Law 583 - International Law 2

frtrfUNITED NATIONS & ITS ORGAN

United Nations Charter 1945

Article 1 - Purposes of the UN are: Article 2

The UN members & organization shall apply these
1. To maintain international peace and security, principles in pursuit of the purpose it Article.
and to that end: to take effective collective
measures for the prevention and removal of 1. The Organization is based on the principle of the
threats to the peace, and for the suppression of sovereign equality of all its Members.
acts of aggression or other breaches of the 2. All Members, in order to ensure to all of them
peace, and to bring about by peaceful means, the rights and benefits resulting from
and in conformity with the principles of justice membership, shall fulfil in good faith the
and international law, adjustment or settlement obligations assumed by them in accordance
of international disputes or situations which with the present Charter.
might lead to a breach of the peace; 3. All Members shall settle their international
disputes by peaceful means in such a manner
2. To develop friendly relations among nations that international peace and security, and
based on respect for the principle of equal rights justice, are not endangered.
and self-determination of peoples, and to take 4. All Members shall refrain from the threat/ use
other appropriate measures to strengthen of force against territorial integrity/ political
universal peace; independence of any state - in their
international relations - or in any other manner
3. To achieve international co-operation in solving inconsistent with the Purposes of the United
international problems of an economic, social, Nations.
cultural, or humanitarian character, and in 5. All Members shall give the UN every assistance
promoting and encouraging respect for human in any action it takes in accordance with the
rights and for fundamental freedoms for all present Charter & shall refrain from giving
without distinction as to race, sex, language, or assistance to any state against which the United
religion; and Nations is taking preventive or enforcement
action.
4. To be a centre for harmonizing the actions of 6. The Organization shall ensure non-state
nations in the attainment of these common Members of the UN act in accordance with
ends. these Principles so far as may be necessary for
the maintenance of international peace and
security.
7. The Charter shall not authorize the UN to
intervene with matters which are essentially
within the domestic jurisdiction of any state/
require the members to submit such matters to
be settle under the Charter, but this principle
shall not prejudice the application of
enforcement measures under Chapter Vll.

Article 7 - Organs of UN
 Principal organs of UN
- General Assembly
- Security Council
- Economic and Social Council
- Trusteeship Council
- International Court of Justice
- Secretariat
 Subsidiary organs
Necessary subs-organs may be established in accordance with the present Charter
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1. General Assembly (UNC, Chapter IV, Articles 9-22)

- UN consists of all the 193 Members of the United Nations - the only UN body with universal
representation. (Article 9)
- Each member shall have not more than 5 representatives in the GA.
- The General Assembly, each year, elects a GA President to serve a one-year term of office.
- Every September, the full UN membership meets in the GA Hall in New York for the AGM session & general
debate, which attend and address by many heads of state. Decisions on important questions, such as those
on peace and security, admission of new members and budgetary matters, require a 2/3 majority of the
General Assembly while for decisions on other questions are by simple majority.

Forum for multilateral negotiation Functions & powers of GA

 Established in 1945 under the CHRUN  Cannot be assimilated to a parliament/ legislature.
 Occupies a central position as the chief  It proceeds through recommendations rather than
deliberative, policymaking & representative binding decision.
organ of the UN.  General rule: UN’s resolutions can have no legally
 It provides a unique forum for multilateral binding effect. However, certain resolutions of the
discussion of the full spectrum of assembly may assume a “quasi-legislative” role.
international issues covered by the Charter.  Empowered to make recommendations to States
 Plays a significant role in the process of on international issues within its competence.
standard-setting and the codification of  (landmark) Millennium Declaration 2000, & the
international law. 2005 World Summit Outcome Document, reflect
 2 types of GA sessions: Annual sessions & the commitment of Member States to reach
special sessions (held by Secretary-General at specific goals to attain peace, security and
the rq of the Security council/ majority of disarmament along with development and poverty
UN’s members). eradication(1); to safeguard human rights and
 Meets from Sept - Dec annually. Thereafter, promote the rule of law(2); to protect our common
Jan - Aug as required, including to take up environment(3); to meet the special needs of
th th Africa(4); and to strengthen the United Nations (5).
outstanding reports from the 4 and 5
Committees.  September 2015 - agreed on 17 Sustainable
 During the resumed part of the session, the Development Goals (17 SDG) - outcome document
Assembly considers current issues of critical of the UN summit for the adoption of the post-2015
importance to the international community in development agenda (resolution 70/10).
the form of high-level thematic debates  According to CHRUN, GA may:
organized by the President of the General a. Consider & approve the UN budget & establish
Assembly in consultation with the the financial assessments of Member States,
membership. b. Elect the non-permanent members of the
 During that period, the Assembly Security Council & the members of other
traditionally also conducts informal United Nations councils and organs
consultations on a wide range of substantive c. Appoint the Secretary-General, on the
topics, including on UN reform related recommendation of the Security Council
matters. d. Consider & make recommendations on the
general principles of cooperation for
maintaining international peace & security,
including disarmament,
e. Discuss any question relating to international
peace & security, then make recommendation,
except if a dispute or situation is currently
being discussed by the Security Council
f. Discuss, with the same exception, & make
recommendations on any questions within the
scope of the Charter or affecting the powers
and functions of any organ of the United
Nations.
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g. Initiate studies & make recommendations to
promote international political cooperation;
the development and codification of
international law; the realization of human
rights and fundamental freedoms; and
international collaboration in the economic,
social, humanitarian, cultural, educational and
health fields,
h. Make recommendations for the peaceful
settlement of any situation that might impair
friendly relations among countries, and
i. Consider reports from the Security Council and
other United Nations organs.

