SAMENVATTING PUBLIC INTERNATIONAL LAW (CIJFER: 9) WEEK 2 STATE RESPONSIBILITY ALLES SAMENGEVAT
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Summary | Public International Law | Jaar 3
1
Week 2: State Responsibility
Module 6: The United Nations
• United Nations: is an international organisation with a universal and global character. Since the
Reparation for Injuries case (1949) it is generally acknowledged that the UN has legal personality
under international law despite the fact that the UN Charter does not state this explicitly.
Pursuant to Article 1 UN Charter the organisation aims to achieve four purposes. Based on these
purposes, the UN has two main tasks to fulfil:
a. Maintaining international peace and security: in order to fulfil this task, the UN Charter
established a centralised organisation, with the Security Council having primary responsibility
for 'maintaining international peace and security', and the General Assembly as well as the
Secretary General having limited (supplementary) competence in this area.
b. Facilitating international economic and social policy.
In exercising these tasks, the UN has contributed to the development of international law. The UN's
tasks are carried out by its subsidiary organs and sub-organs, in cooperation with a large number of
international organisations affiliated with the UN.
History of the UN
The idea to establish an organisation with the aim of maintaining international peace, and that includes all states
in the world, is not recent. The first concrete step to create such an organisation was taken in 1919 when the
League of Nations was established, after the conclusion of the First World War. This organisation, however, was
unable to prevent the out-break of WWII. While WWII was still going on, 26 governments signed the Atlantic
Charter in 1942, in which they attested their will to establish the 'United Nations' – a name first used in this
document. After the conclusion of WWII, representatives of 51 states attended the UN Conference on
International Organisation, which began on 25 April 1945 in San Francisco and concluded in the adoption of the
UN Charter. On 24 October 1945, the Charter entered into force upon ratification by the five permanent members
of the Security Council and a majority of the other 46 signatories, whereby the UN was officially established. With
the admission of South Sudan on 14 July 2011, the UN currently has 193 member states.
Institutional Structure
The UN has six principal organs that are mandated to achieve its aims and fulfil its tasks. Pursuant to
Article 7(1) UN Charter the UN’s principal organs are the following:
● General Assembly [main organ]: being the main plenary organ of the UN, consists of all members of the
organisation with each member having one vote (Article 9(1) UN Charter). They also have important
tasks to fulfil with regard to maintaining international peace and security. This was confirmed in the
Certain Expenses Advisory Opinion, in which the ICJ found that instead of having exclusive powers,
"the Security Council's responsibility relating to international peace and security" was better
characterised as primary. Nevertheless, unlike the Chapter VII resolutions of the Security Council, the
resolutions of the General Assembly are not legally binding on the UN's member states. The only
exception: the General Assembly makes binding decisions on budget-related matters.
Pursuant to Article 11(2) UN Charter, the General Assembly "may discuss any questions relating to the
maintenance of international peace and security brought before it by any Member of the United Nations,
or by the Security Council, or by a state which is not a Member of the United Nations", and "may make
recommendations with regard to any such questions" to these entities. However, they "shall not make
any recommendation with regard to" a dispute or situation that is dealt with by the Security Council,
unless the Security Council so requests (Article 12(1) UN Charter). Moreover, questions discussed
under Article 11(2) UN Charter "on which action is necessary shall be referred to the Security Council by
the General Assembly either before or after discussion" (Article 11(2) UN Charter).
● Security Council [main organ]: is the central and primary organ for maintaining international peace and
security (article 24 UN Charter), and the decisions of the Security Council adopted under Chapter VII
(International Peace and Security: Articles 39-51 UN Charter) are therefore legally binding (Articles 24
and 25 juncto Article 39 through 42 UN Charter).
,Summary | Public International Law | Jaar 3
2
The Security Council is composed of five permanent members and ten non-permanent (elected)
members. The permanent members have the right to veto a proposed decision with the exception of
decisions on procedural matters (article 27 UN Charter).
● Economic and Social Council, ECOSOC [main organ].
