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UNITED NATIONS LAW (INTERNATIONAL PUBLIC LAW II)

23.04.2014

->Next week ->Article about the interpretation of the UN Charter

INTRODUCTION

Early debates on a post-war League of nations
Establishment ->
Institutional design

Membership
Structure
-> League Assembly
-> League Council
-> League Secretariat
-> Other organs

UN Charter is more elaborated
The other is relatively short ->

The issues of social economic rights, economic development in the covenant -> Parallel (more or
less) read (International labor organization).

First AND PERMANENT international court -> First international judicial body
-> Before -> ONLY ARBITRATION


->Differences between arbitration (PARTICULAR DISPUTE) and courts

Arbitration -> Can influence the applicable law, the workers, etc.
Court -> Cannot be affected -> Uses the law that they want!

The leagues approach to collective security
What is collective security?
-> Counterpart of collective security? Who is it adressee??

The adresse to an collective defense organization ->
-> fENCE AROUND ITSELF WAITING
-> Avoiding dangers from INSIDE THE ORGANIZATION

Elements -> Obligations to set the disputes peacefully!! Art. 13 Convenent of the League

Why did not the convenant work??
-> Lot of stuff on peaceful relations between stuff and even though!!
-> DID NOT INCLUDE A MECHANISM AVOIDING TOTALLY THE USE OF FORCE!!!
-> The countries were only barred in procedural terms!

Main weakness -> The fact that it did not prohibit the USE OF FORCE!!!

The Paralysis of the lagues collective security system

CJ TAMS:


THE ESTABLISHMENT OF THE UNITED NATIONS



-> Was negotiations occurred when the League was still around
-> No one believed that the illnesses of the league could be cured


Bilateral statements between US and UK -> Churchill-Roosvelt -> Joint declaration 14 August 1941

The borders that we see today are very different from before the second world war!!
Between the two wars -> League of Nations -> Contributed to the minority protection in Europe!
Was a very good system ->
-> Was later demolished -> After the 2nd world war
-> Miniroty rights were suppressed to political rationals.

Territorals adjustments must be in accord with the wishes of the peoples concerned
-> Counterpart to the
-> EU Jornal EU LAW -> (ejil) -> Niko Kirsch -> Take a very different postion of the
role which interventions played with regard
-> Preserving the stud quo of territories! (MEANS)


noT JUST A SECURTIY ORGANIZATION, but which also deals with economical, social
cooperation
-> 65, 66
-> Complete disarmament -> bIG DISCUSSION AFTER WAR

Bretton Woods
-> UN Monetary and Financial Conference
-> 1-22 July 1944
-> Agreements signed: IBRD, GATT (failed), IMF
-> System of exchange rate management


Peace -> Good social and economical environment

US Hegemony???
-> What is hegemony?
-> Indirect imperial dominance in which the hegemony rules sub-ordinate states by implied
means of power
-> Demonstrating US Hegemony
For the democracy
The wanted more or less, not much as before -> STAY OUTSIDE TO MERGE IN EUROPE ->

They felt obliged to behave differently than the 1st world war
-> Hegemony was very instrumental for the UN.

hEGEMONY WAS FIXED IN THE EARLY DAYS OF THE UN.

1945 San Franciso Conference (on international organization)

-> Charter -> Signature 26 june 1945 -> Very few amendments





-> Challenge to deal with the UN in an Polar and Multipolar world.




-> Break down of th wwii alliance
-> Medoation services and invitatives of the UN

Foundation of the peacekeeping concept
-> Cease fore and preserver commissions in Palestine )
-> UN Military observer grip in inia and Pakistan (UNMOGIP)

Keep two conflits appart from each other???