The Search for Consensus Revitalization of the work of the General Assembly
• One vote per Member States (193) • A sustained effort to make the work of GA more
• Votes taken on designated important issues – focussed & relevant was identify as a priority during
- i.e. recommendations on peace and the 58th session. Subsequently, effort is continued -
security, the election of Security Council sessions to streamline the agenda, improve the
and Economic and Social Council practices and working methods of the Main
members, and budgetary questions – Committees, enhance the role of the General
require a two-thirds majority of Committee, strengthen the role and authority of the
Member States; President and examine the Assembly’s role in the
- but other questions are decided by a process of selecting the Secretary-General.
simple majority. • 69th session - A landmark resolution on the
• In recent years, an effort has been made to revitalization of the work of the General Assembly
achieve consensus on issues, rather than (69/321) was adopted: An informal dialogue to be
deciding by a formal vote, thus strengthening held with candidates for the position of Secretary-
support for the Assembly’s decisions. General of the United Nations.
• The President, after having consulted and • Results - 70th session President organized a series
reached agreement with delegations, can of such informal dialogues with candidates.
propose that a resolution be adopted • The practice of convening high-level thematic
without a vote. interactive debates is also a direct outcome of the
revitalization process.
• It has become an established practice for the
Secretary-General to brief Member States
periodically, in informal meetings of the General
Assembly, on his recent activities and travels.
• These briefings have provided a well-received
opportunity for exchange between the Secretary-
General and Member States and are likely to be
continued at the next session.
Peace-keeping powers of the General Assembly

a. Peacekeeping powers
- Article 11(2): The GA have the peacekeeping power/ discuss questions relating to the maintenance of the
international peace & security brought before by the members of the UN/ Security Council & make
recommendations - except in Article 12(1). However, if “action” is required the GA must still refer to SC.
- Article 12(1): GA cannot make recommendation if the dispute/ situation is assigned to the Security
Council.
- Article 24(1): Security Council is entrusted with the primary responsibility for the maintenance of
international peace & security. Thus, the GA only has the secondary role.

b. Uniting for peace resolutions (page 26)

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2. Security Council (Chapter V, UNC, Art 23 - 32)
Security Council (SC) is a small organ to help them act quickly and enforce its decision in cases of emergency.
It is the enforcement arm of the UN. The only principal organ whose decisions are binding on all members.
• Primary responsibility - Maintenance of international peace & security.
• Calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or
terms of settlement.

Composition Functions & powers (Article 24 - 26)

