as outlined in the mandate. In short, failure to demine cannot be attributed to the Council if it was precisely the Council to request it in the first place. As we have already noted in discussing revision of the Charter (see § 8), General Assembly Res. 46/36 of December 6, 1991 established at the United Nations a “Register of conventional weapons” in which, beginning from January 1, 1992, there were to be registered data, provided by the Member States, relating to the import and export of conventional arms as well as the size of national stocks (cf. ). A system of control by the United Nations over the production and sale of arms, instead of being based only on data provided by the States, should involve direct means of information and inspection, as well as enforcement

318  The Functions

measures of the kind governed by Article 41 to compel if necessary the States to tolerate them. The need for preventive disarmament in order to reduce the sale and the number of small arms and light weapons in conflict-prone regions is stressed in the Report of the Secretary-General to the 54 th sess. of the General Assembly in 1999 (see Doc. A/54/1 of August 31, 1999, para. 37 ff.). However, up to now nothing very serious has occurred regarding this matter. The need for preventive disarmament measures, in order to reduce the sale and the number of light weapons in regions at risk, was already emphasized in the Report of the SecretaryGeneral of the 54th session of the General Assembly (Doc. A/54/1, 31.8.1999, para. 37 ff.). The Assembly adopted, in July 2001, an action Program to prevent, fight and eradicate the illicit trade of small arms and light weapons in all its aspects and, in 2005, an international Instrument to enable States to identify and track in a timely and reliable manner illegal small arms and light weapons (Doc. A/CONF.192/15), both with no binding effect. The Security Council has called the States exporters of small arms to the maximum degree of responsibility in the statement of its President S/PRST/2005/7 of February 17, 2005 (see S/PV.8316), followed by a report of the Secretary-General of February 17, 2006 (Doc. S/2006/109). A discussion was held in this regard, always at the Security Council, on April 30, 2008 (Doc. S/PV.9316). With Res. 2117 of September 26, 2013, the Security Council has become involved in the non-proliferation of small arms and light weapons, stressing the need for Member States to ensure full adherence to the measures of the arms embargo and calling on States to work to stop all forms of arms trade with terrorist organizations including that of lighter and smaller weapons. This matter is governed by the Protocol against illegal manufacturing of and trafficking in firearms, approved by the General Assembly with Res. 55/255 of May 31, 2001 and in force since June 3, 2005, which supplements the Convention against transnational organized crime, approved with Res. 55/25 of November 15, 2000 and in force since September 29, 2003. In addition, in 2013, the General Assembly adopted the Arms Trade Treaty, at the bequest of many NGOs. It has been in force since December 24, 2014 (as of April 13, 2015, binding 66 States). The purpose of the Treaty, as established in the preamble and Article 1, is to “prevent and eradicate the illicit trade in conventional arms and to prevent their diversion to the illicit market, or for unauthorized end use and end users, including in the commission of terrorist acts” as well as to supplement the above-mentioned Protocol against the illicit manufacturing and trafficking of firearms. The Treaty applies to the seven categories of weapons covered by the UN Register of Conventional Arms (tanks, armored combat vehicles, large caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers) and light weapons and small arms (Article 2, para. 1). It concerns the transfer of foreign weapons, namely export, import, transit, transshipment and brokering (Article 2, para. 2). Under Article. 6 the transfer of weapons is prohibited if: (a) it goes against obligations arising from measures taken by the Security Council of the United Nations under Chapter VII, (b) it is likely to violate obligations under international treaties to which the State is a party, (c) the State party is aware that the weapons may be used to commit international crimes (genocide, war crimes, crimes against humanity) or grave breaches of the four Geneva Conventions of 1949 or other crimes covered by the international treaties to which the State is a party. The Treaty establishes a rather weak system of control based on annual reports by States Parties (Article 13), on the establishment of a Secretariat (Article 18) and a Conference of States Parties. The Conference of the States Parties must, among other things, examine all issues regarding the interpretation of the Treaty (Article 17, par. 4 D).

Administration of territories   319

62.  (c) Administration of territories Select bibliography: see § 60. Adde: Rosalyn Higgins, ‘The Advisory Opinion on Namibia: Which UN Resolutions Are Binding under Article 25 of the Charter?’, 21 ICLQ (1972) 270–86; James Crawford, ‘The ILC’s Draft Statute for an International Criminal Tribunal’, 88 AJ (1994) 140–52; Karin Oellers Frahm, ‘Das Statut des Internationalen Strafgerichtshofs zur Verfolgung von Kriegsverbrechen im ehemaligen Jugoslawien’, 54 Bruns’Z (1994) 416–34; Karl Arthur Hochkammer, ‘The Yugoslav War Crimes Tribunal: The Compatibility of Peace, Politics and International Law’, 28 VaJTL (1995) 119–72; Luisa Vierucci, ‘The First Steps of the International Criminal Tribunal for the Former Yugoslavia’, 6 EJIL (1995) 134–43; Gabriella Carella, ‘Il Tribunale penale per la ex Jugoslavia’, in Paolo Picone (ed), Interventi delle Nazioni Unite e diritto internazionale (Padova: Cedam, 1995) 463–517; Marc Guillaume, Gilles Marbich and Guillaume Etienne, ‘Le cadre juridique de l’action de la KFOR au Kosovo’, 45 AF (1999) 308–34; Gérard Cahin, ‘L’action internationale au Timor oriental’, ibid., 139–75; André de Hoog, ‘Attribution or Delegation of (Legislative) Power by the Security Council? The Case of the UNTAET’, 7 IP (2001) 7–41; Tobias H. Irmscher, ‘The Legal Framework for the Activities of the UN Interim Admini­ stration Mission in Kosovo: The Charter, Human Rights and the Law of Occupation’, 44 GYIL (2001) 353–95; Outi Korhonen, ‘International Governance in Post-Conflict Situations’, 14 LJIL (2001) 495–529; Michael J. Matheson, ‘United Nations Governance of Postconflict Societies’, 95 AJ (2001) 76–85; V. Shustov, ‘Transitional Civil Administration within the Framework of UN Peacekeeping Operations: A Strong Mechanism?’, 7 IP (2001) 417–23; Hansjörg Strohmeyer, ‘Collapse and Reconstruction of a Judicial System’, 95 AJ (2001) 46–63; Gael Abline, ‘De l’indépendance du Timor-Oriental’, 107 RGDIP (2003) 349–75; Leopold Von Carlowitz, ‘UNMIK Lawmaking between Effective Peace-Support and Internal Self-determination’, 41 AV (2003) 336–93; Laura A. Dickinson, ‘The Promise of Hybrid Courts’, 97 AJ (2003) 295–310; Cesare Romano (ed), Internationalized Criminal Courts (Oxford: Oxford University Press, 2004); Luigi Condorelli and Santiago Villalpando, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed), vol. 1, 201–45; Maurizio Arcari, ‘Autorizzazioni del Consiglio di sicurezza, tutela dei diritti umani e occupazione militare in Iraq. Il caso Al-Jedda di fronte ai giudici britannici’, 89 RDI (2006) 1083–92; Tiziana Carmelitano, ‘Il “governo” delle Nazioni Unite in Kosovo: riflessioni alla luce dei casi Behrami e Saramati’, 4 In.Law (2007) 218–35; Amina Maneggia, ‘“Controllo effettivo” e imputabilità della condotta nella decisione Behrami/Saramati della Corte europea dei diritti dell’uomo’, ibid., 236–52; Paolo Palchetti, ‘Azioni di forze istituite o autorizzate dalle Nazioni Unite davanti alla Corte europea dei diritti dell’uomo’, 90 RDI (2007) 681–704; Adam Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’, 100 AJ (2006) 580–622; Taru Kuosmanen, Bringing Justice Closer. Hybrid Courts in Post-Conflict Societies, Helsinki, 2007; Giovanni Carlo Bruno, ‘La Corte europea dei diritti umani e il Consiglio di Sicurezza delle Nazioni Unite. La decisione “Behrami e Behrami” e “Saramati”’, 1 DUDI (2008) 187 ff; Erica Brandolino, ‘Amministrazioni ONU e tutela dei diritti umani. Osservazioni in margine ai casi Behrami e Saramati’, 63 CI (2008) 279–300; Philippe Lagrange, ‘Responsabilité des Etats pour actes accomplis en application du Chapitre VII de la Charte des Nations Unies. Observations à propos de la décision de la Cour européenne des Droits de l’Homme (Grand Chambre) sur la recevabilité des requêtes Behrami et Behrami c. France et Saramati c. Allemagne, France et Norvège, 31 mai 2007’, 112 RGDIP (2008) 85–110; K. William Watson, ‘Behrami v. France. Constuctive Blue Elmets Protect KFOR Nations Form Accountability’, 16 TuJICL (2008) 575–90; Robert F. Carolan, ‘An Examination of the Role of Hybrid International Tribunals in Prosecuting War Crimes and Developing Independent Domestic Court Systems. The Kosovo Experiment’, 17 TLCP

320  The Functions (2008) 9–29; Gregory H. Fox, Humanitarian Occupation (Cambridge: Cambridge University Press, 2008); Ivan Ingravallo, Il Consiglio di Sicurezza e l’amministrazione diretta di territori (Napoli: Editoriale Scientifica, 2008); Noemi Gal-Or, ‘Suspending Sovereignty: Reassessing the Interlocking of Occupation, Failed and Fragile States, Responsibility to Protect, and International Trusteeship (Lessons from Lebanon)’, 41 IsLR (2008) 302–30; Ralph Wilde, International Territorial Administration. How Trusteeship and the Civilizing Mission Never Ended (Oxford: Oxford University Press, 2008); Lorenzo Gradoni, ‘L’Alto Rappresentante per la Bosnia-Erzegovina davanti alla Corte europea dei diritti dell’uomo’, 91 RDI (2008) 621–68; Enrico Milano, ‘Il trasferimento di funzioni da UNMIK a EULEX in Kosovo’, 91 RDI (2008) 967–90; Emanuele Cimiotta, I Tribunali penali misti (Padova: Cedam, 2009); Neyire Akpınarlı, The Fragility of the “Failed State” Paradigm: A Different International Law Perception of the Absence of Effective Government (Leiden: Nijhoff, 2010); Simon Chesterman, ‘International Territorial Administration and the Limits of Law’, 23 LJIL (2010) 437–47; Eric De Brabandere, Post-Conflict Administrations in International Law: International Territorial Administration, Transitional Authority and Foreign Occu­ pation in Theory and Practice (Leiden: Nijhoff, 2009); Rebecca Everly, ‘Accountability Challenges for International Territorial Administration’, 49 IJIL (2009) 37–52; Gregory H. Fox, ‘A Return to Trusteeship? A Comment on International Territorial Administration’, in Thomas Giegerich and Ursula E. Heinz (eds), A Wiser Century? Judicial Dispute Settlement, Disarmament and the Law of War 100 Years After the Second Hague Peace Conference (Berlin: Duncker & Humblot, 2009) 383–92; Tiina Pajuste, ‘Legality of International Territorial Administration by the United Nations’, 18 FYIL (2009) 195–215; Ralph Wilde, Understanding the International Territorial Administration Accountability Deficit: Trusteeship and Legitimacy of International Organizations, in Jan Wouters et al. (eds), Accountability for Human Rights Violations by International Organisations (Antwerp: Intersentia, 2010) 311–29; Elizabeth M. Bruch, ‘Hybrid Courts: Examining Hybridity Through a Post-Colonial Lens’, 28 BoUILJ (2010) 1–38; Gloria J. Browne-Marshall, International Criminal Tribunals and Hybrid Courts (New York: Cambridge University Press, 2011); Sarah Williams, Hybrid and Internationalised Criminal Tribunals (Oxford, Hart, 2012); Chiara Ragni, I tribunali penali internazionalizzati: fondamento, giurisdizione e diritto applicabile (Milano: Giuffrè, 2012); Emanuele Cimiotta, ‘L’istituzione in Senegal delle Camere straordinarie africane’, 96 RDI (2013) 861–82; Egeria Nalin, ‘L’istituzione delle Camere Straordinarie Africane in attuazione della sentenza della Corte Internazionale di Giustizia Belgio c. Senegal’, 68 CI (2013) 545–68; Ralph Wilde, ‘Foreign Territorial Administration and International Trusteeship over People: Colonialism, Occupation, the Mandates and Trusteeship Arrangements, and International Territorial Administration’, in Nigel D. White and Christian Henderson (eds), Research Handbook on International Conflict and Security Law : “Jus ad bellum”, “Jus in bello”, and “Jus post bellum” (Cheltemham: Elgar, 2013) 547–71; Emanuele Cimiotta, ‘The First Steps of the Extraordinary African Chambers: A New Mixed Criminal Tribunal?’, 13 JICJ (2015) 177–97.

Occasionally the Security Council, acting under Chapter VII and invoking the necessity to maintain or restore international peace and security, has organized the governance of territories. Such territories were predominantly the object of contrasting claims by neighbor States or were the battlefield of a civil war. The exercise of governing powers by international authorities is not a novelty and can be traced back to the system of mandates of the League of Nations in the colonies of Germany and of the Ottoman Empire, having lost World

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War I, as well as to the “neutral” administration (direct or indirect) by the League of Nations of disputed territories, like the Memel territory, the Free City of Danzig, the Saar region, the Upper Silesia and the Leticia district. With the establishment of the United Nations, apart from trusteeships (see § 82), which succeeded the mandates of the League of Nations, already during the first years the Security Council was called upon to participate in the government of disputed territories. This was the case of the Free Territory of Trieste established by the Peace Treaty of 1947 between the Allied Powers and Italy. According to Annex VI, the Free Territory was conceived as a small State ruled by a Governor appointed by the Security Council together with independent local legislative, judicial and executive authorities. In fact, the Free Territory was never instituted and the territory of Trieste was successively divided up between Italy and Yugoslavia. It is however with the decolonialization process of the 1960s and with the ban on territorial annexations in accordance with the will of local populations and the principle of self-determination that the tendency to establish international territorial administrations aimed at protecting local interests began (see § 81). These administrations were established in some cases and for transitional periods also by the General Assembly within the decolonization framework (see § 80). In 1962, the United Nations administrated, even if only for eight months, the territory of Western New Guinea (Western Irian) in order to facilitate the transfer of it from the Netherlands to Indonesia, based on Security Council Res. 1752-XVII of September 21, 1962, of the General Assembly authorizing the Secretary-General to establish a mission named UNTEA (United Nations Temporary Executive Authority) entrusted with the tasks provided for by an agreement between the two States. Many internal conflicts erupted by the end of the Cold War, especially in the States of former colonies, nowadays described as “collapsed” or “failed” States. The United Nations has therefore started to be confronted with civil wars, rather than international conflicts, and reconstruction of States in the aftermath of the conflicts, in line with the idea of post-conflict peacebuilding already promoted in 1992 by the Secretary-General B. Boutros-Ghali in the above mentioned report An Agenda for Peace (para. 15) (see § 8). As a consequence peacekeeping missions have multiplied and expanded to the point that most of them by then provided for the pursuance of some government functions in the territories concerned. From here it was only a short step—despite the leap from missions with limited government functions to downright social engineering experiments not being negligible—to undertake, where necessary, overall government of the territories, in the respect of territorial integrity (i.e. existing borders) and according to international norms on the protection of human rights and the principles of liberal democracy.

322  The Functions The Security Council has often participated, through the Secretary-General, in the constitutional process of national reconciliation. This function can be referred to the peaceful settlement of disputes under Article 39 (see § 57). On the UN role in post-conflict reconciliation processes see the Security Council debate of January 26, 2004 (Doc. S/PV.7990). A recent debate on the general question of post-conflict peace-building took place in the Security Council on July 22, 2009 (Doc. S/PV.6165 and S/PV.6165 Resumption 1).

It is in particular in four cases, between 1995 and 1999, that an international authority has taken full territorial government powers replacing national governments and directly regulating interindividual relationships, namely, BosniaHerzegovina, Eastern Slavonia, Timor Leste and Kosovo. In Bosnia-Herzegovina the Dayton Peace Agreement, reached on December 14, 1995 at the end of the civil war, appointed an international High Representative holding supreme government powers (cf. ILM (1995), p. 35 ff., Annex 10). In Eastern Slavonia, and in other areas surrounding Croatia, in 1996 the UN presided over—taking on full government powers—the return of the area, at the time under the Serbian rule, to the control of Croatia (with Security Council Res. 1037 of January 15, 1996, approving a Transitional Administration as outlined in the Basic Agreement between the interested parties of November 12, 1995). The other two cases, regarding Kosovo and Timor Leste, are undoubtedly more significant. Here, with express reference to Chapter VII, the Security Council established a territorial government entrusting the Secretary-General with full legislative, executive and judicial powers. One is the case of UNMIK (United Nations Interim Administration Mission in Kosovo), the other is UNTAET (United Nations Transitional Administration in East Timor). It is worth noting that—unlike the Bosnia-Herzegovina case—in Eastern Slavonia, in Kosovo and in East Timor the international Administrative Authority was under the leadership of the Security Council and that in all three cases the Council acted under Chapter VII of the Charter defining the situation as a “threat to the peace”. UNMIK, established by Res. 1244 of June 10, 1999 immediately after the end of NATO’s air war, is still operative, even if at the moment its “reconfiguration” is being discussed, on the own initiative of the Secretary-General (cf. Doc. S/PV.9683 of June 17, 2009), after Kosovo’s declaration of independence from Serbia in February 2008, an independence recognized by about sixty States, amongst which the United States and most of the EU Member States, but strongly contested by Serbia and by the Russian Federation (for the dispute between States at the Security Council cf. Doc. S/PV.9292 of February 18, 2008). Its function has been to organize and oversee the development of provisional institutions for democratic and autonomous self-government pending a political settlement, and, at a final stage, to oversee the transfer of authority from provisional institutions to institutions established under the said political settlement. UNMIK is headed by a Special Representative of the

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S­ ecretary-General, who is assisted by the OSCE (see § 70) in matters of democratization and institution building, by the European Union in matters of reconstruction and economic development (see § 69) and by NATO forces (KFOR) as far as the external defense is concerned. A “Constitutional Framework for Provisional Self-government in Kosovo” has been adopted by UNMIK Regulation 9/2001 of May 15, 2001, according to which a Parliamentary Assembly, a President of Kosovo and other representative institutions have been established and are now in function. The fate of UNMIK is currently uncertain because on the one hand, as already mentioned, the Secretary-General would like to reconfigure it in the light of the declaration of independence of Kosovo and on the other a permanent member of the Council, the Russian Federation, is against acts which would tend to confirm the independence of Kosovo. Meanwhile, the International Court of Justice, on July 22, 2010, returned, upon an initiative of Serbia and request of the General Assembly with Resolution 63/3 of August 8, 2008, an Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, concluding that the declaration of independence is not contrary to international law but without pronouncing on the status of Kosovo (see § 81). In a debate held in the Security Council on January 22, 2010, the Head of UNMIK stated that the Mission continued to perform its functions under Res. 1244 in cooperation with EULEX (see § 69), KFOR and OSCE (cf. Doc. S/PV.6264). UNTAET was created by Res. 1272 of October 25, 1999 to provide security and maintain order throughout the territory of East Timor, to support capacity-building for self-government, to deliver (and to ensure the co-­ ­ ordination of) humanitarian assistance to the population which had been the target of massacres on the part of the guerrilla sustained by Indonesia ­following the referendum of August 1999 in favor of the independence of the territory. The UN administration lasted until May, 2002 when the territory became independent and was admitted to the United Nations as Timor-Leste. The new State has benefited of the assistance of UNMISET (United Nations Mission of Support in East Timor), a multifunctional peacekeeping force (see § 60), which is composed of civil and military personnel headed by a Special Representative of the Secretary-General, and whose mandate is to assist the local authority in promoting stability, democracy, justice, public security, law enforcement, external security and border control for a period of two years. Later, in the light of the lack of security and stability in the country, with Res. 1704 of August 25, 2006, UNMIT was set up (United Nations Integrated Mission in Timor-Leste), a new multifunctional force, still made up of civilian and ­military personnel headed by a representative of the Secretary-General, whose tasks are even more extensive than those of UNMISET, concluded on December 31, 2012.

324  The Functions

Although anomalous, the case of the post-conflict administration of Iraq by the United States’ led coalition deserves mention here. By Res. 1483 of May 2003, after having identified the United States and the United Kingdom as “occupying powers” and having highlighted “the specific authorities, responsibilities, and obligations” of these States as occupying powers, the Security Council at para. 9 “supports the formation…of…a transitional administration run by Iraqis, until an internationally recognised, representative government is established by the people of Iraq and assumes the [ensuing] responsibilities of the Authority”. The interim administration ceased to govern as soon as an Iraqi government was formed, although the military presence of the former occupants, in particular the United States—with the consent of the Iraqi ­government—continued for a lengthy period of time (the US definitively withdrew only in 2011). The case is anomalous because the coalition administration was not created but only recognized by the Security Council and because it was headed by forces that depended on Member States, rather than on the Secretary-General, and its legal status was highly uncertain. The case of UNTAC (United Nations Transitional Authority in Cambodia) created by Res. 745 of February 28, 1992 on the basis of an agreement between the interested States promoted by the five permanent Members of the Security Council, can also be cited. For a period of more than one year UNTAC was entrusted with the task of assisting the civil administration, preparing political elections and protecting human rights in Cambodia. Worth noting is the fact that in this case—a case which does not differ in substance from the subsequent cases of UNMIK and UNTAET, indeed—the Security Council did not mention Chapter VII.

The institution of tribunals dealing with crimes committed by individuals, in particular, can be considered as single acts of governance. The first two well known examples are the International Criminal Tribunal for the former Yugoslavia (ICTY), established by Res. 827 of May 25, 1993, and the International Criminal Tribunal for Rwanda (ICTR), established by Res. 955 of November 8, 1994. The two tribunals, being temporary, have set up (especially since 2005) specific completion strategies, including the referral of minor cases to national courts. The deadlines for discontinuance set so far have not been respected. Meanwhile, while the two tribunals are operating, at least until 2017, the Security Council has established, with Res. 1966 of December 22, 2010, an “International Residual Mechanism for Criminal Tribunals”, with mandate as of July 1, 2012 for the Tribunal for Rwanda and from July 1, 2013 for the Court for Former Yugoslavia. The Mechanism, which operates according to its own statutes, will perform the functions of the two tribunals (with identical jurisdiction) when they cease to operate, and will be based at The Hague and Arusha in Tanzania, and will consist of two separate Trial Chambers and a common Appeals Chamber. They will also share the Prosecutor and

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the Registrar. Like the two Tribunals, the mechanism has “primacy” over domestic courts. The Security Council has also played a role in the establishment of criminal tribunals, so called “mixed” or “hybrid” or also “internationalized” and so defined to highlight the fact that they are: (a) composed of both national judges of the State where they are based and foreign judges (as well as prosecutors, defense attorneys, officials and administrative ­personnel)—who usually are a majority compared to national judges, appointed by the United Nations or by international Authorities administrating the territory—in order to grant fair and impartial trials, (b) called to judge not only upon international crimes but also on other, more or less, serious offenses provided for by domestic law. These include the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Panels for Timor Leste and Kosovo, the Iraqi High Tribunal, the Chamber for War Crimes of the State Court of Bosnia-Herzegovina, the Special Tribunal for Lebanon and, most recently, the Extraordinary African Chambers in Senegal. The establishing procedure, as well as their scope and degree of internationalization are heterogeneous: the Timor Leste Panels  were established in 2000, within the District Court of Dili, by UNTAET with Regulation 15 (cf. ); the Panels in Kosovo were established in 2000 by UNMIK with Regulation 64 (cf. ); the Special Court for Sierra Leone was established following an agreement of 2002 between the United Nations (at the request of the Security Council with Res. 1315 of August 14, 2000) and the Government of Sierra Leone (cf. ); the Extraordinary Chambers in the Courts of Cambodia were established and introduced in the existing court structure with a law passed in 2001 and an agreement with the United Nations reached in 2003, relating to the technical and financial co-operation necessary in order for them to work in an efficient and fair manner (cf. ); the Iraqi Special Tribunal was set up in 2003 by the Coalition Provisional Authority (CPA) during occupation in post-conflict Iraq with Order 48 (cf. ) and reaffirmed under the name “Supreme Iraqi Criminal Tribunal “with a law passed in 2005 by the newly elected National Assembly after the restoration of Iraqi sovereignty (cf. ); the War Crimes Chamber in Bosnia-Herzegovina was established and introduced in the State Court with a law which came into force in 2005 (cf. ) in accordance with the ICTY’s completion strategy; the Special Tribunal for Lebanon was established with an agreement reached in 2007 between the United Nations (at the request of the Security Council with Res. 1664 of March 29, 2006) and the Lebanese Government, the entering into force of which was imposed (with amendments) by the Security Council under Chapter VII of the Charter with Res. 1757 of May 30, 2007, adopted with five abstentions (mainly relating to doubts as to the power of the Council in imposing on Lebanon the entry into force of the agreement); lastly, the Extraordinary African Chambers in Senegal were established through an agreement between Senegal and the African Union in August 2012, operating thanks to a law passed in December 2012, with the task of prosecuting the former Head of State of Chad, Hissène Habré, for international crimes (see Emanuele Cimiotta, The First Steps of the Extraordinary African Chambers, cit., according to whom the Extraordinary African Chambers are “a unique entity, not comparable with any other previous institutional experience” reflecting the current trend towards “likely to be used for new purposes, thus far untested”).

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For other resolutions on the functioning of International Criminal Tribunals, as well as of the International Criminal Court (see §§ 37 and 60), the following resolutions are worth recalling: Res. 1593 of March 31, 2005 (referral of the Darfur situation to the International Criminal Court, the first and so far the only case under Article 13(b), of the Court’s Statute); Res. 1638 of November 11, 2005 (search, arrest and detention of the former President of Liberia Charles Taylor); Res. 1688 of June 16, 2006 (assistance from the Netherlands to the Special Court for Sierra Leone for the transfer and detention of Charles Taylor and for the exclusive jurisdiction of the Special Court); and Res. 1970 of February 26, 2011 (referral of the Libya situation to the ICC pursuant to Article 13 B, of the Statute of the Court).

The measures of territorial administration we are dealing with do not find an express ground in the Charter and they clearly amount to the greatest possible intrusion in the domestic jurisdiction of States (see § 45). In fact, they are not confined—to refer to the practice of the Cold War period—to the ­condemnation of specific internal conducts, as are the violation of human rights, nor of the exercise of specific and limited public powers next to the government power of local authorities, as in peacekeeping, but of the complete replacement of the local government by the UN, albeit temporarily. With territorial administrations the United Nations have reached the highest level of erosion of domestic jurisdiction, questioning the ability itself of a State to govern, rather than its shortcomings in one or more sectors of public administration. This is where becomes more apparent the recent tendency of the Security Council to intend international peace and security, for the ­maintenance of which it holds the “primary responsibility” (Article 24), in terms of internal credibility of the States. As a matter of fact, the generality of States did not contest the government measures taken by the Council in the above outlined cases. Scholars have sought to justify the legality of government acts of the Security Council using various theoretical reconstructions, which however are not satisfying. Reference was sometimes made to the trusteeship system, though underlining the innovative nature of the UN territorial governments compared to the legal regime stipulated by the Charter to trusteeships (see § 82). This thesis is not convincing since the Security Council established all territorial administrations with reference to Chapter VII and not to Chapter XII, regarding trusteeship; nor were the conditions required by Chapter XII in order to establish trusteeships met. Moreover, international trusteeship appears little suitable for international administrations because of its putative neocolonial overtones. Even the claim that territorial governments relate to peacekeeping operations, in addition to reopening the issue of the foundation of peacekeeping itself (see § 60), is also unpersuasive in view of the deep differences between the two types of operations: unlike territorial administrations, peacekeeping is limited only to the conduct of certain government functions, in States that are

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not totally collapsed and where there thus exists some authority with whom to dialogue. The legality of the territorial administration has been sometimes grounded in the consent of the State involved, or of an apparent authority present in its territory; or, regardless of consent, in the resolutions of the Security Council that established them under Chapter VII; or even in “residual” powers of the Council as part of its “primary responsibility” under Article 24 in the maintenance of international peace and security; or, finally, in rules in force for belligerent occupation. It is true that in all cases of international administration of territory, the consent of local authorities and a resolution of the Security Council that “authorizes” under Chapter VII a State and/or UN organs to provide for the government of the territories concerned, exists; and it is also undoubtedly true that there is a similarity—but also significant differences, as we shall soon see—between the administration of territories and the classic occupatio bellica. The thesis based on the consent of the local sovereign, although convincing prima facie, it lends itself to serious objections. The agreement with the local sovereign does not relate to single government functions, but to the reconstruction of the State from scratch, and one must ask to what extent can an agreement with a local authority that does not most likely have effective control of the entire territory, does not represent it and will have to give way to democratically elected authorities in the new State, be valid. After all it is well known that an agreement is void if reached under threat or through the use of force, as envisaged by Article 52 of the Vienna Convention of 1969 on the law of treaties, and the agreements between the international administrator and the local sovereign always are the outcome, if not of a fully fledged international conflict, as in the case of Kosovo, of strong external pressure. Even more problematic is the thesis according to which the legality of the acts of government of the territories by the UN is to be brought back to the institutive resolutions and, in particular, to the “enforcement measures” set forth by Articles 41 and 42 of Chapter VII. Nowadays, according to a widespread opinion the legitimacy of the acts of government of territories would be founded on Article 41 for the civilian component and on Article 42 for the military component. In favor of Article 41 reference is made to the preparatory work (precisely to an amendment proposed by Norway at the San Francisco Conference) and to the case law of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, holding in particular that the fact that Article 41 deals with behaviors which the Security Council can demand of States has not been considered as an obstacle to its application as it is an “atypical measure” not expressly provided for nor banned by Article 41. What States can be requested to do—it has been said—the Council can also do. Such opinion has been held by the International Criminal Tribunal

328  The Functions

for the former Yugoslavia in the Appeals Chamber decision of October 2, 1995 in the Tadić case (paras. 34–36) and by the Tribunal for Rwanda in the decision of June 18, 1997 in the Kanyabashi case (para. 27). In the Tadić case the Tribunal for the former Yugoslavia also held that Article 41 defines the measures not implying the use of force in negative terms, that is specifying only that it does not include military measures, and that if Article 41 allows for measures addressed to Member States, it does so as “a poor substitute faute de mieux”, i.e. for lack of resources of its organs, from which it can be inferred a fortiori the legality of measures addressed to the organs when they prove capable, as would be the Tribunal for the former Yugoslavia, of carrying them out directly and without the mediation of States (paras. 35–36). According to a more sophisticated opinion (de Hoogh), Article 41 should even be split in two parts, one allowing the Security Council to take whatever decision it deems necessary to maintain or restore peace and security (in this case, the decision to create a tribunal), the other allowing the Council to call upon the States to co-operate with the tribunal. We have already criticized the last opinion (see § 59) and there is no need to deal with this again here. The first opinion is also unconvincing, since the jurisdiction of the Tribunals— and the same can be said of the administration of territories—is exercised upon individuals, while the enforcement measures set forth by Article 41 are clearly conceived as measures against States or armed factions within a State. Moreover, as was previously noted, measures under Article 41 are destined to cease when peace and security are no longer in danger. The truth is that Statebuilding missions have little to do with the specific measures envisaged by Articles 41 and 42 as they are neither sanctionary nor military and if it is true that they imply the exercise of coercive powers, which would justify the application of Chapter VII, it is also true that they concern government powers within States or anyway aimed at rebuilding the internal institutions of the State. For the amendment proposed by Norway in favor of the power of the Council to “take over on behalf of the Organization, the administration of any territory of which the continued administration by the State in possession is found to constitute a threat to the peace” cf. U.N.C.I.O., vol. 3, p. 371 f. The amendment encountered the opposition of the United Kingdom that revealed how it could be inferred from it, once implemented, that the powers of the Council were only those expressly specified. Norway thus agreed to withdraw the amendment but demanded that the British motivation be recorded in order to emphasize that the withdrawal was not due to an objection on the specific point (ibid., vol. 12, pp. 354 f., 357, 508 and 524). For the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia decision, in the Tadić case, of October 2, 1995 see ; for the decision of the Tribunal for Rwanda, in the Kanyabashi case, of June 18, 1997 see .

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Another view which is hardly tenable, although it is upheld by some principal organs of the United Nations, is that measures not set forth by one or the other article of Chapter VII can be grounded on Article 24, para. 1. According to this view, paragraph 1 of Article 24, by stating that the Security Council has the primary responsibility for the maintenance of international peace and security, allows the Council to take whatever measure, provided that it is necessary for maintaining or restoring peace. In other terms, the Council could exercise a kind of general, residual power. This view is contradicted by the second paragraph of Article 24, wherein the “specific powers” granted to the Council strictly refer to those envisaged by Chapters VI, VII, VIII, and XII. And, indeed, why should Chapter VII specify, in Articles 40, 41, and 42 ff., the measures the Council could adopt, if the Council can take any other action in order to maintain peace and security? If Article 24, para. 1, attributed to the Council any other power not provided for by Articles 40, 41 and 42, as long as it fell within the scope of the maintenance of the peace and of international security, then it would have been sufficient to put in the Charter only Article 24, para 1. It is also worth noting that, the Security Council being given world decision-making powers, the restrictive construction is a guarantee for medium and small states. In fact, the theory of residual powers is only apparently progressive—in the sense of attributing to the United Nations a greater power over States not complying with international law or dangerous for international peace and security—as in fact it was used during the Cold War, to provide a legal basis for those Council resolutions characterized by compromise, basic disagreement among the members of the organ, and near total incapacity to deal effectively with the substantive issues of a dangerous situation. Article 24, in other words, was invoked for resolutions which clearly betrayed its spirit in as much as they involved the circumvention of the Council’s responsibilities rather than the earnest undertaking of them. This can be said, for instance and with respect, with regard to the Advisory Opinion of June 21, 1971 of the International Court of Justice, which applied the theory of residual powers under Article 24 (cf. ICJ Reports 1971, p. 51, para. 110) to Security Council Res. 276 of January 30, 1970 on the Namibia question. This resolution had been limited to declaring South Africa’s presence in Namibia (today independent) as “invalid”, and it had been adopted after ascertaining that it was impossible for the Council to proceed against South Africa with effective and decisive sanctions, as the majority of the Member States and civilised peoples wished to do. The opinion of the Secretary-General B. Boutros Ghali, an opinion expressed in a Report concerning the International Criminal Tribunal for the former Yugoslavia (cf. Doc. S/25704 of May 3, 1993, paras. 18–30) is close to the theory of residual power. In the Report, this kind of organ was considered a subsidiary organ of the Council under Article 29 of the Charter (“The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions”). In the same report, the functions of the Tribunal were deemed to be covered by Chapter VII without further specification.

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The argument that relies on the analogy with occupatio bellica seems to be justified by a number of similarities between this and the international administrations of territories, namely that the international authority is external to the controlled territory, it exercises supreme power, but without formally affecting the sovereignty and territorial integrity of principle of local authorities, and it is temporary. Recently, there has been interesting discussions over “humanitarian occupation” to emphasize that the purpose of the acts of government of which we speak is usually the one to end grave violations of human rights and to rebuild the State according to the standards set by existing international norms relating to the protection of human rights (Fox). However, there are significant dissimilarities: the occupatio bellica regime belongs to jus in bello and requires the existence of an armed conflict, while international territorial administrations are held after a conflict has ended and they do not engage in a “classic” war aimed at the debellatio of the enemy; moreover, occupatio bellica concerns an occupying State and is intended to regulate relations between States, while in international territorial administrations the “occupant” is a supranational authority that cannot be assimilated into a State and that normally avails itself of multi-State forces; finally, with occupatio bellica the occupier is obliged in principle to respect the local legislation (so-called principle of conservation) and cannot go, as instead international territorial administrations deliberately do, as far as, not only and not so much the modification, but even the total reconstruction, if necessary, of existing law in a totally new State in institutional terms (so called “transformative” occupations) (Robert). In our opinion it must be recognized that the practice of the Security Council has largely deviated from the letter and the spirit of the Articles in Chapter VII, in particular Articles 41 and 42, and that the Council tends to interpret the “peace and security” of which it has primary responsibility in the sense that any situation, especially the internal unreliability of this or that State, could put it at risk and justify, under Chapter VII, any measure that appears adequate to deal effectively with such danger. So far, the Member States have not contested the actions of the Council relating to the administration of territories and it can therefore be argued that,  precisely thanks to the acquiescence of the States, a special permissive ­customary norm has been formed within the United Nations, i.e. that the scope of the customary rule on peace-keeeping has been expanded. The limits to this rule are those valid for measures involving or not involving the use of force (see §§ 59 and 60), and in particular, compliance with humanitarian law (see § 60) and the principle of the self-determination of peoples, a principle covering precisely those cases where people are subject to extraneous governments.

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Coupled with the problem of the jurisdiction of the Security Council and of the limits of the territorial administrations of the UN is the issue of responsibility for international law violations, in particular human rights violations, perpetrated by UN organs and/or by the organs of the States participating to the administration of territories. A few years ago, the issue was brought before the European Court of Human Rights, which pronounced itself in the above mentioned Behrami and Saramati decision of May 2, 2007 (see § 61), attributing the actions, and omissions, of UNMIK and KFOR to the Security Council, the first being a subsidiary organ of the UN and the second an entity made up of States authorized by the Council. The Court has subsequently confirmed this in other cases concerning Kosovo (cf. the Kasumaj decision of July 5, 2007 and the Gajic decision of August 28, 2007), extending it also to Bosnia-Herzegovina (cf. the Berić decision of October 16, 2007), a case law immediately relied upon by domestic courts (cf. the judgment of the The Hague District Court of July 10, 2008 in the Mothers of Srebrenica case at , para. 5.22).

The Behrami decision, although referring to the effective control criterion envisaged by Article 5 (now Article 7) of the Draft Articles on International Responsibility of International Organizations, on which the international law Commission was working (cf. ), later approved in 2011, is fundamentally based on the formal “chain of command” running through the entities operating in Kosovo and, ultimately, right through to the Security Council. What is more, by explicitly distinguishing itself from the previous case law, particularly from the Bosphorus decision of 2005 (at , App. no. 45036/98, para. 151), it excluded joint responsibility of the States participating to the mission. The result being, as already mentioned with regard to delegations for the use of force, the exemption of the States participating to the mission, whether they have in actual fact (actively or passively) contributed to the offense, or not, and of concentrating responsibility on the Security Council, that is to say, on an organ that is not formally bound by the treaties on human rights and for which there are no mechanisms for holding it to its responsibility. If in addition we consider that the States (especially permanent Members) can in this way exploit the Council making it commit acts that would be illegal if committed by them, the Behrami jurisprudence clearly appears far from convincing. Although the requirements of international security may prevail even over human rights in some instances, as the European Court seems to assume when it states that the end of maintaining international peace and security, primary responsibility of the Security Council, is “imperative”

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(paras. 148–49), it is also true that it is the Court’s role to make sure that the contracting States abide by the European Convention and to avoid that they may circumvent it making the Security Council act. Following the Behrami decision every contracting States of the European Convention may consider it to be convenient to take part to a mission authorized by the Security Council with the certainty of impunity for any potential human right violation by its contingents. The States thereby assure themselves, as already mentioned, both autonomy in conducting the operations and lack of responsibility for illegal acts, as well as the UN’s “cover-up” for internal constitutional purposes, i.e. unlimited and non-justiciable freedom to act. It is a short leap from here to thinking, or causing to suspect, that the international “presence”—the term “presence” is already in itself elusive—in the administered territories is functional only to the interests (if not to the neo-colonialist aims) of the ­participating States and that the purported “humanitarian” ends are little more than a pretense, the step is short. If the UN and the States intend to govern a territory, they must also credibly account for the way they govern, the more so when they promote (and induce the local population to accept) the ­principles of democracy and the rule of law. It should be noted that the unlawful acts of the States participating in UN missions are perpetrated outside their territory, but the European Convention on Human Rights (as well as most human rights treaties) also applies extra-territorially as long as the alleged violations fall “within the jurisdiction”, i.e. under the effective control, of the contracting States (Article 1 ECHR). There is no doubt as to the fact that by definition the missions have jurisdiction in the territorial administrations, although the Behrami and Saramati decision, addressing the question of the attribution of the acts denounced either to the Member States or to the United Nations, ultimately questions whether the jurisdiction is that of the participating States or even that of the UN, which in fact in itself has no government powers. Actually, the Court, after noting that there appeared to be no disputes on the fact that the Federal Republic of Yugoslavia “did not control Kosovo” (para. 69), merely stated that in Kosovo there was “effective control of the international presences which exercised public powers normally exercised by the government of the Federal Republic of Yugoslavia” (para. 70), thus hinting at the idea that the “international presence” in Kosovo with the mandate of the Security Council fully governs the same way as a State.

Without formally contradicting the Behrami decision, the European Court of Human Rights has recently changed course in a far more acceptable way. In the Al-Jedda judgment of July 7, 2011 in relation to the occupation of Iraq in 2003 that we addressed above, the Grand Chamber stated that it does not believe that “as a result of the authorisation contained in Resolution 1511, the acts of soldiers within the Multinational Force became attributable to the United Nations or—more importantly, for the purposes of this case—ceased to be attributable to the troop-contributing nations” (para. 80). The Court has thus recognized that in the event of authorization by the Security Council, the

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United Nations does not have exclusive responsibility, but responsibility can also extend to the States that operate on this premise, in particular with respect to their possible violations of the rights enshrined in treaties (such as the European Convention on Human Rights) that are binding on them. The Court further noted that “[t]he Multinational Force had been present in Iraq since the invasion and had been recognised already in Resolution 1483, which welcomed the willingness of member States to contribute personnel”. Moreover, “[t]he unified command structure over the Force, established from the start of the invasion by the United States of America and the United Kingdom, was not changed as a result of Resolution 1511”. In addition, “the United States of America and the United Kingdom, through the CPA which they had established at the start of the occupation, continued to exercise the powers of government in Iraq”, and “[a]lthough the United States of America was requested to report ­periodically to the Security Council about the activities of the Multinational Force, the United Nations did not, thereby, assume any degree of control over either the Force or any other of the executive functions of the CPA” (para. 80). Nor, according to the Court, were there no indications that with the subsequent Resolution 1546 of June 6, 2004, the Security Council had “intended to assume any greater degree of control or command over the Multinational Force than it had exercised previously” (para. 81). The idea that the States operating on behalf of the United Nations, this time in relation to certain specific acts of the Dutch peacekeeping forces during the Srebrenica genocide of 1995, was reiterated in the two importante Hague Court of Appeal judgments of July 5, 2011, confirmed by the Dutch Supreme Court in 2013 (cf. ) which sentenced the Netherlands to compensate the relatives of the victims for damages. These are Hasan Nuhanović v. The State of The Netherlands, case 200.020.174/01, at , and Mehida Mustafić-Mujic et al. v. The State of The Netherlands, case 200.020.173/01, at . For a commentary, see André Nollkaemper, ‘Dual Attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’, at ; Tom Dannenbaum, ‘The Hague Court of Appeal on Dutchbat at Srebrenica Part 2: Attribution, Effective Control, and the Power to Prevent’, EJIL: Talk!, November 10, 2011, at . In its Mothers of Srebrenica judgment in 2014, the Hague District Court also considered the Netherlands responsible for the evacuation from their base of more than 300 Bosnian men and boys, later brutally killed in Srebrenica in July 1995 (see ). According to the Court, in fact, the Dutch peacekeeping forces involved were aware of the fate ­awaiting the transferred Bosnian men and had effective control (defined as “factual control”) of the area, and their acts were therefore attributable the State.

To sum up on Chapter VII we feel that it continues to be, as originally intended, the core of the United Nations Charter. However, the Council has used Chapter VII, especially after the end of the Cold War, not only and not so much to protect the States from external aggression, but in order to intervene within States and to ensure in this way, much more demanding, that is through greater

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institutional strength of States, international peace and security. Although Chapter VII has remained intact at a formal level, its scope has changed considerably over time and it is part of an informal process of evolution of the entire organization that is taking place since the early years of activity, despite the Member States fail to perfect a formal reform under Articles 108 and 109 (see § 7). We have seen that especially the term “threat to the peace” in Article 39 was used by the Council in an extremely broad sense to intervene within States with the measures envisaged by Chapter VII. We concluded that the Council may in principle declare any situation as a threat to peace, especially in today’s globalized world, but that each time its assessment shall be widely accepted by the States, as reflected, inter alia, in the statements widely shared by the General Assembly. As for the measures to be adopted, apart from the recommendations of Article 39 (designed exclusively for the friendly settlement of disputes) and the recommendations of Article 40 (limited by their protective and urgency purpose), Article 41 allows the Council to impose sanctions not involving the use of force (within the limits set by the Charter and of a customary norm formed in favor of a minimum and absolute humanitarian limit of survival), while Articles 42 ff. as originally formulated (which have remained formally unchanged) have not been implemented and the function of maintaining international peace and security has been exercised through other mechanisms not provided for in the Charter, from peacekeeping to the authorization to use international force, to the authorization of UN organs and of States to carry out tasks of State-building, including internal police functions, in post-conflict situations or in contended territories. In all these cases, the Council has “proposed” an interpretation of Chapter VII that the generality of States as a whole have accepted, subject to certain limitations. While for peacekeeping and for the authorizations to use international force the States as a whole continue to be in favor and the model is sufficiently ­delineated, for State-building a sufficiently delineated model does not exist and it remains exceptional. We therefore feel that while for peacekeeping and for authorizations to resort to the use of international force a customary norm, integrating or derogating from Chapter VII of the Charter—under which the Council has always stated its intention to act—could be said to be established, a customary norm which not only legitimizes but also binds the Council for the future, for State-building it can only be taken note of a general acquiescence of the States limited to the individual cases occurred so far, which took place more than ten years ago. A different conclusion about State-building is also justified in light of its profound difference from both peacekeeping and from authorizations to the use of armed force, as the former is limited to certain government functions and the latter confined to well defined military operations. The framework of the just described collective security system, as

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we shall see, is not significantly influenced by the possibility, provided for by Article 53 of the Charter, that the Council authorizes coercive interventions by regional organizations (see § 69), since practice is mainly oriented towards authorizations to the States, considered as such and as members of regional organizations. It is worth remembering that within the more general sphere of peacebuilding the Peacebuilding Commission operates since 2006, with purely advisory tasks, established by the Security Council and by the General Assembly, as a joint subsidiary organ, respectively with Res. 1645 of December 20, 2005 and Res. 60/180 of December 30, 2005 (see § 55).

Section III.  Maintenance of the Peace: The Functions of the General Assembly Select bibliography: Henry F. Havilland, The Political Role of the General Assembly (New York: Carnegie Endowment for International Peace, 1951); Francis A. Vallat, ‘The General Assembly and the Security Council of the United Nations’, 29 BYB (1952) 63–104; Francesco C. Gentile, ‘Competenza del Consiglio di Sicurezza e dell’Assemblea Generale in materia di mantenimento e ristabilimento della pace’, 5 CS (1953) 283–354; Pierre F. Brugière, Les pouvoirs de l’Assemblée Générale des Nations Unies en matière politique et de sécurité (Paris: Pedone, 1955); Juraj Andrassy, Uniting for Peace, 50 AJ (1956) 563–82; Piero Ziccardi, ‘L’intervento collettivo delle Nazioni Unite e i nuovi poteri dell’Assemblea Generale’, 12 CI (1957) 415–47; Leland M. Goodrich and Gabriella E. Rosner, ‘The United Nations Emergency Force’, 11 Int. Org. (1957) 413–30; Louis B. Sohn, ‘The Authority of the United Nations to Establish and Maintain a Permanent United Nations Force’, 52 AJ (1958) 229–40; Francis A. Vallat, ‘The Competence of the United Nations General Assembly’, 97 RC (1959-II) 208–93; Sydney D. Bailey, The General Assembly of the United Nations. A Study of Procedure and Practice (London: Stevens, 1960); Finn Seyersted, ‘United Nations Forces: Some Legal Problems’, 37 BYB (1961) 351–475; Pierre Poirier, La force internationale d’urgence (Paris: Pichon & Durand-Auzias, 1962); Finn Seyersted, ‘Can United Nations Establish Military Force and Perform Other Acts Without Specific Basis in the Charter?’, 12 ZöR (1962) 188–229; Gamal El Din Attia, Les forces armèes des Nations Unies en Corée et au Moyen Orient (Paris: Librairie Minard, 1963); Gian P. Alessi, ‘L’evoluzione della prassi delle Nazioni Unite relativa al mantenimento della pace’, 47 RDI (1964) 519–65; Oscar Schachter, ‘The Quasi-Judicial Role of the Security Council and the General Assembly’, 58 AJ (1964) 960–65; Keith S. Petersen, ‘The Use of the Uniting for Peace Resolution since 1950’, 13 Int. Org. (1959) 219–32; Finn Seyersted, United Nations Forces in Law of Peace and War (Leyden; Sijthoff, 1966) 44 ff; Ahmed Sheikh, ‘UN Peace-Keeping Forces: A Reappraisal of Relevant Charter Provisions’, 7 RBDI (1971) 469–504; Werner Pfeifenberger, Die Vereinte Nationen. Ihre politische Organe in Sicherheitsfragen (München: Pustet, 1971); James M. Boyd, United Nations Peacekeeping Operations: A Military and Political Appraisal (New York: Praeger Publ., 1971); J.M. Ruda, ‘Drafting History of Articles 10 and 11 of the Charter of the United Nations on the Function and Powers of the General Assembly’, in Wilhelm Wengler and Josef Tittel, Multitudo legum ius unum: Festschrift für W. Wengler (Berlin: Interrecht, 1973), vol. 1, 375–449; Jean-François Guilhaudis, ‘Considérations sur la pratique de l’ “Union pour le maintien de la paix”’, 27 AF (1981) 382–98; T. Chebeleu, ‘Role of the UN General Assembly in the Settlement of International Disputes. Some Rumanian Proposals’, 15 RREI (1981) 443–52; Harry Reicher, ‘The Uniting for Peace Resolution on the Thirtieth Anniversary of its Passage’, 20 CJTL (1981) 1–50; Giuseppe Cataldi, ‘L’Assemblea Generale

336  The Functions delle Nazioni Unite e la controversia sulle Falkland-Malvinas’, in Natalino Ronzitti (ed), La questione delle Falkland-Malvinas nel diritto internazionale (Milano: Giuffrè, 1984) 75–83; M.J. Peterson, The General Assembly in World Politics (Boston: Allen & Unwin, 1986); Nigel D. White, Keeping the Peace (Manchester: Manchester Univ. Press, 1993) 117 ff; William J. Durch, ‘UN Temporary Executive Authority’, in William J. Durch (ed), The Evolution of UN Peacekeeping (New York: St. Martin’s Press, 1993) 285 ff; Christian Tomuschat, ‘General Assembly’, in Wolfrum, Philipp (eds), United Nations: Law, Policies and Practice (Dordrecht: Nijhoff, 1995) 548 ff; Francis M. Deng, Sadikiel Kimaro, Terrence Lyons, Donald Rothchild and I. William Zartman, Sovereignty as Responsibility: Conflict Management in Africa (Washington D.C.: The Brookings Institution, 1996); Laura Pineschi, Le operazioni di peacekeeping delle Nazioni Unite per il mantenimento della pace. Le competenze degli organi delle Nazioni Unite (Padova: Cedam, 1998), Chapter 3; Christian Tomuschat, ‘“Uniting for Peace”—ein Rückblick nach 50 Jahren’, 76 FW (2001) 289–303; Otto Kimminich and Markus Zöckler, ibid., 318–26; Hervé Cassan, in Jean-Pierre Cot, Alan Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed), vol. 1, 661–76; Leonardo Nemer Caldeira Brant, ibid., 683–90; Laurence Boisson de Chazournes, Luigi Condorelli, ‘De la “responsabilité de protéger”, ou d’une nouvelle parure pour une notion déjà bien établie’, 110 RGDIP (2006) 11–8; Alex J. Bellamy, Preventing Future Kosovos and Future Rwandas: The Responsibility to Protect after the 2005 World Summit (New York: Carnegie Council, 2006); Ramesh C. Thakur, The United Nations, Peace and Security. From Collective Security to Responsibility to Protect (Cambridge: Cambridge University Press, 2006); M.J. Peterson, ‘General Assembly’, in Thomas G. Weiss, Sam Daws (eds), The Oxford Handbook on the United Nations (Oxford: Oxford University Press, 2007) 97–116; Carsten Stahn, ‘Responsibility to Protect: Politic Rhetoric or Emerging Legal Norm?’, 101 AJ (2007) 99–120; Markus Benzing, ‘Sovereignty and the Responsibility to Protect in International Criminal Law’, in Doris König (ed), International Law Today: New Challenges and the Need for Reform? (Berlin, Heidelberg: Springer, 2008) 17–50; Edward C. Luck, ‘The Responsible Sovereign and the Responsibility to Protect’, in Joachim W. Müller and Karl P. Sauvant (eds), Annual Review of United Nations Affairs (Oxford: Oxford University Press, 2008); Gareth J. Evans, The Responsibility to Protect. Ending Mass Atrocities Once and For All (Washington D.C.: Brookings Institution Press, 2008); Carlo Focarelli, ‘The Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities for a Working Doctrine, 13 JCSL (2008) 191–213; Id., ‘La dottrina della “responsabilità di proteggere” e l’intervento umanitario’, 91 RDI (2008) 317–46; Société Française pour le Droit International, La responsabilité de protéger. Colloque de Nanterre. Actes du 41ème colloque de la Société Française pour le Droit International qui s’est tenu à l’Université de Paris X-Nanterre du 7 au 9 juin 2007 (Paris: Pedone, 2008); Dominik Zaum, ‘The Security Council, the General Assembly, and War: The Uniting for Peace Resolution’, in Vaughan Lowe (ed), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (Oxford: Oxford University Press, 2008) ­154–74; Tyra R. Saechao, ‘Natural Disasters and the Responsibility to Protect: From Chaos to Clarity’, 32 BrJIL (2007) 663–707; ‘Observations sur la responsabilité de protéger en Birmanie’, 3 RGDIP (2008) 633 ff; Gareth J. Evans, The Responsibility to Protect. Ending Mass Atrocities Once and For All (Washington D.C.: Brookings Institution Press, 2008); Alex J. Bellamy, A Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge: Polity, 2009); Zorzi Giustiniani, La ‘responsabilità di proteggere’. Riflessioni a margine del caso birmano, in DUDI, 2009, p. 33 ss.; Bellamy, Davis, Politics, Law and the Responsibility to Protect, London, 2010; Benjamin, Sudan and the Resort to Regional Arrangements: Putting Effect to the Responsibility to Protect?, in IJHR, 2010, pp. 233–45; Davies, Glanville (eds), Protecting the Displaced: Deepening the Responsibility to Protect, Leiden, 2010; Hassler, Peace-keeping and the Responsibility to Protect, in JInP, 2010, pp. 134–83; Magnuson, The Responsibility to Protect and the Decline of Sovereignty: Free

Discussions and recommendations on general questions  337 Speech Protection under International Law, in VaJTL, 2010, pp. 255–312; Sarkin-Hughes, The Responsibility to Protect and the Duty to Prevent Genocide, in SuTLR, 2010, pp. 35–86; Wenzel, Schutzverantwortung im Volkerrecht: zu Moglichkeiten und Grenzen der ‘Responsibility to Protect’-Konzeption, Hamburg, 2010; Añaños Meza, La “responsabilidad de proteger” en Naciones Unidas y la doctrina de la “responsabilidad de proteger”, in AmexDI, 2010, p. 199 ss.; Davies (ed.), Protecting the Displaced: Deepening the Responsibility to Protect, Leiden, 2010; Mwanasali, The African Union, the United Nations, and the Responsibility to Protect: Towards an African Intervention Doctrine, in GReP, 2010, p. 388 ss.; Hassler, Peacekeeping and Responsibility to Protect, in JInP, 2010, p. 134 ss.; Poli, The Responsibility to Protect in International Law and the Opinio Necessitatis of an Accountable International Community, in JAfIL, 2010, p. 335 ss.; Badescu, Humanitarian Intervention and the Responsibility to Protect. Security and Human Rights, London, 2011; Bellamy, Reike (eds.), The Responsibility to Protect and International Law, Leiden, 2011; Blaise, La responsabilité de protéger. Les écueils d’une consécration juridique tant attendu, in RDIDC, 2011, p. 577 ss.; Eaton, An Emerging Norm? Determining the Meaning and Legal Status of the Responsibility to Protect, in MJIL, 2011, p. 765 ss.; Hilpold, Die Schutzverantwortung im Recht der Vereinten Nationen (Responsibility to Protect) auf dem Weg zur Etablierung eines umstrittenen Konzepts, in SZieR, 2011, p. 231 ss.; Nasu, Operationalizing the Responsibility to Protect in the Context of Civilian Protection by UN Peacekeepers, in IP, 2011, p. 364 ss.; Orford, International Authority and the Responsibility to Protect, Cambridge, 2011; Genser, Cotler (eds.), The Responsibility to Protect: The Promise of Stopping Mass Atrocities in Our Time, New York, 2012; Hoffmann, Nollkaemper (eds.), Responsibility to Protect. From Principle to Practice, Amsterdam, 2012; Focarelli, Ahead to the Past? Responsibility to Protect and the Global System, in GroJIL, 2012, p. 1 ss., in ; Carlo Focarelli, International Law as Social Construct, Oxford, Oxford University Press, pp. 481–83; Eckart Klein and Stefanie Schmahl, Articles 10–12, in Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 1, 461–524; Mehran Asadzadeh, ‘Humanitarian Intervention, the Responsibility to Protect and Libya’, 8 AsJIL (2013) 27–47; Andrew J. Carswell, ‘Unblocking the UN Security Council: The Uniting for Peace Resolution’, 18 JCSL (2013) 453–80; Jeremy Moses, ‘Sovereignty as Irresponsibility? A Realist Critique of the Responsibility to Protect’, 39 RIS (2013) 137–60; Gentian Zyberi (ed), An Institutional Approach to the Responsibility to Protect (Cambridge: Cambridge University Press, 2013); Anne Orford, ‘Moral Internationalism and the Responsibility to Protect’, 24 EJIL (2013) 83–109; Carlo Focarelli, ‘The Responsibility to Protect in the Global System’, in Peter Hilpold (ed), The Responsibility to Protect (R2P): A New Paradigm of International Law? (Leiden: Nijhoff, 2014) 417–38; Luke Glanville, Sovereignty and the Responsibility to Protect: A New History (Chicago and London, The University of Chicago Press, 2014); Alex J. Bellamy, The Responsibility to Protect: A Defense (Oxford: Oxford University Press, 2015); Christian von Buttlar, ‘15 Years Into the “Responsibility to Protect”-Campaign: Taking a Breath in an Uphill Battle for More Consistent Intervention in Humanitarian Crisis’, in Christian Calliess (ed), Herausforderungen an Staat und Verfassung. Völkerrecht, Europarecht, Menschenrechte. Liber Amicorum für Torsten Stein zum 70. Geburtstag (Baden-Baden: Nomos, 2015) 65–77; Karin Oellers-Frahm, ‘Much Ado about R2P: A Critical Assessment of the Prospects of R2P as an “Obligation” to Protect’, ibid., 246–64.

