THE LAW OF THE UNITED NATIONS

ASSOC. PROFESSOR DR. ABDUL GHAFUR HAMID

5.1 THE CHARTER AND THE FOUNDATION OF THE UNITED NATIONS [Chapter 15, p. 423] 
The

United Nations is the most important international organization of the present day.  It officially came into existence on October 24, 1945, when its Charter had been ratified by China, France, the Soviet Union, the United Kingdom, and the United States, and by the majority of other signatories.

5.1.1 The Charter as a Treaty
[pp. 424-25] 424 Origins

of the United Nations Charter

Three successive international conferences: (1) Dumbarton Oaks Conference: drafted the Charter (2) Yalta Conference: agreed on veto power; ³Yalta voting formula´. (3) San Francisco Conference: From 25 April, 1945; 50 States participated; 51 original members; the Charter was signed on June 26, 1945; entered into force on October 24, 1945.

. the permanent members have veto power). [Article 108] ³Amendments to the Charter must be adopted by a two-thirds majority of the General Assembly and then ratified by two-thirds of the members of the United Nations. of which the Statute of the ICJ is an integral part.. is a multilateral law-making treaty.e. 424]  The Charter.The ³rigidity´ of the Charter and amendment procedure [p. including all the permanent members of the Security Council´ (i.

has been substituted by the conflict of interest between industrialized and non-industrialized countries. between North and South. 424-25] 424   The changes in the Charter is justified by the following events: The number of member states has tripled. [192] The original ideological conflict between capitalism and socialism. between East and West.Present trends to revise the Charter [p. .

129]  In 1974.Special Committee [Textbook. p. the General Assembly created a ³Special Committee for the United Nations Charter and for Strengthening the Role of the Organization´.  There were many and varied proposals for changes submitted to the Committee. .

(3) Abolition or limitation of the veto (or extending the veto in order that countries representing different geo-political areas might enjoy it). 425] (1) Enforcing the role of the Assembly (where the third world states have an overwhelming majority) (2) Enlarging the Security Council in order to guarantee greater representation to the Third World Countries. .Suggestions for changes [p.

. They have the veto on any amendments or revision. and they do not seem very inclined to change the existing rules.Any changes possible?    For the first time in its history. the UN held the Summit of World Leaders together with the 60th UN General Assembly Annual Meeting and proposals for UN reforms were discussed. It seems very unlikely that any radical changes in the structure of the United Nations will be made in the near future. The attitude of the permanent members of the SC is decisive.

425-27] 425Article 1 [Purposes] To maintain peace and security is the primary and the overriding purpose and to that end: to take effective collective measures for the prevention and removal of threats to the peace. adjustment or settlement of international disputes « [Article 1(1)] .5.1. and to bring about by peaceful means and in conformity with the principles of justice and international law. and for the suppression of acts of aggression or other breaches of the peace.2 Purposes and principles of the UN [pp.

and .to develop friendly relations among nations based on equal rights and selfdetermination of peoples[Article 1(2)].The other purposes include: .to achieve international cooperation in solving international problems and in promoting respect for human rights and for fundamental freedoms. [Article 1(3)] .

are not endangered.Article 2 [Principles] (1) The Organization is based on the principle of sovereign equality of all its Members. . (2) All Members« shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. and justice. (3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security.

. or in any other manner inconsistent with the Purposes of the United Nations.] (4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity and political independence of any state.Basic Principles [Cont. (5) All Members shall give the UN every assistance in any action taken in accordance with the present Charter. and shall refrain from giving assistance to any state against which the UN is taking preventive or enforcement action.

] (6) The Organization shall ensure that states which are not Members of the United Nations act accordance with these Principles so far as may be necessary for the maintenance of international peace and security. but this principle shall not prejudice the application of enforcement measures under Chapter VII. (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«. .Basic Principles [Cont.

Reference: Inis L. Jr. .1.ed.5. Claude..3 Collective Security System [pp. 1984. 427-29] 427There are two basic characteristics of the UN:  (1) The Organization is based on collective security system. 4th. Swords into Plowshares: The Problems and Progress of International Organization. . and  (2) Great power unity is the foundation stone of the Organization.

1815. believed to be superior to balance of power concept. the Concert of Europe.Collective Security system Two main concepts to maintain peace and avoid war: (1) Balance of power [practised after the congress of Vienna. and continued with the UN]. the essence is : there must be 2 or 3 powerful states or alliances whose powers are almost equal. started with the League of Nations. (2) Collective security [practised after the World War I. no single State or bloc is allowed to become the most powerful]. .

All third parties would come to the assistance of a victim of aggression. .]   The original idea of collective security was that any state which started an aggressive war would be opposed by the rest of the world.Collective Security system [Cont. It is mainly designed to prevent or suppress aggression by presenting to potential aggressors the credible threat and to potential victims of aggression the reliable promise of effective collective measures. The motto was: ³war against one is war against all´.

.Subjective requirements  The modern concept of collective security depends upon a positive commitment to the value of world peace by the greatest mass of States. It is to be directed against any aggressor.  Another requirement of collective security is that it functions impartially. on behalf of any violated State.