 15 members:  Article 24 - “Primary responsibility for the
- 5 permanents/Big 5 - China, France, Russia, maintenance of international peace & security…
UK, USA. in accordance with Purpose & Principles of UN.”
- Privileged status for permanency & veto  Article 25 - If SC act intra vires, the UN members
powers. are bound by its decisions - agree to accept &
- 10 members carry out the decisions of the SC.
 To investigate any dispute/ situation which
 Presidency - rotates, and changes, every month. might lead to international friction.
Voting  To recommend methods of adjusting such
 Article 27(3) - One member one vote. disputes or the terms of settlement.
 Article 108 - Veto power on amendment of  To formulate plans for the establishment of a
charter. system to regulate armaments
 Decision on substantive matter - requires 9  To determine the existence of a threat to the
votes, including the concurring votes of all 5 peace/ act of aggression and to recommend
permanent - Rule of “great power unanimity” / what action should be taken.
veto power.  To call on Members to apply to economic
 Procedural Q cannot be subjected to SC. sanctions & other measures not involving the
Abstention use of force to prevent or stop aggression.
 All permanent members would have to vote for  To take military action against an aggressor.
a draft resolution for it to be passed, it would  To recommend the admission of new members.
then constitute a veto.
 To exercise the trusteeship functions of the UN
 In practice, the B5 have frequently abstained
in ‘strategic areas.’
voluntarily in the voting and willing that this
 To recommend to the GA the appointment of
abstention should not be interpreted as lack of
the Secretary-General and the admission of new
occurrence/ a vote.
Members to the United Nations.
 Upheld in the opinion of Legal Consequences for
States of the Continued Presence of South Africa
 Together with the General Assembly, it elects
in Namibia.
the judges of the International Court of Justice.
Absence of a permanent member
 Lead in determining the existence of a threat to
 Happened once - Korean Crisis 1950 - Soviet
the peace or act of aggression.
Union boycotted the SC in protest against the
 Address parties to a dispute to settle it by
C’s refusal to seat the communist representative
peaceful means & recommends methods of
in China.
adjustment/ terms of settlement.
 The absence of SURR enabled the SC to pass a
 Some cases - can resort to imposing sanctions or
resolution recommending Member States to
even authorize the use of force to maintain or
send forces to help South Korea. SURR
restore international peace and security.
challenged the resolution due to its absence.
 When a member abstains from using a veto
there may be said to be an implied
“concurrence” in the majority will, but this
cannot be said when the Member is not present
at all.
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Maintenance of international peace & security
1. Peaceful settlement of disputes (Art 33 - 38)
- Dispute that will endanger international peace & security (not all dispute)
- Various means: negotiation, enquire, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements.
- Dispute can be submitted by:
a. General Assembly (Art 11 & 12)
b. Security General (Art 99)
c. Member States (Art 35 (1))
d. Non-member states (Art 35(2))

 Council will decide by majority of 9 whether to place matter on its agenda.

 Once seized, Council is bound to invite parties to participate in the discussion. (Art 32)
 SC may undertake its own investigation (Art 34)
 SC may exercise 3 options:
a. Call parties to utilise means under Art 33 (2)
b. Recommend a particular means of settlement Art 36(1)
c. Recommend the actual terms of settlement Art 37(2)

2. Enforcement action - if the 1st fail (Art. 39 - 51)

 Article 39
- To determine the existence of a threat to the peace, breach of the peace, or act of aggression
- To make recommendations/ decide how measures to maintain/ restore international peace &
security.
*peace - international peace. X intervenes in domestic jurisdiction.
 Article 25 - decisions of SC is binding upon members.
 Enforcement actions available:
a. Actions not involving the use of armed force. (Art. 41)
The measures must not involve any armed forces & may involve complete/ partial interruption of the
economic relations, etc includes the severance of diplomatic relations.
b. Action involves the use of armed forces (Art. 42)
If SC consider/ proved measure in Art. 41 is inadequate, it may take action by air, sea, or land forces as
may be necessary to maintain/ restore international peace & security.
Need to read w Art. 43

Subsidiary Organs of Security Council

• Article 29 of UN/ Rule 28 of Council’s Provisional Rules of Procedure- Security Council may establish
subsidiary bodies as needed for the performance of its functions.
• All existing committees and working groups are comprised of the fifteen members of the Council. While
standing committees are chaired by the President of the Council, rotating on a monthly basis, other
committees and working groups are chaired or co-chaired by designated members of the Council who are
announced on an annual basis by a Note of the President of the Security Council.

• Mandate of subsidiary organs, whether they are committees or working groups, can range from procedural
matters (e.g. documentation and procedures, meetings away from headquarters) to substantive issues (e.g.
sanctions regimes, counter-terrorism, peacekeeping operations).
e.g. (Within Art. 29) - The International Criminal Tribunal for the former Yugoslavia (ICTY)
- International Criminal Tribunal for Rwanda (ICTR)
They are dependent on the UN in administrative and financial matters, although as judicial institutions, they
are independent of any one State or group of States, including their parent body, the Security Council.
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COMMITTEES
a. Counter-Terrorism Committee
- Guided by Security Council resolutions 1373 (2001) and 1624 (2005), the CTC works to bolster the
ability of United Nations Member States to prevent terrorist acts both within their borders and across
regions. It was established in the wake of the 11/09 terrorist attacks in the United States.
- Assisted by the Counter-Terrorism Committee Executive Directorate (CTED) - carries out the policy
decisions of the Committee, conducts expert assessments of each Member State, and facilitates
counter-terrorism technical assistance to countries.