63.  Discussions and recommendations on general questions In the field of maintaining peace, as in nearly all other fields (economic, social and cultural co-operation, etc.) in which the General Assembly is called upon

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to intervene, this body may issue only recommendations, that is, acts without binding force. Since it is the organ in which all States are represented, the Assembly’s power to discuss any question of a general nature regarding maintenance of the peace, and to possibly issue recommendations on such issue, has noteworthy importance. This power, which appears first in 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”), is specifically provided by Article 11, para. 1 (“The General Assembly may consider the general principles of cooperation in the maintenance of international peace and security…and may make recommendations with regard to such principles to the members or to the Security Council or to both”). In looking through the proceedings of the various sessions of the organ it is noticeable how much space is dedicated to “general discussions” which touch upon all the most important political and international topics of the period in which the session is held. It is with reference to such discussions that the United Nations’ nature of an “international forum”, of a “center of open diplomacy”, or of a “mirror of world public opinion” stands out. The number of recommendations—in truth, often wordy and repetitious—of the Assembly on general questions is very impressive. 64.  The peaceful settlement function With regard to specific disputes and concrete questions concerning given States, the Assembly exercises the same identical peaceful settlement function as does the Council on the basis of Chapter VI of the Charter. The peaceful settlement function of the Assembly has a broader scope of application than that of the Council. It covers, under Article 14, any question that touches upon the general welfare or friendly relations among nations (“…the Assembly”, Article 14 provides, “may recommend measures for the peaceful adjustment of any situation…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 provision in Article 14 absorbs the more specific one in Article 11, para. 2, according to which “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 [see § 50] and…may make

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r­ ecommendations with regard to any such question to the State or States concerned…”. Actually, Article 10 would be enough to provide a basis for the peaceful settlement function of the Assembly. This article, as seen earlier, gives the organ a general power to discuss “any questions…within the scope of the present Charter” and to “make recommendations…on any such questions…”. With regard to the procedure by which the Assembly is entrusted with a dispute or question, see Articles 12 ff. of the organ’s Rules of Procedure. These articles provide that the proposal to place a given question on the agenda of a session may be made by the other principal organs of the United Nations (those indicated by Article 7 of the Charter) as well as by any Member State or by a non-Member State. However, this is only if it is made under Article 35, para. 2, that is, if the State brings to the attention to the Assembly a dispute to which it is a party that is likely to threaten the peace. The Rules of Procedure thus confirm, with regard to any kind of dispute or question, the rules that Article 35, paras. 1 and 2, and Article 11, para. 2, formulate only in relation to the field of maintenance of the peace. As we saw regarding the Security Council (see § 43), the limitation concerning nonMember States has no practical relevance.

The very general terms of Article 14 (“…recommend measures for the peaceful adjustment…”) allow the peaceful settlement function of the Assembly to cover all the measures which could be adopted by the Security Council under Articles 33, para. 2, 36, 37 and 38 of the Charter. The Assembly may therefore use any instrument, as long as it is non-binding, that may bring about agreement between the parties involved in an international dispute or crisis or directly concerned in a situation. It may recommend recourse to one of the procedures under Article 33, or indicate terms of settlement (that is, solutions on the merits) or provide for the establishment or directly establish (making use of Article 22 on subsidiary organs) organs of good offices, mediation, conciliation, and so on. On the other hand, the absence of detailed provisions such as those provided for the Security Council by Chapter VII, an absence to be appreciated, eliminates any problem of interpretation. For some few examples of resolutions, see UN Rep. and Supplements, sub Article 14, (however, many resolutions coming under the peaceful settlement function appear in the lists under Articles 10 and 11); adde, as further examples, the following resolutions: Res. 1497XV of October 31, 1960 (recommendation to Italy and Austria to negotiate a settlement of the Upper Adige question); Res. 1599-XV of April 15, 1961 (presence of foreign troops in the Congo); Res. 1616-XV of April 21, 1961 (the conflict between Cuba and the United States); Resolutions 1855-XVII of December 19, 1962 and 1964-XVIII of December 13, 1963 (on the re-unification of Korea); Res. 2077-XX of December 18, 1965 (observance of the territorial sovereignty of Cyprus); Res. 2453-XXIII (A) of December 20, 1968 (Middle East question); Res. 2504-XXIV of November 19, 1969 (agreement between Indonesia and the Netherlands for Western Irian); Res. 2516-XXIV of November 25, 1969 (on the reunification of Korea); Res. 2535-XXIV, sec. B, of December 10, 1969 (Middle East question); Res. 3160-XXVIII of December 14, 1973 (dispute between Great Britain and Argentina over the Falklands/Malvinas Islands); Resolutions 3333-XXIX of December 17, 1974 and

340  The Functions 3390 A-XXX of November 18, 1975 (again on the reunification of Korea); Res. 3395-XXX of November 20, 1975 (negotiations for Cyprus); Res. 34/38 of November 21, 1979 (negotiations between the United Kingdom and Guatemala for Belize); Res. 34/412 of November 21, 1979 (negotiations for Gibraltar); Resolutions 37/9 of November 4, 1982 and 38/12 of November 16, 1983 (Falklands/Malvinas conflict); Res. 38/12 of November 16, 1983 (idem); Res. 38/10 of November 11, 1983 (support for the Contadora group’s mediation activities in Central America); Res. 38/77 of December 15, 1983 (Antarctic legal regime); Res. 39/6 of November 1, 1984 (Falklands/Malvinas); Res. 40/188 of December 17, 1985 (invitation to revoke the unilateral embargo ordered by several countries against Nicaragua); Res. 41/31 of November 3, 1986 (invitation to apply the decision of the International Court of Justice of June 27, 1986 on the United States intervention in Nicaragua); Res. 41/31 of November 3, 1986 (bombing of Libya by the United States); Res. 42/124 of December 7, 1987 (torture and cruel treatment of children in South Africa); Resolutions 43/177 of December 15, 1988 and 44/2 of October 6, 1989 (Arab-Israeli conflict); Res. 44/10 of October 23, 1989 (peace process in Central America); Res. 44/124 B of December 14, 1989 (Antarctic legal regime); Res. 44/240 of December 29, 1989 (armed intervention of the United States in Panama); Res. 45/68 of December 6, 1990 (Arab-Israeli conflict); Resolutions 46/7 of October 10, 1991 and 46/138 of December 6, 1991 (human rights situation in Haiti); Res. 46/18 of November 29, 1991 (situation in Cambodia); Res. 46/75 of December 11, 1991 (Arab-Israeli conflict); Res. 47/19 of November 24, 1992 and various others up until Res. 58/7 of November 4, 2003 (request to the United States to lift the embargo against Cuba); Res. 47/20 of November 24, 1992 (human rights situation in Haiti); Res. 47/21 of November 25, 1992 (withdrawal of foreign military forces from the Balkans); Res. 47/57 of December 9, 1992 (Antarctic legal regime); Res. 47/63 of December 11, 1992 (Middle East question); Res. 47/118 of December 18, 1992 (peace ­process in Central America); Res. 47/139 of December 18, 1992 (human rights situation in Cuba); Res. 47/140 of December 18, 1992 (human rights situation in El Salvador); Res. 47/141 of December 18, 1992 (human rights situation in Afghanistan); Res. 53/94 of February 11, 1999 (peace in Central America); Res. 53/164 of February 25, 1999 (human rights in Kosovo); Res. 54/42 (peaceful settlement of the question of Palestine); Res. 57/113 A of December 6, 2002, with reference to previous resolutions (situation in Afghanistan); Res. 57/228 of December 18, 2002 (Khmer Rouge trials in Cambodia); Res. 57/234 of December 18, 2002 (human rights situation in Afghanistan).

Are there limits to the general powers of the Assembly to carry out its conciliatory function? According to the letter of the Charter there are two limits, a substantial one and a procedural one. The substantial limit is that of domestic jurisdiction, but it is a limit that has disappeared, in practice, as far as human rights are concerned, intended in the broad sense that we saw above (see § 45 III). The procedural limit is provided for by Article 12, para. 1, which reads: “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”. It follows that the Assembly cannot exercise its conciliatory function on a matter that is “pending”, i.e. that is being examined by the Security Council. The provision of Article 12, para. 1, is a clear corollary of the principle affirmed by Article 24 under which the Council has

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primary responsibility for maintenance of the peace. Its purpose is to avoid on the one hand, external interference on the Council and, on the other, any conflicting decisions between the two organs on the same issue. The phrase “while the Security Council is exercising the functions assigned to it by the present Charter…” is to be understood restrictively, so as not to compromise the aim of the peaceful settlement of the dispute or situation. The exception founded on the fact that the case is pending before the Security Council may therefore be legitimately raised by the States before the Assembly in order to prevent it from dealing with the matter, independently of circumstances of mere form such as the registration of the dispute or situation on the agenda of the Council, only if the Council or its subsidiary organs are discussing or are actively concerned with the question, or if there is a reasonable probability that they will be so in a short time. A question is therefore not to be seen as raised “during the exercise by the Security Council” of its functions—and the Assembly can deal with it without violating Article 12, para. 1—if the matter, although registered on the agenda of the Council, is not subject to examination at that moment in time. In practice, the General Assembly has considered itself competent to adopt recommendations on maintenance of international peace and security, not only with regard to issues of a general nature or to individual aspects not related to international peace and security issues, or again to questions that— while entered on the agenda of the Council—the Council was not discussing at that very moment, but also to heed solutions on the merits that the Council, vested with the matter, had neither accepted nor expressly rejected. It is therefore understandable that the International Court of Justice (Advisory Opinion of July 9, 2004, on The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, paras. 27–28) held that the practice has evolved, showing “an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security”. Moreover, the Court held that such a practice “is consistent with Article 12, para. 1, of the Charter” and that this was sufficient for concluding, in the specific case, that the General Assembly could deal with the construction of the wall by Israel. The Opinion of the Court seems to be excessive from a general point of view, when it emphasizes that the practice in favor of the competence of the Assembly to make recommendations in parallel to the Security Council “complies” with Article 12, and is unnecessary in order to solve the problem of “lis alibi pendens” in the specific case, since the Security Council neither discussed, nor adopted any resolution on the construction of the wall. The fact is that also Article 12, para. 1, just as Article 2, par. 7, has been considerably eroded in the practice relative to their original meaning and that the limits of the Assembly, both procedural (lis pendens, with respect to the Security Council) and substantive (domestic

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jurisdiction, with respect to Member States), are now extremely narrow. Moreover, the International Court of Justice has taken up again and reiterated its ruling of 2004 in its subsequent opinion on the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo of July 22, 2010 (para. 41), pointing out that Article 12, para. 1, in prohibiting any “recommendation”, does not forbid the General Assembly to discuss, nor to ask the Court for an advisory opinion, as this request does not in itself constitute a recommendation on a matter being addressed by the Security Council. The Assembly practice initially seemed to favor a formalistic interpretation of Article 12, para. 1, and therefore the necessity that a question be cancelled from the Security Council agenda so that the Assembly could make it the subject of recommendations (cf. UN Rep., sub Article 12, nos. 23–54). Then, there was a tendency to take an excessively restrictive view, by interpreting the phrase in Article 12, para. 1, “while the Council is exercising…” in the sense of “while the Council is contemporaneously exercising…” (cf. UNJY, 1964, p. 229 ff. and, especially, 1968, p. 185). The reservations that were occasionally presented in the Assembly (for example: by Belgium, the Netherlands and Norway in 1970 concerning the discussion of the question of apartheid in South Africa, with which the Council was seized, in GAOR, 25th sess., Spec. Pol. Comm., 69th meet., nos. 7 and 43, and Pl. meet., 1864th meet., no. 84 ff.; by the Netherlands in 1971 regarding the Middle East question, also before the Council, in GAOR, 26th sess., Pl. meet., 2009th meet., no. 83 and 2016th meet., no. 221; by Iraq in 1990 in relation to the Gulf crisis, in A/45/PV.3 of September 25, 1990) usually fall on deaf ears. Recently, the discussion on the scope of Article 12, par. 1, of the Charter was resumed, with regard to the Gaza war that lasted from December 27, 2008 to January 19, 2009 (known as “Operation Cast Lead”, conducted by Israel in the Gaza Strip in response to the missiles launch by Hamas against Israel). At the 10th Emergency Special Session of the General Assembly on the issue of illegal Israeli actions in occupied territories, reconvened on January 15, 2009—convened for the first time in 1997 with Res. 377-V of November 3, 1950 called “Uniting for Peace” (see § 66)—Israel argued that the General Assembly could not, under Article 12, para. 1, of the Charter, make recommendations as the Security Council was already dealing with the question, which, in fact, had just adopted Res. 1860 of January 8, 2009, requesting to the parties involved an immediate ceasefire (see § 58). The President of the Assembly, however, replied that the convocation was justified because the military operations in Gaza continued, notwithstanding Council Res. 1860 (a resolution that was rejected by both Israel and Hamas), nor had the humanitarian access to the population of Gaza been granted (see UN Doc. GA/10807). In its advisory opinion on the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo of July 22, 2010, the International Court of Justice, faced with the objection that the General Assembly was not entitled to ask for the opinion since the issue of Kosovo was being addressed by the Security Council, noted, recalling the opinion of July 9, 2004 on the Legal consequences of the construction of a wall in the occupied palestinian territory (para. 25) that “[a] request for an advisory opinion is not in itself a ‘recommendation’ by the General Assembly” (at , para. 24). Then, reconsidering the issue from the point of view of its discretionary power to issue or not the opinion asked of it (see § 87), the Court stated that “[t]he fact that the situation in Kosovo is before the Security Council and the Council has exercised its Chapter VII powers in

The problem of General Assembly powers regarding “action”   343 respect of that situation does not preclude the General Assembly from discussing any aspect of that situation, including the declaration of independence” by Kosovo. In fact, according to the Court, “[t]he limit which the Charter places upon the General Assembly to protect the role of the Security Council is contained in Article 12 and restricts the power of the General Assembly to make recommendations following a discussion, not its power to engage in such a discussion” (ibid., para. 40). The Court concluded that in this case there were no “compelling reasons” for refusing to issue the opinion (para. 48). Since there are no other limits to the peaceful settlement function of the Assembly, besides those of domestic jurisdiction, under Article 2, para. 7, and of “lis alibi pendens”, under Article 12, para. 1, the view held by the United States in the session of November 6, 1986 (Doc. A/41/PV.53) after the adoption of the above-cited Res. 41/31 of November 3, 1986, which invited the US to give effect to the judgment handed down on June 27 of the same year by the International Court of Justice in the Nicaragua case, cannot be shared. According to this view, Article 94, para. 2 (which provides that the Security Council may make recommendations or decide upon measures to give effect to a judgment of the Court if one of the parties fails to do so voluntarily) would prevent the General Assembly from making recommendations on the matter. It seems to us that, failing an express limitation in this regard, the US thesis is unfounded and that the invitation to conform to the decisions of the Court perfectly falls within the competence of the Assembly to “recommend ­measures for the peaceful adjustment of any situation” under Article 14.

Does the Assembly have a power of investigation more or less similar to the one granted to the Security Council in Article 34? The answer must be yes. It is a power that is implicit in the peaceful settlement function, indispensable to the organ in establishing what measures of peaceful adjustment are to be recommended for a specific case, and it unquestionably can be deduced from the broad formulation of Article 14. It is obvious that, thus defined, the investigation must be preparatory to the peaceful settlement function. It becomes illegitimate if it is connected to the exercise of functions that the Assembly does not have, for example, functions which belong exclusively to the Security Council, such as those governed by Articles 41 and 42. 65.  The problem of General Assembly powers regarding “action”. A) The solutions given by the Charter There was much discussion and, and much quibbling, in the past over the General Assembly’s power to take “action” for the protection of the peace and, more specifically, to decide measures of the kind set out by Chapter VII of the Charter. This power has been affirmed by some observers in light of the Charter and by many on the basis of rules taking shape by custom. The topic was the subject of heated discussions in the doctrine between 1950 and 1960, a period when the Assembly, under pressure from the United States, expressed the wish to replace the Security Council in maintaining the peace, once it was clear that the Council was paralyzed by the use of the veto power. Later, the subject became less important owing to the Assembly’s incapacity to continue this course as a result of the enormous increase in the number of members and of

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the Great Powers’ reluctance to allow effective action by an enlarged organ that they were increasingly less able to control. With the Security Council’s recent hyper-activism, after the end of the Cold War, the topic has lost importance even more. However, it was discussed again more recently, as we will see later, with regards to the doctrine of “the responsibility to protect” elaborated by a commission of experts, namely, the International Commission on Intervention and State Sovereignty (ICISS) on the initiative of the Canadian Government. From the point of view of the Charter, the meaning of Article 11, para. 2, is the crucial point. After having recognized the Assembly’s power to discuss and to make recommendations on any question concerning maintenance of the peace, this provision adds “any such question on which action is necessary shall be referred to the Security Council…”. Can it be said that this confirms the Assembly’s lack of competence with regard to all measures provided under Chapter VII, a chapter entitled “action with respect to threats to the peace…” and which speaks only of the Security Council? Or is it possible to adopt a view that is more favorable to the competence of the Assembly? Clearly, in any case Article 11, para. 2, as well as Article 12, para. 1 (see § 64) can be explained in the light of the primary responsibility of the Security Council to maintain international peace and security, with the difference that while Article 12, para. 1, requires lis pendens, i.e. a situation where the Council is dealing with the question the General Assembly wants to deal with too, Article 11, para. 2, requires that the Council is not dealing with the question and the Assembly, which would like to deal with it, must refer it to the Council is bound to activate it and, as long as it concerns an “action”, not deal with it. In order to answer to the question on the meaning of the term “action”, under Article 11, para. 2, it is necessary to refer to the categories provided by Chapter VII, falling under the competence of the Council, and assess whether they all, or only some of them, amount to an “action” and are therefore precluded to the Assembly. As far as the measures involving the use of force are concerned, in our opinion, there cannot be any doubt about the Assembly’s absolute and complete lack of competence to resort to measures involving the use of armed force. First of all, it is to be excluded that the Assembly may impose or even only recommend to the States resort to the use of armed force. As we have seen (see § 60) such measures cannot be the object of binding decisions even on the part of the Security Council; moreover, the “authorizations” to use force adopted hitherto by the Security Council can be regarded as legal only on the basis of an ad hoc unwritten rule and it would be inappropriate to attribute to the Assembly competences that the Council itself does not possess under the Charter, unless one shows—which, as we shall see, is to be ruled out—that an ad hoc customary rule has come into being also for the Assembly. It is also to be excluded that the Assembly may undertake actions such as those

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governed by Article 42, that is, establish and direct armed forces for international police operations (even for “buffer zone” operations or operations to be carried within a State, somehow similar to peacekeeping operations established by the Security Council) or authorize their establishment and direction by the Secretary-General. If the reservation in Article 11, para. 2, in favor of the Security Council, has a meaning, it must be referred precisely to actions of this kind. In the light of the Charter, therefore, the Assembly resolutions adopted during the 1956 Suez crisis, and which were at the basis of the first United Nations Emergency Force (UNEF I), were illegal. This has been the only important operation carried out by the General Assembly regarding maintenance of the peace. UNEF I—not to be confused with UNEF II which was to be established by the Security Council in 1973: see § 60)—was set up by the Secretary-General with contingents offered by the Member States. It had the task of “ensuring and monitoring” the cessation of hostilities between Egypt, on one side, and Israel, the United Kingdom and France on the other (cf. Resolutions 998-ES I of November 4, 1956, 1000-ES I of November 5, 1956, and 1001ES I of November 7, 1956). The Socialist countries expressed their view that the Suez action was unlawful, given the Assembly’s lack of competence on the matter. They stated (cf., for example, GAOR, 1st Em. Spec. Sess., Pl. meet., 567th meet., no. 292–97; cf. also GAOR, 11th sess., Pl. meet., 591st meet., no. 40, 592nd meet., no. 53, 595th meet., no. 170) that they approved the UNEF resolutions from a political viewpoint but abstained from voting for them specifically to stress their reservations of a legal nature. These reservations led in the following years to their refusal to contribute to the UN’s expenses for maintaining the Force: see § 88). Those who affirmed the legality of the Suez action used arguments that were very similar to the ones adopted with regard to the subsequent actions of the Security Council in the Congo, in Cyprus and in the Middle East (see § 60). It was said that the UNEF action differed from the action under Article 42 of the Charter, since it had been organized with the consent of the territorial government, with forces not exactly directed against a State and with the intent not to use arms except in self-defense. In this way, an attempt was made to overcome the obstacle of the Assembly’s lack of competence. The International Court of Justice (in the Advisory Opinion on Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) of July 20, 1962) chose this route when it was called to give an Opinion on the refusal of some States to contribute to the expenses for the maintenance of the Force, a refusal which was also justified by the illegality of the relevant Assembly decisions (on the financial aspects of the case, see § 88). According to the Court, the measures taken in respect of Suez by the Assembly would not constitute one of the enforcement actions under Article 42 and reserved for the Security Council, but would come within Article 14, specifically among the measures that the Assembly may “recommend” for the “peaceful adjustment of situations…” (cf. ICJ Reports 1962, p. 171 f.). The above views are unfounded and the Assembly’s lack of competence remains if, as we have previously sought to demonstrate (see § 60), it is held that Article 42 is not to be restricted to actions undertaken against one specific State but covers any UN operation of a military nature. As for the Opinion of the International Court of Justice, with all due respect, it seems to us that reference to Article 14 is inappropriate. Article 14 gives the

346  The Functions Assembly the power to make recommendations to the States, whereas the UNEF resolutions belong to the category of operational decisions, that is, decisions through which the Organization itself undertakes action (see § 94). Moreover, since Article 14 is concerned with measures for the “peaceful adjustment” of situations, it seems quite far-fetched to bring under it the establishment of a military force, even if it is a buffer force such as UNEF. In fact, many States did not conform to the Opinion of the Court (ibid.).

Once the Assembly’s power to carry out military operations is excluded, may the organ at least order measures not involving the use of force of the kind governed by Article 41? It is on the basis of this article that the Security Council may impose or also only recommend that the Member States adopt measures not involving the use of force, such as the severance of diplomatic relations, economic sanctions, and so on, against a specific State (see § 59). In so far as the Assembly certainly does not have binding powers regarding the maintenance of the peace, the problem remains confined to whether it may recommend measures not involving the use of force. In fact, the Assembly has recommended a number of peaceful sanctions since its first years of activity. Amongst the Assembly resolutions recommending sanctions it is worth remembering Res. 39-I of December 12, 1946, which called upon the States to recall their heads of diplomatic missions accredited with the Fascist government in Spain (a measure then revoked with Res. 386-V of November 4, 1950); Res. 500-V of May 18, 1951, relative to the embargo on certain goods intended for North Korea and the People’s Republic of China; Res. 1761XVII of November 6, 1962, reconfirmed, specified and broadened several times in the following years (cf., for example, Resolutions 37/69 A of December 9, 1982 and 39/72 A of December 13, 1984) on the severing of economic relations with (and on the total isolation of) South Africa because of its policy of apartheid; Resolutions 2949-XXVII of December 8, 1972, 2203-XXVIII of December 17, 1973, 3336-XXIX of December 17, 1974, 35/122 B of December 11, 1980, 37/88 C and E of December 10, 1982, 37/123 A of December 20, 1982 and various others, up until Resolutions 63/29, 63/30 and 63/31 of November 26, 2008 and Res. 63/99 of December 5, 2008 on the non-recognition of Israeli acts of government in the Arab territories; Resolutions 42/23 F of November 20, 1987, 43/50 J of December 5, 1988 and many others, up until Res. 47/116 D of December 18, 1992, recommending an oil embargo against South Africa.

Are these resolutions lawful under the Charter? An objective interpretation of the Charter leads to the conclusion that the Assembly also lacks competence in this case and such resolutions are not in conformity with the Charter, except for those that are limited to confirming—as occurs, for example, regarding the non-recognition of Israeli acts of government in the occupied Arab territories—the sanctions already decided or recommended by the Security Council. The view here expressed is supported by the following reasons: first, the provision which explicitly concerns sanctions, Article 41, envisages only the ­competence of the Security Council; secondly, the sanctions, even if only recommended, are strictly part of the collective security system and this culminates in operations of a military nature; thirdly, as a result, the reservation

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under Article 11, para. 2, relating to Security Council “action”, could not be referred to measures under Article 42 unless it is held that it concerns also measures under Article 41; and, lastly, the provisions on the functions of the Assembly, particularly in Articles 10, 11 and 14, seem to concern decisions inviting co-operation among the States and the peaceful adjustment of disputes rather than resolutions having the nature of sanctions. Briefly, the term “action” under Article 11, para. 2, appears to refer to any sanctioning measure, as such under the exclusive competence of the Council, regardless of whether it is recommended, authorized or imposed on States. In fact, the Assembly has recommended peaceful sanctions right from the outset. The view has been expressed that the measures under Article 41, or at least some of them (for example, the severance of diplomatic relations), could always be recommended by the Assembly as lawful measures under customary international law and therefore that a State could also adopt them on its own initiative. This opinion was expressed, for example, by some delegates in the Assembly with regard to the cited resolution on the recall of heads of mission from Franco’s Spain (cf. GAOR, 1st sess., Pl. meet., 58th meet., pp. 1193 and 1220). This view cannot be accepted. Any form of unfriendly, or even hateful, conduct of one State towards another, even if in itself lawful under general international law, acquires the clear nature of a sanction if it is ordered by an international organ in the exercise of its functions, and must therefore be sustained by the competence of the organ that orders it. An unfriendly conduct permitted to single States is one thing, a different one is the competence of an international organ even just to recommend to all Member States to hold the same conduct. Other is the problem—which is fashionable today but which, as it does not concern the United Nations lies outside our treatment—of whether sanctions against States responsible for serious violations of international law may be adopted also by States not directly injured by such violations. It is certain, however, that the Assembly could not itself endorse or authorize such sanctions (even if they are lawful under general international law) since the Assembly is bound by the powers attributed to it by the Charter.

With regard to the third type of measures under Chapter VII, the provisional measures governed by Article 40 (see § 58), it is possible to recognize the Assembly’s competence to adopt them. It is certainly true, as seen with regards to the meaning of “enforcement measures” under Article 2, para. 7 (see § 47), that also the provisional measures are linked to the collective security system culminating in the military operations under Article 42 and that they in fact constitute the first, even if not indispensable, stage for Security Council “action” in the case of a threat to the peace or a violation of the peace. However, it is also true that, exactly because they constitute the first stage, these measures do not have, neither by definition must they have, the nature of sanctions. Thus, they tend to blur with the measures for the peaceful adjustment of situations, which certainly do come under the (peaceful settlement) function of the Assembly. The Assembly may therefore recommend a ceasefire or the liberation of prisoners or call upon the States not to introduce arms into areas where hostilities are underway, and so forth.

348  The Functions Cf., for example, Res.107-S I of May 15, 1947 (invitation to the Middle East governments and to the Arabs and Jews of Palestine to abstain from using weapons or from any other action “which might create an atmosphere prejudicial to an early settlement of the question of Palestine”); Res. 193-III of November 27, 1948 (invitation to bordering States not to support the guerrilla forces in Greece); Res. 997-ES I of November 2, 1956 (ceasefire between France, the United Kingdom and Israel on one side and Egypt on the other, during the Suez crisis, and recommendation to all the Member States not to send war material into the hostilities zone); and Res. 37/3 of October 22, 1982 (ceasefire between Iran and Iraq).

Lastly, both the General Assembly and the Security Council may intervene in procedures of national reconciliation, procedures that, as far as the Council is concerned, are admissible under Article 39 (see § 57). The Assembly has rarely intervened in national reconciliation. For an example, see Res. 48/267 of September 19, 1994, on the situation in Guatemala.

66.  B) The alleged formation of customary rules If military action (Article 42) and sanctions not involving the use of armed force (Article 41) are prohibited to the Assembly by the Charter, the question has been asked whether a customary rule has emerged on this subject. One part of legal doctrine holds that practice supports a positive answer. The first example used is usually the well-known Assembly Res. 377/V of November 3, 1950 “Uniting for Peace”. This resolution, initiated by the United States and adopted during the Korean crisis in order to circumvent Soviet Union’s vetoes, with 53 votes in favor (primarily the United States, which had proposed it), 5 against (Belarus, Czechoslovakia, Poland, Ukraine and the former Soviet Union) and 2 abstentions, stated explicitly 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” (cf. Part A of the resolution, especially nos. 1 and 8). It provided, from a procedural point of view, “Emergency Special Sessions” (ESS) upon the initiative of the Security Council by vote without the right of veto or a majority of the Members of the Organization (thus far 10 have been convened). According to the doctrine in question, the full competence of the Assembly to recommend and to take action for the maintenance of international peace and security, set out in Uniting for Peace, would be definitively consolidated as customary through the actual practice (namely the action in

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Suez and the resolutions recommending peaceful sanctions) that we have already mentioned in the previous paragraph. Serious doubts can be raised over the customary basis of the Assembly’s power. Two facts are decisive on this. The first is that the opposition by a group of States, the Socialist States, against the Assembly’s having this power was persistent and effective during the Cold War period. This opposition was shown in vehement form against the Uniting for Peace resolution, against the embargo measures ordered by the Assembly with regard to North Korea and Communist China, against the Assembly’s appointment of certain subsidiary organs, such as the Committee for Collective Measures, which were in some way related to measures for maintenance of the peace, and, lastly, against entering expenditures relating to these organs in the UN budget. The second fact is that even those countries, and particularly the Western powers, which had advocated the adoption of the Uniting for Peace resolution changed their position when they lost control of the General Assembly. The Uniting for Peace resolution was adopted by a vote of 52 to 5 (Czechoslovakia, Poland, Ukraine, Soviet Union, Byelorussia), with 2 abstentions (India and Argentina). With regard to the opposition of the States of the Communist bloc against the Uniting for Peace resolution, cf., GAOR, 5th sess., 1st Comm., 357th meet., no. 39 ff.; against Res. 500-V of May 18, 1951 on the embargo on goods intended for China and North Korea, cf., GAOR, 5th sess., Pl. meet., 330th meet., no. 37 ff., 64 ff., 69 ff., 85 ff., 101 ff.; against the creation of subsidiary organs, cf., UN Rep., sub Article 22, no. 51 ff. and Supp. no. 1, no. 9, note 5; against expenditures for subsidiary organs, GAOR, 7th sess., Pl. meet., 410th meet., no. 23 ff., 10th sess., Pl. meet., 559th meet., n. 148 ff., 11th sess., 5th Comm., 551st meet., no. 1 ff., 12th sess., Pl. meet., 731st meet., no. 71. The Socialist States also expressed their view of the illegality of the Uniting for peace resolution in the case of the Soviet invasion of Afghanistan, with regard to the Security Council’s convening of the Assembly in a special emergency session at the beginning of the 1980’s. For the protests made in the Council in the sessions between January 5 and 9, 1980, cf., Doc. S/PV.2185-S/PV.2190. For the protests in the Assembly, cf., the statements by Afghanistan, Mongolia and Czechoslovakia, in GAOR, 6th Em. Sp. Sess. (January 1O-14, 1980), 1st meet., no. 26 and no. 39, 6th meet., no. 92. For the position of the United States and of the other States which in 1950 had strongly supported the Uniting for peace resolution, the reservations expressed during the adoption of Res. 2107-XX of December 21, 1965, recommending economic sanctions against Portugal for its colonialist policies, are significant. These reservations were based on the Assembly’s lack of competence to recommend sanctions. Cf. GAOR, 20th sess., 4th Comm., 1591st meet., no. 1 (Canada), 1592nd meet., no. 10 (United States), no. 44 f. (Bolivia). Cf. also the reservations expressed by Australia, in 1976 regarding one of the many resolutions on the embargo against South Africa, in GAOR, 31st. sess., Pl. meet., 58th meet., no. 64 and the ones of various Western States, again based on the Assembly’s lack of competence to order sanctions and again concerning the resolutions adopted against South Africa, in GAOR, 35th sess. (1980), Pl. meet., 98th meet., no. 10 (EEC countries) and no. 26 (New Zealand), 37th sess. (1982), Pl. meet., A/37/PV.98, p. 2 (Japan), 38th sess. (1983), Pl. meet., A/38/PV.83, p. 20 (EEC countries); 43th sess. (1988), Pl. meet., A/43/PV.68; 44th sess. (1989), A/44/PV.63 (Belgium).

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The Uniting for Peace Resolution has been revised in recent years in both the jurisprudence of the International Court of Justice in its 2004 advisory opinion on the Wall in Palestine (para. 30) and in the 2010 advisory opinion on Kosovo (para. 42), and in the doctrinal debate, in relation to the already mentioned doctrine of the “responsibility to protect” and to the admissibility of humanitarian intervention, namely a military intervention to protect the citizens of another State in order to protect them from massive human rights violations committed by their own government (see § 56). In its report issued in 2001, the cited Commission in charge (ICISS), based on the idea that today’s sovereignty must be understood as “responsibility” of governments towards their own citizens, rather than “control”, argued that States have both a duty to prevent the most serious violations of human rights and a duty to protect their own citizens from such violations whoever commits them; if the States involved are unable or unwilling to do so, there is not only a duty of the international community to protect, through measures of various kinds that can reach in situations of extreme gravity even military intervention against the oppressive regime, but also a duty to rebuild the State. Military intervention, in particular, in the view of the Commission should be authorized by the Security Council and, if the Council itself proves unable or unwilling to act, the Commission has provided for the authorization of the General Assembly under the Uniting for Peace resolution, at least in order to confer to the intervention a “high degree of legitimacy”, and also, alternatively, of regional organizations under Chapter VIII of the Charter (see § 69). The doctrine of the responsibility to protect was subsequently accepted, without further specification and also with significant variations in the sense of the gradual dilution of its consequences, and moving towards prevention rather than reaction, by the High-level Panel in the Report A More Secure World: Our Shared Responsibility of 2004, by the UN SecretaryGeneral Report In Larger Freedom of 2005 and by the General Assembly in Res. 60/1 of October 24, 2005 containing the World Summit Outcome (see § 8). To date, the Security Council has never had recourse to it, in spite of requests to do so (e.g., in respect of the situation in Darfur and in Myanmar), and it has never even remotely been mentioned the possibility that the Assembly, based on the Uniting for Peace resolution, operated on its behalf as proposed in the 2001 report. For the text of the report on the responsibility to protect cf. . For the other documents cf. the report A More Secure World: Our Shared Responsibility (paras. 199–203), the report In Larger Freedom (paras. 132 and 135) and Res. 60/1 of October 24, 2005 containing the World Summit Outcome (paras. 138–39). See Carlo Focarelli, ‘The Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities for a Working Doctrine’, 13 JCSL (2008), pp. 191–213. On January 12, 2009 the UN Secretary-General issued a report on Implementing the

The alleged formation of customary rules   351 ­responsibility to protect (available at ), discussed in July 2009 by the General Assembly (see ) which adopted on September 14, 2009, Res. 63/308 taking note of the report and deciding to continue its consideration of the responsibility to protect (available at ).

The doctrine of responsibility to protect is now repeatedly invoked in practice, but from a practical standpoint it is hard to see its specific legal effects. It is, however, worth mentioning two cases relateing to Syria and North Korea, where it has recently been discussed with some degree of relevance. With regard to the Syrian crisis, the responsibility to protect was discussed precisely in terms of the possibility of humanitarian military intervention. The Security Council, which did not authorize it because of the Russian and Chinese veto, anyway adopted Res. 2165 of July 14, 2014 authorizing the United Nations humanitarian agencies and their partners to enter Syrian territory to ensure humanitarian support to the population, condemning the gross and systematic violations of human rights and humanitarian law committed both by the Syrian authorities and the rebel groups and reiterating the need for the Syrian authorities to fulfill their “primary responsibility…to protect the population”, a request which had previously been made through Res. 2139 of February 22, 2014. As for North Korea, in its 2014 on respect for human rights in that country, the Commission of Inquiry set up by the Council for Human Rights (see § 76) under Res. 22/13 of September 3, 2013 referred to the responsibility to protect the population of North Korea from crimes against humanity (see , paras. 1166, 1200–1202, 1204–1205, 1210, 1217). According to the Commission “[t]he international community, acting through the United Nations and consistent with its responsibility to protect, should make provisions to ensure that those most responsible for crimes against humanity in the DPRK are prosecuted before an international court and brought to justice”. The Commission thus indicated some viable “options”, the first two of which can be set in place by the Security Council without the consent of Korea (referral of the situation to the ICC and creating an ad hoc International Criminal Court) while the remaining three are more limited and dependent on the will of Korea (recourse to a hybrid criminal court, setting up a special International Prosecutor for Korea, recourse to a truth and reconciliation mechanism). In any event, the report is not legally binding and is nothing more than an attempt to give direction to the practice. It should be noted that the responsibility to protect doctrine represents an evolution of the “right to interfere” (droit d’ingérence) doctrine elaborated and promoted in the 1980s by

352  The Functions the non-governmental organization Médecins sans frontières (in particular by Bernard Kouchner) and of the French doctrine (especially Mario Bettati) and strenuously defended by the then President of the French Republic François Mitterrand. According to this doctrine, in case of humanitarian emergency in a State that cannot or is not willing to bring aid, other States as well as international inter-governmental (IOs) and non-governmental organizations (NGOs) should be deemed to possess the right—if not even the “duty”, at least of a moral nature—to have access to the victims in order to bring rescue, including the right of “inoffensive passage” through “humanitarian corridors” established within the territory of the State in question. The “right to interfere” of third rescue entities corresponds to a right of the victims to be rescued, first of all by the territorial State but also, if the State cannot or is unwilling to do so, by third rescue entities regardless of the consent of the territorial State. The right to interfere doctrine was substantially received by the General Assembly with Res. 43/131 of December 8, 1988 on humanitarian assistance to the victims of natural disasters, followed by other resolutions, such as Res. 45/100 of December 14, 1990 (preamble and para. 2), Res. 46/182 of December 19, 1991 (para. 4) and Res. 48/188 of December 21, 1993 (preamble). The Security Council received it with Res. 688 of April 5, 1991 (para. 3) on humanitarian assistance to the Curds in northern Iraq. See Mario Bettati, Le droit d’ingérence. Mutation de l’ordre international (Paris: Jacob, 1996); and for further reference, also on the common and distinguishing features of the droit d’ingérence with the responsibility to protect, see Carlo Focarelli, Duty to Protect in Cases of Natural Disasters, in EPIL, at .

Finally, the case of West Irian has also been considered as an example of peacekeeping operations grounded in practice. This was, as observed above (see § 62), a (single) case of temporary administration by the United Nations organized by the General Assembly in 1963 and concerning a former colony of the Netherlands. In our opinion, the Assembly was rather acting at the time in the framework of decolonization (see § 80).

Section IV.  Maintenance of the Peace: The Functions of the Secretary-General Select bibliography: Stephen M. Schwebel, The Secretary-General of the United Nations, His Political Powers and Practice (Cambridge: Harvard University Press, 1952); Michel Virally, ‘Le rôle politique du Secrétaire général des Nations Unies’, 4 AF (1958) 360–99; J. Siotis, Essai sur le Secrétariat international (Genève: Droz, 1963) 168 ff; Sydney D. Bailey, The Secretariat of the United Nations (New York: Praeger, 1964); Derek W. Bowett, United Nations Forces (London: Stevens, 1964); Giorgio Lodigiani, ‘Le funzioni del Segretario generale delle Nazioni Unite in ordine agli scopi fondamentali dell’ Organiz­ zazione’, 17 Jus (1966) 165–98; Mark W. Zacher, ‘The Secretary-General and the United Nations’ Function of Peaceful Settlement’, 20 Int. Org. (1966) 724–49; J. Soubeyrol, ‘Aspects de la fonction interprétative du Secrétaire général de l’ONU lors de l’affaire du Congo’, 70 RGDIP (1966) 565–631; Giorgio Balladore Pallieri, ‘La posizione costituzionale del Segretario Generale delle Nazioni Unite’, 21 DI (1967) 143–51; Leon Gordenker, The UN Secretary-General and the Maintenance of Peace (New York: Columbia Univ. Press, 1967); Marie-Claude Smouts, Le Secrétaire général des Nations Unies; son rôle dans la solution des conflits internationaux (Paris: Colin, 1971); O. Pirotte and P.M. Martin, ‘La fonction de Secrétaire général de l’ONU à travers l’expérience de M. Kurt Waldheim’, 78 RGDIP (1974) 121–69; B.G. Ramcharan, ‘The Good Offices of the United Nations Secretary-General in the

Delegated functions and executive functions   353 Field of Human Rights’, 76 AJ (1982) 130–41; Robert S. Jordan, Dag Hammarskjöld Revisited: The UN Secretary-General as a Force in World Politics (Durham: Carolina Acad. Pr.: 1983); Yves Beigbeder, ‘Le rôle politique, administratif et opérationnel du Secrétaire général de l’ONU’, 51 RISA (1985) 279–92; Nabil A. El Araby, ‘The Office of Secretary-General and the Maintenance of International Peace and Security’, 42 REgDI (1986) 1–83; M. Christine Bourloyannis, ‘Fact-Finding by the Secretary-General of the UN’, 22 NYUJILP (1990) ­641–49; Roberto V. Lavalle, ‘The “Inherent” Powers of the UN Secretary-General in the Political Sphere: A Legal Analysis’, 37 NILR (1990) 22–36; Paul C. Szasz, ‘The Role of the UN Secretary-General: Some Legal Aspects’, 24 NYUJILP (1991) 161–98; Benjamin Rivlin and Leon Gordenker (eds), The Challenging Role of the UN Secretary-General. Making the “Most Impossible Job in the World” Possible (Westport: Praeger, 1993); Changavalli S.R. Murthy, ‘The Role of the UN Secretary-General since the End of the Cold War’, 35 InJIL (1995) 181–96; Edward Newman, The UN Secretary-General from the Cold War to the New Era: A Global Peace and Security Mandate? (Basingstoke: Macmillian, 1998); Boutros BoutrosGhali, Unvanquished, A U.S.-U.N. Saga (New York: Random House, 1999); Dan Sarooshi, The United Nations and the Development of Collective Security. The Delegation by the UN Security Council of its Chapter VII Powers (Oxford: Clarendon Press, 1999), Chapter 2; Anne-Laure Vaurs-Chaumette, in Jean-Pierre Cot, Alan Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed), vol. 2, 2035–50; Jorge Cardona Llorens and Mariano Aznar Gomez, ibid., 2051–80; Kent J. Kille, From Manager to Visionary. The Secretary-General of the United Nations (Basingstoke: Palgrave Macmillan, 2006); Simon Chesterman (ed), Secretary or General? The UN Secretary-General in World Politics (Cambridge: Cambridge University Press, 2007); Kamrul Hossain, ‘The Challenge of Peace Management. The Role of the United Nations Secretary-General’, 48 InJIL (2008) 232–41; Stephen F. Burgess, ‘The Maintenance of International Peace and Security by the UN and the Role of the Secretary General’, 12 IP (2008) 39–49; Bertrand G. Ramcharan, ‘The Human Rights Diplomacy of the UN SecretaryGeneral’, in Michael O’Flaherty et al. (eds), Human Rights Diplomacy: Contemporary Perspectives (Leiden: Nijhoff, 2011) 173–90; Ralph Zacklin, The United Nations Secretariat and the Use of Force in a Unipolar World: Power v. Principle (Cambridge: Cambridge University Press, 2011); Simon Chesterman, Articles 97–99, in Bruno Simma, DanielErasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 2, 1991–2021.

67.  Delegated functions and executive functions The most important power of the Secretary-General in the area of maintenance of the peace (as in every other field of UN activity) is drawn from Article 98, under which the Secretary performs the functions that are “entrusted” to him by the General Assembly or the Security Council. The delegation of powers so provided by Article 98 is not subjected to any special condition or even to the setting of any guidelines. An objective limit, however, may be implied in the UN system, especially in the provisions which attach the responsibility for maintenance of the peace to the Security Council and, secondarily, to the General Assembly. These provisions make it unthinkable that there could be any transfer of functions that does not pertain to specific and concrete cases. It is also obvious that the only functions that can be transferred are the ones held by the delegating organ.

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As occurs in any case of delegation, the Secretary enjoys wide autonomy in carrying out the functions entrusted to him. In the exercise of such autonomy the personality of the holder of the office plays a decisive role. Autonomy must, however, be exercised in compliance with limits and instructions imposed by the delegating organ as well as with the observance of the Charter provisions. However, it includes the decision-making power and also the implied powers that are necessary for fulfillment of the task. As we have already noted in the context of peacekeeping operations (see § 60) Article 98 does not envisage the type of delegation as provided for in domestic law, i.e. as a mandate given by a private person to another person. The delegation can be better explained as “instructions”. The Secretary-General being the chief administrative officer of the Organization, the relation with the Security Council is always an inter-organic relationship within the framework of the Charter. It is obvious that the functions entrusted to the Secretary-General can be exercised by his representatives. A “sub-delegation” of powers (Sarooshi) is also obvious. The relationship between the Secretary-General and his representative is a hierarchical one and the delegation of powers by the Security Council to the Secretary-General always covers the staff under his jurisdiction.

Many examples of delegation can be seen in practice. There are various resolutions in which the Secretary was entrusted with powers pertaining to the Security Council or the General Assembly, particularly powers of investigation, of mediation and, more in general, of conciliation. However, the most striking cases concern operations for the maintenance of the peace, especially the establishment, as requested by the Security Council, of military forces entrusted with peacekeeping functions (see § 60). These cases are to be noted precisely because of the Secretary-General’s exercise of a series of powers expressly coming within the tasks entrusted to him. Examples can be seen in the conclusion of agreements with States on whose territories the Forces have been operating and with the States that have contributed to their establishment, the decision concerning the specific use of such Forces, the issuance of all the rules governing the service relationship between the solders and the Secretary, and so on. In the last decade the cases of delegation by the Security Council or the General Assembly are numerous especially as far as powers of conciliation and mediation are concerned. See, for instance, regarding the Security Council, Res. 788 of November 19, 1992, para. 7, which authorizes the Secretary-General to support the process of national reconciliation in Liberia; and Res. 811 of March 12, 1993, para. 8, on the national reconciliation in Angola. Regarding the General Assembly, see, for instance, Res. 46 of October 11, 1991, entrusting the Secretary-General with powers of mediation between the de facto Government of General Cedras and the Government of President Aristide in Haiti. The delegation may be subject to a specific directive or not. As an example of a delegation free from conditions or restrictions the Security Council Res. 1511 of October 16, 2003 may be quoted. Paragraphs. 7 and 8 of the resolution authorizes the Secretary-General to participate in the political process in Iraq, on the request of occupying States. On the basis

Delegated functions and executive functions   355 of this resolution, the Secretary-General and his Special Advisor were able to formulate various proposals on the transfer of powers from the occupying States to the Iraqi people (see Doc. S/2004/40 of January 19, 2004 and the Statement of the President of the Security Council of April 27, 2004, in Doc. S/PRST/2004/11).

The delegation may always be revoked by the delegating organ. However, explicit revocations aside, it should be addressed the question of what will happen if the delegating organ, after having transferred certain powers and issued certain directions on a specific question, no longer is able to take decisions, not even to revoke, on subsequent developments in the matter. Must the SecretaryGeneral in this case continue in the exercise of the delegated functions, or will the delegation terminate because of the change in the circumstances existing at the time of delegation? A question of this kind arose during the Congo action when, between August 1960 and February 1961, the chaos existing within the Congo made the carrying out of the task (which had no time limit) entrusted to the Secretary by Security Council Res. 143 of July 14, 1960 very problematic. The task was to assist the Congolese government in maintaining order (see § 60). Dag Hammarskjöld, who was Secretary at the time—and who was subsequently to give his life through service to the United Nations—on one hand had requested, to no avail, instructions from the Security Council and the General Assembly (both were paralyzed by conflicts between their members), and on the other was harshly criticized by the Soviet Union and the other Socialist countries (who reached the point of asking for his resignation) for his initiatives. Hammarskjöld’s view that the Secretary had the duty to continue an operation he had undertaken, even at the cost of making independent decisions, should be shared in this particular case. Perhaps it is correct to say that a delegation ceases only when there has been such a radical change of circumstances as to make any decision impossible in the light of what were the instructions. And this cannot be said about the Congo. Cf., for the criticism and the defense in the Security Council of the Secretary-General’s actions: SCOR, 15th year, 888th–889th meets., 901st–916th meets., and 16th year, 928th– 932nd meets.

The purely administrative functions of the Secretary-General must be kept distinct from the delegated functions, although this distinction is more ­ ­quantitative than qualitative and has had no important repercussions. The executive functions (under Article 97, according to which “The SecretaryGeneral…shall be the chief administrative officer of the Organization”) include any kind of activity necessary to give effect to the decisions of the General Assembly or of the Security Council which does not involve, or which involves to a very limited extent, the exercise of decision-making power by the Secretary. An example which is typical and which often occurs is given by resolutions

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which, after having recommended certain conduct to the States, request the Secretary-General to make inquiries and to keep the organ informed as to whether the recommendation has been carried out. 68.  Autonomous initiatives for peaceful settlement Even without specific delegation by the Assembly or the Council, the SecretaryGeneral has often carried out peaceful settlement functions by offering his role as a mediator to those States involved in an international or domestic crisis. The Charter does not expressly envisage such initiatives. Nor the view that they implicitly come within the power attributed to the Secretary by Article 99 (“The Secretary-General may bring to the attention of the Security Council any matter which…may threaten the maintenance of international peace…”) cannot be accepted. The provision of Article 99 deals with a procedural matter, the convening of the Council, and it cannot serve to solve a question of substance. Rather, it seems that the Secretary’s initiatives must be placed outside of the formal institutional framework of the United Nations. In practice, doubts may be cast about the compatibility of the Secretary-General’s general power of mediation and conciliation in an international crisis (a crisis involving States) with the Charter. The practice regarding international crises is poor. Moreover, the lack of competence of the Secretary-General to take autonomous initiatives has been stressed by some States with regard the Kosovo crisis, during the three months’ air war against the Federal Republic of Yugoslavia in 1999. The United States Secretary of State, in particular, warned the SecretaryGeneral to confine himself to execute the resolutions adopted by the General Assembly and the Security Council, i.e. to co-ordinate the humanitarian aids to the Kosovo refugees (cf. Le Monde of May 8/9, 1999).

As far as domestic crises are concerned, the conclusion is perhaps somewhat different. The autonomous initiatives of the Secretary-General within the framework of national reconciliation have never been met by objections from Member States. On the contrary, they have ex post gained the support of the Security Council or the General Assembly. See, for instance, Security Council Resolutions 782 of October 13, 1992 (situation in Mozambique), 1216 of December 21, 1998 (wherein the Security Council “welcomes the agreements between the Government of Guinea Bissau and the Self Proclaimed Military Junta”, an agreement concluded with the mediation of the Secretary-General), 1234 of April 9, 1999 (wherein the Council “expresses its support for the Special Envoy of the Secretary-General for the peace process in the Democratic Republic of Congo). Regarding the General Assembly, see, for instance, Res. 38/3 of October 27, 1983 (paras. 8 and 9), and 39/4 of October 26, 1984 (paras. 3 and 4).

It is to be excluded that the Secretary may proceed independently with formal investigations of the kind envisaged by Article 34. Neither can the power of

Regional actions “authorized” by the Security Council  357

investigation be held to be implicit in Article 99, because of the merely procedural nature of this provision. On the other hand, it is a power whose exercise would be unthinkable outside of the institutional framework of the United Nations. The power to conduct investigations was claimed by the Secretary-General in the UN’s first year. However, it was done only in an incidental and very general manner. During a Security Council meeting where the question of infiltration through Greek borders during the civil war was being discussed, the then Secretary Trygie Lie asserted his own “right to make such enquires or investigations” in order to establish whether a question should or should not be brought to the attention of the Council (cf. SCOR, 1st year, 70th meet., p. 404). However, his statement did not have any specific consequences. The problem was again proposed in 1970 when the Secretary-General, at the invitation of the United Kingdom and Iran, conducted an investigation aimed at ascertaining the wishes of the inhabitants of the Bahrain Islands regarding a possible relationship of protection or of union with either State, or the acquisition of full independence. The results of the investigation, favorable to independence, were communicated by the Secretary to the Security Council (cf. Doc. S/9772 in SCOR, 25th year, Supp. for April-May-June 1970, p. 166), and the Council adopted them with Res. 278 of May 11, 1970. During the debate, however, both the Soviet Union (cf. Doc. S/9737, in SCOR, 25th year, Supp. cit, p. 143, and 1536th meet., no. 73) and France (ibid., 1536th meet., no. 156) protested over the procedure adopted and over the “independent” action of the Secretary. France in particular said that such a procedure should not be meant to constitute a precedent. The position of France and the Soviet Union, opposed in an opinion of the Secretariat (in UNJY, 1973, p. 162 ff.) which resorted to the theory of implied powers (on this, see § 5), is, for the reasons we have given, correct.

Section V.  Maintenance of the Peace and Regional Organizations Select bibliography: Jesus M. Yepes, Les accords régionaux et le droit international, 71 RC (1947-II) 235–341; Pierre Vellas, Le régionalisme international et l’Organisation des Nations Unies (Paris: Pedone, 1948); Butrus Boutros Ghali, Contribution à l’étude des ententes régionales (Paris: Pedone, 1949) 122 ff; E.N. Van Kleffens, ‘Regionalism and Political Pacts’, 43 AJ (1949) 666–79; W.W. Kulski, ‘The Soviet System of Collective Security Compared with the Western System’, 44 AJ (1950) 453–76; Hanna Saba, ‘Les accords régionaux dans la Charte de l’O.N.U.’, 80 RC (1952-I) 635–716; Daniel Vignes, ‘La place des pactes de défense dans la société internationale actuelle’, 5 AF (1959) 37–101; Félix Fernández-Shaw, La Organización de los Estados Americanos (O.E.A.) (Madrid: Ed. Cultura Hispanica, 1963); Ann V.W. Thomas, Andrew J. Thomas, The Organization of American States, Dallas, 1963; Rolando Quadri, Diritto internazionale pubblico (Napoli: Liguori, 1968, 5th ed) 373–75; Paul A. Tharp (ed), Regional Organizations. Structures and Functions (New York: St. Martin’s Pr., 1971); R.A. Akindele, ‘The Organization of African Unity and the United Nations: A Study of the Problems of Universal-Regional Relationship in the Organization and Maintenance of International Peace and Security’, 9 CYIL (1971) 30–58; Butrus Boutros-Ghali, La Ligue des Etats Arabes, 137 RC (1972-II) 1–82; A. Moussa, Rapports entre les Nations Unies et la Ligue des Etats arabes, 29 REgDI (1973) 67–124; Aida L. Levin, The OAS and the UN: Relations in the Peace and Security Field (New York: United Nations Institute for Training and Research, 1974); Abram Chayes, The Cuban Missile Crisis (London: Oxford University Press, 1974); S. Azadou Tiewul, ‘Relations Between the UN Organization and the Organization of African Unity in the Settlement of Secessionist

358  The Functions Conflicts’, 16 HILJ (1975) 259–302; Larman C. Wilson, ‘The Settlement of Conflicts Within the Framework of Relations Between Regional Organizations and the UN: the Case of Cuba 1962–64’, 22 NILR (1975) 282–318; Francesco Leita, ‘Il sistema di sicurezza interamericano nel Protocollo di emendamento del Trattato di Rio de Janeiro’, 32 CI (1977) 26–56; Francis, ‘Treaty Establishing the Caribbean Community: An Analysis’, in InJIL (1982) 278 ff; Joachim Wolf, ‘Regional Arrangements and the UN Charter’, 6 EPIL (1983) 289 ff; Omar Bakhshab, ‘The Concept of Regional Arrangements’, 40 REgDI (1984) 195– 206; Domingo E. Acevedo, ‘The Right of Members of the Organization of America States to Refer their “Local” Disputes Directly to the UN Security Council’, 4 AUJILP (1989) 25–66; Id., ‘Relationship Between the Organization of American States and the UN with regard to Settlement of International Disputes’, in TA (1991) 61 ff; Rüdiger Wolfrum, ‘Der Beitrag regionaler Abmachungen zur Friedenssicherung: Möglichkeit und Grenzen’, 53 Bruns’Z (1993) 576–602; Christian Walter, Vereinte Nationen und Regionalorganisationen. Eine Untersuchung zur Kapitel VIII der Satzung der Vereinten Nationen (Berlin/Heidelberg: Springer, 1996); Niels Blokker and Sam Muller, ‘NATO as the UN Security Council’s Instrument: Question Marks from the Perspective of International Law ?’, 9 LJIL (1996) 417–21; Andrea Gioia, The UN and Regional Organizations in the Maintenance of Peace and Security, in Michael Bothe, Natalino Ronzitti and Allan Rosas (eds), The OSCE in the Maintenance of Peace and Security. Conflicts Prevention, Crisis Management and Peaceful Settlement of Disputes (The Hague: Kluwer Law International, 1997) 191–236; Ugo Villani, Il ruolo delle organizzazioni internazionali nel sistema dell’ONU, 53 CI (1998) 428–59; Massimo Iovane, La NATO, le organizzazioni regionali e le competenze del Consiglio di sicurezza in tema di mantenimento della pace, ibid., 43–71; Louis Henkin, ‘Kosovo and the Law of “Humanitarian Intervention”’, 93 AJ (1999) 824–28; Jonathan I. Charney, ‘Anticipatory Humanitarian Intervention in Kosovo’, ibid., 834–41; William M. Reisman, Kosovo’s Antinomies, ibid., 860–62; Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EJIL (1999) 1–22; Antonio Cassese, Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, ibid., 23–30; Bakhtyar Tuzmukhamedov, ‘The Legal Framework of CIS Regional Peace Operation’, 6 IP (2000) 1–6; Zsuzsanna Deen-Racsmáni, ‘A Redistribution of Authority Between the UN and Regional Organizations in the Field of the Maintenance of Peace and Security’, 13 LJIL (2000) 297–331; Wolfang Biermann, ‘UN, OSCE and NATO: International Division for Labor in Peace Support Operations’, in Kurt R. Spillmann and Yvonne Rosteck (eds), Peace Support Operations: Lessons Learned and Future Perspectives (Bern: Lang, 2001) 75–108; Ugo Villani, ‘Les rapports entre l’ONU et les organisations régionales dans le domaine du maintien de la paix’, 290 RC (2001) 225–436; Emanuela Pistoia, ‘Le operazioni militari c.d. non-Article 5 previste nella “nuova” Dottrina strategica della NATO e ONU alla luce del Capitolo VII della Carta’, in Elena Sciso (ed), L’intervento in Kosovo. Aspetti internazionalistici e interni (Milano: Giuffrè, 2001) 139–86; Georg Ress and Jürgen Bröhmer, ibid., 854–90; Inger Österdahl, ‘The Continued Relevance of Collective Security under the UN: The Security Council, Regional Organizations and the General Assembly’, 10 FYIL (1999) 103–40; Ugo Villani, ‘The Security Council’s Authorization of Enforcement Action by Regional Organizations’, 6 MP YUNL (2002) 535–57; Erika De Wet, ‘The Relationship between the Security Council and Regional Organizations during Enforcement Actions under Chapter VII of the United Nations Charter’, 71 NoJIL (2002) 1–37; Terry M. Mays, The 1999 United Nations and 2000 Organization of African Unity formal Inquiries: A Retrospective Examination of Peacekeeping and the Rwandan Crisis of 1994 (Clementsport: Canadian Peacekeeping, 2002) 33–6; Murase Shinya, ‘The Relationship between the UN Charter and General International Law Regarding Non-Use of Force: The Case of NATO’s Air Campaign in the Kosovo crisis of 1999’, in Liber Amicorum Judge

Regional actions “authorized” by the Security Council  359 Shigeru Oda (The Hague: Kluwer Law International, 2002), vol. 2, 1543–54; Jeremy I. Levitt, The Peace and Security Council of the African Union: The Known Unknowns, 13 TLCP (2003) 109–37; Michael C. Pugh and Waheguru P. Singh Sidhu, The United Nations & Regional Security: Europe and Beyond (Boulder: Lynne Rienner, 2003); Nikolaos Tsokanas, ‘The Theory of the Post Cold-War Relations Between the UN and the Regional Organizations’, 56 RHDI (2003) 567–76; Flavia Lattanzi and Marina Spinedi (eds), Le organizzazioni regionali e il mantenimento della pace nella prassi di fine XX secolo (Napoli: Editoriale Scientifica, 2004); Gustaf Lind, The Revival of Charter VIII of the UN Charter. Regional Organizations and Collective Security (Stockholm: Stockolm Universitet, 2004); Ademola Abass, Regional Organisations and the Development of Collective Security. Beyond Chapter VIII of the UN Charter (Oxford: Hart, 2004); Edem Kodjo and Habib Gherari, in Jean-Pierre Cot, Alan Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed), vol. 2, 1367–402; Robert Kolb, ibid., 1403–37; Mesmer Gueuyou, ibid., 1439–45; Richard Burchill, ‘Regional Organizations and the Promotion and Protection of Democracy as a Contribution to International Peace and Security’, in R. Burchill (ed), International Conflict and Security Law. Essays in Memory of Hilaire McCoubrey (Cambridge: Cambridge University Press, 2005) 209–34; Dick A. Leurdijk, UN Reform and NATO Transformation: The Missing Link (The Hague: Netherlands Institute of International Relations ‘Clingendael’, 2005); Carlo Focarelli, ‘Integrazione europea e difesa comune’, in Natalino Ronzitti (ed), Il diritto dei trattati nelle attività di interesse delle Forze Armate (Gaeta: Artistic & Publishing Company, 2003) 159–98; Criseide Novi, La politica di sicurezza esterna dell’Unione Europea (Padova: Cedam, 2005); Matthias Dembinski, Katja Freistein and Brigitte Weiffen, Form Characteristics of Regional Security Organizations. The Missing Link in the Explanation of the Democratic Peace (Tübingen: Universität Tübingen, Inst. Für Politikwiss, 2006); Giuseppe Nesi (ed), International Cooperation in Counter-Terrorism: The United Nations and Regional Organizations in the Fight against Terrorism (Aldershot: Ashgate, 2006); Maurice Kamto, ‘Le rôle des “accords et organismes régionaux” en matière de la paix et de la sécurité internationales à la lumière de la Charte des Nations Unies et de la pratique internationale’, 111 RGDIP (2007) 771–802; Sai Ihrai, Le maintien de la paix et de la sécurité international dans les projets de réforme de la Ligue des États arabes, in Louis Balmond, Jean-François Guilhaudis (eds), Le sécurité international entre rupture et continuité. Mélanges en l’honneur du professeur Jean-François Guilhaudis (Bruxelles: Bruylant, 2007) 299–318; Raffaella Nigro, ‘La gestione civile e militare delle crisi da parte dell’Unione europea—Le missioni dell’Unione europea’, in Fabio Raspadori, La politica estera dell’Unione europea: istituzioni e strumenti di pace (Perugia: Morlacchi Editore, 2007) 165–94; Monica Herz, Resolution 1540 in Latin America and the Role of the Organization of American States, in Lawrence Scheinman (ed), Implementing Resolution 1540: The Role of Regional Organizations (New York: United Nations Publications, 2008) 9–41; Fernando Ippoliti, ‘Il ruolo dell’Unione Africana nella crisi somala: la Missione AMISOM e i rapporti con il Consiglio di Sicurezza delle Nazioni Unite’, 63 CI (2008) 673–92; Gary Wilson, ‘Regional Arrangements as Agents of the UN Security Council’, 29 LLR (2008) 183–204; Tânia Felicio, ‘The United Nations and Regional Organizations: The Need for Clarification and Cooperation’, 62 StD (2009) 13–19; Charles Riziki Majinge ‘Regional Arrangements and the Maintenance of International Peace and Security: The Role of the African Union Peace and Security Council’, 48 CYIL (2010) 97–149; Eric P.J. Myjer and Nigel D. White (eds), ‘Peace Operations Conducted by Regional Organizations and Arrangements’, in Terry D. Gill and Dieter Fleck (eds), The Handbook of the International Law of Military Operations (Oxford: Oxford University Press, 2010) 163–84; Suyash Paliwal, ‘The Primacy of Regional Organizations in International Peacekeeping: The African Example’, 51 Virg. JIL (2010)

360  The Functions 185–230; Emil J. Kirchner and Roberto Domínguez (eds), The Security Governance of Regional Organizations (London: Routledge, 2011); Ludovica Poli, La responsabilità di proteggere e il ruolo delle organizzazioni internazionali regionali: nuove prospettive dal continente africano (Napoli: Edizioni Scientifiche Italiane, 2011); Antonio Marchesi, La protezione internazionale dei diritti umani: Nazioni Unite e organizzazioni internazionali (Milano: FrancoAngeli, 2011); Christian Walter, Hybrid Peacekeeping: Is UNAMID a New Model for Cooperation Between the United Nations and Regional Organizations?, in Holger P. Hestermeyer et al. (eds), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum (Leiden: Nijhoff, 2012) 1327–40; Id., Introduction to Chapter VIII, Articles 52–54, in Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 2, 1429–44; Erika De Wet, ‘Regional Organizations and Arrangements: Authorization, Ratification, or Independent Action’, in Marc Weller (ed.), The Oxford Handbook of the Use of Force in International Law (Oxford: Oxford University Press, 2015); Peter Wallensteen and Anders Bjurner (eds), Regional Organizations and Peacemaking: Challengers to the UN? (London and New York: Routledge, 2015).

