UN CHARTER & STRUCTURAL

ASPECTSProf David K. Linnan

USC LAW # 783

Unit Nine

BACKGROUND IPOLITICAL VS LEGAL BACKGROUND

1. Atlantic Charter August 1941 pre-US entry into WW II US-UK discussions

of future post-war order & Allies’ views of why fighting, including

a. No US or UK territorial gainsb. Territorial adjustment conform to peoplec. People have right to choose own governmentd. Trade barriers lowerede. Disarmamentf. Freedom from fear & wantg. Freedom of the seash. New association of nations

BACKGROUND IIPOLITICAL VS LEGAL BACKGROUND

2. UN’s chief responsibilities re UN Charter following Atlantic Charter are preserving peace &

securing economic development, but there are strategic differences between large and small vs developing and industrialized states even predating UN

BACKGROUND IIIPOLITICAL VS LEGAL BACKGROUND (CONT’D)

3. Internationally & domestically, basic differences about whether int’l law system should work on traditional state to state basis

vs some picture of “int’l society” (although differences of opinion what that really

means; e.g., domestically unilateralists vs multilateralists)

4. Many of the legal issues represent rather formalistic arguments in which the real substance is differing pictures as under 1

& 2 above, so separate exercise what people argue from why people argue

POLITICS & LAW IPOLITICAL VS LEGAL POSITIONS, GENERALLY

SPEAKING

1. Small states prefer collective legalization approaches because they lack individual leverage or resources for political

approaches to int’l problems

2. Small, poor states prefer international organizations with a “one state-one vote” system (like UN General Assembly or GA) as opposed to weighted voting by financial contribution (as with int’l financial

institutions such as World Bank or IMF), plus you see efforts to move matters between the two such as UNCTAD (UN Conference on Trade &

Development) or UNDP (UN Development Programme)

POLITICS & LAW IIPOLITICAL VS LEGAL POSITIONS, GENERALLY

SPEAKING (CONT’D)

3. Developing states have tradition reaching back to New Int’l Economic Order (NIEO) of late 1960s-early 1970s distributive justice claims plus anti-colonial (anti- imperialist) rhetoric of self-determination as political view of law

4. Small and large state perspectives differ on whether the role of an int’l organization like the UN is to be a coordinating body for meetings among states, or rather a

supranational body to restrain economic & broader power of predominant states

LEGAL INTERPRETATION ILEGAL EXPRESSION OF POLITICAL ARGUMENTS

1. Argumentation about the character of UN in constituent treaty quasi-constitutional terms as independent actor versus subordinate creature of states that created it, is a legal expression of the political arguments.

2. Visible in practice too in terms of Kofi Annan as UN Sec Gen facing off against coalition in Iraq and saying going in without Security Council approval was illegal (regardless

whether it is true in substantive terms, a very undiplomatic thing to put in the mouth of the head administrator of a subordinate creature of the states that created it).

LEGAL INTERPRETATION IILEGAL EXPRESSION OF POLITICAL ARGUMENTS

(CONT’D)

3. Beyond argumentation about UN Charter as organic constitution of independent entity, fit within field of int’l organization law developing concept close to administrative law for all int’l organizations (but UN & its subsidiary organs still primary example).

4. If you look at different approaches to int’l law going back to first unit, note the underpinnings of differing views (int’l law as

law between trad sovereign states vs view of UN as supranational organization as part of

int’l society of co-equal but somewhat less independent state)

LEGAL INTERPRETATION IIILEGAL EXPRESSION OF POLITICAL ARGUMENTS

(CONT’D)

5. Within the UN structure you still have expressly political bodies (General Assembly

& Security Council), plus ICJ as judicial organ so that now conflicts too on legal level concerning whether political activities like

efforts to maintain peace via Security Council (on-going hostilities) may be interfered with by ICJ as in hearing proceedings on legality under int’l law of use of armed force in on- going hostilities (analogous tensions to justice vs reconciliation in post-conflict situations)