b. Military Staff Committee

- The Military Staff Committee helps plan UN military measures and regulate armaments.
c. Sanctions Committees
- The use of mandatory sanctions is intended to apply pressure on a State or entity to comply with the
objectives set by the Security Council without resorting to the use of force. Sanctions thus offer the
Security Council an important instrument to enforce its decisions. The universal character of the United
Nations makes it an especially appropriate body to establish and monitor such measures.
- The Council has resorted to mandatory sanctions as an enforcement tool when peace has been
threatened and diplomatic efforts have failed. The range of sanctions has included comprehensive
economic and trade sanctions and/or more targeted measures such as arms embargoes, travel bans,
financial or diplomatic restrictions.

d. Standing Committees and Ad Hoc Bodies

- SC are open-ended & generally were established to address certain procedural questions, i.e. the
admission of new members.
- Ad hoc committees - established for a limited time and to address a specific issue.

Peacekeeping Operations and Political Missions

- Consists of military, police & civilian personnel - to deliver security, political & early peacebuilding support.
- Peacekeeping - flexible & over the past 2 decades has been deployed in many configurations.
- Today's multidimensional peacekeeping operations are called upon not only to maintain peace and security,
but also to facilitate the political process, protect civilians, assist in the disarmament, demobilization and
reintegration of former combatants; support the organization of elections, protect and promote human
rights and assist in restoring the rule of law.
- Today's multidimensional peacekeeping operations are called upon not only to maintain peace and security,
but also to facilitate the political process, protect civilians, assist in the disarmament, demobilization and
reintegration of former combatants; support the organization of elections, protect and promote human
rights and assist in restoring the rule of law.

International Courts & Tribunal

 The International Criminal Tribunal for the former Yugoslavia (ICTY) 1993
- Established following massive violations of humanitarian law during the fighting in the former Yugoslavia.
- 1st war-crimes court/ international war-crimes tribunal - since the Nuremberg and Tokyo tribunals at the
end of the Second World War. As of the end of 2011, the Tribunal had indicted 161 people
- Tribunal: tries those individuals most responsible for appalling acts i.e. murder, torture, rape, enslavement,
destruction of property and other violent crimes.
- Aims: To render justice to thousands of victims & their families, thus contributing to a lasting peace in the
area.

 International Criminal Tribunal for Rwanda (ICTR) in 1994

- Aims:
o To prosecute those responsible for genocide & other serious violations of international
humanitarian law committed in Rwanda between 1 January and 31 December 1994.
o Deal with the prosecution of Rwandan citizens who committed acts of genocide and other such
violations of international law in the territory of neighbouring States during the same period.
- In 1998 the Rwanda Tribunal handed down the first-ever verdict by an international court on the crime of
genocide, as well as the first-ever sentence for that crime.
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Advisory Body
 Peacebuilding Commission (PBC)
An intergovernmental advisory body that supports peace efforts in countries emerging from conflict and is
a key addition to the capacity of the International Community in the broad peace agenda.

Can ICJ judicially review decisions of the Security Council?

 Are there limits to the powers of SC?
Article 39 of the Charter of United Nations have conferred broad powers to the Security Council - the discretion
to make determinations as to whether an act or situations constitutes a “threat to the peace”, “breach of the
peace” or “act of aggression”. However, the Security Council is not a sovereign authority and thus there are
some limitation to the power. SC as one of the organs of the UN is bound by the charter.

Main limitation:
a. The duty to act in accordance with the Purposes and Principles of the UN - Article 24(2) & 1 & 2
- This is a substantive limitation which have been recognised by number of individual opinions of judges
of the International Court.
e.g. Judge Weeramantry, in his dissenting opinion of Lockerbie case.
- Article 1(1): SC is bound in accordance w international law & may not disregard / derogate from it.
b. Observance of jus cogens
o Peremptory norms of the general international law which no derogation is permitted. (VCLT)
o Any SC which Is in conflict with a norm of jus cogens must necessarily be null & void.

 Whether the ICJ is competent/ has the authority to decide the legality of decisions of the SC or for judicial
review
The Charter does not expressly provide for judicial review by the Court of the decisions of the political organs
of the UN. The lack an express prohibition from engaging in judicial review plays an important role. In relation
to this, the ICJ and UN have often engaged in creative interpretations of the Charter, without Charter
amendment/ explicit Charter licence. For example, the creation of peace-keeping forces out of an imagined
“Chapter VI and a half”.