69.  Regional actions “authorized” by the Security Council As the opening article in Chapter VIII on regional arrangements, Article 52 recognizes international organizations that are created at a regional level and emphasizes their task in the settlement of local disputes between the countries who are member of them. This is an almost superfluous provision, since resort to regional agencies is already mentioned in Article 33 as one of the means for the peaceful settlement of disputes. In any case, it is worth remembering that Article 52, together with Chapter VI, expressly falls under those dispositions for which there is an obligation to abstain for the Member of the Council that is a “party to the dispute” (see § 27). In turn, Article 54 imposes on regional organizations the obligation to inform the Security Council of the actions they take or plan on taking for the maintenance of international peace and of security. Article 53, para. 1, is much more important. It concerns regional agencies organized for its members’ defense and mutual assistance in the event of war or crises short of war. It provides that the Security Council may utilize “regional agreements or agencies for enforcement action under its authority”, and adds that “no enforcement action shall be taken under regional arrangements… without the authorization of the Security Council…”. This provision is linked with Article 51 which permits collective self-defense in the event of armed attack and which was formulated with regional organizations in mind (see § 56). Such organizations thus may act with the use of force on the authorization of the Security Council, or without the authorization of the Council but only to counteract an armed attack. It is uncertain whether the term “enforcement measures” refers only to those measures requiring the use of force or to all coercive measures that can be adopted under Chapter VII. The preparatory work seems to support the broader meaning (cf. U.N.C.I.O., vol. 11, pp. 20 and

Regional actions “authorized” by the Security Council   361

24), but the practice is oriented towards the narrower meaning in favor of the autonomy of regional organizations in the adoption of measures not involving the use of force. Article 53 envisaged another possibility of action by regional agencies that could be carried out without the authorization of the Council. That is the case of war against a country which, during the Second World War, had been an “enemy” of one of the signatories of the Charter. As with the other provisions of the Charter mentioning “enemy States” (Articles 77 and 107), in Res. 60/1 of October 24, 2005, containing the World Summit Outcome Document, the General Assembly resolved to remove the reference. Although the text of the Charter has not formally amended, this part of Article 53 should be considered to be abrogated as a result of the principle rebus sic stantibus. In the discussions at the Security Council in matters related to the Dominican Republic (from which the OAS—see § 70—had adopted economic sanctions in 1960) and Cuba (OAS expelled in 1962) the majority of States expressed themselves—against the Soviet proposal to “approve” the decisions already taken by OAS under Article 53 of the Charter (see Doc. S/PV.893, nos. 22–24, and Doc. S/PV.895, no. 23)—in the sense that neither ­measures fell within the scope of Article 53, which, despite its vagueness, concerned only measures involving the use of force, otherwise the autonomy of regional organizations would be excessively limited, and as long as the obligation of information referred to in Article 54 was satisfied (and in this case it was): cf. the statements of Argentina, the United States, Ecuador, Venezuela, France, the United Kingdom and Formosa (Doc. S/PV.893 of September 8, 1960, nos. 32, 41, 48, 60, 63–68, 76–77, 80, 89–90, 96–97 and 104), and the statements of Chile, according to which “Article 45 [of the Charter] relates ‘international enforcement action’ directly to the employment of armed forces. Undoubtedly, therefore, the purpose of Article 53 is to prohibit the ‘use of armed force’—or physical violence—by regional organizations, without the authorization of the Security Council, with the single exception of individual or collective self-defence” (Doc. S/PV.994 of March 16, 1962, nos. 51, 56, 60, 64–65, 67 and 72). In a Presidential Statement of October 28, 2009, the Security Council—expressing deep concern about the killings occurred in Conakry on September 28, 2009, when the Guinean army had opened fire on civilians attending a rally—took note of the decisions by the African Union Peace and Security Council (see § 70) to impose targeted sanctions (see § 59) against the President of the Guinean Council for Democracy and Development (CNDD) and other individuals, and of the Economic Community of West African States (ECOWAS) decision to impose an arms embargo on Guinea (UN Doc. S/PV.6207).

Since enforcement action against a State, or within a State, requires the authorization of the Security Council, the regional agencies appear, under this respect, as has been correctly noted, almost as “decentralized United Nations organs” (Quadri). The term “utilize” suggests that regional organizations act on behalf of the Council, from which it ensues, as already noted, that the term “authorization” found in Article 53, para. 1, suggests a “delegation”, i.e. a transfer of powers (and only of those powers) that the Council has under the Charter. According to Article 53, para. 1, the Council merely “authorizes” one or more regional organizations to act on its behalf through enforcement actions when the requirements of Article 39, of the Charter, are met. Both the

362  The Functions

term “utilize” and the term “under its authority” suggest that consent should be given before the action, so that the Council can exercise effective control over it and decide, if necessary, not only to refuse an authorization as early as the time it is requested (e.g., because it does not regard that the conditions established by Article 39 exist, or for any other reason, even of mere political expediency) but also to revoke an already given authorization. An action of a regional organization under Article 53, para. 1, not authorized by the Council is illegal according to the Charter, even if it might be legal in the framework of regional Organisation, and may result in the responsibility of those States that are Members of both the regional organization and of the UN. It could, however, be remedied by an ex post authorization—as it occurred in some cases— providing that it is supported by the acquiescence of all UN Member States. Similar considerations apply to any authorization, whether of a general or implied nature. We must stress that, according to the UN Charter, the authorization of the Security Council is always needed when force is used by a regional organization. In fact, the cases of regional organizations acting without authorization have increased in recent times, but cannot be considered as supported by a customary rule due to the reactions they still meet. With regard to unauthorized actions, the 1962 Cuban crisis should be mentioned first of all. At that time the United States set up a naval blockade of the Cuban coasts in order to prevent the installation on the island of missile-launching ramps coming from the Soviet Union. The blockade, which nearly set off a war between the two superpowers, was preceded by a decision of the OAS, adopted on the basis of Article 8 of the Treaty of Reciprocal Assistance of Rio de Janeiro, 1947. The resolution, requested by the United States, recommended that the Member States use any measure, including the use of force, to avoid Cuba receiving military supplies of any kind from the Soviet Union and to prevent the use of the missile ramps that had already been installed. The United States’ action, in that it was contrary to Article 2, para. 4 (which prohibits the threat or the use of force), clearly departed from the Charter principles. It could not be justified as self-defense under Article 51 as it was not directed against an armed attack (see § 56); and neither could it come within Article 53, since the OAS resolution lacked the authorization of the Security Council. In defending the United States, it was said that the rule on the authorization in Article 53 had lost its efficacy, owing to the rebus sic stantibus clause, given the impotence and paralysis of the Council at that time. Following what we have already concluded concerning ­self-defense (see § 56), it must be said that whoever holds such view must coherently conclude that the whole Charter and not only its individual provisions has lost its function. The truth of the matter is that the United States’ action, not supported by any Charter provision, could have been justified under the Charter only if had had the nature of self-defense under Article 51. On the Cuban crisis, both for a description of the events and for the legal views held, cf. the articles by various authors in AJ (1963), p. 515 ff. The United States’ action in the Dominican Republic in 1965, when troops landed during the civil war, is also to be considered contrary to the Charter. The view, held by the United States delegate in the Security Council (and vehemently challenged by the Soviet Union and Cuba), that the action was lawful in so far as it was authorized by the OAS

Regional actions “authorized” by the Security Council   363 Council of Ministers and its purpose was solely to protect and evacuate foreign civilians without supporting any of the parties involved in the conflict, cannot be shared. This is because the OAS did not have the authorization of the Security Council under Article 53 and because an action using armed forces is always to be considered as an “enforcement action” under this article. For the lengthy debate in the Security Council, see SCOR, 20th year, 1196th–1204th, 1207th–1209th and 1212th–1222nd meets. For the thesis of United States, see, especially, 1212th meet., no. 144 f. and 1222nd meet., no. 21. Nor does the military intervention of the United States, Barbados and Jamaica in Grenada in October 1983 comply with Article 53, although it had been decided by the Organization of Eastern Caribbean States (OECS). Also this decision did not have the necessary authorization of the Security Council. For the debate in the Council, see S/PV.2489 of October 25–28, 1983. In legal literature, see the articles by various authors in AJ, 1984, p. 131 ff. The same must be said of the intervention of ECOMOG, the peacekeeping force of the Economic Community of West African States (ECOWAS) in Liberia in 1990. The intervention was not authorized by the Security Council which only later commended the efforts of ECOWAS in restoring order to the country (see Res. 866 of September 22, 1993. The resolution cannot be interpreted as an ex post authorization, for the reasons we have explained when dealing with unauthorized actions of single States (see § 61). For other cases of unauthorized actions of ECOMOG, see Zsuzsanna Deen-Racsmáni, ‘A Redistribution of Authority Between the UN and Regional Organizations in the Field of the Maintenance of Peace and Security’, 13 LJIL (2000) 297–331. For the recent deployment of sub-regional military force by the African Union (February 2015) in order to counter the offensive launched by the armed group Boko Haram in Nigeria and neighboring countries without Security Council authorization, but only with the cautious endorsement of a statement by its President on 19th January 2015, see Emanuele Cimiotta, ‘L’azione di contrasto agli atti di terrorismo perpetrati da Boko Haram nei rapporti tra Nazioni Unite, organizzazioni regionali e subregionali’, February 10, 2015, at .

Last but not least, the three months’ air war by NATO forces against the Federal Republic of Yugoslavia in 1999 during the Kosovo crisis must also be considered as a clear violation of the Charter. Quite different is the problem whether this kind of actions, and of any other armed actions for humanitarian reasons, can be justified from a moral point of view and independently from the personal responsibility of the rulers of that country as perpetrators of crimes against humanity. It is true that previously the Council had, in several resolutions (Resolutions 1160 of March 31, 1998, 1199 of September 23, 1998 and 1203 of October 24, 1998), defined the situation as a “threat to the peace”, declared that NATO was a regional organization under Article 53 (see § 70) and that the bombing constituted without a doubt an “enforcement measure”. However, as a matter of fact, the Council had not authorized the intervention, nor could the authorization be considered to be implicit and least of all given ex post with Res. 1244 of June 10, 1999, since two permanent Members of the Council (the Russian Federation and China) were strongly opposed to it. The Kosovo War also revived the question of admissibility of humanitarian intervention, with the authorization of the Council, or even by the General Assembly

364  The Functions

or regional organizations, under the doctrine of the “responsibility to protect”, as we have already dealt with (see § 66). As we have already noted (see § 61) when the United Nations fails in controlling a crisis, it is faced with a problem of effectiveness that makes the jus ad bellum uncertain, opening the way to discussion of the problem of war in the context of natural law as a problem of “just” or “unjust” war.

The re-vitalization of the Security Council after the end of the Cold War had repercussions on the relationships between the Security Council and regional agencies. In various resolutions adopted on the basis of Chapter VII, the Council, in recommending or authorizing the adoption of enforcement ­measures by the Member States, addressed the resolutions both to the Member States individually and the Member States as members of regional agencies or arrangements (expressly referring to Chapter VIII), or directly to one regional organization or another. The more recent practice tends to apply Chapter VII: the Council frequently authorizes Member States of a regional organization or another and almost always refers to Chapter VII rather than Chapter VIII. This is the context in which the 2011 NATO intervention in Libya (the so-called Unified Protector Operation) should be seen. As of March, it “unified” the military operations conducted independently by a number of States (France, United Kingdom and United States) since March 19 with Security Council authorization under Res. 1973 of March 17, 2011 (see § 61). By Res. 1973, Security Council authorized, among other things, “Member States…, acting nationally or through regional organizations or arrangements…to take all necessary measures” to protect the civilian population (para. 4) and to respect the prohibition of flight in Libyan skies (para. 8). A second trend is to use regional organizations, but by providing for their participation in peacekeeping operations or of State-building rather than to enforcement actions of a military nature. As far as the first formula is concerned, many resolutions adopted during the Yugoslav crisis can be quoted, the appeals of which were received and acted upon by the Western European Union (WEU) and by the North Atlantic Treaty Organization (NATO), in particular: Res. 770 of August 13, 1992, on the adoption of the measures necessary to ensure that humanitarian assistance reached Sarajevo and other places in the former Yugoslavia; Resolutions 781 of October 9, 1992 and 816 of March 31, 1993 on the adoption of the measures necessary to ensure a ban on military flights over Bosnia and Herzegovina; and Res. 787 of November 16, 1992, on the naval blockade against the Federal Republic of Yugoslavia. Worth mentioning are also Res. 1464 of February 4, 2003, which authorized “under Chapter VII… Member States participating in the ECOWAS forces in accordance with Chapter VIII” in Côte d’Ivoire to take all necessary measures in order to guarantee security and freedom of movement to the personnel engaged and to the civil population; and Res. 1744 of February 20, 2007, which authorized under Chapter VII Member States of

Regional actions “authorized” by the Security Council   365 the African Union (AU) to establish AMISOM in Somalia, a mission of the AU Peace and Security Council (see § 70) recently renewed and strengthened by the Security Council with Res. 1910 of January 20, 2010. Regarding authorization directly addressed to a regional organization, see, for instance, Res. 504 of April 30, 1982, which endorsed the setting up of a pan-African Force by the OAU (Organization for African Unity) for maintenance of the peace in Chad. The case of KFOR, the NATO forces entrusted with the external defense of Kosovo in the framework of UNMIK (see § 62), is also a case of application of Article 53. The Security Council has authorized the European Union and/or missions of the European Union, or the Member States through or in co-operation with the European Union, but always acting under Chapter VII, rather than under Chapter VIII, to operate the Artemis mission in the Democratic Republic of the Congo, authorized by the Security Council with Res. 1484 of May 30, 2003 (therein generically referred to as Interim Emergency Multinational Force) to use any measure necessary for the stabilization of security conditions and for the improvement of the humanitarian situation and the protection of refugee camps and of the civilian population; the EUFOR Althea mission in BosniaHerzegovina in co-operation with NATO, authorized by the Security Council with Res. 1575 of November 22, 2004 to operate by replacing NATO’s SFOR; the EUFOR R.D. Congo mission, again in the Democratic Republic of Congo, authorized by the Security Council with Res. 1671 of April 25, 2006 to support MONUC, monitor the elections and contribute to the protection of civilians; and the EUFOR Chad/RCA mission, authorized by the Security Council with Res. 1778 of September 25, 2007 to protect civilians and facilitate humanitarian aid in Chad and the Central African Republic. Also worth mentioning is the EULEX Kosovo mission, deemed to operate under the authorization contained in Res. 1244 of June 10, 1999 (see § 62) for the consolidation of the principle of legality and a safe environment for all residents regardless of their ethnic origin and for the strengthening of regional stability. On the controversial passage from UNMIK to EULEX in Kosovo, see Enrico Milano, ‘Il trasferimento di funzioni da UNMIK a EULEX in Kosovo’, 91 RDI (2008) 967–90. For more details on the missions of the European Union, see . More recently, with Res. 2134 of January 28, 2014 concerning the Central African Republic, reaffirmed by Res. 2196 of January 22, 2015, the Security Council authorized “the EU operation to take all necessary measures within  the  limits of its capacities and areas of deployment from its initial deployment and  for a period of six months from the declaration of its full operational capacity” (paras. 43–44). On several occasions the Security Council stressed the importance, in accordance with its primary responsibility, of the strengthening of co-operation of regional organizations in maintaining international peace and security: cf., e.g., Res. 1631 of October 17, 2005, the  statements of the President of the Council S/PRST/2006/39 of September 20, 2006 (Doc. S/PV.5529) and S/PRST/2007/42 of November 6, 2007 (Doc. S/PV.5776 and S/ PV.5776 Resumption 1), as well as Res. 1809 of April 16, 2008 (strengthening of the ­relations between the UN and regional organizations, in particular the African Union, in accordance with Chapter VIII of the Charter). During the debates several States have identified the need to better clarify the relationship between the Security Council and regional organizations and to identify the latter within Chapter VIII of the Charter, distinguishing them from the others based on appropriate criteria (cf., e.g., the statement of the Greek Minister of Foreign Affairs in Doc. S/PV.5529, p. 3). The Security Council’s lack of interest in Chapter VIII and its preference to recall Chapter VII, also when “authorizing” regional organizations by leveraging their Member States, could be explained considering that by doing so, the Council avoids the somewhat ­stringent

366  The Functions requirement of the “direction” that Article 53 envisages, leaving authorization subject to the more “open” customary rule formed by the Member States in derogation from Chapter VII.

70.  Existing regional Organizations The following are regional agencies worth recalling for the purposes of Chapter VIII. The North Atlantic Treaty Organization (NATO) was established in 1949 to bind Western Europe and the United States together in a common defense alliance. After the end of the Cold War many countries from Eastern Europe  have joined the alliance. Its members are now: Albania, Belgium, Bulgaria, Canada, Czech Republic, Croatia, Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Turkey, the United Kingdom and the United States. Under Article 5 of the Treaty, in the event of armed attack against one of the members, the others agree to assist them and to take such action that each of them deems necessary to restore peace (they are therefore not obliged to intervene automatically with military force) “exercising the right to individual or collective self-defense under Article 51 of the Statute of the United Nations”. Article 7 adds that the Treaty does not in any way jeopardize the rights and obligations provided by the Charter of the United Nations for those States that enjoy membership of both, nor the primary responsibility of the Security Council in maintaining international peace and security. It should be noted that in April 1999, while the war in Kosovo was in full swing, the Atlantic Council, gathered in Washington at the heads of State and of government level, adopted the “New Strategic Concept” where it stated that, since the fall of the Berlin Wall and the dissolution of the Warsaw Pact, NATO had not only the tasks of self-defense under Article 5 of its founding treaty, but also, more generally, the task of ensuring “global” security against terrorism, organized crime, obstacles to the flow of vital resources, the unrestrained movement of a large number of people, and so on (cf. , para. 24). Moreover, the 1999 New Strategic Concept provided that NATO would pursue, in co-operation with other organizations, the prevention of conflicts or, if a crisis should occur, contribute to its effective management, in compliance with international law, including the possibility of conducting “non-Article 5 crisis response operations” (para. 31). In time of peace, the Organization has the purpose of developing military co-operation among the member countries (through military organs, the so-called Commands). Its main organs are the Council, which brings together the ­representatives, usually Foreign Ministers but also the Heads of State and Government, of all the members and the Defence Committee, composed of the

Existing regional Organizations   367

chiefs of general staff, again of all the members. By the Alliance’s Strategic Concept of 1991, and especially by the Alliance’s New Strategic Concept approved by the Heads of State and Government in 1999, NATO has decided to pursue not only the defense of its members but also to participate in military actions for the maintenance of peace and security. By that, despite some doubts raised in legal doctrine, it fully satisfies the requirements of Chapter VIII of the UN Charter. The question of whether the decisions of 1991 and 1999 comply with the North Atlantic Treaty—a question which has been raised in legal literature—does not have any interest in a discussion on the law of the United Nations. The Western European Union (WEU) was established by the Treaty of Brussels of March 17, 1948 and ceased to operate in 2011. Besides developing economic, social and cultural co-operation among the members, the Organization had the purpose of assuring mutual assistance in the case of aggression. Its principal organ was the Council, where the parties consulted one another on any situation that might constitute a threat to the peace (Article 8, para. 3). In the past, it was thought that the WEU could constitute a defense alliance of the European Union: according to Article 17, para. 1, of the Treaty on the European Union as amended by the Treaty of Amsterdam of 1996, the WEU was “an integral part of the development of the Union providing the Union with access to an operational capability”, as an instrument to implement the common defense and security component of the Common Foreign and Security Policy (CFSP), particularly in performing humanitarian tasks, peacekeeping tasks and tasks of combat forces in crisis management (the so-called Petersberg Missions). Moreover, the 2001 Treaty of Nice dropped this perspective by deleting para. 1 of Article 17 of the EUT, having the European Union decided, since the Council in Cologne in 1999, to create a military force with the “capacity for autonomous action…to respond to international crises without prejudice to actions by NATO”. The Organization of American States (OAS), which joins together the United States and the countries of Latin America, was established in 1948 by the Treaty of Bogotá. Among the purposes of the Organization, besides co-­ operation in the economic, social, legal and cultural fields, there is “strengthening the peace and security of the American continent”, “pacific settlement of disputes among the members”, and a collective security system through “­common action on the part of the Member States in the event of aggression”. The OAS has many organs, and among them the most important are: the General Assembly, consisting of the representatives of all the Member States, the Meeting of Consultation, where the Foreign Ministers of the members meet; the Permanent Council of the Organization, composed of a representative of each member.

368  The Functions

The League of Arab States was formed in 1945. This Organization does not only have the purpose of military alliance but also aims at the development of co-operation in various sectors, from politics to economics, communications to health and social security, and so on. The principal organ is the Council, consisting of representatives of all the members. Its decisions are binding only on the States which agree by their affirmative vote to adopt them. Article 6 of the constitutive treaty provides that, in the event of aggression against a member, the Council must decide (by unanimity) what measures to take to repel it. The African Union (AU) was created in 2000 to replace the Organization of African Unity (OAU) of 1963. Among its principal purposes the socio-­ economic integration of the African Continent, the promotion and defense of common positions on issues of common interest among African people, as well as the promotion of democratic institutions, good governance and human rights. The Union consists of the following organs: the Assembly, composed of Heads of State or Government (Article 6), whose mandate is to determine the common policies of the Union, to give guidance to the Executive Council on the management of conflicts and other emergency situations (Article 9) and also in deciding the African Union’s intervention within a Member State in case of serious circumstances such as war crimes, crimes against humanity and genocide (Article 4(h)), etc.; the Executive Council, composed of Foreign Ministers (Article 10), which decides on matters of foreign trade, mineral resources, agriculture, protection of the environment (Article 13), etc.; the Specialized Technical Committees operating under the responsibility of the Executive Council (Article 14); the Pan-African Parliament whose composition, powers and functions are established by an ad hoc Protocol (Article 17); the Court of Justice whose Statute must also be the object of an ad hoc Protocol (Article 18), intended to be replaced by the African Court of Justice and Human Rights established on July 1, 2008 with an ad hoc Protocol composed of 16 judges and with jurisdiction to rule on the interpretation of the UA Treaty, other treaties and instruments adopted within the Union or any other matter of international law. Of particular relevance in maintaining peace and security in Africa is the Peace and Security Council of the African Union, established on July 11, 2003 by a Protocol amending the Treaty establishing the Organization and inserted among the AU organs (Article 5). The issues the Council of the AU has worked on so far mainly concern the management of internal conflicts in Africa and the unconstitutional regime changes occurred in some African States. It is worth briefly dealing with the Peace and Security Council of the African Union, an organ clearly shaped after the UN Security Council, but with tasks limited to collective security in Africa and powers that deviate significantly from those of the UN Council. The

Existing regional Organizations   369 AU Council is defined as a “decision-making organ” for the prevention, management and resolution of conflicts in Africa (Article 2, para. 1, of the Protocol). It consists of 15 Member States elected by the African Union (according to an equitable regional representation) of which 10 are elected for two years and 5 for three years, to ensure continuity of the organ (Article 5 para. 1, a and b). It shall meet whenever necessary and at least twice a month (Article 8, para. 2). The decisions of the Council, which the Member States “agree to accept and implement” (Article 7, para. 3), are adopted firstly by consensus (Article 8, para. 13): if consensus is not reached it is provided that decisions on “procedural matters” are taken by simple majority and those on “all other matters” with a qualified majority of two thirds of the voting members. Among the functions of the AU Council stands out the promotion of peace, security and stability in Africa, to take place either through diplomatic means (good offices, mediation, conciliation and investigation) or through means that might lead to enforcement measures, for example, by setting up operations of peace support, peacebuilding and post-conflict reconstruction, and any other operation decided by the African Union Assembly (Articles 6 and 7). The Council may recommend to the Assembly military intervention by the African Union in a Member State in case of “grave circumstances”, in particular, the commission of war crimes, genocide and crimes against humanity (Article 7, para. 1, e). As can be seen, on the most delicate points of maintenance of peace and security, i.e. enforcement measures, responsibilities and powers of the AU Council are very different—especially since they depend on the AU Assembly—from those of the UN. The Treaty establishing the African Union provides for the Assembly to decide on military intervention of the African Union in a Member State (Article 4(h)). The Council’s power to impose sanctions against a Member State in which an unconstitutional change has taken place is quite interesting (Article 7(g)). In order to exercise in concrete terms the functions envisaged in the Protocol, Article 13 provides for the establishment of an African Standby Force (ASF), composed of contingents from Member States with military and civilian personnel. In the practice followed up to now, the Council called sometimes for the support of the UN to deal with crisis situations, both by expressly requiring a peace mission, as in Côte d’Ivoire () and in Burundi (), and by calling on Member States of the AU to support the UN mission (MONUC) to ultimately grant the respect of the arms embargo imposed by the Security Council with Res. 1484 of May 30, 2003, e.g., for the ­situation in Congo (). In other cases the Council acted directly, e.g., it established a mission to monitor the elections in Liberia () or a military observer mission in Somalia to monitor the ceasefire (), subsequently authorizing IGAD (International Governmental Authority on Development) to establish a peace support ­mission in order to support the federal transitional government () and subsequently deciding the deployment of the peacekeeping operation in Somalia, AMISOM (). More recently, on July 19, 2013, the AU Council established the AFISM-CAR in the Central African Republic in order to protect the civilian population and restore order () (). The Council has also established, with the consent of the Sudanese government, a peacekeeping operation in Darfur, whose function is to monitor the ceasefire and protect the civilian population from the hostile acts of the militias (). The Council also adopted a decision on the national reconciliation process in Côte d’Ivoire when, on

370  The Functions October 6, 2005, due to the impossibility of organizing presidential elections, established that President Gbagbo should remain in office for one year and provided for the establishment of an International Working Group con il compito di meet once a month in Côte d’Ivoire to assess, monitor and promote the peace process (). With regard to unconstitutional changes in regime, the Council condemned, in February 2005, the succession which actually took place in Togo, after the death of the President, when the military forces have proclaimed the son of the former Head of State as the new president, without holding an election as required by the Togolese Constitution (): at first, the Council suspended the de facto government from any activity in the organs of the African Union; the suspension was later revoked due to signs of restoration of constitutional legality (). On August 4, 2005 the Council suspended Mauritania from any activity in the organs of the African Union following the coup d’état, which took place the previous day (), and more recently, on March 20, 2009, it decided the suspension of Madagascar until the restoration of internal order (), revoked on January 27, 2014 (). More recently, Guinea Bissau has been suspended by the African Union because of the coup of April 12, 2012 () as has Egypt, later readmitted on June 17, 2014 () due to the overthrow of the democratically elected president (). The Council also suspended Mali from participation in all AU activities on March 23rd, 2012 () and imposed economic sanctions, especially asset freezing and a travel ban against members of the ­military junta for not complying with the requests of the African Union to restore order following the coup d’état. It also called for the AU Commission to draw up a list of individuals and entities subject to sanctions ().

The Commonwealth of Independent States (CIS) was created in 1991 from among the former Republics of the Soviet Union after the dissolution of this State. The main organs of the CIS are the Council of Heads of State, the Council of Heads of Government, the Council of Foreign Ministers, the Council of Defense Ministers, the Council of Board Troops Commanders. The goals of the Organization, as they are stated in the Commonwealth Charter of January 22, 1993, are, inter alia, the strengthening of relations of friendship, good neighborhood and co-operation between States, particularly when the ­sovereignty and territorial integrity of a Member State is threatened. The ­participation of peacekeeping forces within the territory of the CIS has been envisaged by the Kiev Agreement of 1992, the Charter and various subsequent agreements. The Warsaw Pact Organization, established in 1955 by the countries of Eastern Europe to counterbalance NATO, was also a regional organization, dissolved when the Socialist regimes in those countries fell. The Warsaw Pact, as the Atlantic Pact, provided that the

Existing regional Organizations   371 contracting States would consult one another and assist one another in the event of armed attack against one of them and also provided for military co-operation in time of peace. The basic organs of the Pact were the Political Committee, where consultation and consideration of matters of interest to the alliance took place and the United Command, to which a part of the armed forces of the Member States were assigned.

The Economic Community of West African States (ECOWAS) is also worth mentioning. Although this organization is mainly devoted to economic cooperation among its members, in its framework a non-standing military force (ECOMOG) also operates as a peacekeeping force in the region. The Organization of Eastern Caribbean States (OECS) was established in 1981 by several States in the area and its constitutive treaty includes reciprocal defense among the purposes of the union (Article 3, para. 2). The Organization for Security and Co-operation in Europe (OSCE) is one of the largest regional organizations in Europe with Member States from Europe, Central Asia and North America. The Organization succeeded the Conference on Security and Co-operation in Europe (CSCE) issued from the historical Helsinki Agreements of 1975 concluded by Western and Eastern European countries during the Cold War. The OSCE’s tasks have been fixed by various Declarations of the Head of States and Governments of Member States since it is not based on a true treaty. The last and most important one is the Charter for European Security issued by the Conference of Istanbul of November 19, 1999. The Charter reaffirms the OSCE as a regional arrangement under Chapter VIII of the UN Charter and, inter alia, commits the Organization, in co-operation with other organizations and institutions, to develop its role in peacekeeping operations, in particular providing support for the supremacy of law and democratic institutions and for the maintenance and restoration of law and order, assisting in the organization and monitoring of elections, verifying and assisting in fulfilling agreements on the peaceful settlement of conflicts, and providing support in the rehabilitation and reconstruction of various aspects of society. The participation of OSCE in peacekeeping operations, mainly with the function of helping local authorities in civil and political matters, is widespread. To mention only one example, the OSCE is assisting UNMIK in matters of democratization and institution building (see § 62). The fact that the Organization is not based on a true international agreement in the legal sense, and that, consequently, its resolutions do not have a strictly legal character, is not an obstacle to the Security Council making use of the Organization whenever the occasion arises. For the text of the Istanbul Declaration of 1999, cf. ILM (2000), p. 255 ff. A previous and also most important Declaration was the Helsinki Declaration of July 10, 1992 (ibid., 1992, p. 1385 ff.) wherein the Organization already defined itself as a regional agreement under Chapter VIII of UN Charter.

372  The Functions It should be noted, with regard to the conflicts in the former Yugoslavia, that, even before the Declaration of 1992, the Security Council called upon the parties to make use of the CSCE’s contribution or in any case to act in accordance with its principles. Cf., for example, Resolutions 713 of September 25, 1991 (para. 1), 740 of February 7, 1992 (para. 7), 743 of February 21, 1992 (para. 10), and 762 of June 30, 1992 (para. 11).

Section VI.  Economic Co-operation and Action for Development Select bibliography: Robert E. Asher, The United Nations and Promotion of the General Welfare (Washington: Brookings Institution, 1957); Clark M. Eichelberger, UN, the First Twenty Years (New York: Harper & Row, 1965) 101 ff; Üner Kirdar, The Structure of UN Economic Aid to Underdeveloped Countries (The Hague: Nijhoff, 1966); Maurice Domergue, Technical Assistance: Theory, Practice and Policies (New York: Praeger, 1968); Said El-Naggar, ‘The UNCTAD’, 128 RC (1969-III) 241–345; Clive S. Gray, Resource Flows to Less-Developed Countries (New York:Praeger, 1969); Joyce A.C. Gutteridge, The United Nations in a Changing World (Manchester: Manchester University Press, 1969) 72–87; Sudhir Sen, UN in Economic Development—Need for a New Strategy (Dobbs Ferry: Oceana, 1969); Walter R. Sharp, The United Nations Economic and Social Council (New York/ London: Columbia University Press, 1969); Erhard Eppler, Wenig Zeit für die dritte Welt (Stuttgart: Kohlhammer, 1971); Isi Foighel, Development Aid. A Legal Analysis (Copenaghen: Engelska, 1971); Detlev C. Dicke, Die administrative Organisation der Entwicklungshilfe durch die Vereinten Nationen (Frankfurt a.M.: Athenaeum-Verl., 1972); Branislav Gosovic, UNCTAD, Conflict and Compromise (Leiden: Sijthoff, 1972); Robert S. Jordan, Multinational Cooperation: Economic, Social and Scientific Development (London: Oxford University Press, 1972); Günter Heiduk, Die weltwirtschaftlichen Ordnungsprinzipen von GATT und UNCTAD (Baden-Baden: Nomos Verl. ges., 1973); Clarence W. Jenks, ‘Economic and Social Change and the Law of Nations’, 138 RC (1973-I) 455–502; Michael Bohnet (ed), Das Nord-Süd Problem, Konflikte zwischen Industrie- und Entwicklungsländern (München: Piper, 1974); Maurice Flory, ‘Souveraineté des Etats et Coopération pour le Développement’, 141 RC (1974-I) 255–330; Id., Pays en voie de développement et transformation du droit international (Actes du 7e Colloque de la société français pour le droit international, Aix-enProvence) (Paris: Pedone, 1974); Franz Plasil-Wenger, ‘UNIDO: Problem Child of the United Nations Family’, in JWTL (1974) 186 ff; Michel Virally, ‘La Charte des droit et devoirs économiques des Etats’, 20 AF (1974) 57–77; Guy Feuer, ‘Réflexions sur la Charte des droits et devoirs économiques des Etats’, 79 RGDIP (1975) 273–320; Salem, ‘Vers un nouvel ordre économique international’, 102 JDI (1975) 753–800; P.-M. Martin, ‘Le nouvel ordre économique international’, 80 RGDIP (1976) 502–35; Edward McWhinney, ‘The International Law-Making Process in the New International Economic Order’, 57 CYIL (1976) 57–72; Christian Tomuschat, ‘Die Charte der wirtschaftlichen Rechte und Pflichte der Staaten’, 36 Bruns’Z (1976) 444–91; Seymour J. Rubin, ‘Developments in the Law and Institutions of International Economic Relations: Reflections Concerning the United Nations Commission on Transnational Corporations’, 70 AJ (1976) 73–91; Ugo Villani, ‘Conciliation and Consensus in UNCTAD’, 2 IYIL (1976) 61–79; Autar K. Koul, The Legal Framework of UNCTAD in World Trade (Leiden: Sijthoff, 1977); Sergio Marchisio, La cooperazione per lo sviluppo nel diritto delle Nazioni Unite (Napoli: Jovene, 1977); W.G. Zeylstra et al., ‘Legal Aspects of a Projected New International Economic Order’, 24 NILR (1977) 507–45; Riccardo Monaco, ‘Assistenza tecnica delle Nazioni Unite’, NDIApp (1980) 545–46; Sergio Marchisio, ‘Organizzazione delle Nazioni Unite per lo sviluppo industriale’, 31 ED (1981) 329–36; Claude Rucz, Le Conseil Economique et Social de l’O.N.U. et la coopération

Political decolonization and economic decolonization  373 pour le développement (Paris: Economica, 1985); Claude-Albert Colliard, ‘L’adoption par l’Assemblée générale de la Déclaration sur le droit au développement (4 déc. 1986)’, 33 AF (1987) 614–28; Zalmaï Haquani, ‘La CNUCED VII entre l’impasse et l’ouverture’, 92 RGDIP (1987) 335–64; Georges Abi-Saab, ‘Le droit au développement’, ASDI (1988) 9 ff; R.N. Kiwanuka, ‘Developing Rights: The UN Declaration on the Right to Development’, 35 NILR (1988) 257–72; David P. Forsythe (ed), The UN in the World Political Economy. Essays in Honour of L. Gordenker (Basingstoke: Macmillan, 1989); Giorgio Sacerdoti, ‘Cooperazione economica internazionale’, 4 DDisP (1989) 167–82; Antonio Vigilante, ‘La ricerca di una diversa dimensione per il Programma delle Nazioni Unite per lo sviluppo (UNDP)’, 44 CI (1989) 535–49; Id., Importanti novità nella cooperazione allo sviluppo del sistema dell’ONU, 45 CI (1990) 59–67; Sergio Marchisio, ‘Sviluppo (Cooperazione internazionale per lo)’, 43 ED (1990) 1551–1559; Maurice Flory, ‘La quatrième décennie pour le développement: la fin du Nouvel ordre économique international?’ 36 AF (1990) 606–13; Marc Williams, Third World Cooperation: the Group of 77 in UNCTAD (London:Pinter Publishers, 1991); Sergio Marchisio, ‘Gli atti di Rio nel diritto internazionale’, 75 RDI (1992) 581–621; Yves Daudet (ed), Les Nations Unies et le développement: le cas de l’Afrique. Colloque des 3 et 4 décembre 1993 (Paris: Pedone, 1994); A. Belhadj, Le droit de l’homme au developpement (Rabat: Editions Babil, 1995); Benjamin Bassin, ‘The United Nations in Global Economic and Social Policy-Making’, in Klaus Hüfner (ed), Agenda for Change: New Tasks for the United Nations (Opladen: Leske Budrich, 1995) 229–38; R. Jain, ‘La seguridad ambiental y la Naciones Unidas’, in M. Seara Wasquez (ed), Las Naciones Unidas a los cincuenta años (México: Fondo de Cultura Económica, 1995) 223 ff; Hylke Tromp, ‘Las Naciones Unidas y la seguridad ambiental’, ibid., 241 ff; Y. Beigbeder, ‘Reforming the Economic and Social Sectors of the United Nations: An Incomplete Process’, ibid., 239 ff; Mary P. Williams Silveira, ‘UN Commission on Sustainable Development (CSD)’, 7 YIEL (1996) 374–81; Sergio Marchisio, ‘Carta dell’ONU, cooperazione e sviluppo sostenibile’, 1 RCGI (1999) 11–19; Sandrine Maliean-Dubois and R. Mehdi (eds), Les Nations Unies et la protection de l’environnement: la promotion d’un développment durable. Septième rencontre d’Aix-enProvence (Paris: Pedone, 1999); J.F.J. Toye and Richard Toye, The UN and Global Political Economy. Trade, Finance, And Development (Bloomington: Indiana University Press, 2004); Richard Jolly, Louis Emmerij, Dharam Ghai and Frédéric Lepeyre, UN Contributions to Development Contributions to Development Thinking and Practice (Bloomington: Indiana University Press, 2004); Claude Rucz, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed) vol. 2, 1678–80; Sicurezza internazionale, sviluppo sostenibile, diritti umani: la cooperazione internazionale dopo il vertice mondiale del 2005. L’agenda futura delle Nazioni Unite e il ruolo dell’Italia. Atti del Convegno organizzato dal Ministero degli Affari esteri e dalla SIOI, 17–18 marzo 2006 (Napoli: Editoriale Scientifica, 2006); Angela Di Stasi (ed), Cooperazione internazionale allo sviluppo e tutela dei diritti umani. Atti dei convegni di studi (1 dicembre 2004—30 novembre 2005), Giornate per la cooperazione 2004–2005 (Catanzaro: Rubbettino, 2007); Paolo Fois (ed), Il principio dello sviluppo sostenibile nel diritto internazionale ed europeo dell’ambiente. XI Convegno della Società Italiana di Diritto internazionale, Alghero, 16–17 giugno 2006, (Napoli: Editoriale Scientifica, 2007); Thomas Fues, ‘Millennium Development Goals and Streamlining the UN Development Architectures’, 44 IS (2007) 23–37; Ersiliagrazia Spatafora, Raffaele Cadin and Cristiana Carletti, Sviluppo e diritti umani nella cooperazione internazionale. Lezioni sulla cooperazione internazionale per lo sviluppo umano (Torino: Giappichelli, 2007); Giovanni Nicotera, ‘United Nations Development Cooperation, From Its Origins to the Paris Declaration on Aid Effectiveness’, 63 CI (2008) 469–87; Olav Stokke, The UN and Development. From Aid to Cooperation (Bloomington: Indiana University Press, 2009); Mbaya Kankwenda, ‘The

374  The Functions UN Development Programme’, in Adekeye Adebajo (ed), From Global Apartheid to Global Village: Africa and the United Nations (Scottsville: University of KwaZulu-Natal Press, 2009) 399–416; Tunde Zack-Williams, ‘The UN Conference on Trade and Development’, ibid., 417–36; Karen Morrow, ‘Sustainable Development, Major Groups and Stakeholder Dialogue-Lessons From the UN’, in Duncan French (ed), Global Justice and Sustainable Development (Leiden: Nijhoff, 2010) 89–108; Nico Schrijver, Development Without Destruction: The UN and Global Resource Management (Bloomington: Indiana University Press, 2010); Lakshmi Puri, ‘Trade, Development and the UN Millennium Development Goals: The United Nations in the Governance of World Trade’, in Carolyn Deere Birkbeck (ed), Marking Global Trade Governance Work for Development: Perspectives and Priorities from Developing Countries (Cambridge: Cambridge University Press, 2011) 48–75; Karin Buhmann, ‘The Development of the “UN Framework”: A Pragmatic Process Towards a Pragmatic Output’, in Radu Mares (ed), The UN Guiding Principles on Business and Human Rights: Foundations and Implementation (Leiden: Nijhoff, 2012) 85–105; Tobias Stoll, Article 55(a)(b), in Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd edn), vol. 2, 1535–64; Jan-Michael Arend and Eibe H. Riedel, Article 55 (c), ibid., 1565–1602; Tobias Stoll, Article 56, ibid., 1603–10; Werner Meng, Articles 57–60, ibid., 1611–65; Hassane Cisse, N.R. Madhava Menon, Marie-Claire Cordonier Segger and Vincent O. Nmehielle (eds), Fostering Development through Opportunity, Inclusion, and Equity (Washington: World Bank Publications, 2014); Sam Daws and Natalie Samarasinghe (eds), Poverty and Development (Los Angeles, SAGE, 2015). On the UN Specialized Agencies adde: Gustav Pollaczek, ‘The United Nations and Specialized Agencies’, 40 AJ (1946) 592–619; Walter R. Sharp, ‘The Specialized Agencies and the United Nations: Progress Report II’, 2 Int. Org. (1948) 247–67; C. LabeyrieMenahem, Des Institutions Spécialisées: problèmes juridiques et diplomatiques de l’administration internationale (Paris: Pedone, 1953); Hanna Saba, ‘L’activité quasi législative des institutions spécialisées des Nations Unies’, 111 RC (1964-I) 607–90; Jacques Dagory, Les rapports entre les institutions spécialisées et l’ONU, 73 RGDIP (1969) 285–377; Edward Yemin, Legislative Powers in the United Nations and Specialized Agencies (Leiden: Sijthoff, 1969); Charles H. Alexandrowicz, The Law-Making Functions of the Specialized Agencies of the UN (Sidney: Angus and Robertson, in association with the Australian Institute of International Affairs, 1974); David E.T. Luard, International Agencies (The Emerging Framework of Interdependence) (London: Macmillan for the Royal Institute of International Affairs, 1977); Antoine H. Zarb, Les Institutions Spécialisées du Système des Nations Unies et leurs membres (Paris: Pedone, 1980); Manuela Tortora, Institutions Spécialisée et Organisation Mondiale: Etude des Relations de l’OIT avec la SDN et l’ONU (Brussels: Bruylant, 1980); Antonietta Di Blase, Nazioni Unite e istituti specializzati: La rilevanza giuridica del coordinamento (Napoli: Jovene, 1982); Houshang Ameri, Politics and Process in the Specialized Agencies of the United Nations (Brookfield: Gower, 1982); JeanPaul Cailloux, ‘Aspects juridiques de la vie des institutions spécialisées de l’ONU’, 29 AF (1983) 533–42; Williams Douglas, The Specialized Agencies and the UN: The System in Crisis (London: Hurst, 1987); Albert Bleckmann, ‘Decolonization’, 10 EPIL (1987) 75 ff; International Development Agencies (IDA’s) Human Rights and Environmental Considerations, 17 Denv J (1988) 29–154; Victor Y. Ghebali, The International Labour Organisation: A Case Study on the Evolution of UN Specialized Agencies (Dordrecht: Nijhoff, 1989); Maria R. Saulle, ‘Istituti specializzati delle Nazioni Unite’, 17 EGT (1989); Andrew Caddell, Like Moths to a Flame: The News Media, The United Nations, And Specialized Agencies (Toronto: Canadian Institute of International Affairs, 2003); Ralph Zacklin, The

Political decolonization and economic decolonization   375 Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (Leiden: Nijhoff, 2005); Péter Kovács, ‘Les institutions spécialisées des Nations Unies: dans le texte et la pratique de l’article 57 de la Charte’, 3 MisJIL (2006) 1–21; Henk-Jan Brinkman and Masood Hyder (eds), The Diplomacy of Specialized Agencies: High Food Prices and the World Food Program, in James P. Muldoon Jr. et al. (eds), The New Dynamics of Multilateralism: Diplomacy, International Organizations, and Global Governance (Boulder: Westview Press, 2011) 267–82.

71.  Political decolonization and economic decolonization. Co-operation for development As is stated in Article 1 on the purposes and principles of the United Nations and is then specified in Chapters IX and X, which are dedicated to the subject, the United Nations is to promote international co-operation in the economic and social field. This is a field which has assumed considerable importance in the life of the United Nations owing to the great effort that the Organization is making, and which goes under the name of co-operation for development, in its intention to reduce the serious and dramatic inequalities existing among the States. The pressure coming from the General Assembly is very strong, and it is supported, obviously, by the fact that the developing countries which have the most interest in the success of the effort, hold the majority in the Assembly. In other words, the Organization is facing the same thrust and the same ethos which in the fifties underlay the process of decolonization. However, the obstacles and the delays are much greater now, not only and not so much because of the seriousness and the complexity of the problems to be resolved but because, unlike political decolonization, with respect to which the Great Powers did not have a united front, the process of economic decolonization has as a backdrop a clear contrast between the interests of the rich countries and those of the poor countries. In a situation of this kind, the negative aspect represented by the lack of effective powers of the Organization towards the Member States cannot be underestimated. And, unfortunately, it cannot be said that as of today, United Nations action has had great success. Within the United Nations, the problems of development were first considered in an isolated form, that is, mainly in their economic aspects. Towards the middle of the 1980’s, under pressure from the Western World, they were connected to the problem of respect for human rights. From the beginning of the 90’s, they have been intertwined with ecological problems, an intertwining which is leading to the notion, still with uncertain boundaries, of “sustainable development”, that is to say, of a development compatible with the preservation of the environment and of resources for present and future generations and, in recent years, “human development”.

376  The Functions

72.  The organs tasked with economic co-operation What skills are available within the UN that can be put to use by the organization in order to pursue economic cooperation and development? Under Article 60 of the Charter, the principal organs dealing with economic co-operation are the General Assembly and, under its authority, the Economic and Social Council. As it has already be seen (§ 38) these two organs head a whole set of subsidiary organs appointed by them. There is a hierarchy of all such organs with the Assembly at the top. The activity of the Assembly, the Economic and Social Council, and the dependent organs is coordinated with the specialized agencies, autonomous international organizations also functioning in the field of economic co-operation (see § 75). Worth mentioning are also the functions of the Secretariat, functions to which the conclusions we made with regard to the maintenance of the peace (see § 67) are applicable mutatis mutandis. 73.  Normative functions It is worth distinguishing between normative functions, consisting in the adoption of legal instruments, and operational functions, which instead concern the concrete initiatives undertaken by the UN in the field of economic co-­operation and development. The United Nations action for economic co-operation and development has undoubtedly consisted mainly in the preparation of a series of rules which the Organization believes should regulate relationships between the States in this sector. These rules, which are often drawn up after in-depth studies (carried out on the basis of Articles 13 and 62, para. 1, of the Charter) are contained in solemn Declarations of principles of the General Assembly (v. § 96), in recommendations addressed to the States by the General Assembly or by the Economic and Social Council (as foreseen in Articles 10, 13, and 62) or by their respective subsidiary organs, or in draft conventions to be submitted for ratification by the Member States (under Article 62, para. 3). All these norms, from the viewpoint of the Charter, do not have binding force. Neither the Assembly nor the Economic and Social Council, and, consequently, not even their subsidiary organs, have binding powers. Also the declarations of principles cannot be otherwise defined, again from the viewpoint of the Charter, except as the expression of the power of the Assembly to ­recommend (see § 96). Moreover, at least for the time being, no unwritten customary rules have emerged which strengthen the organs’ powers in this field, unlike what has happened in the field of decolonization (see § 80). A different problem, which has not to be dealt with here—except for what we will say with regard to the Declarations of principles (see § 96)—consists in asking whether some of the rules drawn up by the United Nations have been transformed into legally binding norms through the instruments of classic international law, that is,

Normative functions   377

(general) customary and treaty law. Such transformation, as far as draft conventions are concerned, is obviously envisaged by the Charter and takes place when the Member States ratify them. The fact that normative acts of the United Nations in the field of economic co-operation do not have legally binding force must not lead to discounting their value and their usefulness; apart from the limited legal effects that some of them may produce (see § 91), they have (just as Assembly declarations and recommendations had at the time of decolonization) the force that is conferred on them by the great ideals that they pursue, by the tenacity with which these ideals are pursued, and by the correspondence that such ideals find in the conscience of peoples. That being said, the general rules of economic co-operation, and, in particular, of co-operation for development, are first of all contained in several historic resolutions of the General Assembly. Among them, there are the Declaration and the Program of Action on the Establishment of a New International Economic Order (NIEO) (Resolutions 3201 and 3202 S-VI of May 1, 1974) and the Charter of Economic Rights and Duties of States (res. 3281-XXIX of December 12, 1974). The Declaration, the Program and the Charter, on the one hand, reproduce and summarize principles and rules (later to become cornerstones of the Assembly) that were previously laid down in other declarations and resolutions—as, for example, Res. 1803-XVII of December 14, 1962 on permanent sovereignty over natural resources, Res. 2625-XXV of October 24, 1970 on friendly relations and co-operation between States, Res. 2626-XXV of October 24, 1970 on international strategy for development, and Res. 2749-XXV of December 17, 1970 on the sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction—and, on the other hand, they outline their own “philosophy” regarding the growth of the developing countries. This, essentially, is the idea that such growth should not only consist of assistance provided by individual States or groups of States (with the related political and economic conditioning, and sought under the form of request for aid) but should rather develop through a general mobilization of the community of States. Within this mobilization the countries with developing economies should be able to assert their negotiating power which derives from their own particular positions and especially from their full, inviolable and permanent sovereignty over their own resources. All this is—as expressly stated in the Charter of Economic Rights and Duties of States (Preamble (m))—to achieve “international social justice”. In particular, the most significant examples inspired by the philosophy of the norms of the aforementioned Declaration, the Program and the Charter of Economic Rights and Duties of States, having restated such permanent sovereignty, recognize inter alia: the right of every State to adopt the economic and social system which it believes to be the most

378  The Functions a­ dequate for its needs; the right to nationalize foreign property; the right to regulate the activity of multinational companies within its territorial limits and to see that such activity is supervised and regulated at the international level; the right to form associations of producing States of primary commodities; the right to participate in the exploitation of the seabed and ocean floor, and the subsoil thereof, beyond national jurisdiction, through the mechanisms that ensure an equal distribution of the relative benefits, taking into account the interests and needs of the developing countries. A similar philosophy can be seen in the rules which, again under the above-mentioned acts, are to regulate international trade and the agreements on economic co-operation. Examples are those which advocate negotiation which is free from any political or military conditioning, carried out under the supervision of the international community; the necessity of a correct and fair balance between the prices of the products imported and exported by developing countries; the granting to these countries, in trade agreements, of preferential rather than reciprocal treatment, as well as any other advantage suitable to guarantee an increase in their monetary reserves, the diversification of their exports, the acceleration of the growth rate of their trade, the betterment of the conditions for access to markets, the stability and the profitability of the prices for goods; the conclusion of long-term multilateral commodity agreements; the access of developing countries to scientific and technology reports and to the transfer of technologies, and so on.

Despite the fact that the developed countries have never stopped raising reservations regarding the content of many of the rules contained in the three above mentioned acts, such rules have continued to be an important reference point for the UN organs, particularly for the General Assembly. Under pressure from the developed countries, and in a certain sense as a condition for the participation of these countries in co-operation for development, these rules have been integrated, or rather, inserted into a broader framework of social needs and actions, in which economic growth, social development and environmental protection are considered as interdependent. This integration can be seen, in particular, in several subsequent acts of the General Assembly. We refer to the Declaration on the right to development (Res. 41/128 of December 4, 1986, recently confirmed by Res. 62/164 of February 18, 2007), the Declaration of international economic co-operation and the re-launching of economic growth and development (res. S-18/3 of May 1, 1990), the Rio Declaration on environment and development of June 14, 1992 issued (together with a plan of action in the same subject called the Agenda 21) by the UN Conference on the Environment and Development, and adopted by the General Assembly with Res. 47/190 of December 22, 1992 and the Declaration on the occasion of the 50th anniversary of the United Nations (Res. 50/6 of October 24, 1995).

Without prejudice to the idea that the growth of the developing countries is first of all linked to international co-operation, the protection of human rights as an element in every national plan for development is emphasized by the above mentioned Res. 41/128 of December 4, 1986 containing the Declaration on the right to development. It is mainly the 1992 Rio Declaration that is ­concerned with the environment, besides some references in the Declaration

Normative functions   379

S-18/3. The Rio Declaration reconciles the positions of the developing countries, concerned with their growth, undermined by the production costs of environmental protection, and the developed countries, determined to consider protection of the environment as the priority. Principle 3 of the Declaration states that the right to development must be fulfilled “so as to equitably meet developmental and environmental needs of present and future generations” (the so-called sustainable development); in turn, principle 4 states that “environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it”. In any case, responsibility for the conservation, protection and restoration of the environment, a responsibility that is commensurate to the “contribution” to degradation, should mainly be up to the developed countries (principles 7). Finally, a restatement of the principles governing economic development, social development and environmental protection is contained in the Declaration on the 50th anniversary: democracy, respect for human rights, including the right to development, the participation of all countries in the process of globalization and its benefits, avoidance of the marginalization of least developed countries from this process, promotion of appropriate ­demographic policies, co-operation on reducing natural disasters, etc., are ­reaffirmed by this Declaration. Among the “thematic debates” (see § 8) the Security Council has recently included ­economic and social questions that have repercussions on international peace and security: cf. the debate on the allocation of national resources to development rather than armaments of November 19, 2008 (Doc. S/PV.6017), and, previously, the debate on the impact of climate change on peace and security of April 17, 2007 (Doc. S/PV.5663).

It should be noted that, in more recent times, the General Assembly, while reaffirming the above mentioned goals, has focused its normative function on the impact of globalization on developing countries, the strength of partnership with the private sector and with civil society organizations in order to involve them in the development process and the eradication of poverty, the latter being a conditio sine qua non for the promotion of respect for human rights. Detailed rules on these issues are contained, inter alia, in the Millennium Declaration (Res.  55/2 of September 8, 2000), today replaced by the “2030 Agenda for Sustanaible Development” adopted by Res. 70/1 of September 25, 2015, in Res. 63/136 of December 18, 2008 on globalization and its impact on the full enjoyment of all human rights, in Res. 62/211 of December 19, 2007 on global partnership; in the Johannesburg Declaration on sustainable development, issued from the World Summit on sustainable development, held in South Africa from August 26 to September 4 2002 and endorsed by General Assembly Res. 57/253 of December 20, 2002, in the so-called “Monterrey Consensus” of the

380  The Functions International Conference on Financing for Development, held in Mexico from March 18 to 22, and referred to in various resolutions of General Assembly (see § 90), in Res. 57/250 of December 20, 2002, which establishes that the “High-level Dialogue” on strengthening international co-­operation for development through partnership, a Dialogue created in the context of the above-­mentioned Conference on Financing for Development, must be held biennially and have as its overall theme “The Monterrey Consensus: status of implementation and tasks ahead”. The third and, for the time being, the most recent Dialogue based on Res. 57/250 was held in October 2007 (cf. ).