UN PURPOSESUN CHARTER PREAMBLE & ART I

1. Save future from scourge of war (twice in own lifetime), collective measures to preserve peace

2. Affirming fundamental human rights & equal rights men & women, nations large & small, self-

determination

3. Establish conditions of respect for int’l law, cooperation on int’l problems of economic, social, cultural or humanitarian nature

4. Promote social progress & better standards of life in larger freedom

UN PRINCIPLES ART 2UN CHARTER ART 2

2(1) Sovereign equality of member states

2(2) Members to fulfill Charter obligations

2(3) Peaceful settlement of int’l disputes

2(4) “Members refrain in their international relations from the threat or use of

forceagainst the territorial integrity or political independence of any state, or in

any other manner inconsistent with the purposes of the United Nations.”

UN PRINCIPLES ART 2UN CHARTER ART II (CONT’D)

2(5) Members to give UN assistance in action taken in accordance with Charter, and refrain from

assisting any state subject of UN preventive or enforcement action

2(6) UN to ensure that non-,member states act in accordance with these principles as necessary

for maintenance of int’l peace & security

2(7) No authorization of UN to intervene in domestic jurisdiction of any state or to submit such

matters to settlement under the present Charter; but this principle shall not prejudice application of enforcement measures under Chapter VII

UN MEMBERSHIP IHIDDEN MEMBERSHIP CRITERIA CH. II

1. Membership originally excluded defeated WW II Axis Powers just defeated

(Germany & Japan)

2. Decolonization outside South America largely took place in 1950s-1960s, so original UN membership was largely traditional “civilized world” states

(meaning largely Europe & North America), so Charter has lots of transitional management mechanisms for mandates & territories largely dead by 1970s

UN MEMBERSHIP IIHIDDEN MEMBERSHIP CRITERIA CH. II

(CONT’D)

3. Arts 4 & 5 provides for general membership criterion &

suspension of membership of states subject to enforcement actions, with Security Council acting together with GA (model of Security Council acting with something that looks like advice & consent with SC as active partner)

UN ORGANS CH IIICHIEF UN ORGANS ART 7

1. General Assembly

2. Security Council

3. Economic & Social Council

4. Trusteeship Council

5. Int’l Court of Justice

6. Secretariat

PLUS SUCH SUBSIDIARY ORGANS AS MAY BE FOUND NECESSARY . . . [ESTABLISHED UNDER CHARTER]

UN GENERAL ASSEMBLY IUN GA FUNCTIONS & POWERS, CH IV

1. General tendency is to give GA authority to discuss all matters, but to

reserve powers to act on int’l peace in particular to SC

2. Specific reservation of Art 12 of authority in SC, Sec Gen to inform GA

of developments with permission of SC

UN GENERAL ASSEMBLY IIUN GA FUNCTIONS & POWERS (CONT’D)

3. GA voting on “important questions” by 2/3 majority present & voting

a. int’l peace & securityb. election non-permanent SC membersc. Trusteeship Council mattersd. admission, suspension & expulsion of

memberse. budgetary matters

4. Tendency for int’l peace matters to go through SC, all else through GA except counter pressure on one-state- one-vote (e.g., Palestinians-Israeli conflict)

5. No vote in GA if membership contribution in arrears

UN SECURITY COUNCIL IUN SC CH V, VI & VII

1. SC composition currently 15 members, 5 permanent & rest non-permanent

2. Permanent members are WW II Allies, US, UK, France, Russia & China

3. Re voting, permanent members have veto individually, require affirmative vote of 9 members ( so permanent members can

stop SC action, but still require some non-permanent members agmt to take measures)