Problems in legal basis in the charter
-> There is no/ Art. 6, 6/2, purpose of the charter, must have the right of the UN to declare
such peace keeping missions (not enforcement missions)


The early years of the Cold War

-> 1950 -> Invasion of North Korea in South Korea
-> UNSC Resolution 82 -> Assist south korea -> 9 YES. Yoguslavia abstented, USSR
BOYCOTTING.
-> UNSC 83 -> Use of force against north Korea -> Kritschof bangs his sue on the speaking
thing
-> USSR was not isolated

Art. 27 of the CHARTER


UNITING FOR PEACE
-> iF THERE IS A LACK OF unanimity to reach peace -> Genral assembly can tai its
function -> November 1950: Uniting for Peace Resolution of the General Assembly
-> Power struggle between GA and SC (first power problem!)
-> Fading significance of Art. 12

Growth of the UN nations

Death of Stalin -> March 1953 -> End of Stagnation
-> New wish to collaborate -> 113 countries

Independence of Colinies

Suez and Congo crisis

Suez crisis 1956
-> Economical and transportation issues

Congo
-> Decolonization -> nOT PEACEFULLY
-> Who was the prime minister? Mumumba -> Pragmatist -> Comunist regime there ->
Counterforces of the UN.
-> Blue-helment missions of the UN


Further
-> UN powerless when USSR crushes uptising in Hungary 1956
-> Cuban Missile Crisis 1961/62

Breakthrough non proliferation treaties, etc



Nixon -> President

-> Recognition of Comunist china in 1971

North-South divide
-> 1975-1984



CURRENT CHALLENGES


_____________________________

Class 30.04.14

No ones world -> Charles A. Kupchan (Book) -> Professor in Georgetown University
-> Class -> University in Chicago
-> Very rough look of the historical period, but has very good perceptions of how power
shifts around the globe.

not in the analytical part, but in the legal
-> Held -> Cosmopolitanism


US -> Were confident that they could circumvent the security council if the wanted to do something

Death of stalin and the independence of colonies
Suez and Congo

1971 -> Recognition of China -> As a member in the general assembly

1975-1984 -> North south conflict
Demands for a new international economic power



Kosovo -> marginaliyation of the UN -> Through nato action

in 95 the situation changed -> They did not realize that what they considered very important was
not important for the rest of the world!


Time you take to create a un police force!
-> Central african republic -> Civil war, people killed etc; what can you do??? Sending
military is not the best! -> Preservation of internal peace is police!! (you need a formed police
force!)
-> Hehehe, you have to train those guys
-> Roughly, it cost 1000 euros per guy!
-> How are we going to take equipment there???
-> If a car accident happens, will he be responsible in bangladesh courts??? six to 9
months to get it!! it is not efficient! It is not a fault of the organization! it is simply hard!!!
-> Have to know the complexities! And know who have the power!!

-> Indeed, what is on the paper, does not mean it is the real power!



Interpol -> Does have separate place unites
-> States cooperate

Europol -> it has police officers, who basically set up files for the use of national polices

The charter: Overview

Idea, what is in the charter, etc. Easy structure. 20 chapters.

Art. 1 and 2 -> Purposes and principles

Art. 1 -> Four purposes
Art. 2 -> Seven principles (core principles not only for the un, but also for international law!)

1) Souvereign equality of all of the members; state immunity (state can only be brought to a
international court, and not a court in other country).
2) pacta sunt servanda

3) peacefull setlement of disputes

4) should not use force

5) Colorally to chapter 7

6) UN should ensure that all the members comply with the rules

7) Define WHAT IS A DOMESTIC AFFAIR!!
-> Everything which is not international stuff! (Human rights treaty -> Is not a matter of
domestic affairs). -> They implied declared that this is international
-> The extent to which an state has actually accepted


Should read and understand as a single document!!!! -> Treaties are always interpreted in their
context!!!!

Travoir preparation!! -> Discussions for the agreements -> Dumbarton Oaks and Conference of
San Francisco!



Purposes of the UN

-> Exclusivity and universality of the UN

-> Preventing the use of force is a big issue for the UN!!!
-> thE CORE ISSUE IS TO PREVENT!!!


Why the un papers structured in order to deescalate the use of force???



Comparison between art. 2 (4) UN CHARTER (prohibition of the use of force)
with article 39 (threat to the peace, aggression

Art. 51 -> Right to self defense (must have an armed attack)




Already explains how the charter works, operates

Use of force is prohibited (a single shot against the border).

The threet to use force is also prohibitednot ESCALATE THE SITUATION!


The Security Council is allowed to operate when there is already a threat to the peace!