Complementary to all the rules contained in the just indicated acts are the tenyear programs that the General Assembly has adopted from 1960 and which indicate the aims and objectives to be reached in co-operation for development. These programs are significant not only for what they propose for the future but, unfortunately, also because they usually record the failures of the efforts made to reach the objectives set for the previous ten years. The most recent of them is the Programme of Action for the Least Developed Countries for the 2001–2010 decade, contained in Res. 55/279 of July 12, 2001. In addition to the Assembly—and to a series of subsidiary organs—the United Nations Conference on Trade and Development (UNCTAD) has played an important role in the performance of normative functions. The Conference, which met for the first time in Geneva in 1964, was transformed in the same year by the Assembly, with Res. 1995-XIX of December 30, 1964, into a permanent (subsidiary) organ. In fact, it is an organization within the Organization, since its structure is quite similar to that of the specialized agencies (see § 75), and it consists not only of the actual Conference, in which all the UN Member States are represented, and which meets every three or four years, but also of a Council with a limited membership, of various Commissions, and of a Secretariat. UNCTAD’s purpose is to promote international trade in the framework of the policy for development of developing countries, preparing studies, setting the rules that must regulate such trade and interrelated areas such as finance, technology and investments and encouraging negotiation of the relative multilateral agreements. Among other things, UNCTAD has led to: the preparation of a general system of preferences in trade exchanges in favor of the developing countries; the conclusion of multilateral agreements on some primary products (such as the agreements on rubber of 1979, on cacao of 1980, the agreement for the establishment of a Common Fund for raw materials of 1980, etc.); the drawing up of a code of conduct of “maritime conferences” and thus of agreements between navigation companies, then adopted as a multilateral convention in 1974; a decisive contribution to the drawing up of a code on the transfer of technologies, which was then negotiated in a special Conference; and so on. However, more than anything, UNCTAD is known for an intense activity of providing incentives, both inside and outside the United Nations,

Operational functions   381

concretely dealing with the problems of development. Its 13th Conference which was held in Doha from 21st to 26th April, 2012 was on the theme of “development-centred globalization” (cf. ). The fourteenth session will be from 14th to 18th March, 2016 (cf. ). The Executive Committee on Economic and Social Affairs (EC-ESA), created by the Secretary-General in 1997, co-ordinates the organs dealing with the normative function in addition to providing the co-ordination of operational functions (see § 74). Cf. ).

The various resolutions mentioned so far provide only a few examples out of the great mass of studies, declarations and recommendations which, in all areas of international economic and social co-operation have been issued by the Assembly, the Economic and Social Council, and the myriad subsidiary organs and sub-organs of both, as well as from Conferences convened from time to time by the Assembly and in which all the Member States may be represented. For a more detailed overview one only has to glance through one of the repertories of the resolutions of recent Assembly sessions. Let us only observe here that, notwithstanding this mass of (non-binding) rules, the gap between the rich and those who live under the minimum standard of livelihood is still enormous, especially with the worldwide hyper-liberist pressure of recent years. Fewer rules, fewer Conferences and a stronger sense of responsibility is what is needed the most. 74.  Operational functions Shifting our attention from norms to concrete actions, within the framework of co-operation for development, there has been an increasing number of initiatives aimed at having the United Nations intervene solving specific social and economic problems, under the form of deliberation and implementation of programs of technical assistance and other kinds of aid to developing countries. Also for the operational functions, the Assembly and the Economic and Social Council have gradually created innumerable organs and relative offices. Among the oldest organs and programs are UNICEF (United Nations International Children’s Emergency Fund), established in 1946, UNHCR (United Nations High Commissioner for Refugees, on which see also § 76) of 1950 and the Regular Program for Technical Assistance entrusted to the Secretary-General by Res. 200-III of December 4, 1948. A series of funds and programs in the most diverse areas has been established later on: for instance, UNV (United Nations Volunteers Program), established in 1971, UNEP (United Nations Environment Program), begun in 1972, UNFPA (United Nations Fund for Population Activities), also of 1972; the Revolving Fund for Natural Resources Exploration,

382  The Functions of 1973, the Special Fund for Land-Locked Developing countries, of 1976, UNDCP (United Nations International Drug Control Program); and UNDP (United Nations Development Program), which deserves special mention.

UNDP, in which two previous programs, EPTA (Expanded Program of Technical Assistance) of 1949 and the Special Fund of 1958, have merged, was created, as a subsidiary organ of the General Assembly, by Res. 2029-XX of November 22, 1965. With regard to operational functions, UNDP is, in a ­certain sense, what UNCTAD is for normative functions (see § 73), that is, the key organ of the United Nations for promotion of co-operation for development. Its powers, initially set out in general terms (the constitutive resolution speaks of assistance to developing States), were specified by Res. 2688-XXV of December 11, 1970, which introduced a system of planning for individual countries. The task of UNDP is to approve national programs presented by the individual States, to allocate the relative funds, and to supervise the realization of the projects in the program. Such realization is usually entrusted to other  agencies, specifically other international organizations, mainly the Specialized Agencies (whose co-operation is regulated by special agreements: see § 75), or other UN bodies working in the aid sector, such as UNICEF, the various special funds, and so on. From the point of view of structure, UNDP, like UNCTAD, is a kind of organization within the Organization. It enjoys a certain autonomy and is composed of a Governing Council (in which 48 UN Member States take part, 27 chosen from developing countries and 21 from the industrialized countries) with decision-making functions, of a Committee (in which there are represented the international organizations and the UN organs which co-operate with UNDP) with consultative functions, and of a Administrator with executive functions. However its formal dependence on the General Assembly, and hence its nature as a subsidiary organ of the Assembly, cannot doubted. Of relevance is the articulation by UNDP, based on a report published in 1990, of the concept of “human development” and of a series of indicators aimed at measuring it with sufficient precision in every country of the world. Human development means, drawing on the well known thesis of the 1998 Nobel Prize economist Amartya Sen, “the process of expanding the real freedoms that people enjoy”, a development that is broader than the predominantly liberal-economic one welcomed by the international organizations in charge of development assistance as the International Monetary Fund and the World Bank. The indicators of human development form a “Human Development Index” consisting of, for each country, three factors: life expectancy at birth, access to education and income per capita. The Index is available for several States and areas, both developed and developing (for the 2009 Human Development Report cf. ). Other Indexes are the “Gender-related Development Index”, the “Gender Empowerment Measure” and the “Human Poverty Index”.

Interesting is the idea of “human security” supported in the UNDP Human Development Report of 1994, shortly after the end of the Cold War, which reinterpreted the traditional notion of national security (understood as a defense of the borders with weapons) in terms of protection of people (as opposed to States) from new threats, such as diseases, urban crime, food ­insecurity, environmental degradation, unemployment, terrorism and natural disasters. On human security see also the Commission on Global Governance’s Our Global Neighborhood report of 1995 (at ), arguing in Chapter 3 that security should be extended ‘beyond the protection of borders, ruling elites and exclusive state interests to include the protection of people’, and the Human Security Commission’s Human Security Now: Protecting and Empowering People report of 2003 (at ), as well as, for a theoretical survey, Shahrbanou Tadbakhsh and Anuradha M. Chenoy, Human Security: Concepts and Implications (Abingdon and New York: Routledge, 2007). In 2000, the Millennium Development Goals, following the Millennium Summit of that year, set eight goals to be achieved for all humanity: the eradication of poverty and hunger, universal access to primary education, promotion of gender equality and empowerment of women, reduction of child mortality, improvement of maternal health, combat diseases (such as AIDS, malaria, etc.), sustainable protection of the environment and promotion of a global partnership for development. The 2000 Millennium Goals are today replaced by the 17 Sustainable Development Goals established in the “2030 Agenda for Sustanaible Development” which was adopted by General Assembly in Res. 70/1 of September 25, 2015 (cf. ). It should be noted that similar initiatives easily appear as proclamations that will remain a dead letter. It is also true that the Organization has done a lot, and successfully, to spread an idea of “human” development, which is increasingly popular and useful for countervailing an exclusively economistic vision of development and especially for gradually leading humanity towards a decent standard of living for all. To this end, in many quarters today a more profitable and balanced relationship between the UN, on the one hand, and the IMF and the World Bank, on the other, is hoped for, compared to the reciprocal quasiindifference (if not the underlying divergence between the Washington Consensus and the so-called New York Dissent) of the past. Worth of mention is also the Commission on Sustainable Development (CSD) which was established in 1992 to ensure effective follow-up of the above mentioned UN Conference on Environment and Development (see § 73).

384  The Functions

In 1997 the Secretary-General created UNDG (United Nations Development Group) to improve the effectiveness of the UN action for development. The UNDG brings together the operational institutions working on development and is chaired by the Administrator of UNDP. At the same time, the already cited Executive Committee on Economic and Social Affairs EC-ESA, also created by the Secretary-General (see § 73), coordinates the work not only of normative but also of operational agencies. What is the legal basis in the Charter of the UN operational activities in the field of economic co-operation and development? The pertinent, even if the only provision on the subject—and with a rather exceptional nature in the context of the Charter—particularly for activities of technical assistance, is Article 66, para. 2, of the Charter, under which the Economic and Social Council “may, with the approval of the General Assembly perform services at the request of the Members of the United Nations and at the request of specialized agencies”. The fact that the services, as has usually occurred up to now, are performed not by the Economic and Social Council but by organs dependent on the Assembly does not seem to give rise to difficulties from a legal viewpoint. The quasi-hierarchical relationship linking the Council to the Assembly (see § 38) may well explain the substitution of the former by the latter without resorting to the view (see Marchisio, La cooperazione, cit., p. 58 ff. and 152 ff.) of a customary extension of Assembly powers. However, the most relevant practical problem raised by the operational activities for development is that of obtaining the funds necessary for carrying them out. Are Member States under an obligation to contribute to the funding of development assistance of the poorest countries? As a matter of fact, all the Funds, Programs and other mechanisms that have been established up to now have functioned on the voluntary contributions of the States, with the exception of the above-mentioned Ordinary Program for Technical Assistance, created in 1948 and still functioning, whose expenses are entered in the ordinary UN budget and obligatorily apportioned according to Article 17. In our view, it must therefore be ruled out that the raising of funds in the field of economic co-operation and development falls under the “expenses of the Organization”, and must obligatorily be borne by Member States as apportioned by a majority of two thirds of the Assembly, under Article 17 of the Charter (see § 88). In fact, Article 66, para. 2, by using a very vague and all-encompassing formula (“… perform services…”) and regarding services to be agreed upon each time (“… services…at the request of Members of the United Nations and at the request of specialized agencies”) intends for each assistance program to find its own source of funding and thus requires a prior fund raising campaign. As mentioned, this is substantiated by the practice with the sole exception of the Ordinary Program for Technical Assistance. This program, however, has

Operational functions   385

always had a very modest importance, being limited to the setting up of fellowships, of research centers, and of missions of experts, and, in spite of its entry in the ordinary budget, for very many years gave rise to reservations and protests of principle on the part of the group of Socialist countries. It should also be considered that the rule of voluntary contribution has often been reiterated by the capital-holding countries, for example, by the United States, that is, by the countries on which the financing ultimately depends; and that, therefore, the entering of small amounts intended for aid activities in the ordinary budget, far from being evidence of a rule in force, can only rest on the tolerance and the acquiescence of the Member States. On the reservations of the Soviet Union and the other Socialist countries of Eastern Europe at the time of the establishment of the Ordinary Program for Technical Assistance, see GAOR, 3rd sess., Pl. meet., 170th meet., p. 700 f. For later reservations, again of the Soviet Union, see GAOR, 25th sess., 1970, Pl. meet., 1933rd meet., no. 19 f.; 28th sess., 1973, Doc. A/PV.2206; 30th sess., 1975, Doc. A/PV.2444; 31st sess., 1976, Pl. meet., 107th meet., no. 104 f. For the positions taken by the capital-holding countries in favor of the voluntary nature of contributions, see, for example, GAOR, 26th sess., 1971, Pl. meet., 2031st. meet., no. 20 (United States); 28th sess., 1973, Doc. A/PV.2206 (France).

Anyone who cares about the future of the developing countries can only hope for a massive increase in the number of operational activities of the United Nations. In fact, if technical assistance and aid come from a universal organization such as the United Nations, if, in other words, the flow of capital coming from wealthy countries and intended for poor countries is “filtered” by such an Organization, the assistance becomes neutral in that it is freed from political, or even military, conditioning. Unfortunately, precisely owing to these characteristics, the operational activities of the United Nations represent only a modest fraction of the over-all volume of international assistance, most of which is still covered by direct aid and by contributions granted on a bilateral or multilateral scale. In other words, the multiplication, inexplicable under various aspects, of United Nations organs intended for operational functions has not been matched, owing to the lack of funds, by real and effective action for development. Moreover, in recent decades, even when faced with the failures of development assistance, often due to corruption of the elites in power in the aid recipient countries, the idea that the development of the poorest countries will be boosted through free trade and foreign investment gradually established itself, according to liberal rules that tend however to favor industrialized nations, who find themselves, in economic competition, in a starting position of great advantage, resulting inter alia from colonialism to which the more needy States have historically been subjected to. Since this is the present situation, it is impossible to agree with those observers who hold that the United Nations is being transformed into a large operational agency. In fact, the

386  The Functions

Organization is and remains, as it was conceived of at San Francisco, an entity whose powers are predominantly normative, an entity intended not to act, but to facilitate debates and to dictate rules to the States, in the hope that will then be observed. This should not lead to pessimism, however. Despite everything, the UN does much, and a world with the UN is far better than a world without it. 75.  Relations with Specialized Agencies There are many international organizations that operate in the economic and social field apart from the United Nations. They are both universal and regional organizations. The most important of the universal organizations are called the Specialized Agencies of the United Nations, as they are related to the United Nations and to a certain degree come under its power of coordination and supervision. They are, however, autonomous organizations, created by agreements completely separate from the Charter, and their members only generally speaking are also UN members. Their functions are more or less similar to those of the UN organs in that they operate for purposes of social and economic co-operation. They issue and prepare normative acts, mainly recommendations and multilateral draft conventions (very rarely binding decisions for the Member States), or they carry out operational tasks in the field of assistance and international aid. With few exceptions, their structure consists of a plenary organ in which all the Member States are represented, of a Council with a more restricted membership, and a Secretariat. For some specialized agencies concerned with international monetary problems, such as the International Monetary Fund (IMF) and the International Bank for Reconstruction and Development (IBRD), agencies where decision-making power, through the weighed-vote system, is firmly in the hands of the developed countries, the demand for greater “democratization”, coming from the developing countries, has up to now not been answered. Existing specialized agencies are FAO (Food and Agriculture Organization) which absorbed the activities and property of the old International Institute of Agriculture ­created in 1905; ILO (International Labor Organization), already existing at the time of the League of Nations, whose plenary organ has the peculiarity of consisting not only of government delegates but also of representatives from employers and workers, and which has been responsible for an important contribution to job protection through the preparation of multilateral agreements on the subject; UNESCO (United Nations Educational, Scientific and Cultural Organization); ICAO (International Civil Aviation Organization); WHO (World Health Organization); IMO (International Maritime Organization); ITU (International Telecommunication Union); WMO (World Meteorological Organization); UPU (Universal Postal Union); IMF (International Monetary Fund), whose plenary organ consists of the Board of Governors in which each Member State is represented by the Governor of its own central bank or by a substitute; IBRD (International Bank for

Relations with Specialized Agencies  387 Reconstruction and Development, also known as World Bank) with a structure similar to that of the IMF; IFC (International Finance Corporation); IDA (International Development Association); WIPO (World Intellectual Property Organization); IFAD (International Fund for Agricultural Development); United Nations Industrial Development Organization, UNIDO, formerly a subsidiary organ of the UN General Assembly and transformed into a specialized agency in a 1979 treaty. Worthy of mention is also IAEA (International Atomic Energy Agency), the Organization whose purpose is to promote the development and enlarging of peaceful uses of atomic energy. IAEA does not qualify as a specialized agency, in that, because of the matter it is concerned with, it has ties with both the Assembly and the Security Council, and not, as the agencies, with the Assembly and the Economic and Social Council. However, it has a liaison agreement with the United Nations, concluded in 1957, which puts it in a condition not very different from that of the Agencies.

The relationship between each specialized Agency and the United Nations stems from an agreement which is entered into by the two organizations (see Article 57 of the Charter) and which is negotiated by the Social and Economic Council and approved by the General Assembly. Up to now the content of each liaison agreement linking the two organizations has usually conformed to a model set in 1946 when agreements were concluded by the UN with ILO, UNESCO and FAO. This model provides for an exchange of representatives, observers, documents, resort to consultation if necessary, coordination of their respective technical services, the commitment of the specialized agency to at least consider UN recommendations, and so on. However, the importance of the liaison agreement, and of the related attribution of the qualification of a specialized Agency mainly lies in the resulting applicability of the Charter rules regarding the agencies. These provisions subject them, within certain limits, to the UN’s power of coordination and supervision. Among these provisions, there are Article 58 which (together with Article 60) qualifies the General Assembly and the Economic and Social Council to make recommendations “for the coordination of the policies and activities of the specialized agencies” (in the same sense, cf. also Articles 62, para. 1, and Article 63, para. 2); Article 64, which gives the Council the right to request “regular reports” from the Agencies; and Article 17, para. 3, under which the Assembly “shall examine the administrative budgets of such specialized agencies with a view to making recommendations to the agencies concerned”. The relations between the United Nations and the Agencies have become more intense in the framework of co-operation for development, especially after the setting up of UNDP. As we have seen, the Agencies are represented in an organ of the Program, the Consulting Committee, and can carry out projects, within the framework of the planning for a specific country, that have been commissioned by the Program itself (see § 74). This is a matter of cooperation on an equal basis which is grounded in agreements and not in

388  The Functions

r­ elationships of subordination. Since the above-mentioned liaison agreements are not recent—with the exception of the 1974 UN-WIPO agreement—and they do not contain precise provisions on the operational co-operation and in ­particular on the coordination of technical assistance activities, co-operation and coordination can be found in special agreements between UNDP and the individual Agencies. These agreements were already concluded in the 1960’s by the Special Fund, an entity established in 1958 and then merged into UNDP (see § 74). The fact that the relations between the UN and the Agencies are on an equal basis and that there is not a dependent relationship is the only important characteristic that makes the Agencies different from entities such as UNCTAD, UNICEF, etc., which are subsidiary organs of the Assembly. The difference, however, is becoming less and less important owing to the UN’s tendency to exercise more control over the Agencies. This tendency is inevitable in that it is based on objective needs of co-ordination and on the elimination of duplication and waste.

The nature of the liaison agreements between the United Nations and the ­specialized Agencies has given rise to debates in legal doctrine. Some authors, the present writer among them, have raised doubts about the possibility and the usefulness of defining such conventions as true international legal agreements, producing rights and obligations for the parties and revealing their international legal personality. We think that they are rather a set of rules which, as intended by the Charter and the constitutive treaties of the Specialized Agencies, have become an integral part of both and, specifically, can be included among the provisions which regulate the functions of the respective organs. Therefore, their violation by the General Assembly or by the Economic and Social Council or by an organ of the Specialized Agency should not be seen in the same way as the non-fulfillment of treaty obligations but as the cause of the illegality of the resolutions of one of these organs. Mutatis mutandis, the same considerations are to be made concerning the UNDP-Agencies liaison agreements.

Section VII.  The Protection of Human Rights Select bibliography: René Brunet, La garantie internationale des droits de l’homme dans le cadre des Nations Unies (Genève: Grasset, 1947); Hersch Lauterpacht, ‘The Universal Declaration of Human Rights’, 25 BYB (1948) 354–81; Paul Guggenheim, Die völkerrechtliche Schutz der Menschenrechte, in FW (1949) 177 ff; Felice Battaglia, ‘La protezione internazionale dei diritti dell’uomo’, 18 RSPI (1950) 233–47; Hersch Lauterpacht, International Law and Human Rights (London: Stevens, 1950); Giuseppe Sperduti, ‘La Dichiarazione universale dei diritti dell’uomo’, 5 CI (1950) 216 ff; Pieter N. Drost, Human Rights as Legal Rights: The Realization of Individual Human Rights in Positive International Law. General Discussions and Tentative Suggestions on an International System of Human Rights (Leiden: Sijthoff, 1951); Nehemiah Robinson, The Universal Declaration on Human Rights; its

General aspects of United Nations action  389 Origin  Significance and Interpretation (New York: World Jewish Congress, 1958); Moses Moskowitz, Human Rights and World Order. The Struggle for Human Rights in the United Nations (New York: Oceana, 1958); Manouchehr Ganji, International Protection of Human Rights (Genève: Droz-Paris, 1962); Myres S. McDougal and Gerhard Bebr, ‘Human Rights in the United Nations’, 58 AJ (1964) 603–41; József Halasz and Imre Szabó, Socialist Concept of Human Rights (Budapest: Akad. Kiado, 1966); Francesco Capotorti, ‘Le Nazioni Unite per i progressi dei diritti dell’uomo: risultati e prospettive’, 22 CI (1967) 11–35; Mario Miele, Patti internazionali sui diritti dell’uomo e diritto interno (Milano: Giuffrè, 1968); Moses Moskowitz, The Politics and Dynamics of Human Rights (Dobbs Ferry: Oceana Publication, 1968); Arthur H. Robertson, Human Rights in the World. Being an Account of the United Nations Covenants on Human Rights, The European Convention, The American Convention,  The Permanent Arab Commission, The Proposed African Commission and Recent Developments affecting Humanitarian Law (Manchester: Manchester University Press, 1972); Antonio Cassese, ‘The New UN Procedure for Handling Gross Violations of Human Rights’, 30 CI (1975) 49–61; Marc Schreiber, ‘La pratique récente des Nations Unies dans le domaine de la protection des droit de l’homme’, in RC (1975-II) 297–398; ­Jean-Bernarde Marie, La Commission de droit de l’homme de l’ONU (Paris: Pedone, 1975);  Id., ‘La situation des droits de l’homme au Chili: enquête de la Commission des droits de l’homme des Nations Unies’, 22 AF (1976) 305–35; Friedrich Meissner, Die  Menschenrechtsbeschwerde vor der Vereinten Nationen (Baden-Baden: NomosVerlagsgesellschaft, 1976); J. Mourgeon, ‘L’entrée en vigueur des pactes internationaux relatifs aux droits de l’homme’, 22 AF (1976) 290–304; Egon Schwelb, ‘Entry into Force of the International Covenants of Human Rights and the Optional Protocol to the International Covenant on Civil and Political Rights’, 70 AJ (1976) 511–19; Maria L. Alaimo, ‘L’Italia e le convenzioni internazionali in materia di diritti dell’uomo’, 59 RDI (1976) 291–99; Ugo Villani, voce ‘Diritti dell’uomo’, NDIApp (1980) 1134–150; Giorgios Tenekides, ‘L’action des Nations Unies contre la discrimination raciale’, 168 RC (1980-III) 269–487; Giorgio Gaja, ‘I patti internazionali sui diritti economici, sociali e culturali e sui diritti civili e politici’, in Edoardo Vitta e Valerio Grementieri, Codice degli atti internazionali sui diritti dell’uomo (Milano: Giuffrè, 1981) 47–63; Ibrahim A. El-Sheikh, ‘UN and Violations of Human Rights’, in REgDI (1980) 133 ff; Jack Donnelly, ‘Recent Trends in UN Human Rights Activity: Description and Polemic’, 35 Int. Org. (1981) 633–55; Dana D. Fischer, ‘Reporting under the Covenant on Civil and Political Rights: The First Five Years of the Human Rights Committee’, 76 AJ (1982) 142–53; Theodor Meron, ‘Norm Making and Supervision in International Human Rights: Reflections on Institutional Order’, 76 AJ (1982) 754–78; Philip Alston, ‘The Alleged Demise of Political Human Rights at the UN. A Reply to Donnelly’, 37 Int. Org. (1983) 537–46; Jack Donnelly, ‘The Human Rights Priorities of the UN: A Rejoinder to Alston’, 37 Int. Org. (1983) 547–50; John T.P. Humphrey, Human Rights and the United Nations: A Great Adventure (Dobbs Ferry, N.Y.: Transnational Publishers, 1984); Thomas F. Frank, ‘Of Gnats and Camels: Is there a Double Standard at the United Nations?’, 78 AJ (1984) 819–33; A.P. Vijapur, ‘The UN Mechanisms for the Promotion and Implementation of Human Rights’, 25 InJIL (1985) 576–611; Theodor Meron, Human Rights Law-Making in the UN: A Critique of Instruments and Process (Oxford: Clarendon Press, 1986); Antonio A. Cançado Trindade, ‘Co-Existence and Co-Ordination of Mechanisms of International Protection of Human Rights’, 202 RC (1987-II) 9–435; Menno T. Kamminga, ‘The Thematic Procedures of the UN Commission on Human Rights’, 34 NILR (1987) 299–323; Rüdiger Wolfrum, ‘The Progressive Development of Human Rights: A Critical Appraisal of Recent UN Efforts’, in Des Menschen Recht zwischen Freiheit und Verantwortung, Festschrift für K.J. Partsch Duncker und Humblot (Berlin, 1989) 67–95; Agnés Dormenval, Procédures onusiennes de mise en œuvre des droits de l’homme: limites ou défauts? (Paris: Pr. Univ. de France, 1991); Dominic McGoldrick, The Human Rights

390  The Functions Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford: Clarendon Press, 1991); Manfred Nowak, ‘Country-Oriented Human Rights Protection by the UN Commission on Human Rights and its Sub-Commission’, 22 NYIL (1991) 39–90; Philip Alston (ed), The United Nations and Human Rights: A Critical Appraisal (Oxford: Clarendon Press, 1992); Habib Gherari, ‘Le Comité des Droits économiques, sociaux et culturels’, 96 RGDIP (1992) 75–102; José Antonio Pastor Ridruejo, ‘Les procédures publiques spéciales de la Commission des droits de l’homme des Nations Unies’, 228 RC (1991-III) 183–272; Karen E. Kenny, ‘Formal and Informal Innovations in the United Nations Protection of Human Rights: The Special Rapporteur on the Former Yugoslavia’, 48 ZöRV (1995) 19–77; Philip Alston and James R. Crawford (eds), The Future of Human Rights Treaty Monitoring (Cambridge: Cambridge University Press, 2000); Anne F. Bayefsky (ed), The UN Human Rights Treaty System in the 21th Century (The Hague: Kluwer Law International, 2000); Id., The UN Human Rights Treaty System. Universality at the Crossroads (New York: Transnational Publishers, 2001); Id., How to Complain in the UN Human Rights Treaty System (New York: Transnational Publishers, 2002); Bertrand Ramcharan, The UN High Commissioner for Human Rights (The Hague: Nijhoff, 2002); Kirsten A. Young, The Law and Process of the UN Human Rights Committee (New York: Transnational Publishers, 2002); Federica Morrone, ‘Le attività del relatore speciale ONU per i diritti umani dei migranti’, 60 CI (2005) 755–63; Ugo Villani, Studi sulla protezione internazionale dei diritti umani (Roma: Luiss University Press, 2005); Jean Dhommeaux, ‘Le droit de l’homme à un environnement sain dans le principaux instruments des NationsUnies relatifs au droits de l’homme’, 1 AIDH (2006) 71–112; Pietro Gargiulo, ‘Le Nazioni Unite e la tutela dei diritti umani dopo il Vertice mondiale del 2005’, 61 CI (2006) 709–44; Mark Gibeny and Reed Wood, ‘Prospects for the New UN Human Rights Council’, 4 ISJ (2007) 1–32; Yann Kerbrat, ‘Aspects de droit international général dans la pratique des comités établis au sein des Nations Unies dans le domaine des droits de l’homme (2006– 2007)’, 53 AF (2007) 584–607; Antonio Marchesi, Diritti umani e Nazioni Unite: diritti, obblighi e garanzie (Milano: Angeli, 2007); Philip Alston, Jason Morgan-Foster and William Abresch, ‘The Competence of the UN Human Rights Council and Its Special Procedures in Relation to Armed Conflicts: Extrajudicial Executions in the “War on Terror”’, 19 EJIL (2008) 183–209; Carmen Márquez Carrasco and Ingrid Nifosi-Sutton, ‘The UN Human Rights Council: Reviewing Its First Year’, AAHDH (2008) 101–23; Angelo Gitti, ‘L’“Universal Periodic Review” del Consiglio dei diritti umani. Luci ed ombre della nuova procedura di controllo del rispetto dei diritti umani da parte degli Stati’, 2 DUDI (2008) 119–30; Mamoud Zani, ‘Réflexion sur le Conseil des droits de l’homme des Nations Unies’, 86 RDISDP (2008) 299–334; Wolfang Benedek (ed), Global Standards—Local Action: 15 Years Vienna World Conference on Human Rights. Conference Proceedings of the Internal Expert Conference held in Vienna on 28 and 29 August 2008 (Vienna: Intersentia, 2009); Nadia Bernaz, ‘Reforming the UN Human Rights Protection Procedures: A Legal Perspective on the Establishment of the Universal Periodic Review Mechanism’, in C.K. Boyle (ed), New Institutions for Human Rights Protection (Oxford: Oxford University Press, 2009) 75–92; Karin Buhmann, ‘Regulating Corporate Social and Human Rights Responsibilities at the UN Plane: Institutionalising New Forms of Law and Law-Making Approaches?’, 78 NoJIL (2009) 1–52; Bertrand G. Ramcharan, The Protection Roles of UN Human Rights Special Procedures (Leiden: Nijhoff, 2009); Ilaria Viarengo, ‘L’universalità dei diritti umani tra ideale e realtà: la prassi del Comitato dei Diritti Umani delle Nazioni Unite’, in Gabriella Venturini and Stefania Bariatti (eds), Liber Fausto Pocar. Diritti individuali e giustizia internazionale, (Milano: Giuffrè, 2009) vol. 1, 955–67; Emmanuel Decaux, ‘Le Nations Unies et le droits de l’homme: 60 ans après’, in L’universalisme des droits en question(s): la Déclaration universelle des droits de l’homme, 60 ans après (Caen: Presses Universitaires de Caen, 2010) 33–47; Elvira Domínguez-Redondo, ‘Role of the UN in the Promotion and Protection of Human

General aspects of United Nations action   391 Rights’, in Azizur Rahman Chowdhury and Jahid Hossain Bhuiyan (eds), An Introduction to International Human Rights Law (Leiden: Brill, 2010) 119–44; Hassen Fodha, ‘L’action des Nations Unies dans la mise en œuvre de la Déclaration Universelle des Droits de l’Homme’, in Jean-Pierre Machelon, Pascal Chaigneau and Fouad Nohra (eds), La Déclaration Universelle des Droits de l’Homme: fondement d’une nouvelle justice mondiale? (Paris: Harmattan, 2010) 15–27; Jarvis Matiya, ‘Repositioning the International Human Rights Protection System: The UN Human Rights Council’, 36 CommLB (2010) 313–24; Michael O’Flaherty, ‘Reform of the UN Human Rights Treaty Body System: Locating the Dublin Statement’, 10 HRLR (2010) 319–35; M. Cherif Bassiouni and William A. Schabas (eds), New Challenges for the UN Human Rights Machinery: What Future for the UN Treaty Body System and the Human Rights Council Procedures? (Cambridge: Intersentia, 2011); Christophe Golay, Claire Mahon and Ioana Cismas, ‘The Impact of the UN Special Procedures on the Development and Implementation of Economic, Social and Cultural Rights’, 15 IJHR (2011) 299–318; Michael Karlsson and Max Granström, ‘Business and Human Rights: The Recent Initiatives of the UN’, in Ramon Mullerat (ed), Corporate Social Responsibility: The Corporate Governance of the 21st Century (Alphen aan den Rijn: Kluwer, 2011) 285–306; Ted Piccone, ‘The Contribution of the UN’Special Procedures to National Level Implementation of Human Rights Norms’, 15 IJHR (2011) 206–31; Surya P. Subedi, ‘Protection of Human Rights Through the Mechanism of UN Special Rapporteurs’, 33 HRQ (2011) 201–28; Yogesh Tyagi, The UN Human Rights Committee: Practice and Procedure (Cambridge: Cambridge University Press, 2011); Guglielmo Verdirame, The UN and Human Rights: Who Guard the Guardians? (Cambridge: Cambridge University Press, 2011); Lena J. Kruckenberg, The UN Real World of Human Rights: An Ethnography of the UN Committee in the Elimination of Racial Discrimination (Baden-Baden: Nomos, 2012); Radu Mares (ed), The UN Guiding Principles on Business and Human Rights: Foundations and Implementation (Leiden: Nijhoff, 2012); Anja Seibert-Fohr, ‘The International Covenant on Civil and Political Rights: Moving from Coexistence to Cooperation and Solidarity’, in Holger P. Hestermeyer et al. (eds), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum (Leiden: Nijhoff, 2012) 521–52; Rainer Grote, ‘The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Towards a More Effective Implementation of Social Rights?’, ibid., pp. 417–36; Carlo Focarelli, La persona umana nel diritto internazionale (Bologna: Il Mulino, 2013); Michele Nino, ‘Il caso Datagate. I problemi di compatibilità del programma di sorveglianza PRISM con la normativa europea sulla protezione dei dati personali e della privacy’, 7 DUDI (2013) 727–46; Marco Odello and Francesco Seatzu, The UN Committee on Economic, Social and Cultural Rights: The Law, Process and Practice (London: Routledge, 2013); Rosa Freedman, Failing to Protect: the UN and the Politicisation of Human Rights (London: Hurst, 2014); Felice D. Gaer (ed), The United Nations High Commissioner for Human Rights: Conscience for the World (Leiden: Nijhoff, 2014); Jared Genser and Bruno Stagno Ugarte (eds), The United Nations Security Council in the Age of Human Rights (Cambridge: Cambridge University Press, 2014); Jan Lhotský, ‘The UN Mechanisms for Human Rights Protection: Strengthening Treaty Bodies in Light of a Proposal to Create a World Court of Human Rights’, 5 CYIL (2014) 271–88; Carlo Focarelli, La privacy. Proteggere i dati personali oggi (Bologna: Il Mulino, 2015); Bertrand G. Ramcharan, The Law, Policy and Politics of the UN Human Rights Council (Boston: Brill, 2015).

76.  General aspects of United Nations action Another purpose of the United Nations is that of “promoting and encouraging respect for human rights and for fundamental freedoms for all without

392  The Functions

­ istinction as to race, sex, language or religion” (Article 1, para 3, of the d Charter). The General Assembly and, under its direction, the Economic and Social Council, are competent on the matter of the protection of human rights, just as they are on economic co-operation (Chapters IX and X of the Charter). Both these organs have in turn created a series of subsidiary organs, the most important being the Commission on Human Rights which constituted one of the so-called technical or functional Commissions of the Council (see § 38), operating since 1946 and replaced by the Human Rights Council following what was outlined by the General Assembly in Res. 60/1 of October 24, 2005 containing the World Summit Outcome Document (paras. 157–160). The Human Rights Council, established by the General Assembly with Res. 60/251 of March 15, 2006, is made up of representatives of 47 Member States of the United Nations elected by the General Assembly by absolute majority, by secret ballot and with a three-year rotation. Among its tasks a universal ­periodic review—actually started in 2008—on the compliance of all Member states with their human rights obligations through “objective and reliable information” and the co-operation with the reviewed State. Upon request of a Member State or of an NGO the Council may decide to start a “special procedure”, relative to a State or a question, with the aim of verifying also in loco (through a mission of a group of experts, with the prior consent of the territorial State) if a human rights violation took place and if so it drafts a non-­binding report. Another task of the Council, that we will look at in more detail later, relates to the “compliance procedures”. The Council has been criticized, just like the Commission on Human Rights in the past, because States that clearly violate human rights are members thereof and, more generally, since it is more dependent on political and diplomatic motivations than on humanitarian ones. Strong criticism has been voiced, for example when the Council adopted Res. 5-9/1 of January 12, 2009 on the December 2008 and January 2009 Gaza Strip conflict, recognizing violations of human rights and international humanitarian law by Israel for the military operations led in the occupied Palestinian territories without condemning at the same time the attacks launched against Israeli territory by Hamas militants which, according to Israel, justified the operations. Res. 60/251 establishing the Council was adopted with 10 votes in favor, 4 against (United States, Israel, Palau, Marshall Islands) and 3 abstentions (Iran, Belarus, Venezuela), and it allocated seats based on an equitable geographical distribution: 13 to African States, 13 to Asian States, 6 to Eastern European States, 8 to Latin American States and the Caribbean, 7 to Western and to other States (for the composition of the Council cf. ). For the text of Res. 60/251 cf. .

General aspects of United Nations action   393 The Council, based in Geneva, holds no fewer than three annual sessions and may convene extraordinary sessions. To date (June 2015), the Council has met in 29 regular sessions and 23 special sessions. During the latter were discussed issues such as, e.g., among the most recent, violations of human rights by terrorist groups (in particular the Boko Haram group) (23rd session of 2015), violations of human rights committed by ISIS in Iraq (22nd Session of 2014), the human rights situation in the Israeli-occupied Palestinian territories (21st session of 2014), in the Central African Republic (20th Session 2014), Syria (17th, 18th and 19th sessions of 2011–2012), Libya (16th session of 2011) and Cote d’Ivoire after the 2010 elections (15th session 2010), support to Haiti after the earthquake (13th session 2010), the human rights situation in the Israeli-occupied Palestinian territories (12th session 2009), the situation of human rights in Sri Lanka (11th session of 2009), the impact of the global financial and economic crisis on Human Rights (10th session of 2009) and the violation of human rights in Palestinian territories occupied by Israel, an issue for which an international independent mission was established (9th session of 2009). As far as “special procedures” are concerned, the Council is currently dealing with 41 thematic situations and 14 specific situations (Belarus, Cambodia, Central African Republic, Eritrea, Haiti, Iran, Ivory Coast, Mali, Myanmar, North Korea, the Occupied Palestinian Territories, Somalia, Syria and Sudan). With regard to thematic mandates, the Council has renewed the 28 previously established by the Human Rights Commission, including the Working Group on arbitrary detention, on extreme poverty, on freedom of expression and religion, on the independence of judges and the use of mercenaries as a means to prevent the right of peoples to self-determination. It also introduced others, including those on albinism (Res. 06/28 of March 23, 2015), the right to privacy (Res. 28/16 of March 26, 2015), the rights of persons with disabilities (Res. 26/20 of June 27, 2014), the human rights of the elderly (Res. 24/20 of September 27, 2013), the right to the environment (Res. 19/10 of April 19, 2012), human rights and multinationals (Res. 17/4 of June 16, 2011), the right to truth (Res. 18/7 of September 9, 2011), the promotion of a democratic and equitable international order (Res. 06/18 of September 29, 2011), the freedom of assembly and association (Res. 15/21 of September 30, 2010), discrimination against women (Res. 15/23 of October 1, 2010), cultural rights (Res. 10/23 of March 26, 2009), access to clean water and health in general (Res. 7/22 of March 28, 2008) and on contemporary forms of slavery (Res. 6/14 of September 28, 2007). The powers of the Council include the drawing up of international treaties. With regard to this it should be mentioned the Optional Protocol to the Covenant on Economic, Social and Cultural Rights of 1966 (see § 79), which gives the Committee on Economic, Social and Cultural rights the competence to receive communications from individuals or groups of individuals. At the ordinary session held from June 2 to June 19, 2009 the Council also decided to establish a working group for the preparation of an Optional Protocol to the Convention on the Rights of the Child of 1989 (see § 78) governing the procedure for communication alternative to that provided by the Convention, the Protocol was adopted on November 19, 2011, entered in force on April 14, 2014, and is binding on 17 countries as of July 1, 2015. To this day, the Council has established some organs, including an advisory committee composed of 18 experts, which replaces the former Sub-Commission for the Promotion and Protection of Human Rights, whose task is to conduct studies and research on behalf and under direction of the Council. Worth mentioning is also the Expert Mechanism on the Rights of Indigenous Peoples, composed of 5 experts with the task of providing information through studies and research on the Rights of Indigenous Peoples. The Council also set up a Forum on minorities issues to promote dialogue and co-operation on issues

394  The Functions r­ elating to national minorities or ethnic, religious and linguistic minorities, and a Social Forum in which representatives of Member States and civil society, such as intergovernmental organizations and other specialized organizations, discuss issues relating to the conditions, both at nationally and at an internationally level, necessary for the respect of human rights. For Res. S-9/1 condemning Israel for the military operation in Gaza cf. . Besides the report on the Israeli attacks on UN facilities in Gaza (see § 37), in a report of the fact-finding Committee established by the UN Human Rights Council and issued on September 29, 2009, Israel in particular has been accused of various violations of human rights and international humanitarian law during Operation “Cast Lead” (cf. ).

The competence of the General Assembly, of the Economic and Social Council, of the Human Rights Council and of other subsidiary organs is exercised through the issuance of normative acts that are not binding, such as recommendations, declarations of principle, and multilateral draft conventions. By contrast, there are some organs which are entrusted with operative functions. The most important one is the UNHCR (UN High Commissioner for Refugees) which was created by the General Assembly in 1950. Since then it has helped about 50 million people to restart their lives, giving a fabulous contribution to one of the most dramatic problems of the world to-day. Of a special mention is also the action of the High Commissioner for Human Rights, an independent office from the Secretary-General. The High Commissioner was established by the General Assembly in 1993. The main task of the High Commissioner is to monitor, and collect information on, violations of human rights and refer this information to the appropriate UN organs. As in the field of co-operation for development, so to in the subject of human rights, the Organization’s efforts focus on creating equal standard of living in the world, on protecting the weakest, whether they are individuals or entire groups, and on awakening recalcitrant or reactionary governments. The protection of human dignity, in the very broad sense that we saw in discussing domestic jurisdiction (see 45 III), constitutes one of the fundamental values of today’s international society. The resolutions of a general nature which pursue this value are very numerous. Human rights are felt to affect the very growth of the developing countries, as is stated in various and already cited General Assembly Declarations and recommendations (see § 73), and as a barrier to economic hyper-neoliberism. The promotion of democracy and democratic institutions is also considered as an important aspect of human rights protection. We prefer to treat it in the framework of self-determination of peoples (see § 81). Among the human rights-related issues which have been specifically addressed by a number of organs of the United Nations, the most important are those of corporate social responsibility, the protection of personal data, and sovereign debt to which a few words should be devoted.

General aspects of United Nations action   395 With regard to corporate social responsibility, and in particular the problem of compliance with international standards on human rights on the part of multinational companies, the Council for Human Rights adopted the “Guiding Principles on Business and Human Rights” in 2011, which are divided into three pillars (the “Protect, Respect and Remedy” Framework): (a) the duty of States to protect human rights (duty to protect), (b) corporate responsibility to respect human rights (responsibility to respect) and (c) the obligation of the State to ensure access to an effective remedy in the event of abuse (access to remedy). Drawn not from law, but from “social expectations” concerning companies (cf. UN Doc. A/HRC/17/31, para. 9)—the use of the term “responsibility” rather than “duty” alludes to the fact that it is not a matter of actual legal obligations, but of “standards of expected conduct” (cf. )—the responsibility to respect requires businesses (of all sizes and operating in any sector and location) to undertake the appropriate due diligence to prevent, mitigate and, where appropriate, remedy the human rights violations that they have caused or where they can have a negative impact, and to prevent and mitigate any negative impacts of their activities, or their products or services. The responsibility to respect, however, only applies to the internationally recognized human rights under the so-called “International Bill of Human Rights”, namely the Universal Declaration of Human Rights and the two 1966 UN Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, as well as the 8 core ILO conventions that are the basis of the Declaration on Principles and Rights at Work of the ILO of June 18, 1998, revised on June 15, 2010, on the freedom of association and effective collective bargaining, the elimination of all forms of forced or compulsory labor, the effective abolition of child labor and the elimination of discrimination in employment and occupation (see ). The United Nations has recently been very active on the matter of the protection of personal data, especially since the scandal following revelations by the former CIA technician, Edward Snowden. The problem, which has become critical in the light of technological developments and the massive cross-border flows of data available on a global scale (“Big data”) hand in hand with economic globalization, is part of the wider debate on the right to privacy in the digital era. In 2013, the UN General Assembly adopted Res. 68/167 of December 18, 2013, proposed by Germany and Brazil, reiterated and clarified the following year in Res. 69/166 of November 18, 2014. Both resolutions state that the right to privacy is available to everyone equally offline and online, and condemn any interference in the personal sphere of individuals also in the digital dimension, calling on all States to adopt measures and domestic laws to prevent violations. In 2014, the High Commissioner for Human Rights published a report on the “Right to privacy in the digital era” (see ). According to the report, the protection of national security can be a justification if necessary and proportionate to the aim pursued (para. 24). The report also draws attention to the role of telecommunications companies as protectors of privacy, highlighting that “[w]here enterprises are faced with government demands for access to data that do not comply with international human rights standards, they are expected to seek to honour the principles of human rights to the greatest extent possible” (para. 45). In 2015 the UN Human Rights Council adopted a resolution on privacy in the digital era that includes inter alia the appointment of a Special Rapporteur on the right to privacy (see ). The special Rapporteur has the task of reporting on alleged violations committed also using the new technologies of communication, relating to privacy as enshrined in Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights, wherever they are committed, and to refer situations that raise serious questions to the attention of the Council and the High Commissioner for Human Rights.

396  The Functions On the problem of “sovereign debt”, i.e. the debt incurred by States, and its repercussions  on respect for human rights (especially economic, social and cultural rights and ­particularly at a time of economic recession), the UN Council for Human Rights adopted, with Res. 20/10 of July 5, 2012, the Guiding Principles on Foreign Debt and Human Rights as a guide for the States, asking an independent expert to prepare a commentary on the Principles on the basis of the views of the Member States, the international financial institutions, regional economic commissions, civil society organizations, the private sector and academia. In 2014 the expert submitted a draft commentary to the Council (see ). In 2014, the General Assembly has also put forward, with Res. 68/304, proposed by the developing countries, a multilateral legal framework for restructuring sovereign debt (whose drafting was entrusted to an ad hoc committee on the restructuring of sovereign debt, created with Res. 69/207 of December 29, 2014), recommending that the sovereign rights of a State, which also include choices for the restructuring of its sovereign debt, should not be blocked or hindered by the actions of other States.

77.  Action regarding individual countries As has been seen in discussing domestic jurisdiction, there is no longer any limit to UN action regarding individual countries. The General Assembly, the Economic and Social Council. their subsidiary organs and other UN bodies may therefore address any kind of resolution to them. Of course, the attention of the Organization is more attracted by the gross violations committed by a given country, i.e. by most inhuman practices, such as apartheid, torture, cruel and degrading punishment, and so forth, against individuals or against categories of individuals, and by generalized violations of other rights. On the other hand, these gross violations of human rights, are increasingly dealt with by de Security Council as a threat to international peace and security claiming for action under Chapter VII (see § 56). Among the resolutions that the General Assembly has adopted more recently against individual States it is worth mentioning Res. 60/170 of December 16, 2005 (Democratic Republic of the Congo); Resolutions 60/171 of December 16, 2005, 61/176 of December 19, 2006, 62/168 December 18, 2007 and 63/191 of December 18, 2008 (Iran); Res. 60/172 of December 16, 2005 (Turkmenistan); Resolutions 60/173 of December 16, 2005, 61/174 of December 19, 2006, 62/167 of December 18, 2007 and 63/190 of December 18, 2008 (North Korea); Res. 60/174 of December 16, 2005 (Uzbekistan); Resolutions 60/233 of December 23, 2005, 61/232 of December 19, 2006, 62/222 of December 22, 2007 and 63/245 of December 24, 2008 (Myanmar); and Resolutions 61/175 of December 19, 2006 and 62/169 of December 18, 2007 (Belarus).

Res. 1503-XLVIII of May 27, 1970 of the Economic and Social Council, as amended by Res. 2000/3 of June 19, 2000 was fundamental in the past with regard to gross violations. This resolution authorized the Sub-Commission on Prevention of Discrimination and Protection of Minorities, called, since 1999, the Sub-Commission for the Promotion and Protection of Human Rights

Action regarding individual countries   397

and  now replaced by the Consultative Committee of the Human Rights Council (see § 76), to appoint working groups and through them to examine ­communications received by the Secretary-General on human rights, with a view to singling out those which reliably revealed the existence of gross violations. The Sub-commission made reports to the Commission on Human Rights which could conduct an in-depth investigation of the matter brought to its attention, or, also, but with the consent of the accused State, appoint an ad hoc investigating Committee, and in turn make or propose recommendations to the Economic and Social Council. In this way a procedure begun which could stop at the Commission or at the Council but that could also result in General Assembly resolutions. The procedures laid down by the above mentioned resolutions were used a number of times and there were countless resolutions adopted by the Commission on Human Rights to denounce gross violations and to call upon the States responsible to halt them. The Commission was concerned, for example, with the violation of human rights in South Africa, in the Arab territories occupied by Israel, in Equatorial Guinea, in Chile, in Cambodia, in Bolivia, in El Salvador, in Guatemala, in Iran, in the Democratic Republic of Congo, in Sudan, in Sierra Leone, etc. In turn, the General Assembly, which could obviously also proceed independently of the Commission’s initiatives, periodically addressed recommendations to most of the States that did not have a good human rights record. In many resolutions, the Commission or the Assembly requested the discontinuance not only of cruel and degrading treatment but also of practices that denied to the population the enjoyment of civil and political or economic, social and cultural rights. These practices ranged from the establishment of concentration camps to armed repression and mass arrests, or to forced labor and the “enforced disappearance” of members of the opposition, to restriction on freedom of expression, information, association and so on, to the refusal to allow elections with the free participation of all the political forces, and even to the refusal to carry out agricultural reforms which would remove the limits to the exercise of economic and social rights.

“Procedure 1503” illustrated above is now replaced, as we mentioned earlier, by the “compliance procedure”, established and regulated by the Human Rights Council Res. 5/1 of June 18, 2007 (cf. ). Individuals and associations may, under Article 87, submit cases to the Council for alleged serious and gross human rights violations provided a number of requirements are met. Communications can be examined by two working groups composed of 5 members, one on the communications the other on the situations, bringing the cases to the Council’s attention. The Council may suspend the examination, or request information from the State concerned, or appoint an independent expert, or decide to make the process public or recommend the High Commissioner for Human Rights to provide technical assistance to the State concerned. As is evident, therefore, like the old “1503 procedure”, even the “compliance procedure” does not result in a legally binding act.

398  The Functions Of relevance are the conditions of admissibility of communications, which can be considered only if: (a) they have no obvious political motives and are compatible with the UN Charter, the Universal Declaration of Human Rights and other human rights instruments; (b) contain an objective description of the violations and accurately indicate the violated right; (c) they do not use abusive language, (d) they are submitted by a person or a group of people who consider themselves to be the victims of a violation or by a person or group of persons, including NGOs, who in good faith declare that they have direct and reliable knowledge of such violations; (e) is not exclusively based on information provided by the media; (f) are not already covered by a special procedure or other procedure of the UN in the field of human rights; (g) all domestic remedies have been exhausted, unless they are clearly ineffective or unduly prolonged in time.

In recent years, the role of the above mentioned High Commissioner for Human Rights, and its function of enhancing respect for human rights in individual countries, has become very important. In the case of Rwanda, for example, the High Commissioner has made valuable contributions towards the improvement of the situation in the country, after the genocide which occurred there. Other Committees which have been established by some of the Conventions listed in the following paragraph also monitor the respect for human rights. Among them are: the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women. the Committee against Torture and the Committee on the Rights of the Child. Normally these Committees receive reports from the Contracting States and, in turn, submit reports to the General Assembly, directly or through the Economic and Social Council, with suggestions about recommendations to be addressed to the interested State. Following special consent given by a contracting State, communications from individuals or groups of individuals can also be received by some of them (see § 79). 78.  Resolutions of a general nature Among the resolutions worth of mention that are not addressed to individual States but to the States in general, and that have more than others made a significant contribution to the development of the subject, are, first, the numerous declarations of principle adopted by the Assembly, from the well-known Universal Declaration on Human Rights (Res. 217-III of December 10, 1948) to those concerning specific sectors such as the Declaration on the Rights of the Child (Res. 1386-XIV of November 20, 1959), on racial discrimination (Res. 1904-XVIII of November 20, 1963), on discrimination against women (Res. 2263-XXII of November 11, 1967), on religious intolerance (Res. 36/55 of November 25, 1981). More recently, on the treatment of prisoners (Res. 45/111 of December 14, 1990), on the protection of juveniles deprived of their liberty (Res. 45/113 of December 14, 1990), on the

Resolutions of a general nature   399 protection of all persons from enforced disappearance (Res. 47/133 of December 18, 1992 and more recently Res. 63/183 of December 18, 2008), on human cloning (Res. 29/280 March 8, 2005), on indigenous rights (Res. 61/295 of September 12, 2007), and many o ­ thers on the protection of women (e.g., Resolutions 61/438 of November 30, 2006 and 62/134 of February 18, 2007), of children (e.g., Resolutions 61/439 of November 30, 2006 and 61/146 of December 19, 2006), of migrants (e.g., Resolutions 61/162 and 61/165 of December 19, 2006), against racial discrimination (e.g., Resolutions 61/161 and 61/164 of December 19, 2006), on the right to food (e.g., Resolutions 60/165 of December 16, 2005 and 62/164 of February 18, 2007), on the respect for human rights while countering terrorism (e.g., Res. 61/171 of December 19, 2006), on the prohibition of extrajudicial summary or arbitrary executions (e.g., Resolutions 59/197 of December 20, 2004 and 61/173 of December 19, 2006), on the prohibition of hostage-taking (e.g., Resolutions 61/172 of December 19, 2006 and 63/182 of December 18, 2008), on the moratorium on the death penalty (Resolutions 62/149 of February 18, 2007 and 63/168 of December 18, 2008), and so on.

These are acts that do not have a binding nature (aside from certain limited legal effects that they produce: see § 96) but that have great moral force and may have a weight in the development of international law. Then, there are various multilateral draft conventions, also adopted by the General Assembly and open for ratification by the Member States, in particular: the International Covenant on Civil and Political Rights and the one on Economic, Social and Cultural Rights (approved with Assembly Res. 2200XXI of December 16, 1966), which entered into force in 1976 after reaching the minimum required number of ratifications and which constitute, together with the Universal Declaration on Human Rights, the most important and fundamental standard that has been set by the international community regarding human rights; the Convention on the Elimination of All Forms of Racial Discrimination, adopted in 1965 and entered into force in 1969; the Convention on the Elimination of All Forms of Discrimination Against Women, adopted in 1979 and entered into force in 1981; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in 1984 and entered into force in 1987; the Convention on the Rights of the Child, adopted in 1989 and entered into force in 1990; the Convention on the Protection of All Persons against Enforced Disappearance, adopted by the General Assembly with Res. 61/177 of December 20, 2006, in force since December 23, 2010. Worth of mention is also the Vienna Declaration on human rights of June 25, 1993 which, although not adopted by the General Assembly but by a special Conference of States ­convoked by the General Assembly, summarizes the contents of the previous Assembly declarations. For the text of the Declaration cf. . All data/info on the most important Conventions on Human Rights can be found at .

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79.  The Human Rights Covenants and the Human Rights Committee It is beyond the scope of this book to deal with problems regarding the interpretation of the two Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights of 1966, as well as of the other Conventions mentioned in the preceding section, their relationships with other international agreements (for example, the European Convention on Human Rights), and the constitutional and legislative mechanisms provided for their implementation in the legal systems of the contracting States. These problems would be better dealt with in a work on international law. There is no doubt, however, that the two Covenants, although endowed with an autonomous life, are closely linked to the United Nations system, especially as far as the very soft international mechanisms for guaranteeing their observance are concerned. For this reason, they need to be treated briefly. Both Covenants have been ratified by a large number of countries belonging to a variety of geo-political areas, from the Western countries to the States of Eastern Europe, from the Arab countries, to the States of Africa, Asia and Latin America. Under the two Covenants, the rights which the States are obliged to recognize as belonging to all individuals within their jurisdiction, without distinction as to sex, race, religion, political opinion, etc. (cf. Article 2, para. 2, and Article 3 of the Covenant on Economic Rights and Article 2, para. 1 and Article 3 of the Covenant on Civil and Political Rights) are very broad and very detailed. Among the economic rights, there are the right to work, to fair wages, to social security and to other forms of social assistance, to form trade unions, and to strike. With regard to civil and political rights, the usual catalogue of individual freedoms is repeated and, under many respects, widened and further specified in a way as to include personal liberty, freedom of thought, ­conscience and religion, of association, and so on. The two Covenants have also been adhered to by States which notoriously do not have a record of compliance with, or consideration for, such a broad notion of human dignity. There is a suspicion that many countries have adhered for merely window-dressing purposes, without seriously intending to fulfill the relevant obligations. The international machinery of supervision provided by the Covenants is not very strong and this is another fact which… explains the high number of adhesions. The Covenant on Civil and Political Rights created a Human Rights Committee (Article 28 ff.) which began functioning in 1977 and consists of 18 members, elected, in their personal capacity, by the contracting States for a four-year period. The Committee, however, may consider claims presented against a contracting State by other States or by individuals only if the accused State has, for inter-State claims, declared that it has accepted the competence

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of the Committee on the matter (Article 41), or, for individual claims, has ratified an ad hoc optional protocol. Otherwise, the competence of the Committee is to receive reports from the States on the implementation of the Covenants in their respective territories, to study them and to transmit to the States parties and to the Economic and Social Council “such general comments as it may consider appropriate” (Article 40, para. 4). Even if the acts of the Committee do not have much value from a legal point of view since they do not have binding nature, the contribution being made by the Committee to the building of a body of principles and rules applicable to individual claims is an important one. This is particularly true with regard to the principles on admissibility of communications, those on locus standi, on the prior exhaustion of local remedies, on the simultaneous pendency of other suits before international bodies, and so on. For the Committee’s a­ ctivity, cf. the reports that this organ annually presents to the General Assembly (GAOR, Supp. no. 40). Some of the already cited Committees set up by other conventions on human rights (see § 77), like the Committee on the Elimination of Racial Discrimination (Article 8 of the Convention), the Committee against torture (Article 17 of the Convention) and the Committee on the Elimination of Discrimination against Women have a similar function to that of the Human Rights Committee. In respect of the Committee on the Elimination of Discrimination against Women, the relevant rules are contained in an Optional Protocol to the Convention, which has been elaborated inside the Economic and Social Council and has been opened by the General Assembly for signature and ratification by the States on October 6, 1999.

The Covenant on Economic, Social and Cultural Rights provides that the States send reports on measures adopted to ensure observance in their territories (Article 66 ff.) but it does not establish ad hoc organs to do so. The reports are sent to the Economic and Social Council through the Secretary-General, and the Council may in turn transmit them to the Commission on Human Rights “for study and general recommendations” (Article 19). In 1985 the Economic and Social Council created the Committee on Economic, Social and Cultural Rights to assist it in its tasks, as stated by the Covenant. As hinted above, the General Assembly has recently approved, with Res. 63/117 of December 10, 2008, an Optional Protocol to the Covenant aiming at regulating the competence of the Committee on Economic, Social and Cultural Rights to receive communications from individuals or groups of individuals. The Protocol entered into force on May 5, 2013 and, as of June 10, 2015 binds 20 States. In particular, the Protocol allows the Committee to receive communications from both individuals or groups of individuals (Article 2), after all domestic remedies have been exhausted, and within 12 months of the final domestic judgment (Article 3), and the Committee may decline to consider a communication “where it does not reveal that the author has suffered a clear disadvantage, unless the Committee considers that the communication raises

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a serious issue of general importance” (Article 4), as well as allowing communications from States (Art. 10) (cf. ).

