The Law And Practice Of The United Nations (Legal Aspects of International Organization)

This fully up-dated, third revised edition of Conforti's thought-provoking and challenging textbook, The Law and Practice of the United Nations, provides a comprehensive legal analysis of problems concerning membership, the structure of UN organs, their functions and their acts, taking into consideration the text of the Charter, its historical origins, and, particularly, the practice of the organs. Its main focus is 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 - a literature which has grown enormously in recent times - has also been considered. The fact that the legal aspects of the action or the inaction of the Security Council have been discussed to an unusually large extent by ordinary people at the time of the war against Iraq and even later is worth noting. The importance of the role of the United Nations, and the content of the rules governing it, 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. Through the study and analysis of emerging legal issues of particular relevance to Africa, such as the creation of viable continental institutions capable of promoting unity and security for the peoples of the continent, the effective protection of human rights, the need for accountability for mass killings and massive violations of the rule of law, the promotion of a rule-based democratic culture, the role of African countries in a globalizing world economy and in international trade relations, the Yearbook strives to be responsive to the intellectual needs of African countries in the area of international law, and to the continuing struggle for creating an environment conducive to the rule of law throughout the continent. The Yearbook also provides ready access to the basic documents of African international organizations by regularly publishing the resolutions and decisions of regional and sub-regional organizations as well as the conventions, protocols and declarations adopted by pan-african agencies. PREFACE 6 TABLE OF CONTENTS 8 ABBREVIATIONS 14 GENERAL BIBLIOGRAPHY 16 INTRODUCTION 18 1. Origins of the United Nations Charter 18 A) From the Atlantic Charter to the San Francisco Conference 18 B) The San Francisco Conference, the entry into force of the Charter and present United Nations membership 21 C) Relationships between the League of Nations and the United Nations 23 2. The purposes of the United Nations 24 3. The organs 25 4. The Charter as a treaty 27 5. Interpretation of the Charter 29 6. The power to interpret the Charter 31 7. The "rigidity" of the Charter and amendment and review procedures 33 8. Present trends to revise the Charter 35 CHAPTER ONE MEMBERSHIP IN THE ORGANIZATION 40 Section I ACQUISITION OF MEMBERSHIP STATUS 40 9. Admission 40 10. Admission requirements 40 11. Admission of mini-States 44 12. Admission of neutralised States 45 13. The so-called conditional admission and the non-existence of "positive" obligations of the UN organs 50 14. Readmission 55 Section II MODIFICATIONS IN MEMBERSHIP STATUS 56 15. Suspension 56 16. Expulsion 59 17. Withdrawal 59 18. Effects of State succession on membership status 61 19. Governments created as a result of revolutions or foreign military interventions 65 20. Governments in exile 71 21. State succession and rules on credentials 73 CHAPTER TWO THE ORGANS 78 Section I THE SECURITY COUNCIL 78 22. Composition of the Council. Election of non-permanent Members 78 23. Voting procedure in the Council: A) The nature of the four Powers' Statement at the San Francisco Conference 80 24. B) The so-called veto power and the significance of abstention by a permanent Member 82 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 91 28. F) Approval by "consensus" 98 29. Participation in Security Council meetings of States which are not members of the organ 100 Section II THE GENERAL ASSEMBLY 104 30. Composition of the Assembly. Subsidiary organs 104 31. Voting procedure in the Assembly: A) The "present and voting" majority 106 32. B) Simple majority and qualified majority 108 33.C) Approval by "consensus" 116 Section III THE SECRETARIAT 117 34. Appointment of the Secretary-General 117 35. The Secretariat staff and the legal nature of the employment relationships 118 36. Privileges and immunities of UN Officials 125 37. The protection of UN Officials 128 Section IV THE ECONOMIC AND SOCIAL COUNCIL AND THE TRUSTEESHIP COUNCIL 135 38. Composition and functions of the Economic and Social Council 135 39. The Trusteeship Council 137 Section V THE INTERNATIONAL COURT OF JUSTICE 138 40. Organization of the Court 138 41. Election of judges 139 CHAPTER THREE THE FUNCTIONS 142 Section I GENERAL LIMITS TO UNITED NATIONS FUNCTIONS 142 42. Limits ratione personae and ratione materiae 142 43. The United Nations and non-Member States 143 44. The domestic jurisdiction clause (Article 2, para. 7) 147 45. A) The notion of domestic jurisdiction 149 I. The legal notion 149 II. The notion under Article 2, para. 7 151 III. Developments in the practice 157 46. B) The meaning of "intervene" 160 47. C) The significance