DOES NOT MEAN THE WORLD WILL BE PEACEFULL AUTOMATICALLY
IF A THAN B


The charter in this first part, is final norm (sets a goal, you have to woek towards this goal)

What are material conditions for peace?
-> Respect for human rights
-> Economical and social development


NAIROBI -> Seat of the United Nations in Africa!!!
-> Something that is less than the seat!
-> Bonn!! Langeeuigin (Berlin is not so important).

uN -> Invested in the development of international law!

Art 13 -> Powers of the general assembly
-> Codification of the International Law -> Institution -> ILC (international law comission) ->
Served there in individual capacity -> Are specialist on international law, -> Made a lot of
conventions, treaties, developed by the ILC
-> a GERMAN member -> one from west, and one from east


Economical and social committee, council
-> Art. 68
-> Set up the human rights commission -> Means that it does not follow human rights?
-> Human rights council -> Replaced the older (was a subsidiary commission, and turned
up into a council, it is now subordinated to the General Assembly - upgrade???)

Humans rights commission
-> Mixed history -> 10 december of 1948 -> Human rights day
-> Resolution -> Universal declaration of human rights -> makes operative art 1, 55 and 56
of the charter

Eleanor Roosvelt -> Active in facilitating the negotiations of this declaration




Charter interpretation (1)
Treat interpretation in general

In international law we interpret -> Art. 31 of the Vienna convention of the law of treaties (VCLT)
Art. 31 (1) -> Starting point is the wording, very simple (ordinary means of the terms)


(2) -> Understand in the provision in the context (should read at least a bit
previously and further to understand it). -> Preamble!
(3) -> Looking at the object and purpose of the treaty (preable) -> In good faith
1,2,3. -> Give the direction to the provision.


Charter seems to be very different treaty! (highly politica organization and very political aims!)
-> Developed the idea that the UN is a constitution for the international community (vales,
principles, common ideas, and introduce a procedure!!!)


-> Not just reciprocal relations between states -> It puts values, etc!

Regime theory,
-> Constitution for the world
-> Does not mean that it is superior to all other laws -> The charter is more modest
Art. 103!!! -> If a member state of the UN runs into trouble, because there is a conflict from the
obligations under the charter, and another treaty, the charter has preference!!
-> Two opinions -> Only obligations!! and not to right of states!!
-> Not talking here if a state has rights over the charter,
-> Question of hierarchy
2) This does not only refer to the obligations explicitly written in the charter, but also to the
decisions of the organs of the UN .
-> Decisions, resolutions of the security council -> This obligation is fundamental!!
-> Germany and Iran -> Bilateral agreement -> In light if this agreement un makes a
market embargo against iran -> This is preferential!!! it derogates!!!

2) If you have a constitutional document, you tend to interpret other obligations in light of this
constitution -> All states who are members of the UN (loyalty also in substance)
-> Derive from the charter values with have impact in the whole part of the international
relations!!
-> Marauhn followed this conception
-> Today is skeptical -> Normally constitutions are for institutions that have more
competences and more obligations than the UN!
-> Was interpreted in overstepping boundaries! EU does not have competence to
rule its own powers!
-> The only entity we know is competent to decide on its own powers is A STATE.
The UN DOES WHAT THE COUNTRIES TELLS IT TO DO.
-> UN has even less power! Can only rule what is binding to STATES, and not to
individuals!!


Art. 25 -> Where do you take the binding point???? Carry out the decisions -> Binding! Put it is
nothing imposed by other thing! Language that reflects absolute and sovereign states thinking!!!


1) fRASEOLOGY
2) Not only security council stuff that are binding -> (only DECISIONS ARE BINDING) -> Only
when they do DECISIONS. the rest is recommendations!
Art. 39, 42 -> Interpreting the charter sets an international organization, and a common system to
the relationship of the States, with values

It is a framework for allowing coexisting of very different states on one globe
->






Purpuses
Charpter III and forward
-> Organisation -> Organs,

6, 7 and 8 ->
-> Reach their role on the
-> Policies,

XVI and further -> Important but not so important for the operation of the UN



Charter interpretation
-> UN Charter as constitution of the inter nation community.