. and (b) the assumption of partial disarmament.Objective requirements  The objective requirements of collective security are: (a) the existence of several powerful States of roughly equal strength (the concentration of power in a very few major States is the least favourable situation).

(1) Comprehensive prohibition of the threat or use of force [Art. 24.Collective Security system [Cont. . 2(4)]. (3) Enforcement power is entrusted to a single body: the Security Council [Arts. 39-50]. 25 and 39].] Strengths of the Charter [p. (2) More elaborate and ambitious provisions for sanctions [Arts. 428]  The Charter of the UN is a more satisfactory constitutional basis for a collective security system than the Covenant of the League of Nations.

43 has become a dead law). enforcement arm of the UN. (1) No armed forces at the disposal of the UN (Art. which is a basic prerequisite of collective security system. 27] (Veto power is given to the Big Five). 429]  The Charter falls significantly short of providing an ideal institutional system for the realization of collective security.Collective Security system [Cont. . (2) No assurance for disarmament.] Weaknesses of the Charter [p. (3) The Security Council. is founded on the great Power unanimity [Art.

linked up with seventeen ³Specialized Agencies´(e. the ILO. the IBRD). 430-31] 430[Article 7] There are six principal organs of the United Nations: the General Assembly. and the Secretariat. the Trusteeship Council. the IMO. the International Court of Justice. the Security Council. the WHO.4 The United Nations System [Textbook. the IMF. The United Nations system consists of the ³UN proper´ (the six principal organs) constituting its center. .2.g. pp. the Economic and Social Council.

The Security Council consists of 15 members of the United Nations. and the USA. . France. p. the UK.There are five permanent members: China. . 436] Composition [Article 23] . .3. THE SECURITY COUNCIL [Textbook.The GA elects ten other members for 2 years¶ term to be non-permanent members. the USSR.

3. 437] 1.3. . Each member of the SC shall have one vote. substantive matters] shall be made by an affirmative vote of nine members including the concurring votes of the permanent members. « a party to a dispute shall abstain from voting. Decisions of the SC on procedural matters shall be made by an affirmative vote of nine members. provided that. Decisions of the Security Council on all other matters [i. 2. p.e.1 Voting Procedure and the veto [Article 27] [Textbook. in decisions under Chapter VI.

 The term µveto¶ is a Latin derivative which means µI forbid¶.Veto power The effect of Article 27(3) is that each permanent member of the Security Council has a µveto¶ on non-procedural or substantive questions.   .

Criticism against the veto  The veto was born with a bad name. It was bitterly opposed by small countries at San Francisco although these countries could not reject the thesis that the United Nations could function effectively only with all the great powers as members. .

Criticism against the veto [Cont. The world was divided into two power blocs: the Western Bloc headed by the USA and the Communist Bloc led by the USSR. The period between 1946 and 1989 is called the ³Cold War´ due to the bitter rivalry between the two blocs in all matters short of engaging in actual hostilities. the unity had collapsed immediately after its emergence. .]    Although the concept of great power unanimity is the foundation stone of the UN.

Criticism against the veto [Cont. The SC during the Cold War period. . The veto has frustrated the Security Council µs enforcement power which is the core of the collective security system of the United Nations. therefore. was in effect paralyzed by the use of vetoes by the permanent members.]    If a draft resolution was submitted to the SC by the Western Bloc. the Communist Bloc would veto it and vice versa.

.Criticism against the veto [Cont.]   Because of the veto. the SC was unable to take enforcement action in many crises and major incidents which might even be escalated to the Third World War. The only major incident during the Cold War. in which the SC could decide to take action involving armed forces was the Korean War and that was in fact possible due to the absence of the USSR in the SC meetings.

 In discharging these duties the SC shall act in accordance with the Purposes and Principles of the UN«.2 Functions and powers Article 24 1. and agree that in carrying out its duties under this responsibility the SC acts on their behalf.3. In order to ensure prompt and effective action by the UN. . its Members confer on the SC primary responsibility for the maintenance of international peace and security.

 This article clearly indicates that decisions (resolutions) of the SC are mandatory and binding on the member States.Article 25 The Members of the United Nations agree to accept and carry out the decision of the Security Council in accordance with the present Charter. .

. breach of the peace. or act of aggression and shall make recommendations. 42].(1) Action not involving armed forces (economic sanction) [Art.3 Enforcement Action Chapter VII (Articles 39 to 50) [pp.There are two types of action: . 442-45] 442Article 39 The SC shall determine the existence of any threat to the peace.3. or decide what measures shall be taken in accordance with Articles 41 and 42.(2) Action involving armed forces [Art. . and . to maintain or restore international peace and security. 41].

. postal. and the severance of diplomatic relations.Action not involving armed forces 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. «These may include complete or partial interruption of economic relations and of rail. telegraphic. and other means of communication. air. sea. radio.

or land forces as may be necessary to maintain or restore international peace and security«. .Action involving armed forces Article 42 Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate. sea. it may take such action by air.