UN SECURITY COUNCIL IIUN SC CH VI & VII SUBSTANTIVE POWERS

FOR INT’L PEACE

1. Ch VI peaceful settlement of disputes, “likely to endanger the maintenance of int’l peace & security”

2. Ch VI, SC having mediating & investigatory role, particularly if party

negotiation fails, & at party request can recommend settlement terms

UN SECURITY COUNCIL IIIUN SC CH VI & VII SUBSTANTIVE POWERS FOR INT’L PEACE

(CONT’D)

3. Ch VII as enforcement action core of SC powers in use of force setting

4. Art 39 jurisdiction “SC shall determine the existence of any threat to the peace, breach of the peace, or act of aggression nad shall make recommendations, or decide what measures shall be taken in accordance with articles 41 & 42, to maintain or restore int’l peace & security”

a. Trad view of threat to peace is war between two countries

b. Newer view is ethnic civil too encompassed (e.g., spillover in former Yugoslavia),

but what of Charter art 2(7))

UN SECURITY COUNCIL IVUN SC CH VI & VII SUBSTANTIVE POWERS FOR

INT’L PEACE (CONT’D)

5. Art 43 view of UN forces dead letter, Cold War killed it; since then SC authorizes, members provide forces to carry out resolution

6. Art 41 measures not involving the use of armed force vs Art 42 measures

involving the use of armed force

WHENEVER YOU READ ABOUT SECURITY COUNCIL AUTHORIZING MEASURES, CH VII & EITHER ART 41 OR 42 WITH INTERLOCK ON STATES ENFORCING UNDER SC AUTHORITY, EXCLUSION OF GA IN “REMAINING SEIZED”

UN SECURITY COUNCIL VUN SC CH VI & VII SUBSTANTIVE POWERS

FOR INT’L PEACE (CONT’D)

7. Subsidiary rights as Art 44 right of non-SC members contributing troops to participate in decisions regarding its troops

8. Consultation rights for member states with special economic problems by virtue of SC measures (e.g., Jordan as affected by Iraq embargoes) & general mutual assistance in carrying out SC measures

UN SECURITY COUNCIL VIUN SC CH VI & VII SUBSTANTIVE POWERS FOR

INT’L PEACE (CONT’D)

9. Self-defense under art 51 where most use of force law developed once SC froze during Cold WarArt 51 – “Nothing in the present Charter

shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the UN, until

the SC has taken measures necessary to maintain int’l peace & security.” [plus duty to

report self-defense measures to SC, not affecting SC authority]

REGIONAL & ECOSOCUN CH VIII-X

1. Ch VIII is preservation clause on regional arrangements (OAS, etc.)

2. Ch IX articulates essential human rights & social conditions jurisdiction (full employment, etc.)

3. Ch X sets ECOSOC mid-level framework for human rights, etc. at committee level internally with periodic exam & reports

DECOLONIZATIONCH XI, XII & XIII TRUSTEESHIP/MANDATES

1. Structure established for decolonization, now 60 years later largely dead letter

2. Self-determination now largely viewed as substantive rather than “procedural” or institutional problem

CH XIV INT’L COURT JUDICIAL ARM W/ HIDDEN QUES

1. Ch XIV essentially incorporates old League PICJ at Hague aka “World Court”

2. Hidden issues of conflicting judicial & Political or executive roles not unlike US constitutional law’s “political question” problems

3. Provision for GA, SC or subsidiary UN organs to ask for advisory opinions (e.g., GA request on Israeli security fence, Israeli view; opposing Palestinian view)

ULTIMATE ARGUMENT RE “JUSTICIABILITY” ON USE OF FORCE-TYPE QUESTIONS

UN CHARTER CH XVIMISC

1. Art 103 analogous to supremacy clause?Art 103 – “In event of a conflict between the obligations of the members of the UN under the present Charter and their obligations under any other int’l agmt, their obligations under the

present charter shall prevail”

2. Art 104 on UN legal capacity & later ICJ opinion on state responsibility & protection of UN employees

(privileges & immunities)

3. Art 108 on amendment of charter by 2/3 majority vote including approval by all SC permanent members