If we look to the charter, do we look it as any other treaty, or an special treaty to maintain the
security in the inter nation level

German judge, among others -> Promoted this idea (99s -> dealing with the constitutionalization of
the international community).

US American -> Also promoted -> Thomas Frank

Johann Fromark -> Max plank instute


What does it mean in the practice???


Art. 31 of the VCLT -> For international treats making (69) -> Codifies customary international law
-> We can refer to its rules even we the convention does not apply
-> Is valid only for treaties AFTER the signature of the treaty
-> Or if it is a signature country

Art. 31 -> A treaty should be interpreted in accordance with good faith, in th light of the ordinary
meaning, the context, and the finality
-> There is consensus -> ordinary meaning -> Look at the context

Charter -> If we look to one particular provision -> Art. 48 charter
-> Contextualize with the bunch in charpter 7 (breach of the peace, etc). What kind of
response should the SC take?
-> Recommendations; PLEASE, BE PEACEFUL -> Stablish a buffle zone, allow
blue halmets, etc -> Not binding, but a nice recomendation, etc,
-> Thez can adopt economic embargos, sanctions, etc
-> This person, if travels to another country, have to arrested!


This is binding upon all members!

Helps us to understand that something one the ar 41 may not be discussed by all members!

Art. 42 -> Onlz militarz actions by the united nations
-> Clause to provide military forces to the security council

Art. 48 -> Its very helpful to understand 42 -> Providance of military forces



Object and purpose of the charter
-> Maintanance of international peace and security
-> Not the guys from the security council but others! The SC very probably have interest on
those countries -> Ask someone which is not involved in the conflict!

This does not need the name of constitution of international community!
-> This we can do by simple treaties!

If we have art. 31, why do we need the notion of constitution???

Charter not easy to modify
-> Only 3 times amended -> Concerning the composition of the SC (90s -> Debate)
-> How do we amend the charter???

Art. 108, 109 -> Specific provisions of amending the charter
-> Complex process -> 2/3 of the general assembly, ratification, -> Very unlikely to be
successful if the directed to the finality of the Charter!
Because of the particular formality of the charter! -> For practical and political reasons!

But than, how do deal with the problem -> If the ends we want to pursue are not in the charter
-> We can apply interpretative methods to do what we want, and maintain the charter alive!

Art. 23 para 1
-> China in the UN ->
-> Republic of China -> 1945 (old china) -> Led to a special status for taiwan (National,
PEOPLES republic of china, is not on the SC))
-> Theres not USSR anymore!! Non existent, we have today is Russia!! RULES ON STATE
SUCCETION!! -> iF A state dies, than it may be someone following the tights and obligations of
this state!

Agreement between states that russia is the successor of the USSR for the purpose of the UN
CHARTER
-> National china exists!! (Taiwan!) -> How do we deal with that???
-> ART. 27 (voting rules in the SC)
-> If the permanent member rejects, none decision should be taken -> If it abstains!
Than still a decision can be taken! KOREA CRISIS!!
-> If you read the charter literally, it requires an affirmative vote!!! USSR was
not present, they were not present! Now, all countries accept that this is possible!
Without amending the charter! Implicit amendment of the provisions of the charter! If there is no
objection, they can simply change the rules of the game!
-> Too simplistic explanation (marauhn). -> Is it just a reinterpretation of the charter? how
do we deal with that?
-> Courts of germany bGB -> Interpreted contra legs! And said now this is
the law!

Canada -> very hard to amend the constitution
-> Not only the federal legislature, but also from every state! Never got that in the past!
-> Would this prevent canada to prevent the constitution to change stuff that are super
important to the existence of canada?
-> The rules

-> There is an agreed practice -> No one raise a claim, no one sais that this is unlawful

ICJ -> Case on certain expenses
-> Question whether or not the operations can be taken even on another budget, if no one
objects, this is right! (very pragmatic)




The reason for the existence of the Un is the damn peace keeping
-> In the last years, strange developments!
-> Prohibition to use force, right to self defense, possibility to the SC to adopt sanctions in
respect to a threat of the peace.



