UN CHARTER

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• UN CHARTER STRUCTURAL ASPECTS

Prof David K. Linnan USC LAW 783 Unit Nine
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BACKGROUND I

• POLITICAL 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
• No US or UK territorial gains
• Territorial adjustment conform to people
• People have right to choose own government
• Trade barriers lowered
• Disarmament
• Freedom from fear want
• Freedom of the seas
• New association of nations

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BACKGROUND II

• POLITICAL VS LEGAL BACKGROUND
• 2. UNs 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

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BACKGROUND III

• POLITICAL VS LEGAL BACKGROUND (CONTD)
• 3. Internationally domestically, basic
  differences about whether intl law system
  should work on traditional state to state basis
  vs some picture of intl 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

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POLITICS LAW I

• POLITICAL VS LEGAL POSITIONS, GENERALLY SPEAKING
• 1. Small states prefer collective legalization
  approaches because they lack individual
  leverage or resources for political approaches
  to intl 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 intl 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)

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POLITICS LAW II

• POLITICAL VS LEGAL POSITIONS, GENERALLY SPEAKING
  (CONTD)
• 3. Developing states have tradition reaching
  back to New Intl 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 intl 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

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LEGAL INTERPRETATION I

• LEGAL 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).

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LEGAL INTERPRETATION II

• LEGAL EXPRESSION OF POLITICAL ARGUMENTS (CONTD)
• 3. Beyond argumentation about UN Charter as
  organic constitution of independent entity, fit
  within field of intl organization law
  developing concept close to administrative law
  for all intl organizations (but UN its
  subsidiary organs still primary example).
• 4. If you look at different approaches to intl
  law going back to first unit, note the
  underpinnings of differing views (intl law as
  law between trad sovereign states vs view of UN
  as supranational organization as part of intl
  society of co-equal but somewhat less
  independent state)

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LEGAL INTERPRETATION III

• LEGAL EXPRESSION OF POLITICAL ARGUMENTS (CONTD)
• 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 intl law
  of use of armed force in on- going hostilities
  (analogous tensions to justice vs reconciliation
  in post-conflict situations)

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UN PURPOSES

• UN 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 intl
  law, cooperation on intl problems of economic,
  social, cultural or humanitarian nature
• 4. Promote social progress better standards of
  life in larger freedom

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UN PRINCIPLES ART 2

• UN CHARTER ART 2
• 2(1) Sovereign equality of member states
• 2(2) Members to fulfill Charter obligations
• 2(3) Peaceful settlement of intl 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.

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UN PRINCIPLES ART 2

• UN CHARTER ART II (CONTD)
• 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 intl 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

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UN MEMBERSHIP I

• HIDDEN 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

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UN MEMBERSHIP II

• HIDDEN MEMBERSHIP CRITERIA CH. II (CONTD)
• 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)

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UN ORGANS CH III

• CHIEF UN ORGANS ART 7
• 1. General Assembly
• 2. Security Council
• 3. Economic Social Council
• 4. Trusteeship Council
• 5. Intl Court of Justice
• 6. Secretariat
• PLUS SUCH SUBSIDIARY ORGANS AS MAY BE FOUND
  NECESSARY . . . ESTABLISHED UNDER CHARTER

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UN GENERAL ASSEMBLY I

• UN GA FUNCTIONS POWERS, CH IV
• 1. General tendency is to give GA authority to
  discuss all matters, but to reserve powers to
  act on intl 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

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UN GENERAL ASSEMBLY II

• UN GA FUNCTIONS POWERS (CONTD)
• 3. GA voting on important questions by 2/3
  majority present voting
• a. intl peace security
• b. election non-permanent SC members
• c. Trusteeship Council matters
• d. admission, suspension expulsion of
  members
• e. budgetary matters
• 4. Tendency for intl 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

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UN SECURITY COUNCIL I

• UN 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)

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UN SECURITY COUNCIL II

• UN SC CH VI VII SUBSTANTIVE POWERS FOR INTL
  PEACE
• 1. Ch VI peaceful settlement of disputes,
  likely to endanger the maintenance of intl
  peace security
• 2. Ch VI, SC having mediating investigatory
  role, particularly if party negotiation fails,
  at party request can recommend settlement terms

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UN SECURITY COUNCIL III

• UN SC CH VI VII SUBSTANTIVE POWERS FOR INTL
  PEACE (CONTD)
• 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 intl 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))

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UN SECURITY COUNCIL IV

• UN SC CH VI VII SUBSTANTIVE POWERS FOR INTL
  PEACE (CONTD)
• 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

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UN SECURITY COUNCIL V

• UN SC CH VI VII SUBSTANTIVE POWERS FOR INTL
  PEACE (CONTD)
• 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

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UN SECURITY COUNCIL VI

• UN SC CH VI VII SUBSTANTIVE POWERS FOR INTL
  PEACE (CONTD)
• 9. Self-defense under art 51 where most use of
  force law developed once SC froze during Cold
  War
• Art 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 intl
  peace security. plus duty to report
  self-defense measures to SC, not affecting SC
  authority

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REGIONAL ECOSOC

• UN 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

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DECOLONIZATION

• CH 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

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CH XIV INTL 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 laws 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

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UN CHARTER CH XVI

• MISC
• 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 intl 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