of the exception in the last part of Article 2, para. 7 162 48. D) Competence to interpret Article 2, para. 7 165 Section II MAINTENANCE OF THE PEACE: FUNCTIONS OF THE SECURITY COUNCIL 166 49. Chapters VI and VII of the Charter 166 50. The power to seize the Council 169 51. Investigation 172 52. The peaceful settlement function under Chapter VI. A) Factual Conditions 177 53. B) Indications to the States of "procedures or methods" for settling differences that may endanger the peace 180 54. C) The indication of "terms of settlement" 184 55. Action with respect to maintenance of the peace under Chapter VII. General remarks 187 55. bis. The determination of a threat to the peace, a breach of the peace, or an act of aggression 188 56. The measures provided for by the Charter. A) Recommendations under Article 39 196 57. B) Provisional measures (Article 40) 199 58. C) Measures not involving the use of force (Article 41) 202 59. D) Measures involving the use armed force (Articles 42 ff.). Peacekeeping Operations 212 60. Measures not (provided for by the Charter. A) The Authorisation of the use of force by States 220 60. bis. B) Measures on governing territories 227 Section III MAINTENANCE OF THE PEACE: THE FUNCTIONS OF THE GENERAL ASSEMBLY 233 61. Discussions and recommendations on general questions 234 62. The peaceful settlement function 234 63. The problem of General Assembly powers regarding "action". A) The solutions given by the Charter 238 64. B) The alleged formation of customary rules on the subject 242 Section IV MAINTENANCE OF THE PEACE. THE FUNCTIONS OF THE SECRETARY-GENERAL 243 65. Delegated functions and executive functions 244 66. Autonomous initiatives for peaceful settlement 246 Section V MAINTENANCE OF THE PEACE AND REGIONAL ORGANIZATIONS 248 67. Regional actions "authorized" by the Security Council 249 68. Existing regional Organizations 252 Section VI ECONOMIC CO-OPERATION AND ACTION FOR DEVELOPMENT 256 69. Political de-colonization and economic de-colonization. Co-operation for "sustainable" development 257 70. The organs charged with economic co-operation 258 71. Normative functions 258 72. Operational functions 263 73. Relations with Specialised Agencies 266 Section VII THE PROTECTION OF HUMAN RIGHTS 269 74. General aspects of United Nations action 270 75. Action regarding individual countries 271 76. Resolutions of a general nature 273 77. The Human Rights Covenants and the Human Rights Committee 274 Section VIII DE-COLONIZATION AND SELF-DETERMINATION OF PEOPLES 276 78. UN competence to decide on the independence of peoples under colonial domination 277 79. The self-determination of peoples 280 80. Trusteeship 282 81. The case of Namibia 284 Section IX REGISTRATION OF TREATIES 287 82. Effects of registration 287 83. Effects of non-registration 288 Section X THE JUDICIAL FUNCTIONS 291 84. The judicial settlement of disputes between States 291 85. The advisory function of the International Court of Justice 292 Section XI FINANCING THE ORGANIZATION 299 86. Obligatory contribution of the Member States 300 87. Voluntary contributions 306 88. Issuance of loans 307 CHAPTER FOUR THE ACTS 308 89. Recommendations to the States 308 90. Decisions 311 91. Organizational resolutions 312 92. Operational resolutions 313 93. Proposals, authorisations, delegations of powers or functions, approvals, directives, recommendations between the organs 314 94. Declarations of principles 315 95. The UN resolutions and the rule of law: The duty of the organs to comply with the Charter and with international law 319 96. The observance of rules of procedure 320 97. Illegality of acts and the role of agreement in the United Nations system 322 ANALYTICAL INDEX 330 This fully up-dated, third revised edition of Conforti's thought-provoking and challenging textbook, "The Law and Practice of the United Nations", provides a comprehensive legal analysis of problems concerning membership, the structure of UN organs, their functions and their acts, taking into consideration the text of the Charter, its historical origins, and, particularly, the practice of the organs. Its main focus is 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 - a literature which has grown enormously in recent times - has also been considered. The fact that the legal aspects of the action or the inaction of the Security Council have been discussed to an unusually large extent by ordinary people at the time of the war against Iraq and even later is worth noting. The importance of the role of the United Nations, and the content of the rules governing it, 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. Based on the 7th Italian ed

This fully up-dated, third revised edition of Conforti's thought-provoking and challenging textbook, The Law and Practice of the United Nations, provides a comprehensive legal analysis of problems concerning membership, the structure of UN organs, their functions and their acts, taking into consideration the text of the Charter, its historical origins, and, particularly, the practice of the organs. Its main focus is on the practice of the Security Council.