What if we take the milakovitsch out and put government there, etc??
-> Everything lawful?? No one of these actions was fully in accordance with the charter
regime, but was considered legitime! Defending a political order!? Necessary for the human rights!
(another ideology!) we are the nice guys! The other guys use the same arguments to their own
ends!

Intervention of nato forces in ioguslatvia
-> Consider twice what you are doing -> Humanitarianism in israel?
-> Most states would not think that

Than think about changing the interpretation of the document
-> Breach it and pay the price


-> Protection of human rights is a material condition for peace
-> Incomplete -> The charter is not a constitution (constitutions aim completitude) -> The
charter should not be taken so serious
-> Idea of reinterpreting has pro and cons


Think twice before you argue for an interpretative change of the charter



Constitutions were not perceived as a legal piece, but more a political tool
-> Took a little to US Marbory v. Madison!! so that the constitution was a legal tool !
-> What is an ultimate instance in the level of international law?
-> It is a decentralized system-> The charter is designed in a way so that there
would be a final and binding decision, (exeption is the security -> SC)

Why should a lawyer or a government to make a binding decision?
-> We dont have compulsory adjudication be careful with the charter

THis would not lead to a change in the rules of interpretation

If you dont know how to organize it better, better stick with this one




Doctrine
-> Apply some special rules
-> The charter is not a tipical contractual thing between two states
-> Not a bilateral arrangement

The charter is a multilateral arrangement
-> Is a law making treaty!! Law making treaty was developed in the beginning of the 20s..


-> Binding rules for all states -> Exceptional core rules there may be some special ways of
interpreting those provisions
-> Right part of the slide (chart interpretation 1)

Reparation for injuries case
-> ICJ -> All states have to respect the legal personality of the UN ->The prohibition of the
use of force, is not only fot the signing states, but for any country. -> is universal.

the prohibition of the use of force -> Is applicable to all states

Interpreting the charter looking for the best possible result for its provisions
-(EU LAW and UN LAW) -> Doctrine of useful effect
-> In a way to achieve useful effect

Since most treaty do not over regulate in international law
-> To interpret a treaty, and there, the charter as to look to the purpose of the charter, the
preamble, art. 1 and 2, the overarching goals of the Charter -> to perceive these issues, they give
implied powers -> to reach these goals Doctrine of implied powers ->Implicitly add these
powers
Helps the UN TO ROUND UP ITS COMPETENCE -> Not used to expend the powers of the UN
beyond the Art. 1 -> Everything what on the art. 1 should and possibly be used.

How many languages have the charter?
-> Oficial language missing -> ARABIC. (6 official languages, only 5 at that time). Each
version is equally valid for the purpose of interpretation.
-> If we cant solve it one the english version, you may solve it in other languages.


Who is in power to interpreted the charter??
-> STATES, unless, a particular organ is given the power to an organ, delegation
-> History of the charter, ICJ, and SC -> San Francisco conference, final text of the
charter -> Each organ, concerning its own functions -> Each country is allowed to interpreted ->
Also part to special concern to it

-> Authoritative proposal of interpreting the charter -> It is up to ICJ to find an agreement on
the charter! -> Today is the most interpreter of the charter! -> Plays a major role IN PRACTICE!!
ICJ -> Follows of the Effet utile
-> If it fails, change circumstances in order to adapt to the environment.
-> It does not take a historical interpretation, BUT A DINAMIC INTERPRETATION!!!
UN introduced a non smoking policy in the buildings of the UN
-> How can you do it?
-> Geneva and New York -> Extraterritorial places
-> Who is entitled to rule on non smoking policies in the Un buildings?

SC -> Tendency to expand their powers, enhance, overstretch their powers -> They dont limit
themselves
-> institutional equilibrium is necessary for the functioning of the UN.


If you want to preserve the political environment, do not make LEGAL ARGUMENTS!! (Which limit
their own powers!)

The charter is a legal document, is a treaty, but a legal law is not in the relationship of international
law!

The un is nowadays working more on procedural rules for the organs of the UN -> More
transparency etc.



Debating the Art. 13 was also a discussion, a debate ->
Deleting Art. 23 etc -> Is not useful trusteeship.


TAKE A LOOK IN THE ART. CHARPTER INTERPRETATION.