 The ICJ demonstrated that in question as to the validity of the actions of the political organs - the matters
on whether the actions were made ultra vires the organs’ functions.
 The lack of express grant of judicial review does not bar the ICJ from engaging in judicial review.
 Judicial review - may arise in either advisory proceedings or in contentious cases.
 Lockerbie case
ICJ - decided not to grant Libya’s request for provisional measures and held that it is unnecessary to consider
the question of the legality of the SC Resolution. Nevertheless, several judges have stated the court’s
competence to review the legality of SCR.
o Judge Weeramantry (dissenting opinion)
As a judicial organ, it will be the Court’s duty… to examine and determine from a strictly legal point
of view matters which may at the same time be the subject of determination from an executive or
political point of view by another principal organ of the UN…

o Judge Lauterpacht (Application of the Genocide Convention case - Bosnia & Herzegovina &
Yugoslavia)
This is not to say that the SC can act free of all legal controls but only that the Court’s power of
judicial review is limited. That the court has some power of this kind can hardly be doubted … But
the court, as the principal judicial organ of the UN, is entitled, indeed bound, to ensure the rule of
law within the UN system and, in cases properly brought before it, to assist on adherence by all UN
organs to the rules governing their operations…

Conclusion:
The ICJ is the principal judicial organ of the United Nations. (Art 92) Therefore, no doubt that their main task is to
ensure the respect for international law. Since the Charter does not expressly bar the court from reviewing the
legality of decisions taken by UN organs, nothing can prevent the court from deciding on the legality of such
decisions if this becomes necessary. But the power is still limited to the extent that not yet defined.
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3. ECONOMIC AND SOCIAL COUNCIL (ECOSOC) ART 61 -71
• ECOSOC - the principal body for coordination, policy review, policy dialogue and recommendations.
• Matters - Economic, social, cultural, educational, health, environmental issues, as well as implementation
of internationally agreed development goals.
• Composition - 54 members of the UN; 18 are elected each year by GA to serve for 3 years.
• Decision making - By a majority votes of the members present & voting. Decisions cannot be made to
make it binding on the Member States.
• Functions:
a. Make or initiate studies & reports with respect to matters stated above
b. Recommendations on matters stated above to the GA, to members of UN, and specialised agencies.
c. Central platform for reflection, debate, and innovative thinking on sustainable development.

4. PEACEBUILDING COMMISION
The Peacebuilding Commission is an Advisory Subsidiary Body of both the Security Council and the GA.
a. Bring together all of the relevant actors, including international donors, the international financial
institutions, national governments, troop contributing countries;
b. Marshalling resources, and
c. Advising on and proposing integrated strategies for post-conflict peacebuilding and recovery and where
appropriate, highlighting any gaps that threaten to undermine peace.

5. TRUSTEESHIP COUNCIL (ART 86 -91)

o The council diminished/ suspended operation on Nov 1st, 1994 after Palau gained independence.
o Established in 1945 by the UN Charter, under Chapter XIII, to provide international supervision for 11
Trust Territories that had been placed under the administration of seven Member States and ensure
that adequate steps were taken to prepare the Territories for self-government and independence.
o Established in 1945 by the UN Charter, under Chapter XIII, to provide international supervision for 11
Trust Territories that had been placed under the administration of seven Member States, and ensure
that adequate steps were taken to prepare the Territories for self-government and independence.

6. INTERNATIONAL COURT OF JUSTICE (ICJ)

- Principal judicial organ of the United Nations. (6 principal organs)
- Special position as an independent court & is not integrated to hierarchical structure of the other 5 organs
- Its seat is at the Peace Palace in the Hague (Netherlands) & the only one not located in New York.
- ROLE: To settle, in accordance with international law, legal disputes submitted to it by States and to give
advisory opinions on legal questions referred to it by authorized United Nations organs and specialized
agencies.

7. SECRETARIAT (ART 97 -101)

- Headed by Secretary-General (appointed by GA upon recommendations by SC Art 97)
- Employs abt 15 000 international civil servants, whom located in UN Headquarters in New York.
- Secretary-General - “Chief Administrative Officer” of UN - 5 yrs term & renewable
o Article 99 of UN
“… he may bring to the attention of the SC any matter which is in his opinion may threaten the
maintenance of international peace and security”
# A servant of political organs and to have his own political initiatives of his own.

UN staff members are recruited internationally and locally, and work in duty stations and on
peacekeeping missions all around the world. But serving the cause of peace in a violent world is a dangerous
occupation. Since the founding of the United Nations, hundreds of brave men and women have given their
lives in its service.
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