. All Members of the UN. assistance. « necessary for the purpose of maintaining international peace and security. « in accordance with a special agreement or agreements.« undertake to make available to the Security Council. armed forces.The issue of establishing the UN armed forces Article 43 1. and facilities.

] Article 47 1. 2.The issue of establishing the UN armed forces [Cont. The Military Staff Committee shall consist of the Chiefs of Staff of the permanent members of the SC« . and the employment and command of forces placed at its disposal«. There shall be established a Military Staff Committee to advise and assist the SC on all questions relating to the SC¶s military requirements«.

]    The SC directed the Military Staff Committee to examine Article 43 from a military point of view. . In 1947.The issue of establishing the UN armed forces [Cont. the Military Staff Committee presented a report but which clearly proved that it was impossible to reconcile the differences among the permanent members. Member states have never made any of the special agreements envisaged in Article 43 and thus the Article remains a dead letter.

[16 States sent armed forces]. The Resolution was adopted with the concurring votes of the four permanent members. . The constitutionality of the resolution was questionable. North Korean (communist) armed forces invaded South Korea.Practice during the Cold War: The Korean War [1950]     In 1950. while the USSR was absent from the meeting. The SC adopted a resolution asking member States to send forces to repel the aggression under a unified command.

By resolution 660. Iraq failed to observe it and annexed Kuwait as part of its territory. to use all necessary means to implement SC resolutions. .Practice after the Cold War: Iraqi invasion of Kuwait [1990]   On 2 August. 1990. On 29 November. the SC demanded that Iraq withdrew all its forces from Kuwait. VII of the Charter. authorized member States cooperating with Kuwait. the SC adopted Resolution 678. acting under Chapt. Iraq forces invaded Kuwait.

Iraqi invasion of Kuwait [1990] [Cont. The broad discretion given to the coalition forces without any control by the SC has led to accusations that the SC was µhijacked¶ by the US. the coalition forces under the leadership of the United States. began the ³Operation Desert Storm´ to attack Iraq. . It is arguable that the SC was not exactly acting under Chapter VII.]    When the deadline passed. according to which enforcement measures will be under the control of the SC.

even the UN cannot intervene in a domestic matter of a State [Art. But the proviso is that the UN may intervene if it is necessary to maintain international peace and security (i. Let alone States. Therefore. 449-50] 449US justification: Humanitarian intervention.NATO intervention (bombing) in Kosovo (1999) [pp.e. Rebuttal: ³Principle of non-intervention´ is a well ± established rule of customary IL. if there is an authorization by the SC under Chapt.  . 2(7)]. a single State or a group of States has no right to use force to intervene even on humanitarian ground. VII).

the US invaded and occupied Iraq (2003). and deposed Saddam Hussein. the Rise of Unilateralism and the future of the UN [See Chapt. again without the authorization of the SC. the US used military force in Afghanistan (2001) without the authorization of the SC. alleging that the Taliban Government harboured and gave safe havens to Al Qaeda terrorists. was a dangerous threat to the US and its allies. pp. Secondly. with stockpiles of WMDs. 17. 523-32] 523   The reactions of the US to September 11 terrorist attacks on World trade Centre: First. . alleging that Iraq had links with Al Qaeda and that Saddam Hussein.After September 11.

Rebuttal: No universally accepted definition of terrorism. In September 11 incident. Rebuttal: According to Art. 524-27] 524Two main justifications invoked by the US: (1) It was an act of Self-defence.US attack on Afghanistan (2001) [See pp. In the absence of authorization by the SC. the attack was made by individual terrorists. there must be an armed attack by a State. none of whom were Afghans. . 51 of the Charter. no State can use force against another State on the ground of failure to suppress terrorism. (2) It was a war on terrorism.

527-30] 527Three main justifications made by the US. Rebuttal: It was a false accusation proved to be untrue. 7) to that effect and to take action against Iraq. . then there must be a resolution of the SC (under Chapt. (1) WMDs ± threat to peace and security. Iraq was a threat to US (and Israel) and in anticipation of attack by Iraq. Even if it was true. (2) Self-defence (anticipatory).US invasion and occupation of Iraq (2003) [pp. the US could attack first as a self-defence.

51 of ³an armed attack¶.] Rebuttal: Anticipatory self-defence is not legal under IL by virtue of the requirement under Art. Rebuttal: No State can use force against another State to change its government. . This is a blatant violation of two most sacred principles of IL: ³sovereignty´and ³self-determination of a people. US attacked Iraq to help Iraqi people to taste the fruits of democracy. (3) Regime change.US invasion and occupation of Iraq [Cont.

Recent Israeli invasion of Lebanon (2006)  Arrest by Hizbollah of two Israeli soldiers. .  Justification: Self-defence against terrorists.

.In each major incident discussed above. ignored the UN. taking advantage of the position as the sole super-power.The US. bypassed the SC. .Comments . .These cases are clear indications of the failure of the UN enforcement machinery in the context of the uni-polar world. the use of force by the US was contrary to international law.What then is the solution? This is a food for thought for every international lawyer and political scientist. . and used force on its own.