Section VIII.  Decolonization and Self-Determination of Peoples Select bibliography: Fernand Van Langenhove, Les territoires non autonomes d’après la Charte des Nations Unies (Bruxelles, 1952); Clyde Eagleton, ‘Self-Determination in the UN’, 47 AJ (1953) 88–93; Wilhelm Wengler, ‘Le droit de libre disposition des peuples comme principe de droit international’, 10 RHDIE (1957) 26–39; Vincenzo Starace, ‘La questione dei territori portoghesi d’oltremare dinanzi alle Nazioni Unite’, 12 CS (1966), vol. 12, 478–503; Maria Vismara, Le Nazioni Unite per i territori dipendenti e per la decolonizzazione (Padova: Cedam, 1966); Adolfo Miaja De La Muela, La emancipation de los pueblos coloniales y el derecho internacional (Madrid, Valencia: Ed. Tecnos, 1968, 2nd ed); Francis Martine, ‘Le Comité de décolonisation et le droit international’, 74 RGDIP (1970) 357–420; Rupert Emerson, ‘Self-Determination’, 65 AJ (1971) 459–75; Z. Mustafa, ‘The Principle of Self-Determination in International Law’, in IL (1971) 479–87; Yassin El-Ayouty, The UN and Decolonization: the Role of Afro-Asia (The Hague: Martinus Nijhoff, 1971); Seymour M. Finger, ‘A New Approach to Colonial Problems at the United Nations’, 26 Int. Org. (1972) 143–53; S. Calogeropoulos-Stratis, Le droit des peuples à disposer d’eux-mêmes (Bruxelles: Bruylant, 1973) 105 ff; Prakash S. Sinha, ‘Is Self-Determination Passé’, 12 CJTL (1973) 260–73; Rigo A. Sureda, The Evolution of the Right of Self-Determination. A Study of UN Practice (Leiden: Sijthoff, 1973); Denise Mathy, ‘L’autodétermination de petits territoires revendiqués par des états tiers’, 10 RBDI (1974) 167–205 and 11 RBDI (1975) 129–32; Patrick J. Trangers, ‘The Legal Effect of United Nations Action in Support of the PLO and the National Liberation Movements of Africa’, 17 HILJ (1976) 561–80; J.F. Engers, ‘From Sacred Trust to Self-Determination’, 24 NILR (1977) 85–91; Merrie F. Witkin, ‘Transkei: An Analysis of the Practice of Recognition—Political or Legal?’, 18 HILJ (1977) 605–28; Michla Pomerance, Self-Determination in Law and Practice: The New Doctrine in the United Nations (The Hague: Nijhoff, 1982); Massimo Iovane, ‘Le Falkland/Malvinas autodeterminazione o decolonizzazione’, in Natalino Ronzitti (ed), La questione delle Falkland-Malvinas nel diritto internazionale (Milano: Giuffrè, 1984) 85–122; Giancarlo Guarino, Autodeterminazione dei popoli e diritto internazionale (Napoli: Jovene, 1984); Kwlaw N. Blay, ‘Self-Determination Versus Territorial Integrity in Decolonization Revisited’, 25 InJIL (1985) 386–410; Flavia Lattanzi, ‘Autodeterminazione dei popoli’, 2 DdisP (1987), 4–27; Gaetano Arangio-Ruiz, ‘Autodeterminazione (Diritto dei popoli alla)’, 4 EGT (1988), 1–13; James R. Crawford, The Rights of Peoples (Oxford: Clarendon Press, 1988); Hurst Hannum, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia: University of Pennsylvania Press, 1990); William Twining (ed), Issues of Self-Determination (Aberdeen: Aberdeen University Press, 1991); Christian Tomuschat (ed), Modern Law of SelfDetermination (Dordrecht: Nijhoff, 1993); Frederic L. Kirgis Jr., The Decrees of SelfDetermination in the United Nations Era, 88 AJ (1994) 304–10; Antonio Cassese, Self-Determination of Peoples. A Legal Reappraisal (Cambridge: Cambridge University Press, 1995); Laura Pineschi, Le operazioni di peacekeeping delle Nazioni Unite per il mantenimento della pace. Le competenze degli organi delle Nazioni Unite (Padova: Cedam, 1998), 123–29; Margaret Moore (ed), National Self-Determination and Secession (Oxford: Oxford University Press, 1998); Christine Chinkin, ‘East Timor: A Failure of Decolonisation’, 20 AYIL (1999) 35–54; Théodore Christakis, Le droit à l’autodétermination en dehors des situations de décolonisation (Paris: La Documentation française, 1999); David Raič, Statehood and the Law of Self-Determination (The Hague, London: Kluwer Law International, 2002);

UN competence to decide on the independence of peoples  403 Alessandro Catelani, ‘Sovranità degli Stati e autodeterminazione dei popoli’, 44 RP (2002) 885–912; Wolfang F. Danspeckgruber (ed), The Self-Determination of Peoples. Community, Nation, and State in an Interdependent World (Boulder: Lynne Rienner Publications, 2002); Karen Knop, Diversity and Self-Determination in International Law (Cambridge: Cambridge University Press, 2002); François Roch, ‘Réflexions sur l’évolution de la positivité des peuples à disposer s’eux-mêmes en dehors des situations de décolonisation’, 15 RQDI (2002) 33–100; Monica Spatti, ‘Minoranze nazionale e diritto all’autodeterminazione’, 15 RIDU (2002) 504–26; Claudio Zanghì, ‘Il diritto all’autodeterminazione dei popoli ed il rispetto dell’integrità territoriale degli Stati’, in Michael Stephen (ed), La questione cipriota: la storia e il diritto (Milano: Giuffrè, 1999) 149–68; Allen E. Buchanan, Justice, Legitimacy, and ­Self-Determination. Moral Foundations for International Law (Oxford: Oxford University Press, 2003); Michael J. Glennon, ‘Self-Determination and Cultural Diversity’, 27 FFWA (2003) 75–84; Stephen Macedo (ed), Secession and Self-Determination (New York: New York University Press, 2003); James J. Summers, ‘The Status of Self-Determination in International Law. A Question of Legal Significance or Political Importance?’, 14 FYIL (2003) 271–93; William Bourdon, L’ONU, la décolonisation et le développement (Genève: Cetim, 2005); Ian Martin and Alexander Mayer-Rieckh, ‘The United Nations and East Timor. From Self-Determination to State Building’, in Mely Caballero, UN Peace Operations and Asian Security (London: Routledge, 2005) 104–20; Malcolm N. Shaw, ‘SelfDetermination and the Use of Force’, in Nazila Ghanea (ed), Minorities, Peoples, and SelfDetermination. Essays in honour of Patrick Thornberry (Leiden: Nijhoff, 2005) 55–74; Elena Cirkovic, ‘Self-Determination and Indigenous Peoples in International Law’, 31 AILR (2006/07) 375–99; Upendra Baxi, ‘Failed Decolonisation and the Future of Social Rights: Some Preliminary Reflections’, in Daphne Barak-Erez and Aeyal M. Gross (eds), Exploring Social Rights: Between Theory and Practice (Oxford: Hart, 2007) 41–55; Jaume Chinkin, ‘Western Sahara and the UN Second Decade of Decolonisation’, in Catharina J.M. Arts and Pedro Pinto Leite (eds), International Law and the Question of Western Sahara (Leiden: International Platform of Jurists for East Timor, 2007) 329–14; Carlo Focarelli, ‘Global Democracy in an Inter-State World: Some Critical Legal Remarks’, in Studi in onore di Giorgio Badiali (Napoli: 2007), vol. 1, 151–65; James Summers, Peoples and International Law. How Nationalism and Self-Determination Shape a Contemporary Law of Nations (Leiden: Nijhoff, 2007); Joshua Castellino, ‘Territorial Integrity and the “Right” to SelfDetermination. An Examination of the Conceptual Tools’, 33 BrJIL (2007/08) 503–68; Hans-Joachim Heintze, ‚Indigenous Peoples and the Right of Self-Determination. Is the Claim of Self-Determination a Trap?’, 21 HV (2008) 238–46; Steven Hillebrink, The Right to Self-Determination and Post-Colonial Governance. The Case of the Netherlands, Antilles and Aruba (The Hague: T.M.C. Asser, 2008); Timo Koivurova, ‘From High Hopes to Disillusionment: Indigenous Peoples’ Struggle to (re)gain their Right to Self-Determination’, 15 IJMGR (2008) 1–26; Henry Minde (ed), Indigenous Peoples. Self-Determination, Knowledge, Indigeneity (Delft: Eburon, 2008); Jen E. Rytter, ‘Self-Determination of Colonial Peoples. The Case of Greenland Revisited’, 77 NoJIL (2008) 365–400; Per Sevastik, ‘Secession, Self-Determination of “Peoples” and Recognition. The Case of Kosovo’s Declaration of Independence and International Law’, in Ove E. Bring, Ola Engdahl and Pål Wrange (eds), Law at War. The Law as it Was and the Law as it Should Be. Liber Amicorum Ove Bring (Leiden: Nijhoff, 2008) 231–44; Sjúrãur Skaale (ed), The Right to National ­Self-Determination. The Faroe Islands and Greenland (Leiden: Nijhoff, 2008); Marc Weller and Niall Johnson (eds), Settling Self-Determination Disputes. Complex Power-Sharing in Theory and Practice (Leiden: Nijhoff, 2008); Richard Burchill, ‘Self-Determination’, in Alex Conte, Richard Burchill, J. Scott Davidson (eds), Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (Farnham: Ashgate, 2009) 247–59; Andrea Carcano, ‘Sul rapporto fra diritto all’autodeterminazione dei popoli e

404  The Functions secessione: in margine al parere della Corte internazionale di giustizia riguardante il Kosovo’, 93 RDI (2010) 1135–143; Joshua Dilk, ‘Reevaluating Self-Determination in a PostColonial World’, 16 BuHRLR (2010) 289–311; Christine Griffioen, Self-Determination as a Human Right: The Emergency Exit of Remedial Secession (Utrecht: Science Shop of Law, Economics and Governance, 2010); Cecile Vandewoude, ‘The Rise of Self-Determination Versus the Rise of Democracy’, 2 GöJIL (2010) 981–96; Joshua Castellino, ‘The UN Principle of Self-Determination and Secession from Decolonized States: Katanga and Biafra’, in Aleksandar Pavkovic and Peter Radan (eds), The Ashgate Research Companion To Secession (Farnham: Ashgate, 2011) 117–30; Centre d’études internationales de Rabat, Le différend saharien devant l’Organisation des Nations Unies (Paris : Karthala, 2011); Elizabeth Chadwick, Self-Determination in the Post-9/11 Era (London: Routledge, 2011); Christian Tomuschat, ‘Self-Determination in a Post-colonial World’, in Joseph Weiler and Alan T. Nissel (eds), International Law: Fundamentals of International Law (London, 2011), vol. 2, 449–63; Ralph Wilde, ‘Self-Determination, Secession, and Dispute Settlement After the Kosovo Advisory Opinion’, 24 LJIL (2011) 149–54; Milena Sterio, The Right to SelfDetermination Under International Law: “Selfistans”, Secession, and the Great Powers’Rule (London: Routledge, 2012); Budislav Vukas, Self-determination of Peoples: A Chronic Problem of Humankind, in Holger P. Hestermeyer et al. (eds), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum (Leiden: Nijhoff, 2012) 1543–552; Enrico Milano, Formazione dello Stato e processi di “state-building” nel diritto internazionale: Kosovo, 1999–2013 (Napoli: Editoriale Scientifica, 2013); Lise Morje Howard, Kosovo and Timor-Leste: Neotrusteeship, Neighbors, and the United Nations, in AAAPSS, November 2014, No. 656, 116–35; Marko Milanović and Michael Wood (eds), The Law and Politics of the Kosovo Advisory Opinion (Oxford: Oxford University Press, 2015).

80.  UN competence to decide on the independence of peoples under colonial domination United Nations activity in favor of the independence of colonial peoples, an activity which has managed to produce effects of great political significance and of high moral value, is known to everyone. On the legal plane, which is what interests us here, it has led to the abrogation of most of the Charter provisions on the subject and to their substitution with customary norms whose applicability to those territories still subject to colonial domination is to be defended. There is no doubt that, strictly following the intention of the framers of the Charter (and aside from the provisions on the trusteeships which will be ­discussed shortly), the colonial Powers would have had no obligation to bring their colonies to independence. Article 73, dedicated to the “non-self-­ governing territories”, an article which can be considered obsolete, only calls upon the colonial powers to promote the political, economic, social and educational advancement of the peoples of the territories under their responsibility, to protect them… against abuses, and to promote self-government. The UN’s power to see that all this be done was then very limited. The only relevant provision on the matter was Article 10, under which the Assembly may discuss and make recommendations “on any questions or any matters within the scope

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of the present Charter”. Given the reservation on domestic jurisdiction under Article 2, para. 7—another provision now obsolete with regard to colonialtype relations (see § 45 III)—the power under Article 10 should have been considered limited to questions of a general nature, with the consequent ­prohibition for the Assembly to be concerned with situations in individual non-self-governing territories. This prohibition was, moreover, confirmed in Article 73(e), which, on the one hand, obliged the colonial powers to transmit to the Secretary-General “statistical and other information of a technical nature relating to economic, social and educational conditions in the territories for which they are respectively responsible”, on the other, specified that this transmission had only “information purposes”. The practice in the early, although not in the very early, years of the United Nations was dominated by the conflict between the Assembly majority which was determined to claim competence in the colonial sector, and the colonial Powers determined to oppose them. The thesis of the latter was that the information transmitted to the Secretary-General, being only information, could not be discussed by the Assembly. The opposing view of the organ resulted in the establishment, with Res. 332-IV of December 2, 1949, of a Committee for the examination of the information, to which there were to belong eight States administering territories and eight elected by the Assembly: the illegality of the appointment of this Committee was denounced on a number of occasions by France, the United Kingdom, Belgium, and other States, with the refusal, sometimes threatened, sometimes carried out (for example, by Belgium beginning from 1953), to participate in the Committee proceedings or to co-operate with it (for the discussions and the protests of the colonial powers, cf., for example, GAOR, 5th sess., Supp. no. 17, 9th sess., Supp. no. 18, p. 1 f.).

It can safely be said that the United Nations practice, in sweeping away Article 73, gave birth to a rule which binds the States still holding colonial territories not to hinder their independence. As early as 1960, the General Assembly took a position in this sense, solemnly affirming that “the subjection of a people to alien domination” was to be considered contrary to the Charter (Res. 1514-XV of December 14, 1960, containing the Declaration on the Granting of Independence to Colonial Countries and Peoples, reaffirmed by subsequent resolutions, most recently by Res. 64/106 of December 10, 2009). In 1961 a Special Committee on Decolonization (also known as the UN Special Commit­tee of 24 on Decolonization) was set up—as a successor to the former Committee on Information from Non-Self-Governing Territories, with which it was merged in 1963—by the General Assembly with a view to monitoring implementation of the 1960 Declaration and to make recommendations on its application. The Committee, originally made up of 17 members, was expanded to 24 members in 1962; thereafter, the size of its membership has varied and today its members are 28. Whatever the legal meaning of the 1960 Declaration was at the time it was issued, it today corresponds to the communis opinio of the international community and is therefore reflected in general international law.

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It can similarly be held, with regard to UN competence, that, with the limit of domestic jurisdiction removed on the subject, and with the unconditioned support of national liberation movements in the colonies having prevailed in the Assembly, the power of the Assembly has become established and consolidated through an internal customary norm whereby it may adopt measures with regard to individual non-self-governing territories in order to ensure their independence and, more generally, has recognized the power of the Assembly to be concerned with any colonial matter. As we noted in discussing domestic jurisdiction, this power no longer raises any notable objections. It should be noted that the competence of the Assembly derives from a particular customary norm formed within the United Nations, whereas the right of colonial peoples to independence is the subject, as was said, of a norm of general international law. These clearly are two separate issues, although interrelated, one regarding the responsibilities and powers of UN organs, the other the rights and obligations of States in their relations inter se. Lastly, the view is not unfounded that the resolutions, by which the Assembly lays down the modalities and the agenda for the granting of independence to non-self-governing territories, have, again by virtue of the above-mentioned customary norm and in derogation from the Charter, binding force. Custom does not have objective limits. It may produce rules that not only widen the sphere of the subjects with which an international organ may be concerned, but may also widen express powers. For a contrary view, cf. the opinion of Judge Gerard Fitzmaurice attached to the Advisory Opinion of the International Court of Justice of June 21, 1971, on Namibia, in ICJ Reports 1971, p. 282 (see § 83). It is, moreover, indicative that the Assembly decisions on the territories still subject to colonial rule appeared for various years in officials records under the heading “decisions” and not under “resolutions”. For further information on the Special Committee of 24 on Decolonization see .

The competence of the Assembly on decolonization is not, however, boundless. First, there is a general limit deriving from the principle of self-­ determination of peoples, the principle that underlay the practice which overwhelmed Article 73. This principle, which will be dealt with in further detail shortly, obliges the Assembly to decide on the future of a non-self-­ governing territory by taking account of the aspirations of the local population: according to the International Court of Justice’s Advisory Opinion of October 16, 1975 in the Western Sahara case (ICJ Reports 1975, para. 59), the Assembly may also decide, if “special circumstances” so require, without consulting the inhabitants of the territory and as long as the aim of respecting their wishes is in some way satisfied. The Assembly cannot therefore decide on the fate of a non-autonomous territory without complying with, directly or indirectly, the

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wishes of local people. A second limitation to the jurisdiction of the Assembly on colonial matters is the principle of “territorial integrity”, according to which consideration must be given to the historical-geographical ties between the territory to be decolonized and a bordering State which has previously come into being through decolonization. The limit thus operates in the sense that the Assembly is obliged to respect the historical and geographical ties between the territory and the adjoining State and to have access to the passage of the first to the second. If the local population agrees the issue falls; where instead the local population does not want to move to the adjoining State, but remain under the control of the colonial State, the question arises of which prevails between the two limits in conflict (the will of the people and the unity of the territory). Surely the principle of territorial integrity is able to derogate from (and thus prevail over) the principle of self-determination and of the respect of the people’s will only when, as for example in the case of the Falkland Islands or of Gibraltar under British rule, the majority of the local population, does not want to pass over to the adjoining State, is not native but “imported” from the mother country. Also in these cases, one must ask, however, in what sense, and up to what point, the claims of the bordering State are to be satisfied. It has convincingly held in legal doctrine (Iovane) that the practice seems to indicate that the Assembly, which certainly does not have the power to transfer the territory of the colonial power to the contiguous State, may, however, ask that these States agree between themselves on a solution favoring decolonization. A number of territories are still under colonial domination: among the most recent resolutions it is worth mentioning Resolutions 59/131 of December 10, 2004, 60/114 of December 8, 2005, 61/125 of December 14, 2006, 62/116 of December 17, 2007, 63/105 of December 5, 2008, 64/101 of December 10, 2009, 65/112 of December 10, 2010, 66/86 of December 9, 2011, 67/129 of December 18, 2012, 68/91 of December 13, 2013 and 69/101 of December 5, 2104 (Western Sahara); Resolutions 60/115 of December 8, 2005, 61/126 of December 14, 2006, 62/117 of December 17, 2007, 63/106 of December 5, 2008, 64/102 December 10, 2009, 65/113 of December 10, 2010, 65/113 of December 10, 2010, 66/87 of December 9, 2012, 67/130 of December 18, 2012, 68/92 of November 13, 2013 and 69/102 of December 5, 2014 (New Caledonia); Resolutions 60/116 of December 8, 2005, 61/127 of December 14, 2006, 62/121 of December 17, 2007, 63/107 of December 5, 2008, 64/103 of December 10, 2009, 65/114 of December 10, 2010, 66/88 of December 9, 2011, 67/131 of December 18, 2012, 68/94 of November 13, 2013 and 69/104 of December 5, 2014 (Tokelau); and Resolutions 60/117 of December 8, 2005, 61/128 of December 14, 2006, 62/118 of December 17, 2007, 63/108 A-B of December 5, 2008, 64/104 A-B of December 10, 2009, 65/115 A-B of December 10, 2010, 66/89 A-B of December 9, 2011, 67/132 of December 18, 2012, 68/95 of November 13, 2013, and 69/105 of December 5, 2014 (American Samoa, Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Guam, Montserrat, Pitcairn, Saint Helena, the Turks e Caicos Islands, US Virgin Islands). For Gibraltar cf. Doc. GA/10559 of December 14, 2006 and A/61/PV.79, nos. 17 and 21, where Spain stated that the self-determination principle should be considered together with the territorial integrity one, while the United Kingdom objected to the second principle and reaffirmed the need to respect

408  The Functions self-determination of people in Gibraltar. For the reaffirmation of the right of non-­ autonomous territories to self-determination, see recent Resolutions 66/84 and 66/91 of December 9, 2011, 64/106 of December 10, 2009, 65/117 of December 10, 2010, n. 66/91 of December 9, 2011, 67/134 of December 18, 2012, 68/97 of November 13, 2013 and 69/107 of December 5, 2014, 64/106 of December 10, 2009, 65/117 of December 10, 2010, 66/91of December 9, 2011, 67/134 of December 18, 2012, 68/97 of November 13, 2013 and 69/107 of December 5, 2014. On the completion of the decolonization process see, recently, the Messages of SecretaryGeneral Ban Ki-moon of February 27, 2009 to the Special Committee of 24, hoping that the administering Powers will work together with the Committee and the people in the ­administered territories to find the appropriate format and timing for the completion of decolonization in each territory (cf. ) and of May 13, 2009 to the Caribbean Regional Seminar on Decolonization, urging the administering Powers, Non-­ SelfGoverning Territories and the United Nations body tackling decolonization to continue working together to accelerate the process of eradicating colonialism (cf. ).

The case of West Irian, a former colony of the Netherlands, is also indicative of the competence of the General Assembly to take decisions on matters of decolonization. As hinted above, in this case the Assembly decided, following an agreement between Indonesia and the Netherlands subject to its approval, that the territory of West Irian should be administered by the United Nations until its transfer to Indonesia in conformity with the principle of territorial integrity (Res. 1752-XVII of September 21, 1962) (see § 62). The UN Administration (UNTEA), headed by an Administrator appointed by the Secretary-General, lasted from October 1, 1962 to May 1, 1963. In our opinion, the consideration of this case in the framework of decolonization is the proper one, even if legal doctrine tends to characterize it as a case of peacekeeping or State-building, these latter going in any event beyond the competence of the General Assembly. 81.  The self-determination of peoples The practice that has given rise to new rules in the field of decolonization was avowedly inspired by, and continues to be inspired by, the principle of selfdetermination of peoples. This principle is mentioned in Article 1, para. 2, of the Charter (and in identical words in Article 55), as well as in a series of resolutions and solemn declarations of the General Assembly. In addition to the resolutions on decolonization, it is stated in the 1970 Declaration on Friendly Relations and Co-operation between States (see § 96). Also the two United Nations Covenants on Human Rights (see § 79) and other international conventions contain rules that confirm respect for the principle. Self-determination is now, especially as a consequence of the practice that has developed in the UN, a general principle of customary law. That said, it must be asked what its content is. It is not easy to give an exact answer to this question, the contents

The self-determination of peoples   409

of the principle being in evolution. In fact, self-determination from a legal point of view has not the meaning that it has in ordinary language. It would be misleading to say that the international Community can require that all Governments of the earth must have the consent of the majority of their subjects and have been freely chosen by them (so called domestic self-­ ­ determination). International law is still far from prescriptions of this kind, even if it is undeniable that the overwhelming majority of States, as is also expressed in many resolutions and declarations of the General Assembly (see, among them, the already quoted Millennium Declaration contained in Res. 55/2 of September 8, 2000, and the “2030 Agenda for Sustanaible Development” adopted by Res. 70/1 of September 25, 2015) tend to consider self-­ determination as synonymous with democracy, and of democracy meant in the sense of democratic legitimacy of Governments. Even after the fall of the Communist regimes in Eastern Europe, the countries that do not conform to this tendency, and although they may enjoy the favor of powerful States (for example, some Arab countries in the Middle East or some African States), are not few. In fact, the declarations in favor of democracy are not followed by a serious and generalized fight against undemocratic States. Moreover, a genuine inclination for democracy on the part of the international community should imply its own democratization, but the international community remains a community largely ruled by an oligarchy that chooses the countries to be invited, or forced, to become democratic in accordance with its own self-interest. At the end of the Cold War the United Nations carried out considerable activities in favor of democracy, the rule of law and good governance, going well beyond the promotion of human rights envisaged in the Charter, and through the organization and/or monitoring of elections in many countries, both through the promotion of a democratic form of government (of a Western liberal character) concurrently with peacekeeping operations and/ or State-building. The results are not satisfactory, since the same organs of the UN have turned out on several occasions to violate human rights and since the Organization remains, in particular the Security Council, substantially unchallengeable in judicial terms (see §§ 61 and 62). To this must be added the question of democratization of the Organization itself, far from being fulfilled, although some signs in recent years towards greater transparency were seen also within the Security Council (see § 8). If this can justifiably appear insufficient, we must also bear in mind that at least the idea that rulers cannot do whatever they want of their subjects is widespread nowadays and that the UN has helped to spread it with a large number of initiatives among which the responsibility to protect stands out in particular.

One should also beware of interpreting the principle of self-determination as allowing, i.e. justifying in legal terms, the secessionist aspirations of regions and autonomous provinces, even if they are regions that are ethnically distinct from the rest of the country. Even in the Kosovo crisis of 1999, ­notwithstanding

410  The Functions

the systematic terrorization of ethnic Albanians, the massive torture and summary executions and mass forced displacement of ethnic Albanian, the General Assembly (see for instance Res. 53/164 of February 25, 1999) and the Security Council (see for instance Res. 1244 of June 10, 1999), after having condemned such tragic violations of human rights, have not put into question the territorial sovereignty of the former Republic of Yugoslavia (Serbia and Montenegro) on the Kosovo region, reaffirming every time the call for “substantial autonomy and meaningful self-administration” for the Region. The issue has become particularly critical when in February 17, 2008 the Parliament of Kosovo declared its independence—recognized today by some 110 States, mostly Western, but contested, in particular, by Serbia and the Russian Federation (cf. < ht t p : / / e n . w i k i p e d i a . o r g / w i k i / Ko s ov o % E 2 % 8 0 % 9 3 M i c r o n e s i a _relations>)—and the General Assembly then asked the International Court of Justice for an Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, which the Court handed down on July 22, 2010. The opinion, which was very disappointing and much criticized from various points of view, starting from a narrow interpretation of the Assembly’s requirement (paras. 49–56), deemed it “not necessary” to pronounce on the substantive question “regarding the extent of the right of self-determination and the existence of any right of ‘remedial secession’ [in the event of heinous violations of human rights]” as they were considered outside the scope of the question at hand (at , para. 83). On June 29, 2009 Kosovo became a member of the International Monetary Fund and of the World Bank system which includes also IDA (International Development Association), IFC (International Finance Corporation), MIGA (Multilateral Investment Guarantee Agency) and ICSID (International Centre for Settlement of Investment Disputes).

Having said that, a rigorous analysis of the problem which takes into account the actual behavior of the States—what the States do as opposed to what the States say—shows that the principle of self-determination has a rather limited sphere of application. It applies only in territories under a domination of a foreign Government (so called external self-determination) and, therefore, besides colonial territories, in those which have been conquered and occupied by force (for example, the territories occupied by Israel in 1967 or by the ­coalition forces led by the United States after the war in Iraq in 2003). In short, it obliges the Government controlling a territory that is not its own to allow either independence or the possible association or merger with another State, that is, the people’s free choice of their own international status and their own political system. In the UN system, the principle of self-determination enables the organs, particularly, the General Assembly, to undertake action so that

The self-determination of peoples   411

these objectives can be reached. Such action, in the case of colonial territories (and only in this case), may consist, as we have seen, in the adoption of binding decisions. This is the meaning that the principle of self-determination has up to now assumed in the practice. It is difficult to say what its meaning was at the beginning, when reference to the principle was inserted in Articles 1, para. 2, and 55 of the Charter, with a modification of the Dumbarton Oaks proposals desired by the sponsoring Powers at the San Francisco Conference (cf. U.N.C.I.O., vol. 3, p. 622). In fact, no one was able to clarify, during the Conference, what exactly was to be meant by “friendly relations among nations based on the principle…of self-determination of peoples” (cf. Iovane, art. cit., p. 89, paras. 13 and 14). It is very probable that self-determination was meant at the time not as the obligation of a Government occupying a territory to allow the territory itself to decide its own destiny (otherwise the Charter’s acceptance of the colonial situation could not be explained) but simply as an obligation of all the States not to interfere in the free choices, concerning setting up of the Government, the Constitution, laws and so forth, which are made in foreign States. Indications in this sense may be found in the (concise and rather ambiguous) Report of Commission I, which at San Francisco was concerned with Article 1, para. 2. See particularly the passage in the Report which mentions the Axis Powers’ practice of exploiting for their own aggressive purpose “alleged expressions of the popular will” (cf. U.N.C.I.O., vol. 6, p. 455.). Meant in this way, the principle of self-determination easily blends with the principle of non-intervention in the internal affairs of other States rather than taking on the meaning of a right of a people to become a State. Such characterization with the non-­ intervention principle is still evident in some interpretations of Article 1, para. 2 (see, for example, Christopher C. Joyner and Michael Grimaldi, ‘The United States and Nicaragua: Reflections on the Lawfulness of Contemporary Intervention’, 25 Virg. JIL (1985), p. 643), and obviously had a much narrower meaning than what it has come to assume in the practice.

The exact determination of the material sphere of application of the principle  of self-determination, that is, of cases of territories under a foreign Government, presents considerable difficulty when it involves territories in which the ­foreign Government, although present with its own armed forces, relies on a local Government. Sometimes, the local Government is formed before the foreign invasion and seeks to be legitimized with a request for more or less fraternal “help”. Sometimes the local Government is obviously created by the occupying State or States after the intervention has taken place. In cases of this kind—unless the presence of the foreign Government is such as to have the local Government become a mere puppet Government, that is, a Government which acts in practice as an organ of the occupying State and is without international personality—it must be said that the principle of selfdetermination applies to both Governments, obligating both to end the foreign occupation. It seems to us that it is in this sense that the United Nations practice, especially the resolutions of the General Assembly which usually condemn foreign occupation according to the principle of self-determination, is to be interpreted.

412  The Functions Among the resolutions which, besides condemning armed intervention of foreign Powers as contrary to the ban of use of force, appeal to the principle of self-determination in occupied territories—and notwithstanding the real or the sham existence of local Governments— see the many resolutions adopted by the General Assembly in the case of Afghanistan during the Soviet occupation between 1980 and 1989 (cf., for example, Res. 39/13 of November 15, 1984, affirming “the right of the Afghanistan people to establish their own form of Government and to chose their own economic, political and social system without outside interventions…”, at para. 2). See also the various resolutions on the occupation of Cambodia by Vietnam between 1979 and 1990 (cf., for example, Res. 39/5 of October 30, 1984, para. 2). It is worth recalling also Res. 38/7 of November 2, 1983 against the intervention of the United States in Grenada and including the request to allow the people of this State “to choose its government democratically” (para. 4 of the preamble). The situation in Iraq after the creation of the so called Interim Government in 1994, a Government very close to the United States, can also be quoted. Res. 1546 of June 8, 2004 of the Security Council was mainly concerned with issues related to the maintenance of peace and security (see § 60); however, it also compels both the Iraqi Interim Government and the States of the so-called Coalition to put an end to the occupation as quickly as possible, with the consequence of leaving the Iraqi people to decide on their own destiny.

82.  Trusteeship Select bibliography: Duncan H. Hall, Mandates, Dependencies and Trusteeship (London: Stevens, 1948); Giuseppe Vedovato, ‘Les accords de tutelle’, 76 RC (1950-I) 613– 99; Carlo G. Raggi, L’amministrazione fiduciaria internazionale (Milano: Giuffrè, 1950); Benedetto Conforti, ‘Sovranità sui Paesi in amministrazione fiduciaria e rapporti tra gli ordinamenti dell’amministrante e dell’amministrato’, 38 RDI (1955) 17–38; Francesco Capotorti, ‘Natura e caratteri degli accordi di amministrazione fiduciaria’, 38 RDI (1955) 185–228 and 457–513; Charmian E. Toussaint, The Trusteeship System of the United Nations (London: Stevens, 1956); Rolando Quadri, Diritto coloniale (Padova: Cedam, 1958, 4th ed) 106 ff; Giorgio Badiali, ‘La struttura dell’accordo di amministrazione fiduciaria e il problema degli “Stati direttamente interessati”’, 9 CS (1958), 75–115; Paul Leroy, ‘La nature juridique des accords de tutelle’, 36 RGDIP (1965) 977–1018; Laurent Lucchini, ‘Vers un nouveau statut de la Micronésie ou la disparition prochaine de la tutelle’, 21 AF (1975) 155–74; A. John Armstrong and Howard L. Hills, ‘The Negotiations for the Future Political Status of Micronesia (1980–1984)’, 78 AJ (1984) 484–93; Jon Hinck, ‘The Republic of Palau and the United States: Self-Determination Becomes the Price of Free Association’, 78 CaLR (1990) 915–71; Lizabeth A. McKibben, ‘The Political Relationship Between the United States and Pacific Islands Entities: The Path to Self-Government in the Northern Mariana Islands, Palau and Guam’, 31 HILJ (1990) 257–94; Zoran Radivojević, ‘United Nations Reform and the Position of the Trusteeship Council’, 49 RIA (1998) 27–30; Brian Dreiwert, ‘A New Trusteeship for World Peace and Security. Can an Old League of Nations Idea be Applied to a Twenty-First Century Iraq?’, 14 IICLR (2004) 771–806; Nele Mats, ‘Civilization and the Mandate System under the League of Nations as Origin of Trusteeship’, 9 MP YUNL (2005) 47–95; William Bain, ‘Trusteeship and Contemporary International Society’, in David Chandler and Volker Heins (eds), Rethinking Ethical Foreign Policy: Pitfalls, Possibilities and Paradoxes (London: Routledge, 2007) 224–38; Lene Mosegaard Søbjerg, ‘Trusteeship and the Concept of Freedom’, 33 RIA (2007) 475–88; Ralph Wilde, ‘From Trusteeship to Self-Determination and Back Again: The Role of the Hague Regulations in the Evolution of International Trusteeship and the Framework of Rights and duties of

Trusteeship  413 Occupying Powers’, 31 LLAICLR (2009) 85–142; Id., ‘Understanding the International Territorial Administration Accountability Deficit: Trusteeship and the Legitimacy of International Organizations’, in Jan Wouters et al. (eds), Accountability for Human Rights Violations by International Organisations (Antwerp: Intersentia, 2010) 311–30.

The evolution that has taken place in the United Nations system regarding the non-self-governing territories has absorbed and made obsolete the trusteeship system, a system which by itself has exhausted its function. This system was introduced in the Charter by Chapters XII and XIII, along the model of (and for the continuity of) the mandate system in force at the time of the League of Nations. Its purpose was to give the territories under trusteeship a more advantageous regime than the one of ordinary “non-self-governing territories”. For the former, in fact, and not for the latter (cf. Article 76), the word “independence” was used, and a special organ of supervision over the administering powers, the Trusteeship Council, operating under the authority of the General Assembly, was created. Under Article 22 of the Covenant of the League of Nations, the areas placed under mandate after the First World War were the African possessions and the Pacific islands taken away from the German Empire, as well as the Middle East territories that had been part of the Ottoman Empire. On the basis of agreements made by the winning powers, the following were designated Mandatory Powers: Great Britain (Iraq, Palestine, Transjordan, part of Togo and of Cameroon, the island of Nauru); France (Syria, Lebanon, part of Togo and of Cameroon); Belgium (Rwanda Urundi); South Africa (South West Africa or Namibia); Australia (New Guinea); Japan (the Marianne, Marshall and Caroline islands in the South Pacific) and New Zealand (Samoa). The assigning of these territories as mandates and not as mere territorial extensions as a consequence of the war involved, at least in theory, the obligation to govern in the interest of the local populations and to be subject to a certain supervision by the League. The mandates were, then, divided by Article 22 into categories according to the stage of development of the various territories, with the competence of the  Mandatory Powers correspondently graded. In the case of the Middle East countries, France and Great Britain should have been limited to functions of “advice and assistance”. At San Francisco, the trusteeship (“tutelle” in French) system was foreseen for territories already held under mandate (provided that they had not become independent), for territories taken from enemy States during the Second World War, and for any other colonial territory that the mother country had decided to administer as a trusteeship (Article 77, para. 1). In all cases, the trusteeship system would have been applied under an agreement concluded between the States directly concerned and approved by the UN (Article 77, para. 2, and Article 79), assuming, therefore, the consent of the Power which held the territory as a mandate, as a war conquest or by other title. Subsequent acts subjected to trusteeship all the territories already held under mandate, except for the Middle East countries which had in the meantime become independent and except for Southwest Africa (Namibia) because the Mandatory Power, South Africa, had always refused to establish a new system in that territory. In addition to the former mandates, the one and only other case of trusteeship was that of Somalia, a territory coming under, as a former Italian colony, the second of the categories indicated by Article 77, para. 1, and assigned in trusteeship to Italy.

414  The Functions

Since 1994, all the territories under trusteeship have reached independence. Hence the Trusteeship Council has no work to perform any more. Already in 1994 the former Secretary-General proposed to eliminate it, but without success. Malta in 1995 brought forward the idea that the Council could be reconfigured and used as “guardian and trustee” of property belonging to the “common heritage of mankind” (Doc. A/50/142). According to the Maltese proposal the Council was to supervise the measures designed to safeguard human rights and the integrity of the environment, in areas where the presence of a State was temporarily weak and in “common areas” such as oceans, the atmosphere and cosmic spaces, co-ordination of the public and private actions in these areas. Up to now, the proposal has not found strong supporters among the Member States (see, for instance, the contrary views expressed by the United States, India, Japan, and others during the 52nd session of the General Assembly, 83rd meet.). In 1998, the Secretary-General has taken the Maltese idea suggesting that the Council could act as a “forum” in which the States could exercise their collective trusteeship for the Protection of the global environment and common areas, such as the oceans the atmosphere and outer space (Doc. A/52/849). In 2003 the hypothesis that the Council could deal with collapsed states in terms of institutions and the effectiveness of government (so-called failed or failing states) was considered. More recently, in Res. 60/1 of October 24, 2005, containing the World Summit Outcome Document, the General Assembly, with reference to the General-Secretary In Larger Freedom Report of 2005—which in turn was inspired by the Report A More Secure World: Our Shared Responsibility of 2004 of the High-level Panel (see § 8)—and noting that the Trusteeship Council no longer meets and has more functions to perform, provided that Chapter XIII (along with references to the Council in Chapter XII) of the Charter “should” be deleted (Doc. A/ Res/60/1, para. 176), but the formal cancellation has not yet been made. We have already mentioned, finally, that trusteeship was referred to by a school of thought, although not convincingly, to frame and justify the legality of territorial administrations of the UN and that the key problem with trusteeship is its putative neocolonial overtones (see § 62). 83.  The case of Namibia Select bibliography: Luigi Ferrari Bravo, ‘La questione dell’Africa Sud-occidentale’, 14 DI (1960) 34–61; John Dugard, ‘The Revocation of the Mandate for South West Africa’, 62 AJ (1968) 78–97; Laurent Lucchini, ‘La Namibie, une construction de l’ONU’, 15 AF (1969) 355–74; John Dugard (ed), The South West Africa/Namibia Dispute. Documents and Scholarly Writings on the Controversy between South Africa and the United Nations (Berkeley/Los Angeles/London: University of California Press, 1973); Lawrence L. Hermann, ‘The Legal Status of Namibia and of the UN Council for Namibia’, 13 CYIL

The case of Namibia   415 (1975) 306–22; Roberto Barsotti, ‘In tema di amministrazione diretta di territori non autonomi da parte dell’ONU: il caso della Namibia’, 16 CS (1980), 53–135; Ralph Zacklin, ‘The Problem of Namibia in International Law’, 171 RC (1981-II) 225–340; Maurice Kamto, ‘L’accession de la Namibie à l’indépendance’, 94 RGDIP (1990) 577–634; George Abi-Saab, ‘Namibia and International Law: An Overview’, 1 AfYIL (1993) 3 ff; Mpazi Sinjela, ‘The Role of the United Nations Transition Assistance Group (UNTAG) in the Independence Process of Namibia’, ibid., 13–34; Lise M. Howard, ‘UN Peace Implementation in Namibia: The Causes of Success’, 9 IP (2002) 99–132; Nico Horn (ed), Human Rights and the Rule of Law in Namibia (Windhoek: Macmillan, 2008); Jeremy Sarkin-Hughes, Colonial Genocide and Reparations Claims in the 21st Century: The Socio-Legal Context of Claims under International Law by the Herero against Germany for Genocide in Namibia, 1904–1908 (Westport: Praeger Security International, 2009); Stephanie Koury, ‘Legal Strategies at the  United Nations: A Comparative Look at Namibia, Western Sahara, and Palestine’, in  Susan M. Akram et al. (eds), International Law and the Israeli-Palestinian Conflict: A  Rights-Based  Approach to Middle East Peace (Abingdon: Routledge, 2011) 147–83; Henning Melber, ‘Namibia’s Negotiated Transition to Independence’, in Redie Bereketeab (ed), S­elf-Determination and Secession in Africa: The Post-Colonial State (Abingdon, Routledge, 2015).

In 1990 Namibia (South West Africa) also became independent. This territory had been assigned to South Africa as a mandate after the First World War (see § 82) and for a very long period of time the South African Government had refused to give it independence, to submit it to trusteeship, or to administer it under the supervision of the United Nations. The conflict between the UN and South Africa over the fate of Namibia, besides having some very dramatic moments, gave rise, especially in the first twenty-five years of the Organization, to heated debates of a legal nature. The view held by the South African Government, and which the latter used to practically annex Namibia after 1945 and to extend there also its policy of apartheid, was that the administration of the territory had remained completely free from international control once the controlling entity, the League of Nations, had dissolved. This view was always tenaciously opposed by the General Assembly and also by the International Court of Justice in a series of Advisory Opinions. The first of these, issued in 1950 at the request of the General Assembly, is the fundamental one. In the 1950 Opinion (cf. ICJ Reports 1950, p. 128 ff., especially p. 133 ff. and p. 136 f.), the Court mainly went back to a kind of transitory provision in Chapter XII of the Charter, in Article 80, para. 1 (“Except as may be agreed upon in individual trusteeship agreements… 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 existing international instruments to which Members of the United Nations may respectively be parties”). It inferred from Article 80, para. 1, that South Africa’s obligations concerning the mandate over Namibia still existed. It held that since these obligations consisted in administering the territory prevalently in the interests of the local population and mainly in the administration’s reporting… to the League of Nations, it was natural that after the dissolution of the League an international body with similar functions and structure would undertake the supervision over the Mandatory Power. It concluded, although it is unclear whether on the basis of Article 80, para. 1, or on other bases, in the sense that the UN was the League’s successor in this matter. The Court asked itself what was to be, within

416  The Functions the United Nations system, the specific organ competent for supervision (at the time of the League, the Council was competent with regard to mandates; it was the organ which roughly corresponded in structure, but not in its functions, to the present Security Council), and decided that the General Assembly, as the holder under Article 10 of the Charter of wider and more comprehensive powers, was competent. The 1950 Advisory Opinion—followed in 1955 and 1956 by two Opinions on specific questions, that of the majority on which to decide on South West Africa and that of the possibility of hearing Namibians presenting petitions, a possibility that had been excluded at the time of the League of Nations (cf. ICJ Reports 1955, p. 67 ff. and 1956, p. 23 ff.)—provided the General Assembly with the legal arguments for issuing a whole series of resolutions aimed at putting pressure on South Africa so that Namibia would not be excluded from the decolonization process. As fundamental stages in this action, two resolutions deserve mention: Res. 2145-XXI of October 27, 1966 with which the Assembly, after having contested the persistent violation by South Africa of the obligations incumbent on it as a Mandatory Power and as a UN member, “decided” to end the mandate, arrogating to the United Nations the responsibility for the administration of Namibia in view of its independence and inviting the Security Council to keep watching the situation; and Res. 2248 S-V of May 19, 1967 which created an organ for governing the territory, the United Nations Council for Namibia, an organ whose first act was to confiscate all the resources of the country in the interest of the Namibian people (decree no. 1 of September 27, 1974). The Security Council supported the General Assembly, without however exercising the enforcement powers given it by the Charter but by limiting itself to recommending a series of measures. For the purposes of subsequent developments, Res. 435 of September 29, 1978 was very important. It approved a plan of the Secretary-General to ensure the independence of Namibia by holding free elections under UN supervision. South Africa for a long time boycotted this plan (which was accepted by SWAPO, the liberation movement in Namibia), and the boycotting was deplored many times by the Council (cf., for example, Res. 532 of May 31, 1983). It was only in 1990, after various negotiations, and as implementation of the plan envisaged in Res. 435 of 1978, that Namibia finally acquired independence. In light of the above, there were two problems which deserve consideration from a legal viewpoint. The first is what was the legal basis of the Assembly “decision” to terminate the South African mandate. The second is what value could be given to the creation of the United Nations Council for Namibia and the acts issued by it, given that this organ of administration was not actually able to exercise effective power with the territory owing to the continual South African presence. The first problem was examined in another Advisory Opinion, of June 21, 1971 (in ICJ Reports 1971, p. 16 ff.) handed down by the International Court of Justice on the Namibian question. Briefly, the Court took up again, and enriched with new arguments, the view it held in the 1950 Opinion, based on the survival of the South African mandate and the UN succession to the League of Nations. However, it warned that the terms of the mandate should have been interpreted in an evolutionary way, taking into account the practice and present circumstances, instead of those at the time of the League (ICJ Reports, cit., p. 28 ff., especially p. 31). Considering that the Covenant had not conferred upon the League Council the power to terminate mandates (a proposal in this sense had even been rejected during the preparatory work), the Court held that the termination ordered by the Assembly was justified on the basis of general principles of International law valid both then and now, i.e. the principle that… a party may terminate a treaty for material breach by the other party (ibid., p. 45 ff.). In our view, termination of the mandate could have been justified on less complicated legal grounds. Namibia should have simply qualified as a non-self-governing territory;

Effects of registration  417 therefore, the Assembly resolution of October 27, 1966, having terminated the South African mandate, was to be considered, and to be fully justified by law, as the expression of the Assembly’s power to decide in a binding way on the independence of all territories still under colonial domination (see § 80). As for the problem of the legal value to be assigned to the creation of the United Nations Council for Namibia, since the Council for Namibia lacked effective power—from the point of view of international law it could be considered as a sort of government in exile or as a national committee operating abroad, that is, as an entity devoid of international personality (see § 10)—the relevant resolutions could only have the meaning of invitations calling upon the States to deny recognition to the acts of government adopted by South Africa with respect to Namibian territory.

Section IX.  Registration of Treaties Select bibliography: Manley O. Hudson, ‘The Registration and Publication of Treaties’, 19 AJ (1925) 273–92; Maurice Dehousse, L’enregistrement des traités. Essau de droit international public (Paris: Libr. du Recueil Sirey, 1929); Rudolf Schwab, Die Registrierung der internationalen Verträge beim Völkerbund: Artikel 18 des Völkerbundspaktes (Bern: Stämpfli, 1929); Manley O. Hudson, Legal Effect of Unregistered Treaties in Practice, 28 AJ (1934) 546–52; Louis Delbez, Manuel de droit international public avec les textes fondamentaux (Paris: Pichon, 1951) 211 ff; Hans Kelsen, The Law of the United Nations. A Critical Analysis of its Fundamental Problems (New York: Stevens, 1950) 696 ff and 721 ff; Michael Brandon, ‘The Validity of Non-Registered Treaties’, 29 BYB (1952) 186–204; Id., ‘Analysis of The Terms “Treaty” and “International Agreement” for Purpose of Registration’, 47 AJ (1953) 49–69; Shabtai Rosenne, ‘United Nations Treaty Practice’, 86 RC (1954-II) 281–443; Karl Zemanek, ‘Die Entwicklung des völkerrechtlichen Vertragsrechtes’, 6 ZöR (1955) 378–398; A. Broches and Shirley Boskey, ‘Theory and Practice of Treaty Registration’, 2/3 NTIR (1957) 159 ff and 277 ff; François Boudet, ‘L’enregistrement des accords internationaux’, 64 RGDIP (1960) 596–604; Arnold D. McNair, The Law of Treaties (Oxford: Clarendon, 1961) 178 ff; Wilhelm K. Geck, ‘Die Registrierung und Veröffentlichung völkerrechtlicher Verträge’, 22 ZaöRV (1962) 113–212; Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations (London: Oxford University Press, 1963) 328 ff; Richard B. Lillich, ‘The Obligation to Register Treaties and International Agreements with the UN’, 65 AJ (1971) 771–73; Tore Modeen, The Deposit and Registration of Treaties of International Organizations: Possible Application of the Rules of the Vienna Convention on the Law of Treaties (Abo: Abo Akad. 1971); Mala Tabory, ‘Registration of the Egypt-Israel Peace Treaty: Some Legal Aspects’, 32 ICLQ (1983) 981–1003; Id., ‘Recent Developments in United Nations Treaty Registration and Publication Practices’, 76 AJ (1982) 350–62; Henry H. Han, ‘The UN Secretary-General Treaty Depositary Function: Legal Implications’, 14 BrJIL (1988) 549–72; Palitha T.B. Kohona, The United Nations Treaty Collection on the Internet, 92 AJ (1998) 140–48; Carl-August Fleischauer, ‘The United Nations Treaty Series’, in Essays in Honour of S. Rosenne (Dordrecht: 1989) 131 ff; D.N. Hutchinson, ‘The Significance of the Registration or Non-Registration of an International Agreement in Determining Whether or Not it is a Treaty’, 46 CLP (1993) 257–90; Philip Alston, ‘Charging for Access to International Law Treaty Information: Time for the UN to Rethink a Perverse Initiative’, 12 EJIL (2001) 351–58; Jean-Paul Jacque, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Ed. Economica, 2005, 3rd ed), vol. 2, 2117–32; Ernst Martens, Article 102, in Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd edn), vol. 2, 2089–109.

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84.  Effects of registration Article 102 of the Charter provides: “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 1 of this Article may invoke that treaty or agreement before any organ of the United Nations”. Article 102 imposes on Member States the obligation to register the Treaties entered into, even with non-Members (see § 43), after the coming into force of the Charter. This article has a precedent in Article 18 of the Covenant of the League of Nations and is linked to the idea of the abolition of “secret diplomacy”, an idea championed by President Wilson after the First World War. As is clearly established by para. 2 of Article 102, the only consequence of registration is the possibility of invoking the treaty before a United Nations organ. Under this aspect, Article 102 moves away from the old Article 18, which said that non-registered treaties were not binding. Actually, this provision which was the product of the initial tendency to consider the Covenant of the League of Nations as a Constitution rather than as an agreement between States remained an only theoretical proposition. Already at that time, it was being interpreted by many States as clearly bending its literal meaning, i.e. in the sense that non-registered treaties could not be invoked before the League organs. Aside from the possibility to invoke a registered treaty within the United Nations, registration does not have other effects. As has been confirmed in the practice, it is not a form of confirmation which ascertains once and for all the existence and the validity of the agreement and its binding force. When between 1955 and 1956 the Secretary registered a certain number of agreements entered into by UN members with the Korean Democratic Republic, with the German Democratic Republic and with the People’s Republic of China, the United States, the United Kingdom and Nationalist China, which had not recognized those countries or had not recognized some of them, hastened to declare that registration could not affect the problem as to whether or not the agreements entered into by non-recognized Governments had an international character. This was in conformity with the view held by the Secretary-General in a Statement of 1955, which reads: “The registration of an instrument submitted by a Member State does not imply any judgment as to the nature of the instrument itself or the status of one of the parties or any similar questions”. Cf. UN Rep. Supp. no. 1, sub Article 102, no. 12 ff. Also, after the registration of an Egyptian statement of April 24, 1957 on the Suez Canal, several States declared in the Security Council that, in spite of it being registered, the ­statement itself remained a unilateral act, and as such, was always revocable. Cf. UN Rep., Supp. no. 2, sub Article 102, no. 8. The possibility to invoke non-registered agreements before bodies different from those of  the United Nations was reaffirmed by the decision of July 31, 1989 of the arbitral

Effects of non-registration   419 t­ribunal  for the settling of the Guinea-Bissau v. Senegal maritime boundary (20 RIAA, pp.  ­119–213, available at , paras. 77–78).

The registered acts are published in the United Nations Treaty Series (cf. ). 85.  Effects of non-registration Should it be claimed that any agreement must be registered and that non-­ registered international agreements are never referred to before UN organs? The answer is related to the problem of what agreements are actually subject to registration. The problem is usually put in the following terms. What does Article 102 mean exactly when it requires registration for “every treaty and every international agreement” (“Tout traité ou accord international”)? Put in this way, the problem does not have an easy answer. The expression “every treaty and agreement”, which would seem simple, causes considerable difficulty of interpretation. The notion of international agreement is already quite problematic in itself, as it reflects the uncertainty of the notion of subject of international law. There are a great many entities (international organizations, non-governmental international associations, multinational companies, and so forth) which often enter into agreements with the States but whose personality, and thus whose capacity to conclude true international agreements, can be put in doubt. Are such agreements subject to registration? After all, even with regard to international agreements concluded by States, it is ­reasonable to wonder if the letter of Article 102 (“every agreement”) actually corresponds to its object and purpose, and whether, therefore, registration is required also for agreements with very limited or insignificant content, such as those, for example, which prepare for the visit of a head of State or the exchange of trade information. It seems clear that the answer has to be negative. But it then remains unclear what “treaties and agreements” Article 102 refers to. It is worth noting that if Article 102 does not refer to all international treaties without exceptions, then there would be some that can be invoked before the organs of the UN even if not registered. A clear solution is not provided by the implementing regulations of Article 102, adopted by the General Assembly with Res. 97-I of December 14, 1946 and subsequently modified with Resolutions 364 B-IV of December 1, 1949, 482-V of December 12, 1950 and 33/141 A of December 19, 1978. Article 1 of the regulations is limited to repeating the formula “every treaty or i­ nternational agreement”, and this is owing to the fact that the Assembly, in drawing up the regulations, attempted but did not succeed in coming to any understanding as

420  The Functions

to how to better define or to delimit the category of agreements subject to registration (UN Rep., loc. cit., no. 18 ff.). In the debates over Article 1, it was affirmed that Article 102 was not meant to refer only to treaties of a political nature but also concerned those with a “financial, commercial or technical” nature (ibid., no. 22), which is obvious. Nor can any light be shed on the ­problem by Article 12 of the regulations, as modified by the cited Res. 33/141 A of 1978. This article does not concern registration, and even less the decision as to which agreements are subject to it, but the publication of agreements in the Treaty Series. To avoid the serious delays that always occur in the publication, it provides that the Secretariat has the authority not to publish in extenso  the bilateral agreements belonging to certain less important categories  (­assistance and co-operation, the organization of conferences, ­seminars and meetings, and so on), although interested States and international organizations have the right to ask for copies. But there is no distintion between ­published agreements (among those recorded) and non-recorded agreements On the other hand, the view that the Secretariat (read: the SecretaryGeneral) enjoys a discretionary power to decide case by case whether or not a given agreement is to be registered would go too far. The terms adopted in Article 102, para. 1, which speak of registration “with” the Secretariat and of the latter’s obligation (“shall”) to publish it (“sera…publié par lui”), lead to excluding such a thesis. Without doubt, the Secretariat may question whether a given act constitutes an agreement within the meaning of Article 102 and may decide not to proceed with registration if its conclusion is negative. Without doubt, it may decide once and for all that, in its view, certain categories of agreements cannot be registered. However, as the registration says nothing about the nature of the act registered, so also the refusal to register is not decisive for the purpose of establishing such nature and may even be illegal should the Secretariat refuse to register an act which objectively is an international treaty. The Secretariat has always acted with a certain broad-mindedness, and followed the principle of generally complying with the requests of the contracting parties, registering also, in accordance with an opinion dating from the San Francisco Conference (U.N.C.I.O., vol. 13, p. 705) unilateral “commitments”, for example, the already cited Egyptian statement in 1957 on the Suez Canal (cf. UN Rep., Supp. no. 2, sub Article 102, no. 5 ff.). It has also registered treaties which had already exhausted their effect prior to registration on the basis of the argument that they were (as emerged in a note by the Secretary-General published in UNJY, 1975, p. 194 f.) agreements that could eventually be invoked before UN organs and whose publication could therefore have useful effects. Among the categories of agreements or understandings for which the Secretary has excluded registration, there are: agreements between States and certain international entities such as the International Committee for Military Medicine and Pharmacy, the International Patent Institute, and other similar entities; agreements between States and dependent units of the State; the resolutions of international organs; etc. (see UN Rep., sub Article 102, no. 31). Sometimes registration has been first denied and then carried out: for example, in the case of the

The judicial settlement of disputes between States  421 Three-Party Declaration annexed to the Washington agreement of April 5, 1951 between the United States, France and the United Kingdom on the gold of the Bank of Albania disputed between Albania and Italy (see A. Broches and Shirley Boskey, ‘Theory and Practice of Treaty Registration’, 2/3 NTIR (1957), p. 285). For other examples in the practice, see UNJY (1967), p. 332 ff., and 1970, p. 185 ff.

In our view, it is hardly helpful, as well as far from unproblematic, to try to identify all the categories of agreements that can come under Article 102. It is useless, that is, to wonder for what specific treaties Article 102 imposes a registration obligation. The rationale of the article, which is to discourage secret diplomacy, makes it possible to follow a different approach, i.e. looking at it from the point of view of the consequences of non-registration. One could, in fact, interpret Article 102 in the sense that an act that is not registered, whatever their nature, could all the same be invoked before UN organs when the parties have shown good faith as far as registration was concerned. It seems, in other words, that even non-registered treaties may be invoked before the organs of the United Nations by Member States, provided the parties are acting in good faith, namely that the parties did not wish to hide them. This would also explain those (rare) cases of practice in which Member States have invoked treaties not registered before the organs of the United Nations—especially the International Court of Justice, but also the General Assembly—without raising any objections. Good faith could certainly be shown when registration has been requested and not obtained. It would also have to be recognized in all cases in which anomalous acts or acts of dubious nature were involved, and the parties had no intention of keeping them hidden. For the cases of practice in which Member States have invoked treaties not registered before the organs of the United Nations see A. Broches and Shirley Boskey, ‘Theory and Practice of Treaty Registration’, 2/3 NTIR (1957), p. 277 ff., and Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations (London: Oxford University Press, 1963), p. 344 f. This thesis entails that, when good faith exists, the parties shall have the right to invoke  the  non-registered agreement before the UN. A different view (see Michael Brandon,  ‘The Validity of Non-Registered Treaties’, 29 BYB (1952) 186–204; A. Broches and Shirley Boskey, ‘Theory and Practice of Treaty Registration’, 2/3 NTIR (1957), p. 277 ff.) holds that it is the organ before which the agreement is invoked that would have the ­discretionary power to decide on invocability. This thesis does not take good faith into consideration.

Section X.  The Judicial Functions 86.  The judicial settlement of disputes between States Select bibliography: Vincenzo Starace, La competenza della Corte Internazionale di  Giustizia in materia contenziosa (Napoli: Jovene, 1970); Manfred Lachs, ‘La Cour Internationale de Justice dans le monde d’aujourd’hui’, 11 RBDI (1975) 548–61; B. A.S.

422  The Functions Petren, ‘Some Thoughts on the Future of the International Court of Justice’, 6 NYIL (1975) 59–76; A. Cocatre-Zilgien, ‘Justice internationale facultative et justice internationale obligatoire’, 80 RGDIP (1976) 689–737; Leo Gross (ed), The Future of the International Court of Justice (Dobbs Ferry: Oceana Publications, 1976) 2 voll.; Richard B. Lillich and G. Edward White, ‘The Deliberative Process of the International Court of Justice: A Preliminary Critique and Some Possible Reforms’, 70 AJ (1976) 28–40; Daniel G. Partan, ‘Increasing the Effectiveness of the International Court’, 18 HILJ (1977) 559–76; Michel Virally, ‘Le champ opératoire du règlement judiciaire international’, 87 RGDIP (1983) 281–314; Thomas M. Frank, Judging the World Court (New York: Priority Press, 1986); Lori Fisler Damrosch (ed), The International Court of Justice at a Crossroad (Dobbs Ferry: Transnational Publications, 1987); A. Bloed and P. van Dijk (eds), Forty Years of International Court of Justice Jurisdiction, Equity and Equality (Utrecht: Europa Instituut, 1988); Edward McWhinney, ‘Judicial Settlement of Disputes. Jurisdiction and Justiciability’, 221 RC (1990), vol. 221, 9–194; George Abi-Saab, ‘De l’évolution de la Cour internationale – Réflexions sur quelques tendances récentes’, 96 RGDIP (1992) 273–97; Benedetto Conforti, ‘Il declino della funzione giurisdizionale internazionale’, in Studi in memoria di A. Cerino Canova (Bologna: Monduzzi Editore, 1992) 99–106; Thomas J. Bodie, Politics and the Emergence of an Activist International Court of Justice (Westport: Praeger, 1995); Shabtai Rosenne, The World Court. What it is and How it Works (Dordrecht: Nijhoff, 1995, 5th ed); Robert Y. Jennings, ‘The International Court of Justice after Fifty Years’, 89 AJ (1995) 493–505; A.S. Muller (ed), The International Court of Justice: Its Future Role after Fifty Years (The Hague: Martinus Nijhoff, 1997); Howard N. Meyer, The World Court in Action (New York: Rowman & Littlefield Publishers, 2002); Gaetano Iannotta, La funzione consultiva della Corte internazionale di giustizia (Napoli: De Frede, 2005); Maria I. Papa, I rapporti tra la Corte internazionale di giustizia e il Consiglio di sicurezza (Padova: Cedam, 2006); Karel C. Wellens, ‘L’autorité des prononcés de la Cour internationale de Justice’, in Olivier Corten (ed), Droit du pouvoir, pouvoir du droit. Mélanges offerts à Jean Salmon (Bruxelles: Bruylant, 2007) 729–81; Oda Shigeru, ‘International Court of Justice: It’s Myth and Reality’, in JYIL (2008) 427–37; Rosalyn Higgins, ‘National Courts and the International Court of Justice’, in Mads Andenas and Duncan Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (New York: Oxford University Press, 2009) 405–417; Mariko Kawano, ‘The Administration of Justice by the International Court of Justice and the Parties’, in Sienho Yee and Jacques-Yvan Morin (eds), Multiculturalism and International Law: Essays in Honour of Edwards McWhinney (Leiden: Nijhoff, 2009) 285–300; Gaetano Iannotta, Il  processo contenzioso dinanzi la Corte internazionale di giustizia (Napoli: Edizioni Scientifiche Italiane, 2009); Abdul G. Koroma, ‘The Binding Nature of the Decisions of the International Court of Justice’, in Laurence Boisson de Chazournes and Marcelo Kohen (eds), International Law and the Quest for its Implementation: Liber Amicorum Vera Gowlland-Debbas (Leiden: Brill, 2010) 431–44; Shohei Ono, ‘Legal Effect of the Judgments of the International Court of Justice in Domestic Courts (I)’, 74 JLPS (2010) 107–78; Anastasia Telesetsky, ‘Binding the United Nations: Compulsory Review of Disputes Involving UN international Responsibility Before the International Court of Justice’, 21 MinnJIL (2012) 75–119; Gleider I. Hernández, The International Court of Justice and the Judicial Function (Oxford: Oxford University Press, 2014).

The judicial functions belong to the International Court of Justice whose Statute is annexed to the Charter and forms an integral part of it (Article 92). The Court performs the same functions that had been performed by the f­ ormer Permanent Court of International Justice created at the time of the League of Nations. Its Statute closely follows the one of the old Court.

The advisory function of the International Court of Justice   423 Article 92 defines the Court as the “principal” judicial organ of the United Nations. The only other judicial organ is the Administrative Tribunal (now the UN Dispute Tribunal and the UN Appeals Tribunal) which was created by the Assembly to settle employment disputes between the Organization and its staff. On this see § 35.

The Court has, first of all, the function of settling disputes among States, by applying international law (Article 38, para. 1, of the Statute) and handing down decisions with which the parties have undertaken to comply (Article 94, para. 1, of the Charter). This activity (so-called contentious jurisdiction), ­however, is firmly anchored in a principle that is considered characteristic of international law. It is the principle that, for however it may be formed, an international court may never adjudicate if its jurisdiction has not been ­previously accepted by all the States parties to a dispute. Article 36 of the Statute of the Court is inspired by this principle both at para. 1 (“The jurisdiction of the Court comprises all cases which the parties refer to it and all ­matters specially provided for … in treaties and conventions in force”) and at para. 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 …”). The problems relating to the Court’s jurisdiction in contentious matters, coming within the subject matter of international process, lie outside our topic. 87.  The advisory function of the International Court of Justice Select bibliography: Michel Dubisson, La Cour Internationale de Justice (Paris: Libraire générale de droit et de jurisprudence, 1964) 277 ff; D.W. Greig, ‘The Advisory Jurisdiction of the International Court and the Settlement of Disputes Between States’, 15 ICLQ (1966) 325–68; Kenneth J. Keith, The Extent of the Advisory Jurisdiction of the International Court of Justice (Leiden: Sijthoff, 1971); José E. Puente, ‘Consideraciones sobre la Naturaleza y Efectos de las Opiniones Consultivas’, 31 Bruns’Z (1971) 730–809; Dharma Pratap, The  Advisory Jurisdiction of the International Court (Oxford: Clarendon Press, 1972); Michla Pomerance, The Advisory Function of the International Court in the League and UN Eras (Baltimore/London: John Hopkins University Press, 1973); Takane Sugihara, ‘The Advisory Function of the International Court of Justice’, 18 Jap AIL (1974) 25–50; Riccardo Luzzatto, ‘La competenza della Corte Internazionale di giustizia nella soluzione delle controversie internazionali’, 14 CS (1975), 479–99; Luca Radicati di Bròzolo, ‘Sulle questioni preliminari nella procedura consultiva davanti alla Corte Internazionale di Giustizia’, 59 RDI (1976) 677–709; Giuliana Ziccardi Capaldo, ‘Il parere consultivo della Corte Internazionale di Giustizia sul Sahara Occidentale: un’occasione per un riesame della natura e degli effetti della funzione consultiva’, 15 CS (1978), 557–64; Louis B. Sohn, ‘Broadening the Advisory Jurisdiction of the International Court of Justice’, 77 AJ (1983) 124–30; Stephen M. Schwebel, ‘Authorizing the Secretary-General of the UN to Request Advisory Opinions of the International Court of Justice’, 78 AJ (1984) 869–78; Paolo Benvenuti, L’accertamento del diritto mediante i pareri consultivi della Corte Internazionale di Giustizia (Milano: Giuffrè, 1985); Roberto Ago, ‘I pareri consultivi “vincolanti” della Corte internazionale di giustizia. Problemi di ieri e di oggi’, 73 RDI (1990) 5–23; Dapo

424  The Functions Akande, ‘The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice’, 9 EJIL (1998) 437–67; Giorgio Gaja, ‘Diseguaglianza tra le parti nella soluzione di controversie per mezzo di un parere della Corte internazionale di giustizia’, 82 RDI (1999) 138–40; Francklin Berman, ‘The Uses and Abuses of Advisory Opinions’, in Nisuke Andō, Edward McWhinney & Rüdiger Wolfrum (eds), Liber amicorum judge Shigeru Oda (The Hague: Kluwer Law International, 2002), vol. 2, 809–28; Charles N. Brower and Pieter H.F. Bekker, ‘Understanding “Binding” Advisory Opinions of the International Court of Justice’, ibid., vol. 1, 351–68; Alexandre Kiss, ‘The Impact of Judgments and Advisory Opinions of the PCIJ-ICJ on Regional Courts of Human Rights’, ibid., vol. 2, 1469–90; Patrick Daillier, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd ed) vol. 2, 2003–16; Michla Pomerance, ‘The ICJ’s Advisory Jurisdiction and the Crumbling Wall Between the Political and the Judicial’, 99 AJ (2005) 26–41; Mahasen M. Aljaghoub, The Advisory Function of the International Court of Justice 1946–2005 (Berlin/ Heidelberg: Springer, 2006); D. Breau, ‘The World Court’s Advisory Function’, 55 ICLQ (2006) 185–216; Mark Angehr, ‘The International Court of Justice’s Advisory Jurisdiction and the Review of Security Council and General Assembly Resolutions’, 103 NwULR (2009) 1007–36; Takahide Nagata, ‘Judicial Activism in Exercising Advisory Function by the International Court of Justice and “Eastern Carelia”’ Principle, 107 JILD (2009) 42–68; Lorenzo Gradoni and Enrico Milano (eds), Il parere della Corte internazionale di giustizia sulla dichiarazione di indipendenza del Kosovo: un’analisi critica (Padova: Cedam, 2011); Carlo Focarelli, ‘Tanto rumore (quasi) per nulla: lo status del Kosovo e la strategia argomentativa della Corte Internazionale di giustizia nel parere del 22 luglio 2010’, 76 Il Politico (2011) 59–80; Karin Oellers-Frahm, Article 96, in Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd ed), vol. 1, 1975–90; Photini Pazartzis, ‘The Ambit and Limits of the Advisory Function of the International Court of Justice’, in Eva Rieter and Henri de Waele (eds), Evolving Principles of International Law: Studies in Honour of Karel C. Wellens (Leiden: Nijhoff, 2012) 265–80; Mohamed Bennouna, ‘The Advisory Function of the International Court of Justice in the Light of Recent Developments’, in M. Cherif Bassiouni (ed), Global Trends: Law, Policy & Justice. Essays in Honour of Professor Giuliana Ziccardi Capaldo (New York: Oceana, 2013) 95–100.

The advisory function of the International Court of Justice under Article 96 of the Charter and Articles 65 ff. of the Statute of the Court, can be considered a judicial function in a broad sense since it is aimed at stating the law. Article 96 of the Charter provides that: “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”. Under Article 96, Advisory Opinions may be requested by the General Assembly and the Security Council as well as, upon the authorization of the General Assembly, by other UN organs and the Specialized Agencies (for example, with Res. 89-I of December 11, 1946, the Assembly once and for all authorized the Economic and Social Council to address the Court). The advisory jurisdiction has, to date, resulted in a number of important Opinions; on many of them we already have been able to dwell.

The advisory function of the International Court of Justice   425 Article 65, para. 1, of the Statute if formulated in similar terms to those of Article 96 of the Charter: “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”.

The Opinions are optional and non-binding, in so far as the organs have not an obligation to request them nor, once the request has been made, are they ­obligated to comply with them. This lack of binding force, which is characteristic of the Opinions, finds confirmation in United Nations practice. Its contrast with the binding force of judgments on disputes among States has also often been confirmed by the Court itself. The fact is significant that various times the Opinions, despite the “respect” rendered them in the resolutions of the requesting organ, in practice, have remained ineffectual. In view of this, it does not seem possible to say that the advisory function has been put at the same level as the contentious function. This was attempted at the time of the League of Nations with regard to the Permanent Court of International Justice and has been taken up again recently in legal doctrine. Another view (Ziccardi Capaldo) which raises perplexity is that the Opinions would produce a “­legalizing” effect similar to what is produced by General Assembly and Security Council recommendations (see § 91). What is true rather is that the Court Opinions may contribute, and sometimes have contributed in large, to the formation or to the confirmation of international customary rules. They are then to be seen as demonstration of a kind of opinio juris ac necessitatis which, in that it corresponds, and only in that it corresponds, to the real behavior of the majority of States, gives rise to binding principles for all States. For example, the Opinion of May 28, 1951 on the reservations to the Convention for the Punishment of Genocide (in ICJ Reports 1951, p. 15 ff.) was at the basis of an important change in customary law regarding reservations in international treaties. Sometimes although Advisory Opinions are issued under Article 96, they acquire binding force. This is because with treaty norms, or with other appropriate acts, a party beforehand undertakes the obligation to observe them. Cf., for example, Article VIII, sec. 30, of the Convention on the Privileges and Immunities of the United Nations of February 13, 1946 (see § 36) and Article IX, sec. 32, of the analogous Convention on Privileges and Immunities of the Specialized Agencies. Both articles provide that, in the event of a dispute between the UN, or a Specialized Agency, and one or more of the Member States, a request shall be made for an Advisory Opinion to the Court in accordance with the procedure prescribed by Article 96 of the Charter, with the parties being obligated to accept it. These are, in substance, true arbitration clauses, similar to those that provide the jurisdictional grounds in contentious matters. They refer to the advisory function in that they are stipulated between States and international organizations and thus aim at circumventing Article 34, para. 1, of the Statute under which only States may be parties in cases before the Court. The same aim was pursued, before 1995 (see § 35), by Article 11 of the Statute of the Administrative Tribunal, established by the General Assembly to settle disputes between the UN and its staff. This article—and a similar provision is still contained in the Statute of

426  The Functions the Administrative Tribunal of the International Labor Organization—foresaw the Court’s competence to review the Tribunal decisions. In its Opinions of October 23, 1956 and July 12, 1973, on the review of Administrative Tribunal judgments, respectively of the ILO and of the UN, the Court held that prior acceptance of the binding nature of its advisory function does not constitute an obstacle to the exercise of such function (cf. ICJ Reports 1956, p. 84 and 1973, p. 182 f.). As an example of Advisory Opinion given pursuant sect.  30 of the UN Convention on Privileges and Immunities see the Opinion already cited (see § 36) of April 29, 1999 in Cumaraswamy case (ICJ Reports 1999). In this case the Court held that the subject of requested Opinion was the one indicated by the requesting organ (the Economic and Social Council) without taking into account the view of the State which had previously agreed on submitting the question to the Court. The finding of the Court seems to be correct, since the jurisdiction of the Court is grounded on Article 96 and only on this article. For a different view, see the dissenting opinion of Judge Koroma (ibid., para. 24 of the dissenting opinion) and Giorgio Gaja, ‘Diseguaglianza tra le parti nella soluzione di controversie per mezzo di un parere della Corte internazionale di giustizia’, 82 RDI (1999), pp. 138–40. Also Article 66, para. 2 (b) and (c), of the Vienna Convention on the Law of Treaties between States and international organizations and between international organizations (the Convention which codified this matter, but not yet entered into force) provides that the advisory function of the Court, requested through the General Assembly or the Security Council, may be accepted as obligatory in disputes in which the UN or other international organizations are parties.

The Opinions requested by the Assembly and by the Security Council may touch upon “any legal question” (Article 96, para. 1). Those requested by the other organs and by the Specialized Agencies may concern “legal questions arising within the scope of their activities” (Article 96, para. 2). In its Opinion of July 8, 1996 on the Legality of the Use by a State of Nuclear Weapons in Armed Conflicts requested by the World Health Organization (WHO), the Court refused to give an Advisory Opinion, notwithstanding the authorization given once and for all by the General Assembly in the liaison agreement between WHO and UN (see § 75). The refusal was due to the fact that the question of the legality of the use of nuclear weapons was not “a question arising within the scope” of WHO activities (cf. ICJ Reports 1996, para. 31).

As can be seen, aside from this last limitation, the object of the advisory function is indicated in such broad terms that it would be arbitrary not to accept any question pertaining to the application of interpretation of legal norms. Various views expressed both by the States in the General Assembly or before the Court and in legal doctrine, which tend to take away certain legal questions from the advisory jurisdiction of the Court are therefore untenable. Before examining these views some minor issues, which have been advanced before (and rejected by) the Court on July 9, 2004 in its Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, deserve at least a mention. We refer to the irregularity in the procedure followed for the request of an Opinion by the

The advisory function of the International Court of Justice   427 General Assembly (paras. 29–35), to the lack of clarity in the wording of the question (paras. 38–39) and to the abstract nature of the issue (para. 40). Another, and very important, objection raised in this case—the objection founded on the “lis alibi pendens” embodied in Article 12, par. 1, of the Charter—has been dealt with in connection with the function of the General Assembly with regard to the maintenance of peace and security (see § 64).

First, it must be rejected the view, which was held only in the early years of the UN, that Opinions should not be issued … with regard to interpretation of the Charter. As the Court pointed out in its Opinion of May 28, 1948 (ICJ Reports 1947–48, p. 61) on the Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), and as can be found in the preparatory work (cf. U.N.C.I.O., vol. 13, p. 719), as well as in the practice, it is exactly on this subject that the advisory function, coming from the “principal judicial organ of the United Nations”, is meant to give crucial contributions in keeping with the spirit of Article 96. It is true that the Court is not an organ empowered to authoritatively interpret the Charter (see § 6), but this does not mean that when the Court is vested with a matter of interpretation of the Charter through a request of an Opinion it cannot act upon it. One thing is in fact the lack of a power of authoritative interpretation of the Charter, another is the possibility that, under the conditions and with the effects of Opinions, the Court may proceed with the interpretation. Secondly, the view that would remove from the advisory function all questions that can be resolved in legal terms but that have political importance due to the circumstances in which they arise, should also be rejected, again in conformity with the tendency of the Court in the practice. Cf. the already cited Opinion of May 28, 1948 on the Admission of a State to Membership in the United Nations (ICJ Reports 1947–1948, p. 61): where the Court was asked to establish whether the “package” admission proposed by the Soviet Union and opposed by the Western powers was in conformity with the Charter (see § 13). Cf. also the Opinions of March 3, 1950 on the Competence of the General Assembly for the Admission of a State to the United Nations (ibid., 1950, p. 6 ff., of July 20, 1962); on Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (ibid., 1962, p. 155, of December 20, 1980); on the interpretation of the agreement between WHO and Egypt, (ibid., 1980, p. 87; of July 8, 1996) on the Legality of the Threat or Use of Nuclear Weapons, an Opinion issued this time upon request by the General Assembly (ibid., 1996, para. 14); and on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories of July 9, 2004 (para. 41). In its opinion of July 22, 2010 on the Accordance with International Law of  the Unilateral Declaration of Independence by the Provisional Institutions of SelfGovernment of Kosovo, the International Court of Justice reiterated that “the fact that a question has political aspects does not suffice to deprive it of its character as a legal question” and ­therefore “[w]hatever its political aspects, the Court cannot refuse to respond to the legal elements of a question which invites it to discharge an essentially judicial task, namely, in the present case, an assessment of an act by reference to international law” (at , para. 27). The Court assumes that

428  The Functions “[a] ­question which expressly asks the Court whether or not a particular action is compatible with international law certainly appears to be a legal question” (ibid., para. 25).

Thirdly, nothing prevents that a question submitted to the Court can be the subject of a dispute between States or between a State and the UN. For example, the Assembly or the Security Council, faced with a dispute with which they are dealing, may address the Court even against the wishes of the parties or of one of them, in order to know what is the legal solution to the dispute. In the negative it has been argued that the issuance of the Opinion gets around this principle, typical of contentious jurisdiction, so that the Court cannot resolve a dispute without the consent of all parties and without the establishment of a debate between them. But one could reply that contentious jurisdiction leads to a decision binding on the parties in conflict, where the advisory activity, simply operating a collaboration between the judiciary and other organs of the United Nations, lacks, as we have noticed, any binding effect for both the requesting organ and for the States. This, after all, is derived not only from Article 96, which speaks in general terms of “legal issues”, but also from Articles 14 and 37 of the Charter, which respectively authorize the Assembly (see § 64) and the Security Council (see § 54) to recommend to the parties to a dispute solutions on the merits without excluding legal solutions. In favor of this view the Advisory Opinion of March 30, 1950 on the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania can be cited. Here the Court states “… Another argument that has been invoked against the power of the Court to answer the questions put to it in this case is based on the opposition of the Governments of Bulgaria, Hungary and Romania to the advisory procedure. The Court cannot, it is said, give the Advisory Opinion requested without violating the well-established principle of international law according to which no judicial proceedings relating to a legal question pending between States can take place without their consent. This objection reveals a confusion between the principles governing contentious procedure and those which are applicable to Advisory Opinions. The consent of States, parties to a dispute, is the basis of the Court’s jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the request for an Opinion relates to a legal question actually pending between States. The Court’s reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of a Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the cause of action it should take. The Court’s Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an ‘organ of the United Nations’, represents its participation in the activities of the Organization, and, in principle, should not be refused” (Cf. ICJ Reports 1950, p. 71; emphasis added). Also the Opinion of December 15, 1989 on the Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations can be cited. Here the Court was called upon to express an opinion, at the request of the Economic and Social Council, on the applicability of the provisions of this Convention to Mr. Mazilu, a Rumanian citizen and member of the United Nations subcommittee on discrimination and the protection of minorities, whom the Rumanian Government had prevented from leaving the

The advisory function of the International Court of Justice   429 country (see § 36). Section 30 Article VIII of the Convention, as we have just seen, provides that, in the event of a dispute between the UN and a Member State, an Advisory Opinion of the Court may be requested, and the parties are obligated to comply with it. However, in this case Rumania had formulated a reservation to the Convention, excluding the a priori acceptance of such obligation. It was a matter, then, of establishing whether, notwithstanding the reservation, the Court could all the same issue the Opinion, obviously without binding effects but as a function normally performed on the basis of Article 96 and therefore as a mere advisory function aimed at indicating to a United Nations organ (in this case the Economic and Social Council, on the authorization of the General Assembly) the solution to a legal question. The Court correctly answered in the affirmative, referring to its Opinion of 1950 (cf. ICJ Reports 1989, p. 188 ff., paras. 29–32).

Once it has been established that the advisory function of the Court can extend, without exceptions, to any other legal question, one must wonder if the Court may anyhow refuse to perform it. In other words, does the Court, when confronted with a legal question, have the power to decide, at its own discretion, whether or not to issue an Opinion? In fact, supposing that the Court can issue an Opinion on any legal matter, it does not mean that it must do so, or that it cannot decide in certain cases to reject the Opinion at its discretion. The answer which is usually given to this question is affirmative and is based on the text of Article 65 of the Statute, under which “the Court may [in French, “peut”] give an advisory opinion …”. It should be noted however that the term “may” in Article 65 can be read both for and against the discretion of the Court: it can indeed mean both that the Court “may or may not” give its Opinion, at its discretion, and in the sense that the Court “may issue” the Opinion “on any legal matter” and not on others. In the first sense “may” indicates discretion (in the sense that “the Court may at its discretion decide whether … or not …”), while in the latter it denotes authorization (in the sense that “the Court is authorized to issue an Opinion only on … legal issues …”). The term “may” in Article 65 has often been invoked before the Court in order to seek to persuade it not to express an opinion in some of the cases that have just been mentioned here. It has been argued that even if it is true, as hinted above, that the Charter does not exclude the issuance of Opinions when the legal question submitted by a UN organ has considerable political importance or is the subject of a dispute between States (or between States and an international organization), and specifically between States which do not agree in requesting precisely the intervention of the Court, nevertheless the latter would make correct use of its discretionary power if, in the presence of such circumstances, it did not express an opinion. Clearly in order to support the appropriateness of the Court not pronouncing itself—while being entitled to do so in strictly legal terms—when the question has a significant political relevance or is the subject of controversy, the discretion of the Court in deciding whether to issue the Opinion or not must be presupposed.

430  The Functions

How has the Court behaved in this regard? The Court certainly has adopted in principle the view that it had a discretionary power on the subject, asking on various occasions whether there were “compelling reasons” for not answering the legal questions put to it by the General Assembly or by other organs, clearly based on the assumption that if these motivations actually existed the Court would have abstained from issuing its Opinion. However, in practice, it has then carefully avoided applying such principle. More specifically, with regard to highly political legal questions, the Court has always denied that political importance was a sufficient reason for refusing to intervene. By contrast, on questions that were the subject of disputes, it has affirmed in principle the appropriateness of not issuing an Opinion when the parties were not all in agreement, but in the end it has issued an Opinion all the same, sometimes holding that the question submitted did not affect the main subject of the dispute, sometimes denying that a dispute existed, sometimes resorting (as it did in the cited December 15, 1989 Opinion in the Mazilu case) to subtle and convoluted arguments always in order to demonstrate—sometimes somewhat against the obvious—that there was no dispute at least on the object of the Opinion. For the view that the discretionary power to express or not to express an opinion comes from Article 65 of the Statute, and for the assertion that this power is not, however, to be used to refuse the issuance of an Opinion in the event of legal questions having considerable political importance, cf., for example, the Opinion on Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (ICJ Reports 1962, p. 155); the Opinion on Namibia (ibid., 1971, p. 23, para. 28 f., and p. 27, para. 41) and on the Legality of the Threat or Use of Nuclear Weapons, issued at the request of the Assembly (ibid., 1996, p. 8 f.). On the problem whether the advisory function can be refused at the Court’s discretion when the question is the subject of a dispute between States, the Court expressed its view in the already cited Opinion of March 30, 1950 on the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania. In this case, the request for an Opinion from the Assembly concerned the interpretation of certain arbitration clauses of these treaties. Such interpretation was, without doubt, the subject of dispute between the parties, and, moreover, the three States had repeatedly said they were against the issuance of an Opinion by the highest UN judicial organ. As we have just recalled (see § 85), the Court in this Opinion claimed that it was fully competent to be concerned in an advisory capacity also with questions that were the subject of disputes, given the separation between advisory functions and contentious jurisdiction. Then, right after having made this claim, the Court went on to ask if, however, in the specific case, it should refuse to express a view (because of the opposition of several parties to the dispute) in the exercise of its discretionary power under Article 65. It recalled that in similar circumstances the Permanent Court of International Justice had refused to give an Opinion. This was the case of the Statute of Eastern Carelia (PCIJ Reports, Series B, no. 5). It stated, although implicitly, that it agreed in principle with the former Court in the sense that Opinions should not be issued if they touch upon “essential points” of dispute between Governments, in order not to circumvent the principles on contentious  jurisdiction. However, it concluded that in this particular case “essential points” were not involved, and therefore in the end it decided to express an opinion (cf. ICJ Reports 1950, p. 72).

The advisory function of the International Court of Justice   431 Cf. also the Opinion of June 21, 1971 on Namibia (ICJ Reports 1971, p. 23 f., para. 30 ff. and p. 27, para. 41) in which the Court, recalling here also the Opinion of the Permanent Court in the case of the Statute of Eastern Carelia, denied that the question submitted by the Security Council on the status of South West Africa (see § 83) was the subject of dispute between South Africa and other States. Also in the Western Sahara Opinion of October 16, 1975 (in ICJ Reports 1975, p. 25, para. 33) the Court began by recalling the principle expressed by the old Opinion on the Statute of Eastern Carelia, and said: “… in certain circumstances, therefore, the lack of consent of an interested state may render the giving of an advisory opinion incompatible with the Court’s judicial character. An instance of this would be when the circumstances disclose that to give a reply would have the effect of circumventing the principle that a state is not obliged to allow its disputes to be submitted to judicial settlement …” In light of this affirmation, one would expect that the Court would have refused to give an Opinion, since in this particular case there had been a precise proposal by Morocco to submit the same question which formed the object of the Opinion to the contentious procedure before the Court and since Spain had refused this proposal, requesting the Court not to express an Advisory Opinion. The Court, on the contrary, decided to render an Opinion, holding (ibid., p. 25, para. 34) that it was not a matter of a pure and simple dispute born “independently in bilateral relations”, but of a dispute “that arose during the debates in the Assembly and concerned problems it is involved in”. With all due respect, the Court’s view was excessively captious, since every question submitted to the Court in its advisory capacity is discussed by the Assembly or by the Security Council, or by other organs authorized to request Opinions, and that it would have been better to finally abandon the old principle in the Opinion of the Statute of Eastern Carelia. Similar considerations must be made with regard to the often cited Opinion of December 15, 1989 in the Mazilu case, where, as we have just seen, the Court was also faced with a specific dispute between the UN and a Member State, Rumania, as well as with the refusal of the latter to submit the dispute to the judgment of the Court. In this case, the Court limited itself to holding, rather factitiously, that the dispute concerned the “application” of the Convention on the Privileges and Immunities of the United Nations, while the request for the Opinion concerned the “applicability” of the Convention itself (cf. ICJ Reports 1989, p. 190 ff., paras. 37–39, especially para. 38). Again, in the Opinion of July 9, 2004 on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, the Court, quoting the Western Sahara Opinion, expressed the view that “in certain circumstances … the lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court’s judicial character”. However, again in this case, the Court found that no such circumstances existed. Why? Essentially because, given the powers and responsibilities of the United Nations in questions relating to international peace and security “the subject-matter of the General Assembly’s request cannot be regarded as only a bilateral matter between Israel and Palestine” (paras. 48–50). Also in the advisory opinion on the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo of July 22, 2010 the International Court of Justice held that “[t]he fact that the Court has jurisdiction does not mean, however, that it is obliged to exercise it”, reserving the discretion to refuse to do so in cases where this is necessary to “to protect the integrity of the Court’s judicial function and its nature” (at , para. 29). The Court stated, however, that the issuance of an opinion “in principle, should not be refused”, as it was a matter of its participation in the activities of the Organization, and that “only “compelling reasons” should lead the Court to refuse its opinion” (ibid., para. 30).

432  The Functions The problem is repeated in the advisory opinion on Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development of January 2, 2012 and in this case the Court, after being asked if there were compelling reasons, concluded that the reasons for denying the opinion were not “not sufficiently compelling” (at , paras. 33–48).

In our view, the idea of discretionary power, even if it is moderated by the safeguards found in the Court’s jurisprudence, is puzzling insofar as it aims to “politicize” the judicial activity of the Court even when, as in the case of advisory opinions, the ruling is not binding. The textual argument on which it is based (the “may” in Article 65 of the Statute) is very weak, as observed above and should yield to the spirit of the provision on the advisory function which testifies to the obligatory co-operation of the Court with the UN organs in the solution of legal questions. It is clear that the crucial point of the whole matter is that of the connection between the advisory function and contentious or binding jurisdiction. However, it is exactly on this point that the Court should, rather than quibbling as it has done up to now, once and for all, say that the existence of a dispute does not limit in any way its competence to render an Opinion. It is not clear why the Court should be considered authorized to sacrifice, at its discretion, the advisory function to the contentious function and therefore sacrifice co-operation between the organs to respect for the desire of an individual State to avoid the Opinion (even a non-binding Opinion!) of the judicial organ. Such a sacrifice could have been justified at the time of the League of Nations and the advisory function of the old Permanent Court, but it seems anachronistic today.

Section XI.  Financing the Organization Select bibliography: Sommer Albert, Les finances de l’ONU (Zürich: Juris-Verl., 1951); Inis L. Claude Jr, ‘The Political Framework of the United Nations, Financial Problems’, 17 Int. Org. (1963) 831 ff; Joel D. Singer, Financing International Organizations: The UN Budget Process (The Hague: Nijhoff, 1961); Cem Sar, Le financement des activités de l’ONU 1945–1961 (Ankara: Ünoversitesi Basimevi, 1963); Leo Gross, ‘Expenses of the UN for Peacekeeping Operations: The Advisory Opinion of the International Court of Justice’, 5 Int. Org. (1963) 1 ff; K.R. Simmonds, ‘The UN Assessments Advisory Opinion’, 13 ICLQ (1964) 854–98; John G. Stoessinger, Financing the United Nations System (Washington: Brookings Inst., 1964); Evelyne Rauzières, La crise financière de l’ONU (Lille: Université de Montpellier, 1966); Ruth B. Russell, ‘United Nations Financing and “The Law of the Charter”’, 5 CJTL (1966) 68–95; Benedetto Conforti, La funzione dell’accordo nel sistema delle Nazioni Unite (Padova: Cedam, 1968) 130 ff and 143 ff; Giuseppe Tesauro, Il finanziamento delle organizzazioni internazionali (Napoli: Jovene, 1969); Pasquale Paone, ‘Il problema del finanziamento delle Organizzazioni internazionali a carattere universale’, 25 CI (1970) 559–91; Alain Pellet, ‘Budgets et programmes aux Nations Unies, Quelques tendances récentes’, 22 AF (1976) 242–82; Hansjörg Döpp, Die Finanzierung von Friedenssicherungsaktionen der Vereinten Nationen (Köln: Rudolf Stehle, 1976); J.C.

Compulsory contributions of the Member States   433 Martinez, Le financement des opérations de maintien de la paix de l’ONU, 81 RGDIP (1977) 102–66; Klaus Hüfner, Die freiwilligen Finanzleistungen an das UN-System, 26 GYIL (1983) 299 ff.; Nicoletta Parisi, Il finanziamento delle organizzazioni internazionali. Contributo allo studio delle forme della cooperazione intergovernativa (Milano: Giuffrè, 1986); Maurice Bertrand, ‘The UN in Profile: How its Resources are Distributed’, in Peter Fromuth, A Successor Vision: The United Nations of Tomorrow (Boston: University Press of America, 1986); Elisabeth Zoller, ‘The “Corporate Will” of the UN and the Rights of the Minority’, 81 AJ (1987) 610–34; Paul Taylor, A.J.R. Groom, Erik Jensen, Sally Morphet and Stephen Chan, The Financing of the UN, 14 RIA (1988) 289–95; Hans Danelius, ‘UN Voluntary Funds’, 58 NoJIL (1989) 185–88; Klaus Dicke, ‘Deciding upon the Budget of the United Nations: A Comparison’, in Rüdiger Wolfrum (ed), Law of the Sea at the Crossroads: The Continuing Search for a Universally Accepted Regime (Berlin: Duncker und Humblot, 1991) 189–211; Simon Duke, ‘The Un Finance Crisis: A History and Analysis’, 11 IR (1992) 127– 50; Daniel Dormoy, ‘Les opérations de maintien de la paix de l’ONU. Aspects récents de la question de leur financement’, 39 AF (1993) 131–52; Enid C.B. Schoettle, ‘Kein Geld für den Frieden? Die Finanzierung der UN-Friedenserhaltung’, 48/16 EA (1993) 453–62; William J. Durch, ‘Paying the Tab: The Financial Crises’, in William J. Durch (ed), The Evolution of UN Peace-Keeping. Case Studies and Comparative Analysis (New York: St. Martin’s Press, 1993); Emilio J. Cardenas, ‘Financing the United Nations’ Activities: A Matter of Commitment’, 1 UILR (1995) 147–61; Jeffrey Laurenti, National Tax Payers, International Organisations. Sharing the Burden of Financing the United Nations (New York: Publications Dept., 1995); Sean D. Murphy, ‘Contemporary Practice of the United States Relating to International Law: Payment of UN Arrears to the UN’, 94 AJ (2000) 348–50; Francesco Francioni, ‘The Legality of Unilateral Withholdings of UN Assets Contributions to the UN Budget’, 11 EJIL (2000) 43–59; A. Gerson, ‘Multilateralism à la Carte: The Consequences of Unilateral “Pick and Pay Approaches”’, ibid., 61–66; A.J. Cardenas, ‘UN Financing: Some Reflections’, ibid., 67–75; Jeffrey Laurenti, ‘Financing the United Nations’, in The United Nations: Confronting the Challenges of a Global Society (Boulder: Lynne Rienner, 2004) 271–309; Christian Tomuschat, ibid., 363–76; Valentina Della Fina, Il bilancio nel diritto delle Nazioni Unite (Milano: Giuffrè, 2004); Geneviève Bastid-Burdeau, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 3rd ed), vol. 1, 775–89; Jean-Luc Florent, ibid., 815–821; Ruben P. Mendez, ‘Financing the United Nations and the International Public Sector: Problems and Reform’, in Paul F. Diehl (ed), The Politics of Global Governance: International Organizations in an Interdependent World (Boulder: Lynne Rienner, 2005) 165–89; Craig N. Murphy, Financing, in Thomas G. Weiss and Sam Daws (eds), The Oxford Handbook on the United Nations (Oxford: Oxford University Press, 2007) 264–74; Jeffrey Laurenti, Financing, ibid., 675–700; Jilali Chabih, ‘Réflexions sur le pouvoir financier international: le cas des finances de l’ONU’, in Jean-François Poli, Jean-Paul Pastorel and Edmond Jouve (eds), Vers un monde nouveau: mélanges, textes et documents offerts au Professeur Edmond Jouve, (Bruxelles : Bruylant, 2010), vol. 1, 219–40; Peter Woeste and Thomas Thomma, Article 17, in Bruno Simma, Daniel-Erasmus Khan, George Nolte, Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2012, 3rd edn), vol. 1, 576–620; Christian Tomuschat, Article 19, ibid., 637–55.

88.  Compulsory contributions of the Member States For an organization like the UN, from which swift and effective action in almost every area of human activity is expected, the funding is clearly crucial.

434  The Functions

It makes little sense to accuse the UN of poor results if it avails of scarce resources, although it is equally true that the scarcity of resources is sometimes due to the UN’s own inability to successfully carry out its tasks. Nor should it be forgotten that it is also from the financial resources, in addition of course to the sense of responsibility of its managers and operators, that the political legitimacy of the Organization and its ability to implement effective and comprehensive programs depends on. The UN obtains its own financial means through contributions of the States, contributions that are either voluntary (see § 89) or owed by the Member States. Article 17, paras. 1 and 2, of the Charter is concerned with the latter. Under Article 17, the General Assembly approves the budget of the Organization and apportions the expenses among the members. The decision that provides for the apportionment is taken by a two-thirds majority (Article 18, para. 2) and must take into account, approximately, the capacity of each State to contribute (Article 160 of the Assembly Rules of Procedure). As can be deduced from Article 17, it binds all members. This, then, is one of the few cases in which the Assembly has a power of decision rather than of recommendation. The obligation to contribute to the costs, allocated under Article 17, finds a clear penalty under Article 19 of the Charter, according to which the Member State 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 (see § 15). Unfortunately, the practice of late payment of contributions is almost routine in the Organization, which is thus exposed to a precarious existence and with the constant prospect of financial crisis. For example, in 2015 only 25 Member States had paid their full contribution by the deadline (January 31, 2006). As of June 29, 2015, 101 States had paid their contribution in full (for up-to-date information, see ). Meanwhile, the Organization had to meet ordinary expenses, among them the salaries of its employees. The “capacity to pay” principle in practice entails a different burden on Member States calculated on the basis of economic parameters, among which the main one is the Gross National Product (GNP) of each Member State. There is also an upper limit and a minimum threshold, calculated as a percentage of the overall budget and amended several times, that the shares may not exceed. The distance between the minimum and maximum share is considerable, if one considers that the 6 largest contributors in 2011—the United States (22%), Japan (12.53%), Germany (8.018%), the United Kingdom (6.604%), France (6.123%), Italy (4.999%)—fund almost 70% of the budget, while just under 30% is funded by the remaining 186 Member States. It is worthy of note that the shares of the other two permanent members of the Security Council are somewhat smaller: China (3.189%) and Russia (1.602%). The same can be said of other European states, such as Austria (0.851%), Belgium (1.075%), the Netherlands (1.855%) and Switzerland (1.130%). Many developing countries contribute 0.001% (Belize, Bhutan, Burundi, Cape Verde, Central African Republic, Comoros, Djibouti, Dominica, Eritrea, Gambia, Grenada, Guinea-Bissau,

Compulsory contributions of the Member States   435 Guyana, Kiribati, Kyrgyzstan, Laos, Lesotho, Liberia, Malawi, Maldives, Marshall, Mauritania, Micronesia, Nauru, Palau, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Sierra Leone, Solomon, Somalia, Timor-Leste, Togo, Tonga, Tuvalu and Vanuatu). Consequently, very few countries (primarily the United States, covering almost a quarter of the budget) allow the Organization to work from the financial point of view. For the share of the financial contribution of each Member State, see . Article 17 partially takes up Article 6 of the Covenant of the League of Nations, which merely provide that “the expense of the League shall be borne by the Members of the League in the proportion decided by the Assembly”. At Dumbarton Oaks the text of Articles 17 and 18 was followed, while a U.S. proposal to refer the approval of the budget to a weighted majority was rejected by the Allies. At San Francisco was proposed and accepted the automatic sanctioning mechanism of Article 19, in order to deal with the problems with the delays in payment at the time of the League of Nations. Concerning the States in arrears in the payment of financial contributions, see . On May 28, 2015 the following five countries were in arrears: Comoros, Guinea-Bissau, Sao Tome and Principe, Somalia and Yemen. With Res. 69/4 of October 9, 2014, the General Assembly admitted the first four States to the vote for the current session, while Yemen is excluded from the vote.

Given that the States have the duty to contribute to the “expenses” of the Organization as decided and allocated amongst the Member States of the General Assembly, it is worth wondering if the Assembly meets any limits to its power to claim from the States—like, mutatis mutandis, the taxing power of  states over the individuals—their contribution to the funding of the Organization. What “expenses” are covered by the obligation to contribute? In other words, what is meant by “expenses” that must be apportioned among the members under Article 17 of the Charter? The problem is of central importance because Member States tend to react to decisions that require them to contribute to the costs they consider, rightly or wrongly, not covered by Article 17 by refusing to pay their contribution and thus causing, in the most severe cases, a danger to the survival of the Organization itself, which cannot carry on existing without financial resources. The question was dramatically discussed in the United Nations between 1961 and 1965, when several countries refused to contribute (for reasons that were not economical but rather political) to UN expenses for the maintenance of UNEF (the Force established by the General Assembly in 1956) in the Middle East (see § 65) and of ONUC in the Congo (see § 60), expenses that were to be apportioned by the Assembly. These countries—among them, the Soviet Union, numerous other Socialist States, and France—held that their refusal was legally grounded, i.e. that it was based on Article 17 of the Charter, both because it was not a matter of ordinary but of extraordinary expenses, and as such not covered by Article 17, and that at least some of the resolutions that led to the expenses, specifically the Assembly decisions establishing UNEF, were illegal owing to the organ’s alleged lack of competence (see § 65), and

436  The Functions

finally also because by giving the Assembly the power to decide upon and then to allocate any kind of expense, one would have to recognize its functions as a world super-government, in clear contrast with its nature of an organ competent only to make recommendations, apart from the decisions on the budget. Their refusal to contribute was maintained despite censure by the majority in the Assembly, despite the threat of recourse to Article 19 on the suspension of voting rights of members in arrears, and despite the Advisory Opinion of July  20, 1962 of the International Court of Justice, issued at the request of the  Assembly and clearly unfavorable to the view of the contesting States. Moreover, in the end, they substantially were victorious when, to end the dispute which even seemed to be threatening the existence of the Organization, the Assembly, which nearly had not held a session in 1964 so that Article 19 would not have to be applied, unanimously decided that the expenses for UNEF and ONUC would be covered by voluntary contributions (resolution of September 1, 1965). The 1965 decision marked a turning point of great importance in the life of the Organization in that it caused the final loss of any illusion about the possibilities of the UN to assert its authority over individual Member States. In some other cases the refusal to contribute has occurred with regard, however, to expenses that were not so conspicuous. This is the case, for instance, of the refusal, maintained for a number of years by the Soviet Union and by other Socialist States, to participate in the expenses for the coining of medals in memory of the Korean War or the maintenance of war cemeteries in Korea, a refusal justified by the illegality of the decisions on which the Korean War was based (see § 65). In turn, the United States have always refused to contribute to the expenses of all treaty body activities, i.e. activities of organs created by treaties promoted by the United Nations and certainly not characterized by an institutional link with the United Nations system. Reductions or selective withholdings of a more substantial nature have been occasionally decided by the United States, the major contributor to the UN budget, for political rather than legal reasons and particularly in order to exert pressure so that some reforms of the Charter would be introduced, like, for instance, the changing of the voting system within the General Assembly. With regard to the expenses for UNEF and ONUC, the position of the States that challenged the Assembly resolutions regarding their apportionment (the Soviet Union, the Socialist States, France and some Latin American and Afro-Asiatic countries) can be deduced from their official statements made in the Assembly, some of which date from 1957, the year after the establishment of UNEF. Cf., for example, GAOR, 11th sess., 5th comm., 545th meet. ff., especially 555th meet., no. 20; 15th sess., 5th comm., 803rd meet., no. 39 ff., no. 53 ff. and Pl. meet., 960th meet., no. 93 ff. and 122 ff.; 16th sess., Pl. meet., 1086th meet., no. 138 ff., no. 153 ff., 184 ff.; 17th sess., Pl. meet., 1199th meet., no. 54 ff.; 4th spec. sess., 1205th meet., no. 118. Cf. also the USSR memorandum presented to the

Compulsory contributions of the Member States   437 International Court of Justice during the procedure for the issuance of an Advisory Opinion on July 20, 1962, in ICJ, Pleadings (Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter)), 1962, p. 271 ff., and the remarks of the French Government before the Court (ibid., p. 130 ff.). For the cited Opinion of July 20, 1962 of the International Court of Justice, see ICJ Reports 1962, p. 151 ff. The Assembly resolution of September 1, 1965, which put an end to the matter, was taken in the form of approval of a statement by the President (contained in the report of the “Special Commission for operations relating to maintenance of the peace”), and can be found in GAOR, 19th sess., Pl. meet., 1331st meet. It is a resolution that does not come within the framework of Charter norms and which can better be seen as an agreement between States (cf. Benedetto Conforti, La funzione dell’accordo nel sistema delle Nazioni Unite, Padova, 1968, 143 f). For the refusal of the Soviet Union and of the other States to contribute to the expenses for Korean War cemeteries, cf. Benedetto Conforti, La funzione dell’accordo, cit., p. 109. The practice concerning the United States is reported in Elisabeth Zoller, ‘The “Corporate Will” of the UN and the Rights of the Minority’, 81 AJ (1987), pp. 610–34, and Sean D. Murphy, ‘Contemporary Practice of the United States Relating to International Law: Payment of UN Arrears to the UN’, 94 AJ (2000), pp. 348–50.

What, then, is the exact content of Article 17? What are the “expenses” covered by Article 17? To refer to the most striking case, that of expenses for UNEF and ONUC, did the claims (which succeeded on the political level) of the Soviet Union, France and the other States not to contribute to these expenses have a legal basis? In seeking an answer, it is useful to start with the cited Opinion of July 20, 1962 of the International Court of Justice. On two points the Opinion should certainly be welcomed. The first is that Article 17, in speaking of the UN budget and expenses, does not mean to refer only to expenses of ordinary administration, i.e. salaries and allowances of staff members and the maintenance of offices. As the Court correctly notes (ICJ Reports 1962, p. 159), if the Charter wanted to distinguish in general between ordinary activities and extraordinary activities, between “administrative” budget and “operational” budget, it would have had to explicitly say so, and it would also have had to establish precise rules on the adoption of the second type of budget and the apportionment of the relative expenses. This is all the more true in that the distinction between administrative budget and operational budget is not unknown to the Charter, which assumes this distinction in Article 17, at para. 3, in connection with the expenses of the specialized Agencies. On the other hand, the San Francisco preparatory work shows no trace of a limitation of Article 17, paras. 1 and 2, to the administrative budget. The Conference discussed only whether it was preferable to speak of “budget” or “budgets” but in relation to the existence of a separate budget of the International Court of Justice in addition to the UN budget (cf. U.N.C.I.O., vol. 19, p. 43 f. and 62, and vol. 20, p. 395). In conclusion, all that can be said is that from Article 17 there can be excluded only those expenses for which it can be proven that in a special Charter provision a special source of financing is

438  The Functions

indicated. This is the case of technical assistance programs and, more generally, of operational activities for development, coming under Article 66, para. 2 (see § 74). In this case the more specific provision of the Charter, and its funding source, prevails over Article 17 and the obligation to contribute. The other point on which it would be impossible to differ with the Court (ICJ Reports 1962, p. 165 ff.) concerns the absence in the UN Charter of special provisions which, similar to the above mentioned provision on economic cooperation, derogate from Article 17, with regard to the specific function of maintenance of the peace. No merit, in fact, can be seen in the opinion, tenaciously defended before the Court by the Soviet Union and the other Socialist States, that the financing of international armed forces comes within the framework of Article 43 and not of Article 17 of the Charter, thereby falling within the scope of the contents of the agreements to be entered into between the Security Council and the Member States under this article. Aside from the fact that the founders of the UN, in contemplating such agreements, essentially intended to deal with the military aspects of the Council actions for maintenance of the international order rather than the financial aspects, it would be clearly contrary to the spirit of the Charter and of the collective security system to say that the principal function of the UN, which is that of maintenance of the peace, should be constrained, from the financial viewpoint, within the limits (in terms of number and content) of the agreements envisaged by Article 43. This view is all the more untenable to-day in that Article 43 has never found application (see § 60). If, up to now, the Opinion of the Court can be agreed upon, it cannot be accepted the extreme conclusion it reaches, according to which the Assembly would have a nearly unlimited budgetary authority (power of assessment) under Article 17. In its view, indeed, the Assembly could apportion any expenditure, as long as it involved action coming within the purposes of the Charter. In our opinion, this conclusion is unacceptable Such a conclusion appears excessive. The purposes of the UN, under Article 1, virtually are all-encompassing, ranging from maintenance of the peace to international co-operation for solving economic, social, cultural and humanitarian problems. Faced with such hard to pinpoint purposes, according to what the Court has stated, the Assembly or any other UN organ could decide to undertake initiatives, committing, without any restraint, the economic resources of the Member States. Would not this situation amount to realizing a world super-Government which is not recognized by the Charter, nor could it in any way be envisaged as things stand today? On this part of the Advisory Opinion, which thus upholds the illegality of refusing to contribute the Court uses the argument that relies on the purposes of the Organization to reach the conclusion that the refusal to contribute to the expenses for UNEF and ONUC,

Compulsory contributions of the Member States   439 since both missions fall within the scope of the UN, was legitimate (cf. ICJ Reports, cit., pp. 167–170). The Court referred, in particular, to the theory of implied powers (see § 5). After affirming that the Organization’s expenses under Article 17, “must be tested by their relationship to the purposes of the United Nations”, it gives the UN the power to take any measure, and to make any expenditures, necessary for fulfilling these purposes (“… when the Organization takes action which warrants the assertion that it was appropriate for the fulfillment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires”).

In our opinion, the expenses the members have to contribute to on the basis of Article 17 are only those that are generated by activity that has been legally decided upon, that is, by activity specifically foreseen by the Charter. In other words, the obligation to contribute exists with regard to all expenditures, as long as the decisions of the Assembly, the Security Council and the other UN organs whose implementation generates such expenditures are fully legal. This can be evinced from the very fundamental concept that UN organs are bound by the rule of law that requires full observance of the Charter (see § 7 and 97). It should be noted that because legality is nothing more than compliance with the Charter and the content of the Charter is the result of its interpretation, the point that distinguishes our contention from that of the Court is that we reject the application of the theory of implied powers to derive powers directly from the goals, rather than by explicit powers, as set by the Charter. In this case, the Court argued that the missions UNEF I and ONUC were legal, so its position might not seem ultimately different from ours; however, we hold that at least UNEF was actually illegal and the legitimacy of the ONUC was in fieri (see § 60). If the obligation to contribute is conditioned by the legality of the decisions which generate the expenses, as delimited without drawing implied powers from the generic purposes of the Organization, the Assembly’s power to assess is brought within tolerable limits that are coherent with the structure and the functions of the Organization. It should be remembered in fact that resolutions able to generate large expense are only those that can be classified as “operational”, that is, the resolutions in which the United Nations decides to undertake actions (see § 94). By contrast, resolutions of a normative character, such as recommendations and binding decisions, do not have this capacity. Such resolutions, recommending conduct or imposing conduct on the States, do not certainly place economic problems on the UN, apart from those simply relating to the meeting of the organ and its deliberations. Even a superficial study of the Charter reveals that the power of UN organs to undertake actions is very exceptional with respect to the power to issue resolutions of a normative nature, especially recommendations. The UN is an entity whose fundamental task is to provide norms for the States, and not to take action. Besides, this is the reason why the drafters of Article 17 did not think about d ­ istinguishing

440  The Functions

between ordinary and extraordinary expenses, between administrative and operational expenses, and so on: the UN was devised as a deliberative entity, rather than an operational one. However, this is also the reason why, without prejudice to the obligation to contribute to expenses in the few cases involving the operational actions envisaged by the Charter (especially as in the case of investigation under Article 34, of peacekeeping actions under Chapter VII and of visits to territories under trusteeship under Article 87), it cannot be said that an organ’s action is legal if the relative power has not been explicitly given to it by the Charter provisions or is not however implicitly derivable from specific express powers (rather than from general purposes) of the Organization, or does not ensue from customary norms firmly established in the practice of the Organization; nor is it possible to infer the power to take action from the power to make recommendations, at least where its exercise involves considerable financial consequences. Besides operational resolutions, the only other decisions able to generate expenditure are the “organizational” resolutions, specifically those establishing organs and thus involving the necessity of financing their functioning (on organizational resolutions, see § 93). However, particularly when such resolutions are not accompanied by operational decisions, that is, when the organ has not been established to undertake actions, it is usually a matter of expenses of normal administration and of limited size.

Coming back to the refusal of the Soviet Union, France and other States to contribute to the expenses for UNEF and ONUC, the case was to be judged in the light of these considerations. The refusal had a legal basis in the UNEF case, given the lack of competence of the Assembly to undertake military actions and therefore given the illegality of the relative resolutions (see § 65). In the case of the ONUC, the Mission was a manifestation of the practice (albeit illegitimate at the time) thus justifying the refusal to contribute to the associated costs, which would give rise at a later date to an ad hoc customary norm that came into being to integrate Chapter VII of the Charter (see § 60). It is indicative that although the International Court of Justice in the above Opinion had adopted the theory of implied powers as decisive in the case brought before it, it felt the need to undertake an in-depth investigation to establish whether the resolutions setting up UNEF and ONUC were in conformity with the specific Charter provisions on maintenance of the peace. The Court took care to make it known that it wanted to undertake this investigation only ad abundantiam, when that was really what it was called upon to do. For this part of the Opinion, cf. ICJ Reports, cit., p. 170 ff.

The subsequent practice concerning the setting up of peacekeeping forces, forces now always set up by the Security Council and never by the General Assembly, has clearly tended, undoubtedly also as a result of the Court’s Opinion that brought UNEF I and ONUC back under the purposes of the

Compulsory contributions of the Member States   441

Charter, to be that the relative expenses (which, incidentally, are so enormous as to sometimes go over the total amount of the ordinary budget) must be apportioned in accordance with Article 17. The only peculiarity of the apportionment is that it must be done through “special accounts” and with criteria somewhat different from those adopted for ordinary expenses, not excluding the possibility of larger contributions of a voluntary nature. Since the forces have been legally created, this practice must certainly be considered as well-founded. The Assembly began deciding that apportionment should be on the basis of Article 17 when the Security Council set up UNEF II in 1973 and UNDOF in 1974 (see § 60). Cf., for example, Assembly Resolutions 3101-XXVIII of December 11, 1973, 3211-XXIX B of November 29, 1974, 3374-XXX B of November 28, 1975, 31/5 C of December 22,1976 and 32/4 B of December 2, 1977. Acceptance of the principle of an obligatory contribution  under Article 17 was also pointed out, with regard to UNEF II, in an opinion of the  Secretariat of October 23, 1974, published in UNJY, 1974, p. 159 ff. For the more recent  practice, cf., for example, the following Resolutions, again of the Assembly, 47/71 of December 14, 1992 (UNOSOM), 47/204 of December 22, 1992 (UNDOF), 47/205 of  December 22, 1992 (UNIFIL) and 47/210 of December 22, 1992 (UNPROFOR). All these resolutions confirm, in their preambles, that the expenses for the Force to which they refer are to be considered as expenses of the Organization in accordance with Article 17, that the developed countries, considering their financial capacity, must sustain greater expenses than the developing countries, and that it is important that voluntary contributions be made. Ever since UNEF the Assembly has followed the practice of establishing a “special account”, outside the normal budget for each operation in order to allow a more flexible financial management (necessary when, as in peacekeeping operations, a rigid forecasting and financial planning is very difficult) and a different division (less burdensome for the States in development) of the percentage of contributions of Member States compared to that used for ordinary expenses (see Res. 1122-XI of November 26, 1956, in addition to those already cited above regarding the operations imposed by the Council). The separate accounting for the regular budget has been partially followed also for the two ad hoc International Criminal Tribunals for the former Yugoslavia and for Rwanda (see § 62), although Article 32 of the Statute of the Tribunal for the former Yugoslavia provides that the costs for the Tribunal are borne by the United Nations regular budget (see Resolutions 47/235 of September 14, 1993 and 49/251 of July 20, 1995). The extraneity of the “special accounts” to the regular budget poses an internal problem of qualification of the missions established by the Security Council, particularly among the missions of peacekeeping and those known as “special political missions”, the first accounted for separately and the second included in the regular budget. Normally it is the Council to determine to which category belongs to the mission in question and the Assembly approves without interfering on the point. It happened, for example, with MINUCA in Côte d’Ivoire, initially held by the Secretary-General to be a peacekeeping mission and then reclassified as a “special political mission” following an exchange of letters between the Secretary-General and the Security Council (Doc. A/C.5/58/12, of October 30, 2003), which then explicitly reaffirmed in the second classification in Res. 1514 of November 13, 2003 renewing the mandate (cf. Res. 58/275 of December 12, 2003 for the approval of the Assembly). An exception to the application of Article 17 are the expenses of UNFICYP (see § 59) which, having been set up in 1964, when the protest over the expenses for UNEF I and

442  The Functions ONUC were still going on, was and still is today financed by voluntary contributions and by contributions of the States providing the armed contingents (cf. Res. 186 of March 4, 1964).

Finally, as far as reductions and selective withholdings in the United States practice or in the practice of other States are concerned, they can be considered admissible if grounded on legal reasons and inadmissible if not. It has been convincingly held (Francioni) that even withholdings legally grounded should be assisted by the good faith of the opponent and a principle of consistency according to which he opponent soul not be in contradiction with its previous behavior. In conclusion, the refusal to contribute to expenses is to be evaluated in the same way as any challenge to the legality of an Assembly decision, a challenge which, since the UN does not have suitable means for compelling a State to fulfill its obligations, may be smoothed out only by agreement or by acquiescence (see § 99). It also should be noted that, since the States are usually in arrears with their payments (arrears which, as can be deduced from Article 19, can legally arrive at an amount equal to two years of contributions), the amounts that are the subject of the refusal usually coincide with the arrears. The arrears, moreover, are a real plague for the Organization’s finances, as can be seen from the repeated appeals of the Secretaries-General that the States make their payments on time. The problem is exacerbated today by drastic budget cuts in practically all States, including the developed countries, due to the pursuit, among other things, of excessively neo-liberist policies and the grave economic and financial crises currently taking place across the globe. 89.  Voluntary contributions A proportion of funding comes from voluntary contributions of States. The decision to proceed on a voluntary basis, in addition to mandatory contributions under Article 17, depends on the capacity that donor States then have to control both the effectiveness and efficiency that the political orientation latu sensu of the funded entities and possibly decide at any time to reduce or stop contributions. Voluntary contributions of States, or also of entities different from States, may be provided for, explicitly or implicitly, by particular norms of the Charter, as occurs for operational activities in the area of economic co-operation (see § 74). They may also be requested by the Organization both to enlarge funds already established with obligatory contributions, as occurs in the case of peacekeeping operations (see § 86) and to finance activities that are related to the Charter’s purposes, as in the instances of the frequent fund-raising events promoted by the UN for humanitarian purposes.

Issuance of loans and other “alternative” funding methods   443

Nothing prevents a UN organ, in adopting an operational resolution likely to create expenses under Article 17, from making its application dependent on financing through contributions that are either voluntary or previously assessed. This was the position taken by the Security Council immediately after the experience of the protests against ONUC expenses, with regard to peacekeeping actions, and specifically in the case of the UN Force in Cyprus, established in 1964. The resolution which set up UNFICYP (see § 87) and the resolutions that have renewed its mandate over the years have been taken after the necessary funds had been secured. On the contrary, as it was seen, in other cases of the establishment of forces by the Security Council Article 17 has been applied. The possibility of funding through voluntary contributions is explicitly provided for by Article 3.11 of the Financial Regulations, which gives the Secretary-General the power to accept them if they are compatible with the purposes and activities of the Organization.

90.  Issuance of loans and other “alternative” funding methods Sometimes the Organization has turned to the financial market. It is the case, for example, of Assembly Res. 1739-XVI of December 20, 1961, which authorized the Secretary-General to issue a certain number of UN bonds and Res. 1878 S-IV of June 27, 1963, which extended the term for their sale. The issue was decided to fill the deficit caused by the refusal of the Soviet Union, France and other States to contribute to the costs of UNEF I and ONUC, mentioned above. These were bonds totaling 200 million US dollars producing a 2% interest to be purchased by Member States, specialized institutions and, upon approval of the Secretary-General, from private individuals. The initiative met with the opposition of the Soviet Union, which declared that it would not contribute to the payment of interest and equity of the bonds, as well as that of other countries and was denounced as contrary to Article 17 which foresees only the contributions of Member States as income. Indeed, this view, in the light of the lack of basic norms in the Charter and in the Financial Regulations of the Organization, does not seem to be completely unfounded. For the opposition to the issuing of bonds, see GAOR, 16th sess., Pl. meet., 1086th meet., no. 235 ff.; 4th sp. sess., Pl. meet., 1205th meet., no. 73, 118 and 129. For the opposition of the Soviet Union, in particular, cf. 4th sp. sess., Pl. meet., 1205th meet., no. 88 (c); 25th sess., 1970, Pl. meet., 1933rd meet., no. 19 f.; 26th sess., 1971, Pl. meet., 2031st meet., no. 43 f.; 28th sess., 1973, Doc. A/PV 2206; 31st sess., 1976, Pl. meet., 107th meet., no. 104 f.

Of some significance are the contributions of private donors. For example, the Rockefeller family donated the land on which the United Nations building in New York was built, the magnate Ted Turner donated a billion dollars to

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finance programs for child health, women’s rights and sustainable development in terms of environmental protection; Bill Gates has made donations for the care of AIDS, malaria and other diseases. Contributions were also offered by national and multinational corporations (MNCs). It is to be noted that while in the past the UN system was hostile to MNCs, in recent years it has actively engaged in bringing business organizations and MNCs into, and partly even in funding, its work. Former Secretary-General Kofi A. Annan launched in July 2000 the “Global Compact” with a view to aligning business strategies with ten universally accepted principles in the areas of human rights, labor, environment and anti-corruption (cf. ). Needless to say that private funding, despite tending to make the UN less dependent on contributions from Member States, make it more dependent on multinational companies and it is difficult to determine which of the two risks is greater for the action and the credibility of the Organization. Other financing methods, discussed in recent years and intended to make the UN less dependent as much on the States as on private individuals, have concerned the imposition of new forms of global taxation. This was discussed in particular at the International Conference on Financing for Development in Monterrey in 2002 (see § 73), whose results have been taken and analyzed by the General Assembly (cf. Res. 60/188 of February 17, 2006 and Res. 64/193 of December 21, 2009). Among the proposals it is worth mentioning the currency transaction tax, a tax on speculative financial transactions on the model of the so called Tobin tax (named after Nobel Prize economist who propounded it in 1972), the carbon tax, a tax on consumption of fossil fuels weighed on to the emissions of carbon dioxide, and other types of taxes on air travel, luxury tax, on arms in connection with the Register of Conventional Arms (see § 61), and so on. These proposals are certainly interesting, but their realization seems remote, especially at a time when the privatization of public services and the election promises of cuts to taxation dominate the global economy.

Chapter Four The Acts 91.  Recommendations to the States select bibliography: F. Blaine Sloan, ‘The Binding Force of a Recommendation of the General Assembly of the UN’, 25 BYB (1948) 1–33; Hersch Lauterpacht (separate opinion in the ICJ’s Advisory Opinion of June 7, 1955 concerning the Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa), in ICJ Reports (1955) 115–22; D.H.N. Johnson, ‘The Effects of Resolutions of the General Assembly of the UN’, 32 BYB (1955–56) 97–122; Michel Virally, ‘La valeur juridique des recommandations des organisations internationales’, 2 AF (1956) 66–96; Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice’, 34 BYB (1958) 1–161; Antonio Malintoppi, Le raccomandazioni internazionali (Milano: Giuffrè, 1958), esp. Chapter 3; Rolando Quadri, ‘Commento art. 5’, in Commentario al trattato CEE di Quadri, Monaco e Trabucchi (Milano: Giuffrè, 1965), vol. 1, 51–6; Ingrid DeLupis Detter, Law Making by International Organization (Stockholm: Norstedt, 1965) 207 ff; Alex C.  Castles, ‘Legal Status of UN Resolution’, 3 ALR (1967) 68–83; Massimo Panebianco, ‘Raccomandazioni delle Nazioni Unite e libertà degli Stati membri’, ADI (1966) 268–90; Lino Di Qual, Les effets des résolutions des Nations Unies (Paris: Libraire générale de droit et de jurisprudence, 1967) 109 ff; Christoph Schreuer, ‘Recommendations and the Traditional Sources of Int. Law’, GYIL (1977) 103 ff; Ernesto J. Rey Caro, ‘La competencia legislativa de la Asamblea General de las Naciones Unidas. Efectos juridicos de las Resoluciones’, 5 ADerI (1979) 111 ff; Hubert Thierry, ‘Les résolutions des organes internationaux dans la jurisprudence de la Cour International de Justice’, 167 RC (1980-II) 385–450; Krzysztof Skubiszewski, Rechtscharakter der Resolutionen der Generalversammlung der Vereinten Nationen, V Deutschpolnisches Juristen-Kolloquium (Baden-Baden: Nomos-Verl.-Ges., 1981), vol. 2, 13 ff; F. Blaine Sloan, ‘General Assembly Resolutions Revisited (Forty Years Later)’, 58 BYB (1987) 39–150; Dino Rinoldi, ‘Atti delle Organizzazioni internazionali’, 3 EGT (1988) 1–39; Remigiusz Bierzanek, ‘Some Remarks on “Soft” International Law’, 17 PYIL (1988) 21–40; Alessandra Lang, Le risoluzioni del Consiglio di Sicurezza delle Nazioni Unite e l’Unione europea (Milano: Giuffrè, 2002); Marko Divac Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’, 16 EJIL (2005) 879–906; Marco G. Monroy Cabra, ‘Valor jurídico de las resoluciones de las organizaciones internacionales’, in Germán Cavelier Gaviria and Ricardo Abello Galvis (eds), Derecho internacional contemporáneo: lo público, lo privado, los derechos humanos (Bogotá: Ed. Universidad del Rosario, 2006) 139–59; Diana C. Olarte Bácares, ‘Las resoluciones de la ONU: ¿flexibilización de la teoría de la fuentes del derecho internacional?’ ibid., 160–73; Cheong-Ann Png, ‘International Legal Sources II: The UN Security Council Resolutions’, in William Blair and Richard Brent (eds) Banks and Financial Crime: The International Law of Tainted Money (Oxford: Oxford University Press, 2008) 61–86; Jan Klabbers, ‘Reflections on Soft International Law in a Privatized World’, 16 FYIL (2008) 313–28; Salem Hikmat Nasser, Sources and Norms of International Law: A Study on Soft Law (Glienicke/Berlin: Galda and Wilch Verl., 2008); Mauro Barelli, ‘The Role of Soft Law in the International

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Legal System: The Case of the United Nations Declaration on the Rights of Indigenous Peoples’ 58 ICLQ (2009) 957–84; Timothy Meyer, ‘Soft Law as Delegation’, 32 FoILJ (2009) 888–942; Vassilis Pergantis, ‘Soft Law, Diplomatic Assurances and the Instrumentalisation of Normativity: Wither a Liberal Promise?’ 56 NILR (2009) 137–166; Vassilis Pergantis, ‘Soft Law, Diplomatic Assurances and the Instrumentalisation of Normativity: Wither a Liberal Promise?’ 56 NILR (2009) 137–66; László Blutman, ‘In the Trap of a Legal Metaphor: International Soft Law’, 59 ICLQ (2010) 605–24; Christine M. Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’, in Asif H. Qureshi and Xuan Gao (eds), International Economic Law. General International Economic Laws: Theory and Fundamental Concepts (New York, Routledge, 2011) vol 1, 140–56; Marko Divac Öberg, ‘The Legal Effects of United Nations Resolutions in the Kosovo Advisory Opinion’, 105 AJ  (2011) 81–90; Fabián A. Cárdenas Castañeda, ‘A Call for Rethinking the Sources of International Law: Soft Law and the Other Side of the Coin’, 13 AmexDI (2013) 355–403; Alan E. Boyle, ‘Soft Law in International Law-Making’, in Malcolm D. Evans (ed), International Law (Oxford, Oxford University Press, 2014, 4th ed) 118–36; Fleur E. Johns, Non-legality in International Law: Unruly Law, Cambridge, Cambridge University Press, 2013.

As it has been often noted, a recommendation is the typical act that the organs of the United Nations (and of international organizations in general) have the power to issue. A recommendation is not binding and specifically does not bind the State (or the States) to which it is directed, to conform to the conduct that has been recommended. There remains the question of asking whether recommendations produce some minoris generis legal effects or no legal effects at all. The question has already been partially dealt with in relation to authorizations of the Security Council to use force (see § 61). It might be recalled that recommendations differ from authorizations because they merely urge States to engage in a lawful behavior. It was also mentioned that recommendations or “invitations” to behave in a manner otherwise unlawful, in order to make the behavior lawful, are nothing but an authorization with an exhortation to keep the authorized conduct. This is the case of Council Res. 221 of April 9, 1966, which after having reiterated the appeal made in previous acts (Resolutions 216 of November 12, 1965 and 217 of November 20, 1965) to all States to do their best to implement the sanctions decided against Southern Rhodesia, including the embargo on oil and petroleum products, and after noting that significant oil supplies continued to reach Southern Rhodesia through the port of Beira (Mozambique), “calls upon…and empowers” (“prie…et habilite”) the United Kingdom to prevent “by the use of force if necessary” (“au besoin par la force”) the arrival at the port of Beira of oil destined to proceed overland to Rhodesia. Therefore, Res. 221 not only exhorted the United Kingdom to intervene, but it authorized it to do so, on the basis that the intervention, in itself unlawful, would have been considered lawful. Actually, in the days prior to the resolution British authorities had searched the Greek ship Joanna-V on the high seas, off the coast of Beira. This had met very strong opposition on

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the part of the Greek Government in that it was contrary to general international law rules on maritime navigation. When, however, after the Council resolution had been adopted, a second Greek ship, la Manuela, was stopped and searched, there were no protests from the Greek Government. For an account of the events, see RGDIP (1967) 472 ff.

A case of mere recommendation, not involving an authorization, seems to be that of Res. 83 of June 27, 1950, adopted by the Security Council “recommending” Member States to give the Republic of Korea the necessary assistance in order to repel the armed attack suffered and to restore international peace and security in the region. In this case, a collective reaction was probably already permissible under collective self-defense in accordance with general international law and the sole purpose of Res. 83 was precisely to urge States to intervene, given that response in self-defense is an option, not an obligation, for the States. In particular, it does not appear that the sentence “restore international peace and security in the area”, in Res. 83, can be invoked in favor of its classification as an authorization, considered as having a further and wider purpose of that available through collective self-defense, since it merely is an end coinciding with the repulsion of the attack. Least of all can it be considered sufficient for this purpose, the “authorization” in Res. 83 to use the UN flag, as this is a symbolic reflection of the fact that the Council endorsed, in fact just recommended, the reaction. The same could be said of Res. 2249 of November 20, 2015 concerning ISIS, as clarified above (see § 61). That said, is it possible to argue that the “legalizing” effect of authorizations also applies to recommendations, or at least to some of them? Is it possible, to be more accurate, to claim that all recommendations adopted by international organs, or at least some of them, are nothing but authorizations? It seems first of all that the “legalizing” effect, i.e. its authorizing nature, cannot be accepted for all international recommendations. If it is taken into account that a recommendation is an act typical of the existing international organizations and that a large number of them is adopted in any field and for the most different purposes, but always and only to urge States, if they wish, to behave accordingly, such a view seems difficult to prove and hardly supported in the practice. It is true, on the one hand, that in theory the legalizing effect could be inferred from the obligation to co-operate that Member States have undertaken in joining the founding treaties and from the power given to international organizations to pursue, even through non-binding acts, general ­purposes, understood as a waiver by individual States to denounce the inconsistency of the recommended conduct with rules other than those of the treaty establishing the organization. But, on the other, it is also true that from the obligation to co-operate the most various consequences can be drawn and that the elements to prove that from it, and only from it, derives a legalizing effect are missing. Even within the UN alone it seems unsafe to hold that ­recommendations of any organ produce a legalizing effect and that they are

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e­ quivalent in substance to authorizations. The General Assembly itself, as seen above, does not have the power to authorize the use of force (see §§ 65 and 66). All that could be said in the past, when the distinction between recommendations and authorizations was actually blurred, as is today the distinction between authorizations and delegations (see § 61), is that the recommendations of the Security Council alone were equivalent to authorizations. So understood, the legalizing effect was still to be accepted only in the relationship between Member States and only with regard to legal recommendations, that is, as we shall see, only against the acquiescing Member States (see § 99). The fact is that today the Council purposely uses the term “authorize”—going beyond what is explicitly provided by the Charter—when it intends to “legalize” an otherwise illegal behavior and give a legalizing effect to one of its acts. It is worth noting that the legalizing effect derived from authorizations, or from those r­ecommendations which are essentially authorizations in nature, is produced because it is ultimately supported by the generality of States, not just by the Security Council, i.e. a restricted group of fifteen States. One cannot help but observe in this regard a widespread instrumental misuse of the “UN legality” invoked by this or that State, and often also in legal doctrine, to cover up for veritable unlawful acts that the international community as a whole considers as such and does not justify, not even assuming the endorsement of the Security Council (a support often obtained by indirect means, as already noted in connection with implicit and ex post authorizations to use force).

Authorizations stricto sensu aside, to recommendations have been attributed some effect minoris generis—different from both a binding effect and from the legalizing effect—, in particular, the obligation of the State addressed to take its content into consideration in good faith. In particular, it has been held (Lauterpacht) that good faith obligates a State that does not intend to comply with the act to explain its reasons. This view is to be shared, and it can be grounded in the duty to cooperate inherent to the Charter. In providing that any obligations assumed in accordance with the Charter must be fulfilled in good faith, Article 2, para. 2, confirms its positive value. It could perhaps more precisely be said that the State to whom a recommendation is addressed (­provided that it is a Member State of the UN) must accept the debate on its “merits”, and it must intervene and explain, again regarding the merits, the reasons for its non-compliance. In short, it must agree to participate in the broadest discussion of the subject. No one can deny the importance of an obligation of this kind in a system like that of the UN, especially in organs such as the General Assembly and the Security Council, where most of the issues dealt with have a political nature and the discussion stage sometimes may have more importance than the decision stage. Some scholars hold that the behavior of a State is unlawful when the State systematically refuses to observe a number of recommendations. Also this view is based on the principles of good faith and of cooperation. It is however

Recommendations to the States   449

untenable in that neither principle can be used up to the point of subverting the nature that the Charter gives to the act, that is to say, up to the point of making the recommended behavior obligatory, even after a certain period of time and a certain number of resolutions. A view that was rather widespread in the past but is somewhat less so today, as the result of the fact that recommendations, especially those of the General Assembly, are ever more used for one-sided purposes, is the one which appeals to the “moral” or “political” authority of the act. It could be objected that this authority can also be conferred, as has happened in the practice, on a “nonexistent” resolution, that is, to a draft resolution that did not, by a narrow margin, succeed in obtaining the majority required by the Charter. Examples of appeals to moral authority can be found in Security Council practice, with regard to resolutions that had wide support but were blocked by a veto. For example, in 1946, France and the United Kingdom stated that they would have complied with the will of the majority favorable to a plan for the withdrawal of French and British troops from Lebanon and Syria even if the majority had not been sufficient in order to formally adopt the resolution (cf. SCOR, 1st year, 23rd meet., p. 368)). In 1964 Malaysia stated it “agreed to” a Council resolution concerning the Malaysian-Indonesian dispute, not adopted owing to a Soviet veto (cf. SCOR, 19th year, 1152nd meet., no. 102 ff.). In 1980 the President of the United States, Carter, in ordering sanctions against Iran to react to the illegal detention of American citizens in the American Embassy in Tehran, appealed to draft resolution S/1373, approved by ten members of the Council but blocked by the veto of the Soviet Union (cf. Michael Reisman, ‘The Legal Effect of Vetoed Resolutions’, in AJ (1980), p. 905). Also the draft resolution on the United States’ failure to implement the Judgment of the International Court of Justice of June 27, 1986 in the Nicaragua case can be cited. The draft was not adopted by the Security Council on October 28, 1986 because of the United States veto, although it had obtained 11 favorable votes and three abstentions (of France, the United Kingdom and Thailand). On that occasion the United Kingdom stated that the resolution was to be held well-founded in law (in fact, Article 94 provides for the Council’s competence to take the necessary measures so that the decisions of the Court are carried out), but that it was not “politically” expedient (cf. S/PV.2718).

It is worth emphasizing that the hortatory nature of recommendations— and more generally of so-called soft law—is far from insignificant in international relations. The hortatory function of recommendations should not be seen as a pure and simple “entrustment” of the international organs of an improbable “good will” of States. The point is that in the absence of a world authority superior to the States it is of the utmost importance for each State, and for other international organs—as has been said about the meaning the Security Council may assign to the phrase “threat to the peace” in Article 39, taking into account the acts of the General Assembly and of other international organs (see § 56)—to know what behavior is approved and even s­ olicited, rather than condemned, by the generality of the States without materializing into a positive rule, p ­ ossibly because of the resistance of one or a few more powerful States.

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All attempts to assign a legal status to recommendations are evidently based on the idea that weaker States, which hold the majority after decolonization in the organs of international organizations and largely determine the number and content of the recommendations adopted, should play a more significant role in the formation of international law. The idea is to share, but avoiding the other extreme, to make international law a container of any kind of demand, which would, once again, inevitably favor the strongest States. The most important role of recommendations, in fact, lies not so much in the production of legal effects, possibly minoris generis, as in the impetus they give to the transformation of international law in a manner more consistent with the values and interests shared by the community of all States and their peoples. 92.  Decisions select bibliography: F. Blaine Sloan, ‘The Binding Force of a Recommendation of the General Assembly of the UN’, 25 BYB (1948) 1–33; Hans Kelsen, The Law of the United Nations. A Critical Analysis of its Fundamental Problems (London: Stevens, 1950) 444–50; Gaetano Morelli, Nozioni di diritto internazionale (Padova: Cedam, 1967, 7th edn) 294–99; Jorge Castañeda, Valor juridico de las resoluciones de las Naciones Unidas (México: Colegio de Mexico, 1967), Chapters 1–4; Lino Di Qual, Les effets des résolutions des Nations Unies (Paris: Libraire générale de droit et de jurisprudence, 1967) 47 ff and 75 ff; Rolando Quadri, Diritto internazionale pubblico (Napoli: Liguori, 1968, 5th edn) 579–83; Rosalyn Higgins, ‘The Advisory Opinion on Namibia: Which UN Resolutions are Binding under Article 25 of the Charter?’ 21 ICLQ (1972) 270–86; S.A. Tiewul, ‘Binding Decisions of the Security Council within the Meaning of Article 25 of the United Nations Charter’, 15 InJIL (1975) 195–215; Michael Krökel, Die Bindungswirkung von Resolutionen des Sicherheitsrates der Vereinten Nationen (Berlin: Duncker und Humblot, 1977); F. Blaine Sloan, ‘General Assembly Resolutions Revisited (Forty Years Later)’, 58 BYB (1987) 39–150; Renata Sonnenfeld, Resolutions of the UN Security Council (Dordrecht: Nijhoff, 1988); Eric Suy and Nicolas Angelet, in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies. Commentaire article par article (Paris: Economica, 2005, 3rd edn), vol. 1, 912–6.

Decisions, as opposed to recommendations, authorizations and delegations, have fully binding force for the States to which they are addressed. They are rarely envisaged even in the United Nations system. Among the most important worth of mention are the General Assembly decisions which approve the budget and apportion expenses of the Organization among the Member States (Article 17) and Security Council decisions on measures not involving the use of force (Article 41). Worth of mention are also the decisions of the Security Council in the case of failure to comply with a judgment of the International Court of Justice, decisions which, under Article 94, para. 2, may consist (as preferred by the Council itself) in recommendations or in decisions; the resolutions with which the various collective organs adopt their own Rules of

Decisions  451

Procedure (cf. Articles 21, 30, 72, para. 1, and 90, para. 1, of the Charter), ­creating rules which bind the States members of the body; the acts relating to the status of UN members, such as decisions of the Assembly on suspension and expulsion (Articles 5 and 6), which decide, respectively, total suspension and the extinction of the rights and obligations connected with such status. It is worth dwelling on the power of the Security Council to issue decisions for maintenance of the peace, which bind the States they address. As it has been seen examining the provisions of Chapters VI and VII of the Charter, also the Council normally has the power merely to make recommendations and it may resort to binding decisions only within the framework of Article 41, that is, when it is faced with crises that are so serious as to require sanctions. It is certainly not the case of again opening the discussion over Chapters VI and VII and repeating what it has already be said in discussing the functions of the Security Council. Only one point, however, deserves mention. This is the necessity to react to certain opinions in legal doctrine, which, from general and theoretical viewpoints, want to give the Security Council a much broader decision-making power. For example, it has been held that also recommendations, at least those falling within Chapter VII, are binding on the States because the Council may be led, when they are not carried out, to resort to sanctions under Article 41, or even to the use of force on the basis of Article 42 (Kelsen); or it has been held that Article 25, in affirming the commitment of the Member States “to accept and to carry out” the decisions of the Council, entails the binding nature of all Council acts, because all these acts postulate a decision (Kelsen); or, again, that the binding force of the resolutions depends on the force they have from a political point of view and that, from this perspective, also a simple invitation from the Council may be equivalent to an order (Quadri). The International Court of Justice followed this line of reasoning in its Advisory Opinion of June 21, 1971 on Namibia (see § 83). In its view, the Council could give binding force to any decision regarding maintenance of the peace and could express an opinion of the kind any time it called upon the States to respect a decision under Article 25 (cf. ICJ Reports 1971, p. 52 ff., paras. 112–116). In our view such opinions cannot be shared. Not only do they fail to find confirmation in the practice of the organ and in the attitudes of the majority of States, but neither can they be supported by valid textual arguments. In particular, it should be denied that Article 25 can be used to broaden the decisionmaking power of the Council. This article must be interpreted systematically and therefore by taking into account all the other provisions of the Charter on maintenance of the peace which manifestly use the distinction between recommendation and binding decision. Framed in this way, Article 25 is certainly

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not able to nullify this distinction but, on the contrary, assumes that the decisions to be “accepted and carried out” have already been identified. However, it is worth asking if it is the case to hold that Article 25—interpreted systematically and not literally, and in order to make clear that the decision-making powers of the Council are those and only those expressly and specifically provided in other provisions of the Charter, with no overlap between specific and generic powers—intends to confirm a loose obligation to co-operate with the organ rather than a defined duty to carry out its resolutions. 93.  Organizational resolutions select bibliography: F. Blaine Sloan, ‘The Binding Force of a Recommendation of the General Assembly of the UN’, 25 BYB (1948) 1–33; D.H.N. Johnson, ‘The Effects of Resolutions of the General Assembly of the UN’, 32 BYB (1955–56) 97–122; Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice’, 34 ibid. (1958) 1–161.

Legal doctrine, particularly the English language authors, classify among the decisions that are binding for all the Member States resolutions of an organizational nature, that is, those that establish organs or provide for the election of their members. They concern, for example, the creation of subsidiary organs (Articles 22 and 29 of the Charter), the election of the members of the Security Council, of the Economic and Social Council, and of the Trusteeship Council by the Assembly, the appointment of the Secretary-General (Article 97), and so on. These resolutions would be binding on all members because they would involve the relationships between the Member States or because the Member States would have the obligation not to raise objections against anyone acting pursuant to them. With regard specifically to electoral acts, one should speak of “an obligation for all Members to recognize those states [the elected States] as having the prerogatives accompanying such membership” (Sloan). It does not seem that the immediate effects of organizational resolutions can be defined as obligations of the Member States. In so far as they deal with the functioning of the organization, these decisions concern the structural stage of the UN system, creating an objective right that is difficult to translate in terms of legal relationships, in terms of rights and obligations. What it can be said, in a rather repetitious way, is that their effects consist in the creation and renewal of the organs. Doubtlessly, from this point of view, the organizational acts must be kept separate from mere recommendations and it is precisely the distinction from recommendations which is the inspiration behind the doctrine that qualifies them as decisions. But if they certainly are not recommendations, it is forcing things to regard them as decisions. It is therefore preferable to consider them as a separate kind, characterized by the expression of a power of the organs and not addressed to the Member States.

Operational resolutions   453

The only aspect under which one can discuss whether the organizational resolutions are capable on the average of producing legal obligations concerns their influence on the UN budget and on the apportionment of expenses among the Member States under Article 17 (see § 88).

94.  Operational resolutions select bibliography: Benedetto Conforti, La funzione dell’accordo nel sistema delle Nazioni Unite (Padova: Cedam, 1968) 121–24; F. Blaine Sloan, ‘General Assembly Resolutions Revisited (Forty Years Later)’, 58 BYB (1987) 39–150.

Like organizational acts, also operational resolutions must be considered as a special category since they are different from both decisions binding on the Member States and recommendations. Operational resolutions are the resolutions providing for a UN action. When we speak of a UN action, we mean an action directly carried out by the Organization, for example by the Security Council or by the General Assembly, or by the Secretary-General as entrusted by these two organs under Article 98, or by a subsidiary organ created by them. The Charter and the practice offer numerous examples of operational resolutions. This is the case of the resolutions setting up UN armed forces under Article 42, the resolutions which order an investigation or those which provide for programs of technical assistance, and so forth. Of course, the same resolution may have at the same time an organizational and an operational nature when, instead of providing that certain action be carried out by an already existing organ (for example, by the same organ that issued the resolution or by the Secretary-General), it establishes an ad hoc subsidiary organ. It is evident that operational resolutions do not immediately produce ­obligations for the Member States and that they cannot be considered as binding decisions. At the same time, however, they are distinguished from recommendations. When the Assembly or the Council decides to undertake an action, such action is outside the sphere of recommendations and a fortiori of authorizations and delegations. In fact, the acting is very different from recommending, authorizing or delegating others to act, since in one case an event occurs and in the other a rule of conduct is laid down; moreover the measure with which the action is decided is not addressed to the Member States, but belongs, as the organizational decisions belong, to the structural (Sein) dimension and not to the normative (Sollen) dimension of the United Nations system. As is the case for organizational decisions, also here the only problem that can be envisaged in terms of obligations is the one of the influence of operational decisions on the UN budget and on the apportionment of expenses under Article 17 (see § 88).

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95.  Proposals, authorizations, delegations of powers or functions, approvals, directives, recommendations between the organs. select bibliography: Michel Virally, ‘La valeur juridique des recommandations des organisations internationales’, 2 AF (1956) 66–96; Lino Di Qual, Les effets des résolutions des Nations Unies (Paris: Libraire générale de droit et de jurisprudence, 1967) 17 ff; Dan Sarooshi, The UN and the Development of Collective Security. The Delegation by the UN Security Council of its Chapter VII Powers (Oxford: Clarendon Press, 1999).

In relations between the organs, the Charter provides also for the issuance of acts which are very often patterned, both in terminology and in substance, after the acts of public or private corporations in municipal law. The following are envisaged in the Charter: proposals, such as, for example, proposals of the Security Council to the Assembly on admission, suspension and expulsion of members, called “recommendations” in the English and French texts of Articles 4, 5 and 6; approvals, as the one envisaged by Article 66, para. 2, relating to technical assistance programs; directives and delegations to other organs, as the ones envisaged by Articles 60, 85, para. 2, and 87 on the relations between the General Assembly on one hand and the Economic and Social Council and the Trusteeship Council on the other, or by Article 66, para. 3, on the delegation of functions from the Assembly to the Economic and Social Council or still by Article 98, on the functions delegated to the Secretary-General; authorizations, as the one envisaged by Article 12, para. 2, according to which “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…”.There is not enough legal material to develop a theory of all these acts similar to the very advanced one regarding corresponding acts in municipal law. In any event, the significance of each act can easily be inferred from the interpretation of the rule providing for it. Worth noting is the effort made by Sarooshi to develop a theory of the delegation of functions from the Security Council to the Secretary-General, Member States, subsidiary organs and regional organizations, in particular the distinction that this author operates between delegation of powers and delegation of functions and between delegation and authorization (op. cit., p. 10 ff.). The delegation of powers would involve a discretionary decision-making power by the delegate, while the delegation of functions would imply a mere executive activity; such authorization would be more limited than delegation, having as its objective a specific aim. Many aspects of this theory have been considered already in various parts of this book and we need not dwell on them again.

The organs may also address recommendations to each other. For example, the Assembly may do so vis-à-vis the Security Council (Articles 10 and 11, paras. 1 and 2), the Economic and Social Council regarding the Assembly (Article 62, para. 1), and so on. These are acts, however, to which it is difficult to assign significant legal effects.

Declarations of principles   455

96.  Declarations of principles select bibliography: Oscar Schachter, ‘The Relation of Law, Politics and Action in the UN’, 109 RC (1963-II) 169–256; Bin Cheng, ‘UN Resolution on Outer Space: “Instant” International Customary Law?’ 5 InJIL (1965) 35–48; Matteo Decleva, ‘Le Dichiarazioni di principi delle Nazioni Unite’, ADI (1965) 63–79; Obed Y. Asamoah, The Legal Significance of the Declarations of the General Assembly of the UN (The Hague: Nijhoff, 1966); Alfred Verdross, ‘Kann die Generalversammlung der Vereinten Nationen das Völkerrecht weiterbilden?’ 26 Bruns’Z (1966) 690–7; Benedetto Conforti, La funzione dell’accordo nel sistema delle Nazioni Unite (Padova: Cedam, 1968) 150–55; Gaetano Arangio-Ruiz, ‘The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations’, 137 RC (1972-III) 419–742; Stephen M. Schwebel, ‘The Effect of Resolution of the UN General Assembly on Customary International Law’, ASIL Proceed. (1979) 301–9; Christopher Osakwe, ‘Contemporary Soviet Doctrine on the Source of General International Law’, ibid., 310–23; Oscar M. Garibaldi, ‘The Legal Status of General Assembly Resolutions: Some Conceptual Observations’, ibid., 324–6; S.K. Agrawala, ‘The Role of General Assembly Resolutions as Trend-Setters of State Practice’, 21 InJIL (1981) 513–33; Marianne von Grüningen, ‘Die Resolutionen der Generalversammlung der Vereinten Nationen und ihr Einfluss auf die Fortbildung des Völkerrechts’, in Festschrift Bindschedler (Bern: Stämpfli & Cie, 1980) 187–200; C.C. Joyner, ‘UN General Assembly Resolutions and International Law: Rethinking The Contemporary Dynamics of NormCreation’, 11 CWILJ (1981) 445–78; Ian MacGibbon, ‘Means for the Identification of International Law. General Assembly Resolutions: Custom, Practice and Mistaken Identity’, in Bin Cheng (ed), International Law: Teaching and Practice (London: Stevens, 1982) 10 ff; Higrashi, ‘The Role of Resolutions of the United Nations General Assembly in the Formative Process of Customary Law’, in Jap AIL (1982) 11 ff; Besteliu, ‘Quelque réflexion sur le rôle des résolutions adoptées dans le Système des Nations Unies dans la formation du droit international économique’, in RREI (1986) 227 ff; Krzysztof Skubiszewski, ‘Resolutions of the UN General Assembly and Evidence of Customs’, in Studi in onore di Roberto Ago (Milano: Giuffrè, 1987) 503–20; G.I. Tunkin, ‘The Role of Resolutions of International Organisations in Creating Norms of International Law’, in William E. Butler (ed), International Law and the International System (Dordrecht: Nijhoff, 1987) 5 ff; Rosalyn Higgins, ‘The Role of Resolutions of International Organizations in the Process of Creating Norms in the International System’, ibid., 21 ff; Vladimir Kopal, ‘The Role of UN Declarations of Principles in the Progressive Development of Space Law’, 16 JSL (1988) 5–20; Javier Roldan Barbero, ‘El valor juridico de las resoluciones de la Asamblea General de la ONU en la sentencia Nicaragua contra Estados Unidos de 27 de junio de 1986’, 42 ReD (1990) 81–99; Blaine Sloan, United Nations General Assembly Resolutions in our Changing World (New York: Transantional Publications, 1991); Ricky J. Lee and Steven R. Freeland, ‘The Crystallisation of General Assembly Space Declaration into Customary International Law’, in Proceedings of the Colloquium on the Law of Outer Space (Wien: Springer, 2003) 122–30.

From the early years of life of the UN, the General Assembly has followed the practice of addressing solemn declarations of principles to the States concerning not only relations between States but also and especially relations within States. Beside the well-known Universal Declaration of Human Rights (Res. 217-III of December 10, 1948), worthy of mention are, among many others, the Declarations on genocide

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(Res. 96-I of December 11, 1946), on the independence of colonial peoples (Res. 1514-XV of December 14, 1960), on the prohibition of the use of nuclear and thermonuclear weapons (Res. 1653-XVI of November 24, 1961), on permanent sovereignty over natural resources (Res. 1803-XVII of December 14, 1962), on the elimination of racial discrimination (Res. 1904-XVIII of November 20, 1963), on the elimination of discrimination against women (Res. 2263-XXII of November 7, 1967), on territorial asylum (Res. 2312-XXII of December 14, 1967), on progress and social development (Res. 2542-XXIV of December 11, 1969), on friendly relations and cooperation between States (Res. 2625-XXV of October 24, 1970), on the legal principles governing the sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction (Res. 2749-XXV of December 17, 1970), on the definition of aggression (Res. 3314-XXV of December 14, 1974), on measures to eliminate international terrorism (Res. 49/60 of December 9, 1994, supplemented by the Annex to Res. 51/210 of December 17, 1996) on crime and public security (Res. 51/60 of December 12, 1996), on human cloning (Res. 29/280 of March 8, 2005) and on the rights of indigenous peoples (Res. 61/295 of September 12, 2007). Special mention should be given the Declaration and Program of action for the establishment of a new international economic order (Resolutions 3201 and 3202 S-VI of May 1, 1974), the Charter of the  Economic Rights and Duties of States (Res. 3281-XXIX of December 12, 1974), the Declaration on the right to development (Res. 41/128 of December 4, 1986) and the Declaration on international economic cooperation (Res. S-18/3 of May 1, 1990), the Declaration on the occasion of the 50th anniversary of the UN (Res. 50/6 of October 24, 1996), which are at the basis of UN activity in the field of cooperation for development (see § 71), the Millennium Declaration (Res. 55/2 of September 8, 2000, today replaced by the “2030 Agenda for Sustanaible Development” adopted by Res. 70/1 of September 25, 2015); the Declaration on the new partnership for Africa’s development (Res. 57/2 of September 16, 2002).

Sometimes the Declarations of principles are limited to reproducing already existing international rules, specifically, customary rules or rules contained in the Charter. This can be said, for example, of the principle of the non-­ appropriability of resources of the sea-bed and of the subsoil thereof beyond the limits of domestic jurisdiction, a principle formulated by the above-­ mentioned Res. 2749-XXV of December 17, 1970 and constituting a corollary of the customary principle of freedom of the seas. The same can be said, to give another example, of the principle that prohibits the use of force or the principle of good faith, both set out in Article 2 of the Charter and confirmed by Res. 2625-XXV of October 24, 1970 containing the Declaration on friendly r­ elations between the States. In these cases no one would put in doubt the obligatory nature of the declared principles, but this obligatory nature necessarily has its foundation in customary law or in the Charter. Aside from reproducing already existing rules, what is the legal value of these Declarations? No doubt, in principle, that they are not binding. The Assembly does not have decision-making powers. Under Article 10 of the Charter, it can only discuss subjects coming within the purposes of the Charter and make recommendations in this regard to the States. The Declarations of principles thus appear, in the context of the Charter, as mere ­recommendations,

Declarations of principles   457

although of a general and solemn nature, and the States remain free to conform to them. It is indicative, moreover, that most times this freedom is expressly claimed and emphasized in the Assembly when Declarations are adopted by the Governments themselves giving them their affirmative vote. It is the case, for instance, of the unequivocal reservations on the binding nature of the Universal Declaration of Human Rights of 1948 from the same States that were supporting it, or the reservations of the developed States expressed in 1974 on the, at least formally unanimous, adoption (by consensus) of the Declaration and Program of action for the establishment of a new international economic order. With regard to the Universal Declaration, cf. the reservations of France, the Netherlands, Australia, Mexico, and various other States, in GAOR, 3rd sess., Pl. meet., 180th meet., pp. 866 and 873; 181st. meet., pp. 876 and 885. For the reservations relating to the resolutions on the new economic order, see § 99.

In fact, the Declarations perform a very important role in the development of international law and of its adjustment to the needs for solidarity and for interdependence that are more and more being felt in the world today. It is not a matter of giving them a binding force which on the basis of the Charter they do not have. It is a matter of recognizing the contribution that, with them, the UN Assembly is giving to the formation of international law, although within the framework of the typical sources of this law, such as custom and agreement. Of what does this contribution consist? With regard to customary law, the Declarations play a role in the process of its formation, as State practice, as the synthesis of the attitudes of States that adopt them and not as formal acts of the UN This is shown by the fact that, as is generally recognized, their value as elements in the formative practice of customary law is higher when they are adopted by unanimity or by consensus or at least by a very wide majority. Quite another thing is to say that the Declarations constitute the opinio juris not only necessary but also sufficient which would form instantaneously at the Assembly in order for the custom can be said to be formed (Cheng). In fact, custom requires a consistent practice over time (diuturnitas), a practice which, if of course it may also derive from Declarations, cannot be inferred from the mere verbal expression of a principle at a given moment in time, even if in solemn terms and within the greatest world forum. As far as treaty law is concerned it must be emphasized, first of all, how several important multilateral treaties (on human rights protection, management of natural resources, etc.) were negotiated and closed after their fundamental principles had been received in Declarations of principles of the General Assembly. From this standpoint the Declarations of principles, just like recommendations in general (see § 83), play a major role in the dynamics

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of international law not only with regard to the formation and transformation of general international law, but also to the creation of new treaty rules, in turn  able to—as contained in multilateral treaties often of near-universal ­participation—influence even more strongly on the transformation of general international law. Moreover it can be held that at least some Declarations have the value of true international agreements. This is the case of those Declarations that not only formulate a principle, as any other, but expressly and unequivocally equate the non-observation of such principle with violation of the Charter or of international law. For instance, Res. 1803-XVII of December 14, 1962 on permanent sovereignty over natural resources determines that “violation of the rights of peoples and nations to sovereignty over their natural wealth and resources is contrary to the spirit and principles of the Charter of the United Nations” (para. 7); Res. 96-I of December 11, 1946 on genocide “affirms that genocide is a crime under international law which the civilized world condemns and for the commission of which principals and accomplices are punishable”. Since the Assembly does not have the power to interpret the Charter in a way that is binding on the individual States (see § 6), let alone the power to determine which is the general international law in force, also Declarations of this kind remain, from the viewpoint of the Charter, mere recommendations, not containing authentic and binding interpretations of principles considered as already established by the Charter, but only intended to urge States to behave in accordance with the enunciated principles. One can say, however, evaluating these Declarations regardless of the norms of the Charter, that they have the nature of international agreements (specifically of agreements in a simplified form, that is, entered into without a formal act of ratification) and that as such they are binding (solely) on the States which voted for them. It seems, in fact, that by equating the non-observance of a certain principle to non-observance of the Charter or of general international law, a verbal formula is being used to purely and simply confirm that such principle is, at least for the States that approve it and regardless of whether the principle is so objectively, now binding for them. From this it appears legitimate to assume, at least until there is clear proof to the contrary (i.e., provided that there are no express reservations when the resolution is adopted), that the States that participate by favorably voting for the act intend to bind themselves, wishing to stress that for them the principle reflects the law and is binding. It is possible, because the Assembly has no binding interpretative or declaratory powers with regard to the obligations envisaged by the Charter or general international law, that the principle is not objectively existing under the Charter or general international law, but the fact remains that between the States that have voted in favor the principle is considered applicable law and as such accepted between them. It is possible, in other words, that the prohibition of genocide

Declarations of principles   459

enshrined in Res. 96-I of December 11, 1946 at that time did not reflect general international law, but the States that voted in favor, without reservations, of the sentence “genocide is a crime under international law” welcomed this principle exactly as formulated, and as such considered it to be binding in their relationships, which is equal to say precisely that these States have concluded an agreement. If this presumption were not to be acknowledged, it would have to be concluded that the Declarations of principles of the kind under consideration represent, to use a private law term, non-serious declarations or declarations rendered with a mental reservation. In addition to Res. 96-I of December 11, 1946 on genocide and Res. 1803-XVII of December 14, 1962 on permanent sovereignty over natural resources, it is worth mentioning among other declarations, which equate non-compliance with the principles declared therein to non-compliance with the Charter or general international law, Res. 1514-XV of December 14, 1960 on the independence of colonial peoples (“the subjection of peoples to alien subjugation, domination and exploitation…is contrary to the Charter of the United Nations”, para.1), Res. 1653-XVI of November 24, 1961 on the prohibition of the use of nuclear and thermo-nuclear weapons (“the use of nuclear and thermo-nuclear weapons is contrary to the spirit, letter and aims of the United Nations and, as such, a direct violation of the Charter of the United Nations”, “cause indiscriminate suffering and destruction to mankind and civilization and, as such, is contrary to the rules of international law and to the laws of humanity” and “any State using nuclear and thermo-nuclear weapons is to be considered as violating the Charter of the United Nations, as acting contrary to the laws of humanity and as committing a crime against mankind and civilization”, para. 1, a, b and d); and Res. 1904-XVIII of November 20, 1963 on the elimination of all forms of racial ­discrimination (“discrimination between human beings on the ground of race, colour or ethnic origin is an offence to human dignity and shall be condemned as a denial of the principles of the Charter of the United Nations”, Article 1). It should be noted that Res. 1514-XV of December 14, 1960 on the independence of colonial peoples was approved with 98 votes in favor and none against, but with the abstention of the colonial powers themselves (precisely of Australia, Belgium, Dominican Republic, France, Portugal, Spain, South Africa, the United Kingdom and the United States) on whom the Declaration has imposed obligations as an agreement (cf. ). Res. 1653-XVI of November 24, 1961 on the prohibition of the use of nuclear and thermo-nuclear weapons was approved with 55 votes in favor, 20 against (among which nuclear Powers such as the United States, the United Kingdom and France) and 26 abstentions (cf. ). Res. 1803-XVII of December 14, 1962 on permanent sovereignty over natural resources was approved with 87 votes in favor, 2 against (France and South Africa) and 12 abstentions (cf. ). Res. 1904-XVIII of November 20, 1963 on the elimination of racial discrimination was adopted by consensus (cf. ) and accompanied by a series of explicit reservations about its binding nature, or rather especially by Article 9, para. 3, which obliges to outlaw any association of a racist nature (cf. GAOR, 18th sess., Pl. Meet., 1261st meet., nos. 45 ff., 79 ff., 99 ff., 130 and 151, for the reservations of Denmark, Iceland, Norway, Finland, the United Kingdom, France,  New Zealand, the United States and Australia). Also Res. 96-I of December 11, 1946, on  genocide, adopted by consensus (cf. ).

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In recent times Declarations of principles have also been adopted by the Security Council, as the Declaration on the global efforts for the elimination of terrorism contained in Res. 1377 of November 12, 2001or the Declaration on proliferation of small arms and light weapons and mercenary activities: threats to peace and securities in West Africa contained in Res. 1467 of March 18, 2003. These Declarations, like General Assembly Declarations, have non-­ binding force, since they are not adopted under Chapter VII of the Charter. Therefore, the observations above made with regard to the Declarations of General Assembly can be applied to those issued by the Security Council. 97.  The UN resolutions and the rule of law: The duty of the organs to comply with the Charter and with international law select bibliography: Lazare Kopelmanas, L’Organisation des Nations Unies (Paris: Recueil Sirey, 1947), vol. 1, 297 ff; Mintauts Chakste, ‘Justice and Law in the Charter of the UN’, 42 AJ (1948) 590–600; Leo Gross, ‘The UN and the Rule of Law’, 19 Int. Org. (1965) 537–80; John W. Halderman, The UN and Rule of Law. Charter Development through the Handling of International Disputes and Situations (Dobbs Ferry, New York: Oceana, 1966); Benedetto Conforti, La funzione dell’accordo nel sistema delle Nazioni Unite (Padova: Cedam, 1968) 31–34; Rosalyn Higgins, ‘The Place of International Law in the Settlement of Disputes by the Security Council’, 64 AJ (1970) 1–18; Gidon Gottlieb, ‘The Legitimacy of General Assembly Resolutions’, 17 IsYIL (1987) 120–32; Amparo Sajosé Gil, ‘Las consequencias juridicas de los actos «ultra vires» de las organizaciones internacionales, en particular de l’ONU’, in ReD (1990) 443–62; Gabriël Oasthuizen, ‘Playing the Devil’s Advocate: The UN Security is Unbound by Law?’ 12 LJIL (1999) 549–64; Abdul G. Koroma, ‘International Law Limits to the Security Council’, in Vera Gowlland Debbas (ed), UN Sanctions and International Law (The Hague: Kluwer Law International, 2001) 71 ff; Andrea D. Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-Terrorism Measures: The Quest for Legitimacy and Cohesion’, 17 EJIL (2006) 881–919; Enzo Cannizzaro, Machiavelli, the UN Security Council and the Rule of Law (New York: NYU School of Law, 2006); Hitoshi Nasu, ‘Chapter VII Powers and the Rule of Law’, 26 AYIL (2007) 87–118; Thomas Fitschen, ‘Investing the Rule of Law for the United Nations’, 12 MP YUNL (2008) 347–80; Simon Chesterman, ‘UNacceptable? The United Nations, Emergency Powers, and the Rule of Law’, 42 VaJTL (2009) 1509–41; Charles Riziki Majinge, ‘The United Nations and the Future of Rule of Law’, 3 JAfIL (2010) 457–87; Fredrik Stenhammar, ‘United Nations Targeted Sanctions, the International Rule of Law and the European Court of Justice’s Judgment in Kadi and al-Barakaat’, 79 NoJIL (2010) 113–40; Ramesh Thakur, ‘Law, Legitimacy and United Nations’, 11 MeJIL (2010) 1–26; Kenneth Anderson, ‘“Accountability” as “Legitimacy”. Global Governance, Global Civil Society and the United Nations’, 36 BrJIL (2011) 841–90; Robert A. Pulver, ‘Rule of Law, Peacekeeping and the United Nations’, in Chandra Lekha Sriram, Olga Martin-Ortega and Johanna Herman (eds), Peacebuilding and Rule of Law in Africa: Just Peace? (London: Routledge, 2011) 60–87; Nicole El Khoury, ‘Implementing Human Rights and Rule of Law Aspects of the UN Global Counter-Terrorism Strategy: The UNODC/TPB’, in Ana María Salinas de Frías, Katja L.H. Samuel and Nigel D. White (eds), Counter-Terrorism: International Law and Practice (Oxford: Oxford University Press, 2012) 1027–43; C.H. Powell, ‘The United Nations Security Council, Terrorism and the Rule of Law’, in Victor V. Ramraj, Michael

The UN resolutions and the rule of law   461 Hor, Kent Roach and George Williams (eds), Global Anti-Terrorism Law and Policy (Cambridge: Cambridge University Press, 2012, 2nd edn) 19–43.

As it has already been indicated, the UN organs must respect the Charter. As  we saw at the time, if it is clear that the organs should respect the UN Charter, the real problem is to determine what the Charter says, that is to ask what its precise content is that the organs must comply with (see § 7). The problem is translated into practice in the question of who has authority to interpret the Charter, giving it this or that meaning and then attributing it this or that content; and whether, and if so how, it is possible for Member States to challenge the interpretation that the organs of the UN provide. We have already  dealt with the first question excluding the existence of a competent organ with the authority to impose its interpretation on Member States. It has been said that every organ makes its own interpretation when adopting an act and that, ­precisely because the organ has no power to impose its own interpretation on Member States, each State is allowed to challenge the interpretation  of the organ. We will deal with this second issue in more detail below (see § 99). Even general international law must be respected by UN organs, at least as far as the “adjustment or settlement of international disputes or situations which might lead to a breach of the peace” is concerned, as provided by Article 1, para. 1 (“The purposes of the United Nations are:…to take effective collective measures…to bring about by peaceful means and in conformity with the purposes of justice and international law…”), in particular issues pertaining to Chapter VI. More complex, as we have seen, is the problem of observance of international law within the ambit of Chapter VII of the Charter, which in principle gives the Council the power to derogate from international law if required by any reason relating to the maintenance of international peace and security (see §§ 60, 61 and 62). It should be added that since the Charter, as a treaty, is lex specialis, it is the Charter, and its “specification” contained in the binding acts of its organs, particularly the Security Council, that in principle prevail over general international law, unless the Charter itself refers to general international law—as, for example, those resolutions which, like the ones on credentials, deal with membership status in the Organization (see § 21)—in which case the Council is obliged to respect general international law as a result of compliance with the Charter. Among the provisions of the Charter that prevail as lex specialis on general international law, namely on the general principle of law nemo judex in re sua, we should remember Article 27, para. 3, last part, which in fact subtracts to the principle nemo judex in re sua the resolutions of the Security Council taken under the Chapter VII (see § 27).

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98.  The observance of rules of procedure select bibliography: Philip C. Jessup, ‘International Parliamentary Diplomacy’, 51  AJ  (1957) 401–402; Max Sørensen, ‘Principes de droit international public’, 101 RC (1960-III) 6–254; Wilhelm Wengler, Völkerrecht (Berlin: Springer, 1964) 555–61; Francesco Durante, L’ordinamento interno delle Nazioni Unite (Milano: Giuffrè, 1964) 79–83; Jorge Castañeda, Valor juridico de las resoluciones de las Naciones Unidas (Mexico: Colegio de Mexico, 1967) 32 f; Benedetto Conforti, La funzione dell’accordo nel sistema delle Nazioni Unite (Padova: Cedam, 1968) 36 ff.

Can the violation of Rules of Procedure be the cause of illegality of the ­resolutions of the organs? Must UN organs comply with, in addition to the Charter, their internal regulations, in accordance with the principle of legality? These rules, adopted on the basis of specific Charter provisions—Article 21 with regard to the General Assembly, Article 30 for the Security Council, Article 72, para. 1, for the Economic and Social Council and Article 90, para. 1, for the Trusteeship Council—without doubt bind Member States (see § 92). However, do they bind also the organs? Or may the organs, as they are qualified by the above provisions to issue by (simple) majority their own Rules of Procedure, by majority, not apply or derogate from them with regard to specific individual cases, that is without formally amending them? At first glance, both views for or against the binding and non-derogatory nature of regulations on the organs in individual concrete cases, seem p ­ lausible. In favor of the latter, there are both an argument of a formal nature, regarding the voting system adopted on the subject, that would allow for any solution as long as the majority is reached, and an argument that a certain flexibility in the application of the Rules of Procedure may be necessary to meet situations of a special character. In favor of the first view, it could be said that the possibility, for the majority of the time, to subvert the regulatory norms at will is not compatible with the purpose of the Rules of Procedure, which is that of an orderly and impartial course of the proceedings of the organ, for the protection of minorities. Briefly, in the United Nations the same questions arise that have often filled legal doctrine concerning public law in municipal systems, with regard to the Rules of Procedure of collective bodies, especially of Parliaments. Both views have been supported in the practice. On various occasions, especially in the Organization’s first ten years, the minorities in the organs (especially in the General Assembly and in the Security Council) have raised protests against the non-observance of the Rules of Procedure, maintaining that it was impermissible, for the organs themselves, to subvert the rules in specific cases. These reservations, however, came up against precise stands of the majority which consisted in defending the principle that every organ is “master of its own procedure” (“maître de sa procédure”) and can derogate as it wishes and believes from its own Rules of Procedure.

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The problem must be resolved by seeking to identify the particular features and the relevance that Articles 21, 30, 72, para. 1, and 90, para. 1 (all with the same content) give to the power of the various organs to adopt their own Rules of Procedure. Indeed, it seems reasonable to interpret the rules that confer upon the organs a regulatory power in the sense that the Charter, precisely when it provides in such norms that an organ “shall adopt its own Rules of Procedure”, speaks against the possibility to derogate from the Rules of Procedure. The fact that the Rules of Procedure are adopted by a majority (simple), and therefore may be amended by a majority vote, does not imply in itself the possibility to derogate from the regulations in respect of individual concrete cases, again by majority. It could be rather said, that is, that attributing the organs the power to make their own Rules of Procedure makes sense only if such power can develop itself through the creation of abstract norms, both adopting and later amending the Rules of Procedure, thereby excluding the possibility that individual rules could be created for individual cases. A “regulation” would therefore only make sense if it contained rules that do not apply on a case-by-case basis, otherwise it would be sufficient for the organs to limit themselves to decide only case by case, without the need to adopt a regulation that goes beyond an individual case. It can therefore be deduced that, under the Charter, any procedure diverging from the Rules of Procedure could be followed only if the rules themselves were amended in general terms. This conclusion, moreover, could be confirmed by several provisions in the Rules of Procedure themselves. For example, one could cite Article 163 of the Assembly’s Rules of Procedure which provides that “These rules of procedure may be amended by a decision of the General Assembly, taken by a majority of the members present and voting, after a committee has reported on the proposed amendment”. However, this thesis appears to be too rigid in attributing to the Charter the intention to make unlawful any even minimal derogation from (or, more specifically, any resolution adopted notwithstanding) the Rules of Procedure on the basis of norms that provide in a very loose manner the power to adopt Rules of Procedure. In our view, all that must be derived from the Charter is a general principle of objectivity and impartiality in the conduct of activities of the collective organs, to which the organs must conform, rather than an absolute prohibition of derogation from the Rules of Procedure. This principle not only can it be deduced from the provisions of the Charter that confer upon the organs the power to adopt internal rules—which in themselves recall the idea of a prior and therefore objective ordering of the procedures—as by the spirit of the Charter and in particular by the characteristics it assigns to the organs. These

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are collective bodies called to deal with international problems, situations and disputes that have a predominantly political nature and in which the discussion stage has assumed an importance that is equal, if not superior, to the ­decision stage. This is the reason why it is necessary that the first stage proceeds according to rules which impartially guarantee the individual State, member of the organ, real participation in the organ’s proceedings. In the light of the principle of objectivity, those derogations or violations of the Rules of Procedure that suppress or seriously limit the right of the member of the organ, to express its opinion or present its proposals are illegal. In particular, a violation of the principle of objectivity will occur whenever (a) a State is unjustifiably excluded from the proceedings (as in the case, for example, of the violation of the provision of Article 29 of the General Assembly’s Rules and Article 17 of the Security Council’s Rules, which allow the representative of a Government whose credentials are being challenged to be seated provisionally with the same rights as the representatives), or when (b) a State is not able to know or to become informed about the subject of a discussion (for example, because the subject does not appear on the agenda) or (c) in the case where its representatives are denied the right to speak or to vote. Moreover, those derogations or violations of the internal Rules of Procedure which, even without suppressing or compromising the right of the Member State, bring about an appreciable change in a given procedure, are also in contrast with the principle of objectivity. In other words, it can be said that a precise and well-thought-out amendment of the Rules of Procedure is always necessary, pursuant to the above-mentioned principle of objectivity, when the organs intend to adopt procedures fundamentally different from the ones provided. It seems truly inconceivable that a change of this kind can correspond to requirements of objectivity and of impartiality if realized in relation to a specific case. Vice versa, when it is a matter of adopting derogations that do not affect, except in a limited and non-essential way, the regulation of the procedure, a prior general amendment of such rules does not seem imposed by the above requirements. It must therefore be held inadmissible, to give some examples, that in specific cases the rules on credentials can be departed from, for instance, by derogating from the rules concerning the organ competent to issue them, or that the terms or the prescribed majorities are changed in drawing up the agenda, or that, with regard to the General Assembly, there is a change in the distribution of functions between plenary assembly and commissions, or that the order of the discussion and the voting is radically changed. For specific applications of the principle of objectivity and impartiality with regard to cases that have occurred in General Assembly and Security Council practice, see Benedetto Conforti, La funzione dell’accordo nel sistema delle Nazioni Unite (Padua: Cedam, 1968), 49 ff., footnotes 77 ff.

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It does not seem plausible to use as an argument against our claims, as has occurred several times at the United Nations, that an organ is always “maître de sa procédure”. This objection merits discussion as it is clearly linked to the tradition of the Legislative Assemblies and, generally speaking, of collegiate bodies in domestic law. Wishing to accommodate it in a less summary formulation, it would be necessary to sustain that the Charter, while providing the power to adopt internal rules and therefore to establish an objective discipline for the procedures, is meant to entrust administration to the organ alone, in other words, it intends for the consequences of violation of regulations remain within the college and within the procedural phase; so that the procedural defect, unless it is avoided as a result of the reactions (obstructionism, point of order, etc.) of the individual or the minority before a measure is adopted, could never, however, render it unlawful. It is clear, as we mentioned, that this thesis has its origins in domestic law and practice, especially the practice of legislative assemblies. It is well known that the most popular opinion among scholars and the judges of the various States is that the violation of parliamentary rules does not produce the invalidity of the law. This view continues to be robust, with rare exceptions, even when, in the end, the regulatory power of the Chamber is expressed in constitutional norms, even when a constitutional provision, in a rigid Constitutional system expressly provides that the law be adopted, along with any modifications, following different procedures or greater majorities than for the adoption of the law, even when, ultimately, special provisions of the Constitution expressly establish compliance with certain regulations. Equally widespread is the notion of the irrelevance of the violation of internal rules in establishing the unlawfulness of collegial acts in relation to the organs of State, and particularly the administrative bodies. Except that there is nothing in the Charter to support the claim that it is up to the UN organs to administer their procedures by themselves. What is more, it would be misplaced to assume that there may be some basis in the tradition of the legislative assemblies and the collegial bodies in domestic law. Without going into an in-depth examination of the matter, suffice it to recall that this tradition, which is summed up in the principle of absolute incontestable nature of internal affairs, especially by judges, finds its raison d’être in the effective separation between the internal and external life of the organ, and is based on the fact that the regulations, unlike the laws and other acts of state bodies, are not addressed to individuals within the general organization of the State, but to the small circle of people who make up the college, and is justified, ultimately, with regard to parliaments, in view of the position of independence of legislative power compared with the other branches of government; this justification is of such great importance as to suggest to some that the very compliance with constitutional norms on legislative procedures, even under rigid Constitutionalism and strict control of the constitutionality of laws, is covered by the principle of internal affairs and is thus outside the domain of judges. Well, all this has nothing to do with the United Nations: setting aside the reasons linked to the independence of Parliaments, that has no equivalent on the international plane; setting aside the position of judges which, in our case, do not exist, in the case of the organs of the UN, it is not possible to make a real distinction between the internal and external “environment”, between individuals to whom the acts of the organs are addressed in their external effectiveness, and those within the college to whom regulatory norms are addressed. These organs consist of States, and they are States that are at the same time the only (or major) recipients of the resolutions issued by the college as well as the only ones able to challenge the lawfulness of the resolutions themselves! In such a situation, appeal to the principle of the absolutely incontestable nature of internal affairs becomes nonsense. Having said that, it should be recognized that the reservations and the protests of individual States against violations of internal regulations and the very procedural rules set out in the Charter, have continued to weaken in recent times; the rule that the court may depart

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as it wants and how it believes from its own rules, being “maître de sa procédure” is being contested less and less (for examples of the uncontested application of this rule, see, for example, GAOR, 37th Sess., 1982 Pl. Meet., 43rd meet. and 110th meet.; 38th Sess., 1983 Pl. meet., 34th meet, 41st Sess., 1986, Pl. meet., Doc. A/41/PV.51). Does this mean that what we have argued above in terms of the Charter should now be considered out-dated in the light of an unwritten principle consolidated in the practice and overlapping with the Charter itself? We believe not. Compliance with internal regulations by the majority is too important to be “liquidated” in the absence of decisive and definitive proof to the contrary. And the same applies, a fortiori, to compliance with the rules of procedure established by the Charter.

99.  Illegality of acts and the role of consensualism in the United Nations system select bibliography: Arnold J.P. Tammes, ‘Decisions of International Organs as a Source of the International Law’, 94 RC (1958-II) 265–363; Jacob Robinson, ‘Metamorphosis of the United Nations’, ibid., 497–589; Angelo P. Sereni, Diritto internazionale (Milano: Giuffrè, 1960), vol. 2, 976–81; Gaetano Morelli, Nozioni di diritto internazionale (Padova: Cedam, 1967, 7th edn) 220–25; Benedetto Conforti, La funzione dell’accordo nel sistema delle Nazioni Unite (Padova: Cedam, 1968), Chapters 1–2; Id., ‘Le rôle de l’accord dans le système des Nations Unies’, in RC (1974-II) 203–88; Jean-François Flauss, ‘Les réserves aux résolutions des Nations Unies’, 85 RGDIP (1981) 5–37; Elisabeth Zoller, ‘The “Corporate Will” of the UN and the Rights of the Minority’, 81 AJ (1987) 610–34; Amparo Sajosé Gil, ‘Las consecuencias juridicas de los actos “ultra vires” de las organizaciones internacionales, en particular de la ONU’, 42 ReD (1990) 443–62; Thomas J. Franck, ‘The “Powers of Appreciation”: Who is the Ultimate Guardian of UN Legality?’ 86 AJ (1992) 519–23; Mohammed Bedjaqui, ‘Du contrôle de légalité des actes du Conseil de sécurité’, in Nouveaux itinéraires en droit. Hommage à François Rigaux (Bruxelles: Bruylant, 1993) 69–110; Id., Nouvel ordre mondial et contrôle de la légalité des actes du Conseil de sécurité (Brussels: Bruylant, 1994); Ian Brownlie, ‘The Decisions of Political Organs of the United Nations and the Rule of Law’, in Essays in Honour of Wang Tieya (Dordrecht: Nijhoff, 1994) 91–102; Jose E. Alvarez, ‘Judging the Security Council’, 90 AJ (1996) 1–39; Florent Mazeron, ‘Le contrôle de légalité des décisions du Conseil de Sécurité’, 10 RQDI (1997) 105–36; Bernd Martenczuk, ‘The Security Council, the International Court and Judicial Review: What Lesson from Lockerbie’, 10 EJIL (1999) 517–47; Bardo Fassbender, ‘Quis Judicabit? The Security Council. Its Powers and Its Legal Control’, ibid. (2000) 219–32; Georg Nolte, ‘The Limits of the Security Council’s Powers and Its Functions in the International Legal System: Some Reflections’, in Michael Byers (ed), The Role of Law in International Politics. Essays in International Relations and International Law (Oxford: Oxford University Press, 2000) 315–26; John Dugard, ‘Judicial Review of Sanctions’, in Vera Gowlland Debbas (ed), UN Sanctions and International Law (The Hague: Kluwer Law International, 2001) 83–91; Davis Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter. Legal Limits and the Role of the International Court of Justice (The Hague: Kluwer Law International, 2001); Erika De Wet and André Nollkaemper, ‘Review of Security Council Decisions by National Courts’, 45 GYIL (2002) 166–202; Jean-François Marchi, Accord de l’Etat et droit des Nations Unies (Paris: Documentation français, 2002); Nikolaos Lavranos, ‘Binding Decisions of International Organizations and Their Legitimacy: No Love at First Sight?’ in Wybo P. Heere (ed), From Government to Governance: The Growing Impact of Non-State Actors on the International and European Legal System. Proceedings of the Sixth Hague Joint Conference Held in The Hague, the Netherlands, 3-5 July 2003 (The Hague: T.M.C. Asser Press, 2004) 490–93; Valérie B. Eveno, ‘Le contrôle juridictionnel des

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résolutions du Conseil de sécurité: vers un constitutionnalisme international?’ 110 RGDIP (2006) 827–60; Maria I. Papa, I rapporti tra la Corte internazionale di giustizia e il Consiglio di sicurezza (Padova: Cedam, 2006); Daniel H. Joyner, ‘Non-Proliferation Law and the United Nations System: Resolution 1540 and the Limits of the Power of the Security Council’, 20 LJIL (2007) 489–518; Vinícius Fox Drummond Cançado Trindade, ‘Controle de legalidade dos atos do Conselho de Segurança das Nações Unidas’, 62 RFD (2013) 703– 34; Sufyan El Droubi, Resisting United Nations Security Council Resolutions (London: Routledge, 2014).

One of the most important but also very contradictory characteristics of the United Nations system is that, on the one hand, the organs are compelled to observe the law and in particular the Charter; on the other, however, the Charter does not attribute to any organ the power to authoritatively interpret the Charter with binding effects on the organs and the States (see § 6) nor any review mechanism over the legality of their resolutions, and especially it does not envisage effective review of a judicial nature with authority to evaluate and if necessary expunge the illegal acts, including those adopted unanimously and deemed to be perfectly legal by Member States of the organ. If the contents of the Charter remain undetermined, because of its being susceptible to different interpretations—provided by different organs or Member States—except for a few provisions whose contents are indisputable, such as those that require a numerical majority, the “legality” of any act shall be suspended in a limbo or linked to one of the possible interpretations. What happens then if a Member State challenges the legitimacy of an act and states its intention to refuse to recognize its effects finding that the conduct is illegal and as such produces no effects, while possibly for other Member States, based on a different interpretation, the act is instead legal and does produce all its effects? Is such protest devoid of any consequence when faced with the will of the majority? But is this not the same as saying that the organs—that is, the majorities of that moment in time—may make the Charter say what they wish, according to the circumstances? If on the other hand, the single Member State could still contest the acts which it deems illegal and no organ may impose a “correct” interpretation of the Charter, in what sense is the Charter binding on Member States? How can the definitiveness, that is future incontestability, of the resolutions be assured in order to allow them to produce the legal effects, even minimal, foreseen by the Charter provisions without their legality being questioned, perhaps after a few years after the adoption, by this or that State? The lack of judicial review of UN acts—the advisory function of the International Court of Justice, since it is not binding and especially cannot be requested by States, cannot serve this purpose—is a negative feature of the UN system, equal at least to the lack of effective means of pressure by the Organization on the States.

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The situation is quite different when the question of the legality of a UN resolution is raised before the International Court of Justice (and the same can be said of whatever international tribunal) in a dispute between States. In this case the so-called contentious jurisdiction of the Court is at stake (see § 86), so that the decision of the Court is obligatory for the parties, and for the parties only. Within these limits, it is perfectly conceivable that the Court can examine the legality of an UN act, even of an act of the Security Council, if the question is relevant in order to decide the case. The problem has notably been raised before the International Court of Justice in the case entitled 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) (1992–2003)—Order on provisional measures, in ICJ Reports 1992, para. 38 ff., and Judgment on preliminary objections, ibid., 1998, para. 36 ff. In this case—just as in the analogous case between Libya and the United Kingdom, on the same question—the Libyan government challenged the legality of Security Council Resolutions 748 of March 31, 1992 and 883 of November 11, 1993 involving sanctions against its country (paras. 55 and 58). Since these two resolutions were repealed by Res. 1506 of September 12, 2003 following the agreement reached between the parties (see § 55), the Court has not had a chance to rule on the merits of the dispute. In this regard, the Tadic decision on the defence motion for interlocutory appeal on jurisdiction of October 2, 1995 delivered by the Appeals Chamber of the ICTY (see § 62) can be cited where the Tribunal holds that it “has jurisdiction to examine the plea against its jurisdiction based on the invalidity of its establishment by the Security Council” (paras. 14–22).

Various attempts have been made in legal doctrine to uphold the idea that United Nations’ acts cannot be challenged. Appeal was made to the power that the organs would have to interpret the Charter in a way that is binding on the individual member, that is, of a power which in reality, for reasons we have seen, does not exist (see § 6). Then, an attempt was made to transfer into the UN system principles that in domestic law, or, rather, in some State legal systems, assure the final nature of the acts of certain public organs, such legislative or administrative organs. However, it has been easy to retort, given the scarce capability of the United Nations to assert its authority over the Member States, that an analogy between the UN organs and State organs does not seem to be the most appropriate. For a detailed criticism of these views, which were expressed mainly over the question of the expenses for UNEF (established by the General Assembly in 1956) and ONUC (on this, see § 88), see Benedetto Conforti, Le rôle de l’accord, cit., p. 230 ff.

In our view, a realistic examination of the functioning of the United Nations necessarily leads to the conclusion that the principles which ensure the unchallengibility and the definitiveness of the acts are those of traditional international law. Only the principle of consensualism and its corollaries, in particular acquiescence, are able, in the present situation, to carry out a function of this kind. We believe, in other words, that the alleged illegality of an act can no longer be denounced by a State that has acquiesced to it, that is, when the State has either implicitly or explicitly accepted the act. This precisely according to

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the rule by which agreements are binding only if and insofar as they have been accepted, explicitly or—as in the case of acquiescence—implicitly. But if acquiescence is not given, and the State explicitly denies the legality of the act, then, in the absence of any organ empowered to impose a different interpretation whereby the act is instead to be considered legally adopted, the dispute cannot but be allowed and the protesting State let to repudiate the effects of the act. The UN practice offers many instances of challenges to the legality of the acts. The legal challenge in fact represents the usual line of defense by a Government when it wants to oppose a given resolution. It is possible to find in the practice, more specifically in the practice of the two main organs, the General Assembly and the Security Council, unwritten rules that specify the significance of acquiescence, setting the limits beyond which the challenge is no longer admissible as well as the relationships between the challenge and the expression of the vote. In ascertaining these unwritten rules, a distinction must be done between the cases when the “challenging” State is not a member of the organ from which the act is issued and the cases when indeed it is a member. With regard to the first case, the practice is in the sense that a State is acquiescent if it does not proceed to challenge an act as soon as it is given the possibility to do so. For example, it may happen that a Government, party to a dispute, or interested in a situation brought to the attention of the Security Council, participates in Council meetings without the right to vote. In this case, it will have to make known its reservations on the legality of the resolution during the discussion or in any case not after the time when the act is adopted. The high number of examples in the practice conforming to this procedure and especially the care with which the Governments request that their reservation be included in the records of the organ’s meetings are testimony to the necessity of this procedure and the existence of the above-mentioned rule on the timeliness of a challenge. When, on the contrary, there has not been participation in the discussion, the reservation may be formulated when the Organization asks the Member State to specify its position regarding the resolution. This usually occurs when the text of the resolution is communicated by the Secretary-General. For the earliest practice concerning challenges by a non Member State of an organ during discussion or when the act was issued, see Benedetto Conforti, Le rôle de l’accord, cit., p. 237 ff. For the more recent practice, cf., for example, the reservations, on procedure and on the merits, put forward by the Libyan Government against Resolutions 731 of January 23, 1992 (see § 54) and 748 of March 31, 1992 (see §§ 55 and 59) of the Security Council. These resolutions adopted measures against Libya for terrorist acts against PAN AM flight 103 and UTA flight 772 (for the text of the reservations, see, respectively, S/PV.3033 and S/PV. 3063; in S/PV.3033 there also appear the reservations of Sudan and of the representative of the Arab League against the first resolution).

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With regard to the second case, which concerns Governments that are members of the organ, the problem arises of the relations between challenges and the expression of the vote. It cannot be said that a reservation regarding the legality of an act is always implicit in a negative vote since a negative vote may be cast for political or other reasons. On the contrary, acquiescence is avoided only when the challenge is made in a statement expressed before or immediately after the vote (expression of the vote). The practice goes in this direction. On the one hand, there are many examples of reservations that accompany a contrary vote, and also here the insistence with which the Governments express them during the discussion stage and claim that they be inserted in the records is strong ­evidence of their necessity. On the other hand, there are no cases of a negative vote that is not accompanied by an explicit reservation concerning the illegality of the act which has been followed by the attempt of a State to refuse the possible effects of the resolution. For the earliest practice, see Benedetto Conforti, Le rôle de l’accord, cit., p. 239 ff. For the more recent one, cf., with regard to General Assembly resolutions and as examples: GAOR, 40th sess., 1985, Pl. meet., Doc. A/40/PV.116 (reservations of the Iranian Government on the “validity” of General Assembly resolutions on the human rights situation in Iran); GAOR, 41st sess., 1986, Pl. meet., Doc. A/41/PV.55–56 (reservations of the German Democratic Republic and of other States, identical to the ones expressed in previous years, against Res. 41/33 on Afghanistan, considered as contrary to Article 2, para. 7, of the Charter); GAOR, 41st. sess., 5th Comm., Doc. A/C.5/41/SR.20 (identical protests by Afghanistan); GAOR, 41st sess. Pl. meet., doc. A/41/PV.53 (reservations of the United States on the competence of the General Assembly to be concerned with implementation of the Judgment of the International Court of Justice of June 27, 1986 in the Nicaragua case); GAOR, 47th sess., 1992, Pl. meet., Doc. A/47/PV.70 (reservation of the United States against Res. 47/19 condemning the US embargo on Cuba). With regard to the Security Council, cf., for example, the reservations advanced by Cuba, at that time a member of the organ, against Res. 687 of April 3, 1991 (see § 56), and specifically against the parts of the resolution on the setting of the boundary between Iraq and Kuwait and the compensation owed by the former for its aggression against the latter; these parts were considered by Cuba as not in accordance with the United Nations Charter (for the Cuban statements, cf. S/PV.2981). If a reservation must be explicitly stated in the event of a negative vote, it may be considered implicit in deliberate non-participation in a vote. Such non-participation has, in fact, always been understood as the maximum expression of the non-acceptance of a decision owing to its illegitimacy. Cf., among the many cases, GAOR, 2nd sess., 1st Comm., 94th meet., p. 305 and Pl. meet., 111th meet., p. 823 ff., 112th meet., p. 839 ff. and p. 859 (nonparticipation of the Socialist States in the vote on Res. 112-II of November 14, 1947 on the independence of Korea, held to be illegal because it was taken without the intervention of the representatives of North Korea in the discussion and therefore contrary to the doctrine of self-determination sanctioned by the Charter); GAOR, 5th sess. Pl. meet., 330th meet., no. 37 ff., 64 ff., 69 ff., 85 ff., and 101 ff. (idem for Res. 500-V of May 18, 1951 on the embargo against China and North Korea, denounced as invalid owing to the Assembly’s lack of competence to recommend measures for maintenance of the peace); SCOR,

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16th year (1961) 971st meet. (non-participation of Nationalist China in the vote for the admission of Outer Mongolia which was held not to be independent); GAOR, 16th sess., Pl. meet., 1121st meet., no. 615 ff. (non-participation of the United Kingdom and Portugal in the vote on Res. 1747-XVI of February 28, 1962 relating to the independence of the people of Southern Rhodesia, for the resolution’s being contrary to Article 2, para. 7, of the Charter); GAOR, 16th sess., Pl. meet., 1088th meet., no. 33 (identical behavior of Portugal for the same reasons, against a resolution on Angola, Res. 1742-XVI of January 30, 2962). See also the cases of non-participation of Communist China, after its entry in the UN in 1971, in resolutions of the Security Council on military peace-keeping actions, which we have noted at § 25.

Also a State which abstains may avoid the effects of acquiescence by expressing its reservation of a legal nature (as in the case of a negative vote) during the discussion stage or during expression of the vote. A contrary view, which holds that abstention always implies recognition of the legitimacy of the act, seemed to have been held, although in terms that do not make this interpretation certain, by the International Court of Justice in the often cited 1962 Opinion on Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter). Among the various arguments it adopted against the refusal by the Member States to contribute to expenses for the UN emergency Force (UNEF) in the Suez crisis (see § 88), the Court also noted incidentally that the Assembly resolutions establishing UNEF were all adopted without any negative votes (cf., ICJ Reports 1962, p. 170f.). It thus gave no weight to the fact that several Governments (precisely those that later were to insist in their refusal) abstained from the vote grounding their abstention exactly in the Assembly’s lack of competence to intervene with an international force in the Suez (see § 66). In that it was an incidental and very marginal passage in the Opinion, it is not clear whether the Court held that abstention, in implying a position of non-opposition to the act, is equivalent to acquiescence. This opinion could in any case be rejected as contrary to a number of unambiguous expressions in the practice. Aside from the UNEF case, abstention accompanied by a reservation regarding the legitimacy of the act can be found, for example, in two Security Council Resolutions, respectively, 27 of August 1, 1947 and 63 of December 24, 1948 on Indonesia’s war of independence. In this case the reservations and abstentions came from Belgium, France and the United Kingdom, and were based on the limit of domestic jurisdiction under Article 2, para. 7 (cf. SCOR, 2nd year, 171–173rd meet. and 3rd year, 229th meet.). The same can be said of the case of the appointment of a mediator in Palestine in 1948: when the Security Council decided in its session of July 15, 1948 to provide the mediator with a certain number of armed guards, the Soviet Union, abstaining, denounced the relative resolution as contrary to Article 43 of the Charter (cf. SCOR, 3rd year, 388th meet., p. 64 ff.). Lastly, reservations of a legal nature were put forward as reason for abstaining during the Assembly discussions on the problem of expenses for dredging the Suez Canal in 1957 (cf. GAOR, 12th sess., Pl. meet., 730th meet., no. 1 ff.), in the Security Council regarding the admission of new members (for example, the reservations of the Soviet Union and the United States in 1961 with regard to the admission, respectively, of Mauritania and of Outer Mongolia: cf. SCOR, 16th year, 971st meet.), again in the Assembly on the restitution of cultural property to the State of origin (cf. the statements of the United Kingdom, in 1989, relating to Res. 44/18, in GAOR, 44th sess., Pl. meet., Doc. A/44/PV.45), and, again in the Security Council, with regard to the parts of Res. 687 of April 3, 1991 concerning the setting of the boundary between Iraq and Kuwait and compensation owed by Iraq (cf. the statements of

472  The Acts

Yemen, in S/PV.2981), as well as with regard to Res. 748 of March 31, 1992 on the measures against Libya (cf. the statements of Capo Verde in S/PV.3063).

Lastly, acquiescence is to be presumed in the case of a favorable vote. This is, however, a presumption subject to evidence to the contrary. Actually, it is not unusual that a State, although voting in favor, expresses reservation on a part of the decision being voted upon, the part it intends to disassociate from, or it states that it will follow a certain interpretation of the act, and rejects any interpretation that is different, the one in particular that seems to be held by the majority of members in the organ. Such conduct has found fertile ground, especially in the General Assembly, following the spreading of the practice of approval by consensus (see § 33). In fact, it could be said that this way of voting, which otherwise would not be different from a unanimous vote, and would not deserve a special Latin name, is characterized by the fact that it is a convenient loophole for making a decision appear to be supported by all but at the same time allows the States to challenge the act and dissociate themselves from its effects. This is why the practice of consensus does not deserve an entirely favorable judgment. One of the most important cases of resolutions approved by consensus but accompanied by various reservations of a large number of States was that relative to the Declaration and Program of Action for the Establishment of a New International Economic Order, adopted by the General Assembly during the sixth special session in 1974 (Resolutions 3201S-VI and 3202S-VI of May 16, 1974). The reservations, concerning certain parts of the two resolutions, and the way of interpreting them, can be drawn from reports of the plenary sessions (cf. Doc. A/PV 2229–2231). Another case is that of the General Assembly resolutions requesting the creation of a “peace zone” in the South Atlantic, resolutions adopted with the affirmative votes of the United States and France, but with the reservations of both States not to apply them in the part inconsistent with the principle of the freedom of navigation on the high seas (cf., for example, the statements of the two States in GAOR, 44th sess., 1989, Pl. meet., Doc. A/44/PV.55). For other cases of challenges put forward at the same time as a favorable vote, see Benedetto Conforti, La funzione dell’accordo, cit., p. 29f.

When a State has validly challenged the legality of a resolution, when, more generally, acquiescence cannot be attributed to it, its challenge usually reaches its purpose, that is, the repudiation of the effects of the act and the extraneousness of the State with regard to the act itself. When these are recommendations, the State may avoid even the minimal consequences they produce, and in particular the duty to explain the reasons for conduct not in keeping with the conduct recommended. In the case of binding decisions or of resolutions that constitute the conditions for binding decisions, challenges will involve the rejection of the obligations that derive from the decisions. In turn, the denouncing of the illegality of organizational decisions, that is, decisions establishing organs or providing for the election of members, shall have as a consequence

Illegality of acts and the role of consensualism in the United Nations system   473

non-cooperation with the organ, non-participation in the proceedings, ­non-recognition of the acts issued by the organ, and refusal to recognize the legal existence of the organ. Only as far as resolutions affecting the structure of the organization as a whole are concerned, such as resolutions relating to admission and, more generally, membership of the State in the Organization, the consequences of the challenge of legality by a State are likely to be mitigated. A State which challenges the validity of the presence (or of the expulsion) of another State in the UN may protest, may temporarily suspend its collaboration with the Organization—as in the case of the Soviet Union’s temporary abandonment of the main organs between January and June 1950, as a protest against the presence of the Government of Formosa in the UN (see § 19)—but in the end it will have no alternative to acquiescence other than that of withdrawal from the Organization. For the relevant practice see, again, Benedetto Conforti, Le rôle de l’accord, cit., p. 253 ff.

Index (The numbers refer to paragraphs) absence — of a permanent member from Security Council meetings:  25 abstention acquiescence to UN resolutions in case of —: 99 — by a member of the General Assembly: 31 — by a member of the Economic and Social Council:  38 — by a permanent member of the Security Council: 24 — by a Security Council member party to a dispute:  27, 51, 57, 97 non-participation to the vote and —:  24, 99 acquiescence — to resolutions:  99 — — on credentials:  21 act of chapultepec (1945):  56 administration of territories — and domestic case law:  62 — by General Assembly:  65 — and responsibility of sending States: 62 — by Security Council:  62 and belligerent occupation:  62 and domestic jurisdiction:  62 see also Non-self-governing territories, Trusteeship system administrative tribunal of the united nations — competence on employment disputes: 35 — decision on renewal of employment contracts: 35 effect of decisions of the — :  35 General Assembly recognition of — decisions:  35 revision of — decisions:  35 see Appeals Tribunal of the United Nations, Dispute Tribunal of the United Nations

admission to the un — and recognition of new States:  10 conditions of —:  10 decisions on credentials and —:  21 independence of a State as a condition for the —:  10, 21 merger or dismemberment of a State and —: 18 of Governments created as a result of revolutions: 19 — of Governments in exile:  20 — of micro-States:  11 — of neutralized States:  12 “package” on —:  13 procedure for the —:  10 re—: 14 prohibition to intervene and —:  19 reservations to the —:  13 secession and —:  18 statehood of the applicant as a condition for the —:  10 see also Austria, Belize, Mauritania, Montenegro, Oman, Outer Mongolia, Serbia-Montenegro, State succession, Yugoslavia, USSR advisory opinions: see International Court of Justice afghanistan ceasefire in —:  58, 66 human rights situation in —:  64 Soviet occupation of —:  81 International Security Assistance Force in —:  61 sanctions against —:  59 Security Council recommendation on the supply of arms to all parties in -:  59 war to —:  56, 61 afism-car: 69 african union:  60, 70 agenda for peace:  8, 52, 59, 60, 62, 88 agenda for sustainable development:  8, 38, 73, 74, 81, 96

476  Index

aggression Declaration on the — —:  56 definition of —:  56 discretionary power of the Security Council in the determination of an act of —:  56 self-defense and —:  56 Special Committee on the:  56

authorization of the use of force: see Delegation of powers bahrain question of the independence of — islands: 54

albania Multinational Protection Force in —:  203

belize admission of —:  10 dispute between Guatemala and the United Kingdom on —:  50, 64

alma ata — Agreement:  18

benin Security Council investigation in —:  51

al qaida sanctions against:  59

binub: 60

amendments to the charter:  7, 32 — and general law of treaties:  7 — and right of withdrawal:  7, 17 by customary international law:  4, 24 entry into force of —:  7

binuca: 60 bnub: 60 bolivia violation of human rights in —:  77

amisom: 69

boko haram:  69, 76

anarchy effects of — on UN Membership:  19 as a threat to the peace:  56

burundi UN Forces in — (ONUB): 60

angola embargo of arms and oil products to the rebels of UNITA in —:  59 restrictions to the movement of officials, aircraft and vessels of UNITA in —:  59 apartheid — as a threat to the peace:  56 domestic jurisdiction and —:  45 III majority required to adopt General Assembly resolutions on —:  32 appeals tribunal of the united nations:  8, 35 armed attack: see Aggression, Use of force arms control: see Disarmament atlantic charter: 1 austria admission of —:  12 neutralization of —:  12 — participation to enforcement measures: 12

breach of the peace discretionary power of the Security Council in the determination of a —: 56 budget: see Expenses, Financing the UN, Loans issued by the UN bulgaria question of the border incidents between — and Greece:  26, 29, 51 violation by — of peace treaty provisions on the protection of human rights:  45 III, 87 businesses role of — in the maintenance of peace and security: 8 bush doctrine: 56 byelorussia (belarus) — membership:  1 B, 10 — participation in the San Francisco Conference:  1 B, 10

Index  477

cambodia military occupation of —:  20, 38 — representation:  20 violation of human rights in —:  34 UN Transitional Administration in — (UNTAC): 62 ceasefire commissions established to control respect for —:  51 General Assembly’s competence on —: 65 Security Council’s competence on —:  58 central africa republic UN Forces operating in — (MINURCA):  60 charter of economic rights and duties:  8, 73 see also New International Economic Order charter of the un: alleged constitutional nature of the —:  4, 5, 35, 43, 59 amendments to the —:  7, 32 binding effect of the — on non-member States:  4, 43 derogation from the — by subsequent customary law:  4, 7, 24, 28, 32, 35, 45 III, 54, 61, 60, 62, 66, 80 entry into force of the —:  1 (B) history of the —:  1 interpretation of the —:  4–7, 48, 87 origins of the —:  1 precedence over other treaty obligations:  4, 12, 43, 59 revision of the —:  8, 32 A More Secure World: Our Shared Responsibility report:  8, 22, 55, 66, 82 In Larger Freedom report:  8, 55, 66, 82 World Summit Outcome document:  8, 22, 38, 52, 55, 66, 69, 76, 82 rigidity of the —:  7

china expulsion of Nationalist — from the UN: 19 non-participation of — to Security Council meetings:  19, 99 question of the representation of — in the UN:  19, 26, 32 cholera: see Haiti civil society role of — in the maintenance of peace and security: 62 civil wars competence of the Security Council to take action in —:  55 domestic jurisdiction and —:  45 III — as a threat to the peace:  56 see also Liberia, Somalia civilians protection of — in armed conflict:  8 climate change:  8, 73 collective security: see General Assembly, Measures involving the use of force, Measures not involving the use of force, Security Council commission of the international sea-bed authority question of contribution for the preparatory —:  88 commission on sustainable development: 30 commission on the permanent sovereignty over natural resources: 30 committee against torture: 79 committee on the elimination of discrimination against woman: 79

chemical weapons: 56

committee on the peaceful use of extra-atmospheric space: 30

children protection of — in armed conflict:  8

committee on the rights of the child: 79

chile credentials of representatives of —:  19 violation of human rights in —:  77

commonwealth of independent states (cis): 70

478  Index

conciliation — Commissions:  51, 53, 64 General Assembly’s — functions:  64 investigation and —:  64 Secretary-General’s — functions:  68 Security Council’s — functions:  53–54 and distinction between “dispute” and “situation”: 52 according to Article 39:  53, 57 conference on financing for development: 73 conference on security and cooperation in europe (csce): 70 conflict prevention:  8, 52 congo Interim Emergency Multinational Force in —: 69 Multination Force in Bunia (Democratic Republic of —):  61 question of contribution for — —:  88 question of representation of — (1960):  19 sanctions against —:  59 UN action in — (1960–61):  50, 60, 68 UN Forces operating in the Democratic Republic of — (MONUC): 60 consensus acquiescence to UN resolutions approved by —:  99 approval by — of General Assembly resolutions: 33 approval by — of Security Council decisions: 28 corfu channel dispute: 53 corporate social responsibility: 76 council for namibia: 83 credentials — Committee:  21, 30 examination of — by General Assembly and Security Council:  21 principle of legality and decisions on —: 21 State succession and rules on —:  21 crimea (russian annexation of — and obligation to abstain in the Security Council): 27

crimes against humanity: see Rwanda, Yugoslavia cuba US embargo against —:  65, 99 cyprus question of —:  54 Turkish invasion of Northern —:  56 UN resolutions on —:  50, 57, 58, 65 cease-fire in —:  58 see also Turkish Republic of Northern Cyprus, unfycip czechoslovakia dismemberment of —:  18 question of — (1948):  26 danzig (Free City of): 62 dayton agreement:  60, 61 decision-making: see Consensus, Declaration of Principles, Interpretation of the Charter, Recommendations, Resolutions declaration on friendly relations and cooperation between states: 96 declaration on international economic cooperation and the relaunching of economic growth and development:  73, 96 declaration on permanent sovereignty over natural resources:  73, 96, 99 declaration on the indipendence of colonial peoples:  80, 96 declaration on the legal principles governing the sea-bed and the ocean floor, and the sub-soil thereof, beyond the limits of national jurisdiction: 96 declaration on the right to development:  73, 96 declaration on the occasion of the 50th anniversary of the un:  73, 96 declarations of principles as agreements between States:  96 General Assembly —:  96

Index  479

Declaration on the elimination of discrimination against women: 78 Declarations on the elimination of racial discrimination:  78, 96 Declaration on friendly relations and cooperation between States:  96 Declaration on genocide:  96 Declaration on human cloning:  78 Declaration on the independence of colonial peoples:  45 III, 80, 96 Declaration on indigenous rights:  78 Declaration on the legal principles governing the sea-bed and the ocean floor, and the sub-soil thereof, beyond the limits of national jurisdiction:  96 Declarations on the moratorium on the death penalty:  78 Declaration on the occasion of the 50th anniversary of the UN:  73, 96 Declaration on permanent sovereignty over natural resources:  73, 96 Declarations on the prohibition of extrajudicial summary or arbitrary executions:  78 Declarations on the prohibition of hostage-taking: 78 Declaration on the prohibition of the use of nuclear and thermonuclear weapons:  96 Declarations on the protection of children: 78 Declaration on the protection of juveniles deprived of their liberty: 78 Declarations on the protection of migrants: 78 Declaration on the protection of all persons from enforced disappearance: 78 Declarations on the protection of women: 78 Declaration on religious intolerance: 78 Declarations on the respect for human rights while countering terrorism: 78

Declaration on the rights of the child: 78 Declaration on the right to development:  73, 96 Declarations on the right to food:  78 Declaration on the rights of indigenous peoples: 78 Declaration on the treatment of prisoners: 78 Millennium Declaration:  8, 73, 74, 96 Universal Declaration of Human Rights:  78, 96 Security Council —:  96 Declaration on the global efforts for the elimination of terrorism:  96 Declaration on proliferation of small arms and light weapons and mercenary activities:  96 in the field of economic and social co-operation:  73, 96 in the field of human rights protection:  78, 96 in the field of self-determination and decolonization:  80, 96 legal nature of —:  96 role of — in the development of customary law:  96 decolonization — and domestic jurisdiction:  45 III, 80 — and self-determination:  81 economic —:  71 General Assembly competence in the field of —:  80 territorial integrity and —:  81 delegation of functions and delegation of powers:  95 and the principle delegatus non potest delegare: 61 from the Security Council to Member States: 61 from the Security Council to the SecretaryGeneral:  60, 67 distinction from authorization and from recommendation:  61, 91 delegation of powers see Delegation of functions

480  Index

development — and armaments:  8 financing of —:  74 human —:  71, 74 sustainable —:  71, 73 see Economic and social co-operation disarmament — as a mean to prevent crisis:  61 — Commission:  30 — through the proposed “Register of conventional weapons”:  8, 61 dispute — and situation:  27, 52 — before the General Assembly:  64 definition of —:  27 indication of “terms” of settlement of a—:  54, 57, 64 indication to the States of procedures or methods for settling a —:  53, 57, 64 judicial settlement of —:  86 see also Abstention dispute tribunal of the united nations:  8, 35 dismemberment: see Admission, State Succession in Membership dissolution of states: see State Succession in Membership

human rights and —:  45 III international treaties and —:  45 I investigations by the Security Council and —:  47, 51 legal notion of —:  45 I measures not involving the use of force and —:  47, 59 notion of — at the time of the League of Nations: 44 peaceful settlement of disputes by UN organs and —:  49, 57 practice of UN organs on —:  45 III provisional measures and —:  47 recommendations and —:  47 self-determination and —:  45 II droit d’ingérence:  66, 45 III see also Responsibility to protect dumbarton oaks — Conference (1944):  1A — proposals:  1 A, 23 east timor international administration in —:  60–62 invasion of — by Indonesia:  57 Multinational Force in —:  61 UN Mission of Support in — (UNMISET):  60, 62 UN Transitional Administration (UNTAET) in —:  62

dominican republic Security Council investigation on the internal situation of the —:  51 UN intervention in the —:  58 US intervention in the —:  69

eastern slavonia international administration in —:  62

domestic jurisdiction apartheid and —:  45 III and prohibition of the use of force:  47 and UN administration of territories: 62 and non-interference:  44 decolonization and —:  45 III development of the principle of —:  45 I and III discussion stage and —:  46 Dulles speech on —:  45 II Dumbarton Oaks proposals on — principle: 44 economic and social co-operation and —: 45 II exceptions to —:  47, 49, 57 general resolutions and —:  45 II

ebola: 56

eastern zaire creation of a multinational force in —:  61

ecomog: 70 economic and social co-operation financing —:  74, 88 normative functions in the field of —:  73 operational functions in the field of —: 74 organs charged with —:  30, 38, 72 economic and social council composition of the —:  38 functions of the —:  38 human rights protection through the —: 77 geographical representation in the —:  38 and NGOs: 38

Index  481

participation of non-member States to the — meetings:  38 regional economic commissions of the —: 38 — relationship with specialized agencies: 75 subsidiary organs of the —:  38 technical or functional commissions of the —:  38 voting procedure in the —:  38 economic community of west africa States (ecowas): 70 economic, social and cultural committee: 79

expenses apportionment of —:  88 compulsory contributions to —:  89 — for operational activities for development:  74, 88 illegality in the assessment of — due to the illegality of General Assembly resolutions: 88 interpretation of the term — used in Article 17:  88 non-payment of — for peace-keeping operations: 88 ordinary and extraordinary —:  88 voluntary contributions to —:  89

eichmann abduction: 54

expulsion from the un: 16 — and right of veto:  27 — and rules on credentials:  21

el salvador violations of human rights in —:  64, 77

failed states: 19 and State-building:  61, 62

enrica lexie (case of —):  61

falkland-malvinas decolonization of the —:  81 sovereignty dispute over the —:  64 — war :  27, 57

epta: 237 equatorial guinea violation of human rights in —:  77 eritrea: sanctions against —:  59 see also Ethiopia ethiopia cease-fire in the war between — and Eritrea: 58 dispute between — and Eritrea:  57 sanctions against — and Eritrea:  59 UN Forces operating in — and Eritrea (UNMEE): 60 ethnic cleansing — as a gross violation of human rights: 45 III european convention on human rights: 62 european court of human rights: 36, 61, 62 european union:  61, 69 executive committee on economic and social affairs (ecesa):  73, 74

fao: 75 financing the un alternative methods:  90 refusal to pay contributions for —:  88 — through issuance of loans:  90 — through compulsory contributions:  88 — through voluntary contributions:  89 see Expenses formosa: see China general assembly abstention from voting of a member of the —: 31 appointment of the Secretary-General by the —:  34 approval by “consensus” of — resolutions:  33, 99 budgetary decisions of the —:  88 — committees:  30 composition of the —:  30 conciliatory function of the —:  64 decolonization policy of the —:  80 democratization of the —:  8 disarmament questions discussed by the —:  8, 31 economic development and — ­functions:  31, 73

482  Index

elections of judges by the —:  41 implied powers of the —:  5 international law development by the —: 96 lis alibi pendens between— and Security Council: 64 — — in the advisory opinion on the construction of a wall by Israel:  64, 87 main committees of the —:  30 ordinary meetings of the —:  30 peaceful settlement of disputes by the —: 64 — power to adopt amendments to the Charter: 7 — recognition of Administrative Tribunal decisions: 34 request by the — of advisory opinions to the ICJ: 87 rules of procedure of the —:  31, 98 specialized agencies and —:  75 subsidiary organs of the —:  30, 72, 73 voting procedure in the —:  31, 32 proposed introduction of the weighted vote in the — —:  8, 11

greece continental shelf dispute between — Turkey:  54 question of border incidents between — and communist States:  26, 29, 51 grenada US intervention in —:  69, 81 gross violations of human rights: see Human rights guatemala cease-fire in —:  58 — City agreement (1987):  54 human rights violation in —:  77 see also Belize gulf war: see Iraq haiti cholera outbreak attributed to the United Nations: 60 human rights violations in —:  64 Multinational Interim Force in —:  61 sanctions by the Security Council against the military regime in —:  59 UN Forces operating in — (MINUSTAN): 60 US intervention in — authorized by the Security Council:  61

genocide and immunity of the UN in domestic courts: 35 — as a gross violation of human rights: 45 III — as a threat to the peace:  56

hamas: 59

georgia cease-fire observation mission in —:  51

high commissioner for human rights: 77

german re-unification: 18

high level dialogue on strengthening international cooperation for development through partnership: 73

gibraltar decolonization of —:  81 sovereignty dispute over —:  64 global compact: 90 global governance:  38, 44, 45 globalization: 73 good governance:  8, 70, 81 good offices commissions:  53, 64 governance of territories: see Administration of territories governments in exile: 20

high-level panel on threats, challenges and change of the un: 8 holy see:  1 B, 10, 43 honduras dispute between — and Nicaragua:  53 humanitarian assistance: 8 humanitarian interventions:  56, 60 humanitarian law breach of — as a threat to the peace:  56 respect for — by:

Index  483

— by the Security Council:  59, 60, 62 — by UN Forces:  60 human rights Commission on —:  38, 76, 77 — Committee:  79 compliance by the Security Council with rules on — :  59, 62 compliance by the UN Forces with rules on — :  60 — conventions:  79 — and domestic jurisdiction:  45 III gross violations of —:  24, 45 III High Commissioner for —:  76, 77 Investigation into violation of —:  51 see also Bolivia, Bulgaria, Cambodia, Chile, Committee on the Rights of the Child, Committee against Torture, Committee on Elimination of Discrimination against Woman, Cuba, Equatorial Guinea, Guatemala, Haiti, Humanitarian interventions, Hungary, Israel, Poland, Romania, Rwanda, Salvador, South Africa human rights commission:  38, 77 human rights committee: 79 human rights council:  36, 76, 77 human rights covenants: 79 human security:  56, 74 humanitarian occupation: 62 hungary challenge of the regularity of credentials of — (1956–1962):  19 violation by — of peace treaty provisions on human rights:  45 III, 87 hybrid criminal tribunals: 62 iaea: 75 ibrd: 75 icao:  53, 75 ida: 75 ifad: 75 ifc: 75 ifor: 61

ilo: 75 imf: 75 immunity of un forces and “equivalent protection”:  35 and genocide of Srebrenica:  35 — from the jurisdiction of the International Criminal Court:  60 imo: 75 implied powers doctine: 5 india: see Indo-Pakistani question indo-pakistani question:  51, 54, 58 indonesia readmission of —:  14 —’s war of independence:  29, 47, 58 withdrawal of —:  17 interfet: 61 international court of justice advisory opinions of the —:  87 discretion in — —:  87 dispute among States and — —:  87 legal effects of — —:  87 political questions and — —:  87 binding effects of — decisions:  86 composition of the —:  40 execution of — judgments:  27, 99 election of — judges:  41 geographical representation in the —: judicial review of Security Council resolutions by the —:  99 privileges and immunities of — judges:  41 international criminal court — and attacks to the UN personnel engaged in peace operations:  37 — and exemption from jurisdiction decided by the Security Council:  56 — and aggression:  56 and Palestine:  10 relation of the — with the Security Council: 60 international criminal tribunal for rwanda (ictr):  59, 62 international criminal tribunal for the former yugoslavia (icty):  47, 58, 59, 61, 62

484  Index

international law hegemonic —:  59 respect for — by: Forces of Member States:  61 the Security Council acting under Chapter VII:  56, 59, 60, 62 UN Forces: 60 transformation of —:  91 international peace and security General Assembly’s role in the maintenance of —:  63–66 regional organizations’ role in the maintenance of peace and security: 69–70 Security Council’s role in the maintenance of —:  49–62 Secretary-General’s role in the maintenance of peace and security:  67–68 international personality of the un: 37 international red cross:  1 B interpretation of the charter implied powers rule and —:  5 objective method of —:  5 power of UN organs in the —:  6 preparatory work function in the —:  5, 24, 32 subjective method of —:  5 and subsequent practice:  4, 24, 45 III see also Charter

— -Iraq war:  58, 65 question of American hostages in —:  155, 53, 54, 91 question of the stationing of Soviet troops in —:  50, 53, 54 sanctions against —:  59 shooting down of an —an aircraft by US naval forces:  53 iraq authorization by the Security Council to use force against —:  61 Davids Commission of inquiry on the Iraq War in the Netherlands:  61 delimitation of the frontier between — and Kuwait:  57, 99 German domestic jurisprudence on the Iraq War:  61 Inquiry on the Iraq War in the United Kingdom: 61 investigation about weapons of mass destruction in —:  51 — -Iran war:  58, 65 occupying Coalition Forces in —:  61 post-conflict situation in Iraq:  62 representation of — in the UN (1958):  19 sanctions against —:  57, 59 self-determination of — i people:  81 unlawful invasion and occupation of Kuwait by —:  56, 59 question of reparations for the unlawful invasion of Kuwait:  56, 97 war against —:  56, 61

interpretation of un Security council resolutions: 59

isis (is, isil, da’sh):  56, 59, 61, 76, 91

intervention brigade (in the democratic republic of congo): 59

israel atypical measures not involving the use of force adopted against —:  59 human rights violations by —:  77 — bombing of PLO headquarters in Tunis: 56 military operation in the Gaza Strip in 2008–2009: 37, 58, 64, 76 proposed exclusion of — from General Assembly meetings:  16 provisional measures requested to —:  47, 58 recommendations under Article 39 condemning —:  57 sanctions against — recommended by the General Assembly:  65 see also Lebanon, Middle East, Road Map, Suez

investigation binding effect of — decisions:  51 — committees:  51 — and domestic jurisdiction:  51 General Assembly power of —:  64 — into violations of human rights:  51 obligation of member States to co-operate in the —:  51 operational nature of the resolution providing for —:  51 Secretary-General power of —:  68 Security Council practice on —:  63 iran human rights violation in —:  77

Index  485

itu: 75 ivory Coasty French and ECOWAS Forces in —: 61 sanctions against —:  59 japan admission of —:  12 Johannesburg Declaration on sustainable Development: 73 jus cogens:  35, 56, 59, 62 just war: 61 korea General Assembly recommendations on the re-unification of —:  64 invitation to the People’s Republic of — to respect the Treaty on the Nonproliferation of Nuclear Weapons:  56 North — and responsibility to protect:  66 question of the shooting down of an aircraft of South Korea — by the Soviet Union: 27 sanctions against North Korea:  59 war of —:  25, 29, 61, 66, 88, 99 kosovo action of the Secretary-General in —:  68 — and self-determination of peoples:  81 advisory opinion on the declaration of independence of—:  59, 64, 81, 86 air war of NATO in —:  56, 61, 69 cease-fire in —:  57 declaration of independence:  62, 81 Member States security forces in —:  61 request for an advisory opinion on the declaration of independence of—:  31 sanctions against —:  57 UN International Administration in — (UNMIK):  62: 202 violation of human rights in —:  64 kuwait unlawful invasion and occupation of — by Iraq: see Iraq laos question of the infiltration of Communist guerrillas in — (1959):  26, 51 league of arab states: 70 league of nations

abstention of a member of the — Council:  27 — Administrative Tribunal:  35 — and provisional measures:  58 — and third States:  43 composition of the — Assembly:  30 dissolution of the —:  1 C double veto in —:  26 economic sanctions in the —:  59 financing of the —:  88 notion of domestic jurisdiction at the time of the —:  45 power to activate the organs of the —:  50 relationships between the — and the UN:  1 C registration of treaties in the —:  84 territories under mandate of the —:  62, 82 UN as successor to the —:  1 C withdrawal from the —:  17 lebanon cease-fire in —:  58 Commission of inquiry on the murder of Hariri: 51 Israeli armed attacks against —:  57 sanction against —:  59 leticia (district of): 62 liberia civil war in —:  58 embargo on the sales of arms to —:  59 Multinational Force in —:  61 UN Forces operating in — (UNMIL): 60 libya American bombing of — (1986):  56, 64 authorization of the use of force:  61, 69 Committee on —:  59 credentials of the National Transitional Council: 19 judicial review on —:  99 Security Council sanctions against — as a consequence of the Lockerbie incident:  56, 59, 99 lis alibi pendens — between General Assembly and Security Council: 64 — in the ICJ Advisory Opinion on the construction of a wall by Israel:  64, 87 loans issued by the un: 90 see also Budget, Expenses, Financing the UN

486  Index

lockerbie affair: see Libya

mediation:  53, 64

macedonia admission of —:  13 question of the name and admission to NATO: 13

military observers:  51, 60 memel (Territory of): 62

malvinas: see Falkland-Malvinas

membership: see Admission, Dissolution of State

mandates: 82

military staff committee: 60

massive deportation — as a gross violation of human rights: 45 III

millennium declaration:  8, 38, 73, 74, 96

mauritania admission of —:  10 meaddle east — conflict:  25, 32, 37, 53, 56, 58, 61, 65, 99 UN Forces in —:  60, 65 financing — —:  88 see also Israel, Lebanon, Suez measures involving the use of force —authorized by the Security Council:  61 — and domestic jurisdiction:  45 III financing —:  88 participation of neutralized States to —: 12 — taken by the General Assembly:  65, 66 — taken by the Security Council:  60 measures not involving the use of force — and domestic jurisdiction:  45 III — and humanitarian exceptions:  59 — and Sanctions Committees:  59 atypical —:  59 Chapter VI and —:  59 implementation of — in domestic legal systems: 59 in the case law of domestic courts and of the European court of human rights. 59 monitoring of the application of —:  59 participation of neutralized States to —: 12 — recommended by the General Assembly: 65 — recommended by the Security Council: 59 “smart” sanctions:  59 see also Iraq, Israel, Portugal, Rhodesia, Somalia, South Africa, Yugoslavia

mini-states admission of —:  11 minorities oppression of — as a threat to the peace: 56 protection of —:  45 III, 77 minuci: 60 minurca: 60 minurcat: 60 minurso: 51 minusca: 60 minusma: 60 minustah: 60 misca:  59, 61 mongolia admission of Outer —:  10, 99 montenegro admission of —:  1 B, 18 monterrey consensus: 73 monua: 51 monuc: 60 monusco: 60 moscow conference (1943):  1 A moscow declaration (1943):  1 A

Index  487

multinational corporations (mncs) donations and contributions of — to the UN: 90 Global Compact:  90 namibia Council for —:  83 independence of —:  83 national liberations movements — and self-determination of peoples:  80 observer status of —:  1 B, 10 national reconciliation (procedures of):  45 III, 57, 60, 62, 65, 68 national security strategy of the united states (bush doctrine): 56 nato:  69, 70 air war of — for Kosovo:  56, 69 ISAF: 60 participation of — in post-conflict UN administration in Kosovo:  62 Resolute Support Mission:  60 natural disasters:  45, 60, 66, 73 Peacekeeping engaged in natural disaster relief operations:  60 neutralized states admission of —:  12 participation of — to enforcement measures: 12 new international economic order: 8, 33, 73, 99

proliferation of — as a threat to the peace: 56 oas: 70 oau:  56, 69, 70 obligations erga omnes:  61 observer status — of the International Red Cross:  1B — of national liberation movements:  1 B, 10 — of non-governmental organizations:  1 B officials of the un legal nature of employment relationships of —: 35 principle of independence of —:  35 privileges and immunities of —:  36 protection of — (Advisory Opinion on Reparation for Injuries): 37 recruitment of —:  35 renewal of — contract:  35 termination of appointment of — (Advisory Opinion on Effect of Awards): 35 oman admission of —:  10 ombudsman of the un: 8 onub: 60 onuc:  60, 88

nicaragua dispute between — and Honduras:  53 US intervention in —:  27, 64, 91

onuca: 51

nigeria: violation of human rights in —:  77

open-ended working group on the question of equitable representation and increase in the membership of the security council and other matters related to security council: 8

non-governamental organizations (ngos):  1 B, 10, 38, 73, 76, 77, 85 non-member states of the un: 43 non-self-governing territories: 80 north korea nuclear weapons

onusal: 51

operational resolutions: 94 organizational resolutions: 93 ordinary program for technical assistance: 74

488  Index

organization of east caribbean states: 70 organization on Security and Cooperation in Europe (osce): 70 pakistan: see Indo-Pakistani question

High-level Panel on —:  60 multidimensional —:  60 new trends of —:  60 regional arrangements and —:  69 Secretary-General competence over —:  60, 69 Special Committee for —:  30

palestine acceptance of the ICC jurisdiction:  10 accession to the ICC Statute:  10 invitation of — to Security Council proceedings: 29 status of “non-member Observer State”:  1 B, 10, 29 see also Israel, Middle East, Road Map

personal data protection: 76

panama representation of — :  19 US intervention in —:  56, 64

plo (palestinian Liberation organization) see Palestine

peace and security council of the african union: 70 peaceful settlement of disputes free choice of means for the —:  53 General Assembly competence in the field of —:  64 powers of the Security Council in the —: 52–54 power to seize the Security Council for the —: 50 regional organizations and —:  69 Secretary-General’s functions in the field of —:  67, 68 peacebuilding commission:  55, 62 peace-enforcing forces: 60 peacekeeping forces compliance with humanitarian law, human rights rules and international law by —: 60 establishment, formation and operation of —: 60 host country consent to the operations of —: 60 peacekeeping operations financing —:  60, 88 arrears in — —:  88 General Assembly incompetence to carry out —:  65, 66 general regulation by the Security Council on —:  60

piracy armed personnel against — on merchant ships: 61 authorization by the Security Council to repress —:  61 — as a threat to the peace:  56

poland human rights violation in —:  77 political prisoners resolutions urging the liberation of —:  58 portugal armed actions of — in Senegalese territory: 57 raids by — against Guinea:  57 sanctions against — recommended by the Security Council:  59 protection of the environment: 73 provisional measures: — and domestic jurisdiction:  47 main features of —:  58 relationship between — and conciliatory measures: 58 puppet governments:  55, 81 readmission to the un: 14 recognition of new states and governments — and admission to the UN: 10 — and participation to Security Council meetings: 25 registration of treaties and —:  84 see also Turkish Republic of Northern Cyprus recommendations — between organs:  95 effect of legality produced by —:  91

Index  489

General Assembly — in the field of human rights: 78 General Assembly — in the field of peaceful settlement of disputes:  65 good faith of States in taking into consideration UN —:  91 refusal to observe a number of —:  91 Security Council — in the field of peaceful settlement of disputes:  49, 54, 57 Security Council — providing for authorization of use of force by States: 61 refugees High commissioner for —:  74, 76 regional arrangements and organizations — and collective self-defense:  56 coercive military measures through —: 69 regional economic commissions: 38 registration of treaties by non-member States:  43 — concluded by non-recognized States: 84 — concluded with non-governmental organizations: 84 effects of —:  84 — — in the League of Nations:  84 effects of non —:  85 remedial secession: 81 responsibility — of the State and non-invocability of domestic law:  60, 62 — of peacekeepers:  60 responsibility to protect:  24, 56, 59, 61, 65, 66, 69, 81 resolutions — and voting procedure in the General Assembly: 31–33 — and voting procedure in the Security Council: 23–28 binding — of the General Assembly:  80, 88 binding — of the Security Council:  59, 92 General Assembly — in the field of human rights: 78

legality of —:  97 challenge of the — —:  99 operational —:  94 organizational —:  93 revision of the charter:  7, 8 — and right to withdrawal:  17 entry into force of —:  7, 17 Open-ended working group on the —:  8 present trends towards the —:  8 procedure for the —:  7, 31 revolution effects of — on membership:  19 revolving fund for natural resources exploration: 74 rhodesia Security Council sanctions against Southern —:  43, 59, 91 implementation of — — by domestic courts: 60 right of interference: see Droit d’ingérence rio declaration on environment and development: 73 road map endorsement of the — on the IsraeliPalestinian conflict by the Security Council: 57 romania Mazilu case between — and the UN: 36, 87 violation by — of peace treaty provisions on the protection of human rights:  45 III, 87 rule of law:  8, 35, 81 rules of procedure: 98 rwanda cease-fire in —:  58 France intervention in — authorized by the Security Council:  61 International Commission of Inquiry on sale and supply of arms to former Government of —:  51 International Criminal Tribunal for —: 62

490  Index

International Residual Mechanism for Criminal Tribunals:  62 saar (Basin of): 62 sanctions: see Haiti, Israel, Iraq, Liberia, League of Nations, Libya, Measures not involving the use of force, Portugal, Rhodesia, South Africa, Yugoslavia san francisco conference (1945):  1 B san francisco Statement on voting procedure in the Security Council:  1 B, 23 secret diplomacy abolition of —:  84, 85 secretary-general appointment of —:  34 appointment by — of civil servants:  35 authority of — in staff matters:  35 — competence in peace-keeping operations:  60, 67 delegation of powers to the —:  60, 67 diplomatic immunity of the —:  36 executive functions of the —:  67 fact finding missions of the —:  67, 68 independence of the —:  34 power of the — to seize the Security Council: 50 secretariat staff: see Officials of the UN security council absence of a permanent member of the —:  24, 25 abstention of a member of the — party to a dispute: 27 alleged legislative powers:  59 appointment of Secretary-General by the —: 34 authorization of use of force by States:  61 calling of meetings of the —:  50 conciliatory function of the —:  52–54 consensus procedure in the —:  28 composition of the —:  22 decisions of the —:  59, 92 — — on procedural matters:  24 delegation of powers by the — to Member States: 61 delegation of powers by the — to the Secretary-General:  60, 67 election of judges by the —:  41

election of non-permanent members of the —: 22 enforcement of judgments of the ICJ and —: 27 equitable representation in the —:  22 ex-post approval by the — of the use of force by Member States:  61 geographical representation in the —:  22 implied — —:  61 lis alibi pendens between— and General Assembly: 64 — — in the advisory opinion on the construction of a wall by Israel:  64, 87 non-participation to the vote in the —: 24 non-procedural decisions of the —:  24 Open-ended working group on the question of equitable representation and increase in the membership of the — and other matters related to —:  8 participation in — meetings of non-member States of the organ:  29 peace-keeping forces organized by the —: 60 permanent members of the —:  22 power of investigation of the —:  51 power to seize the —:  50 president of the —:  50 ratification by the — of the use of force by Member States:  61 regional organizations and —:  56, 69 refusal of non-permanent seat:  22 residual powers of the —:  62 — rules of procedure:  98 subsidiary organs of the —:  51, 53 thematic discussions:  8, 73 veto power of permanent members:  24, 26 voting in the —:  23–38 working methods:  8 self-defense — against an armed attack:  56 collective —:  56 — — and regional arrangements:  56, 69 — during Korean War:  61 during the Gulf War:  61 preventive —:  56 and terrorism:  56 and weapons of mass destruction:  56 — as a limit to Security Council competence: 56 self-determination of peoples: 60

Index  491

serbia-montenegro admission of — to the UN:  18, 43 sfor: 61 sierra leone sanctions against the military junta in —:  59 UN Forces in — (UNOMSIL): 60 situation: see Dispute somalia sanctions against —:  59 Security Council authorization to use force in —:  61 suspension of — for being in arrears with its contributions:  19 UN Forces operating in — (UNOSOM):  60, 61, 88 south africa attack on Angola:  56 credentials of: — 15 full membership regained by —:  16 human rights violations in —:  64 invasion of neighboring States:  57 participation of — to Security Council meetings: 25 proposed expulsion of —:  15 sanctions against —:  15, 59, 65 suspension of —:  15 south sudan admission of —:  1 B, 60 soviet union dismemberment of the —:  18 question of the succession of Russia in the permanent seat of the —:  18 sovereign debt: 76 spain fascist regime in —:  24, 26, 43, 47, 51, 65 special committee on decolonization: 80 special fund for land-locked development countries: 74 special political missions:  60, 88 specialized agencies: 75

sponsoring states statement:  1 B, 23 state-building:  61, 62, 81 statements of the president of the security council: legal value:  56 state succession: see State Succession in Membership state succession in membership dismemberment and —:  18 Czechoslovakia — —:  18 Soviet Union — —:  18 Yugoslavia — —:  18 incorporation into another State and —: 18 — and rules on credentials:  21 strategy for development: 73 subsidiary organs: see General Assembly, Economic and Social Council, Security Council sudan Commission of Inquiry on crimes perpetrated in Darfur:  51 restrictions to the movement of diplomatic and consular staff of —:  56, 59 sanctions against —:  59 suez question of the passage of ships through the — Canal:  27 suspension — from the rights of Member:  15 “inactive membership”:  17 loss of right to vote in the General Assembly and —:  15, 88 rules on credential and —:  21 syria — and responsibility to protect:  66 dismantlement of chemical weapons:  56, 59 readmission of —:  14, 18 switzerland admission of — to the League of Nations: 12 admission of — to the UN:  1 B, 19 neutralization of —:  12 participation of — to UN sanctions:  43

492  Index

tacit consent: see Acquiescence taiwan: 43 see also China talibans sanctions against:  59 technical assistance financing —:  74 UN programs on —:  74 terrorism — and self-defense:  56 — as a threat to the peace:  56 Declaration on the elimination of —:  96 sanctions against —:  59 war on —:  56 terrorist foreign fighters: 59 threat to the peace discretionary power of the Security Council in the determination of a —: 56

participation of — to the San Francisco Conference: 4 ueo: 70 unama: 60 unami: 60 unamid: 60 unamis: 60 unamsil: 60 unavem: 60 unctad:  30, 38, 73 undcp: 74 undg: 74 undof:  60, 88

torture: — as a gross violation of human rights: 45 III — Committee against —:  98 Convention on —:  98

undp:  30, 38, 74, 75

treaty on arms trade: 61

unesco: 75

tribunal and court of justice of the european union: 59:

unfap: 74

trieste (Free Territory of): 62 trusteeship council composition of the —:  39

unef:  60, 65, 88 unep:  30, 74

unficyp:  60, 88 unfpa: 74 unhcr:  74, 76

trusteeship system: 82

unicef:  30, 38, 74

turkey question of the delimitation of the continental shelf between Greece and —: 53

unido: 75

turkish republic of northern cyprus non recognition of —:  10, 43 turkmenistan permanent neutralization of —:  12 ukraine — membership:  1 B, 10

un-habitat: 74 unifem: 74 unifil:  60, 88 unikom: 51 unimog: 51 unisfa: 60

Index  493

unitar: 30

unmil: 60

use of force civil wars and —:  56 delegation of the — by the Security Council to the States:  61 duty to pay compensation in case of —: 56 exceptions to the prohibition of the —: 56 peaceful settlement of disputes and the —: 57 prohibition of the —:  56 self-defense and —:  56 see also Measures involving the use of force, Measures not involving the use of force

unmin: 60

ussr: see Soviet Union

unmis: 60

veto and absence of a permanent member of the Security Council:  25 and abstention of a permanent member of the Security Council:  24 and non participation in the vote by a permanent member:  25 double —:  26 election of judges of the ICJ and exercise of the right of —:  41 and the principle nemo judex in re sua: 27 proposals of renunciation of —:  24

uniting for peace: 66 universal declaration of human rights:  98, 96 unmee: 60 unmeer: 56 unmik: 62

unmit: 60 unmiset: 60 unoci: 60 unomoz: 60 unomsil: 60 unomur: 51 unosom:  60, 61, 88

unprofor:  60, 88

violation of the peace discretionary power of the Security Council in the determination of a —: 56 and self-defense:  56

unsmil: 60

war crimes: see Rwanda, Yugoslavia

unsmis: 60

warsaw pact: 70

untac: 62

weapons of mass destruction — and self-defense:  56

unotil: 60

untaet: 62 untea:  62, 80

western sahara:  53, 80

unts: 84

west irian:  62, 66 UN Administration in — (UNTEA): 62

unv: 74

weu (western european union): 70

upper adige question: 64

who:  5, 87

upper silesia: 62

wipo: 75

upu: 75

withdrawal from the un

494  Index

amendments and revision of the Charter and —:  7 rebus sic stantibus clause and —:  17 right to —:  17 women Protection of — in armed conflict:  8 world summit on sustainable development: 73 yalta Conference of —:  1 A formula of —:  1 B Statement of the Sponsoring States on the — —:  1 B, 23 yemen border dispute between — and Saudi Arabia: 51

representation of — in the UN (1962): 19 yugoslavia authorization by the Security Council to use force against —:  61 dismemberment of —:  18 embargo on the sales of arms to —:  59 International Residual Mechanism for Criminal Tribunals:  62 naval blockade against —:  61 regional organizations and Security Council actions in the former —:  69 UN Forces operating in the former — (UNPROFOR): 60 UN sanctions against — :  59 see also International Criminal Tribunal for the Former Yugoslavia (ICTY), Kosovo