● Trusteeship Council (suspended since it fulfilled its mandate).
● ICJ.
● Secretariat, headed by the Secretary General: as head of the Secretariat, the Secretary-General,
"appointed by the General Assembly upon the recommendation of the Security Council" (Article 97 UN
Charter), is responsible for the day-to-day working of the UN. In addition to being the chief
administrative officer of the UN (Article 97 UN Charter), the Secretary-General is involved in tasks
relating to international peace and security.
They carry out mandates granted by the Security Council or the General Assembly (Article 98 UN
Charter), such as the organisation and deployment of a peacekeeping force or sending a fact-finding
mission. Besides these 'entrusted functions', Article 99 UN Charter gives the Secretary General the
autonomous power to "bring to the attention of the Security Council any matter which in his/her opinion
may threaten international peace and security". Notwithstanding its importance, the Secretary-General
has hardly used this autonomous power.
The first three main organs are empowered to establish ‘such subsidiary organs as [they] deem
compulsory]. An important organ established by the General Assembly based on Article 22 UN
Charter is the Human Rights Council. In addition, the UN has entered into formal relationships with
various independent international organisations, covering a wide variety of policy areas. Depending
on their nature and their relationship with the UN, some of these organisations qualify as 'specialised
agencies' of the UN.
Social and Economic policy
Articles 1(3) and 55 UN Charter lay down the foundations of the UN's competence in the field of social
and economic policy. When carrying out social and economic policy-related tasks, the UN operates as
a decentralised organisation (in contrast to the manner in which the UN operates with regard to
matters concerning international peace and security).
The main entities involved in fulfilling the UN's social and economic policy-mandate, are the following:
● General Assembly: pursuant to Article 60 UN Charter the responsibility for discharging the functions
relating to international economic and social cooperation. While the General Assembly is entrusted with
the responsibility for economic and social policy, the related tasks are delegated to the Economic and
Social Council. Similarly to its powers relating to international peace and security, the General Assembly
may discuss any questions or any matters relating to this policy field, and may make recommendations
to the Members of the UN or to the Security Council (Article 10 UN Charter).
● ESOSOC: is the primary organ entrusted with coordinating economic, social, cultural, education, health
and related matters. ECOSOC consists of 54 members, which are elected by the General Assembly for
a three-year term. Each member of ECOSOC has one vote. The seats to ECOSOC are allotted based
on geographical representation. Under Chapter X of the UN Charter, ECOSOC has the power to make
or initiate studies and reports as well as make recommendations concerning matters in the field of
economic and social policy (Article 62 UN Charter). ECOSOC has special responsibility for the
promotion of human rights (2). Pursuant to Article 63 UN Charter, ECOSO also enters into agreements
with specialised UN agencies and co-ordinates their activities (see also Article 57(1) UN Charter) In
order to fulfil its tasks, ECOSO has also created a number of subsidiary organs (Article 68 UN Charter).
● Human Rights Council: which was created as a reaction to the criticism relating to its predecessor, the
Commission on Human Rights. The Human Rights Council is composed of the representatives of 47 UN
member states, which, similarly to the composition of ECOSOC, is based on equitable geographical
distribution. The main tasks of the Human Rights Council are to strengthen the promotion and protection
of human rights, to consider human rights violations in all UN member states, and to make
recommendations to UN member states on matters concerning human rights.
, Summary | Public International Law | Jaar 3
3
Development of IL
The UN has also contributed enormously to the development and codification of international law. The
ICJ, 'the principal judicial organ of the United Nations' (Article 92 UN Charter), has of course
contributed to the development of international law by way of its judgments and advisory opinions.
Reforms within the UN
The way the UN operates today can hardly be compared with how it functioned in 1945. The present
form of the UN has been achieved through constant and continuing reforms and changes, even as the
text of the UN Charter has been amended only slightly over the years.
The focus of past UN reforms (and reform proposals) includes: the Security Council; abolition or
complete reform of the Trusteeship Council; achieving coherence among the different programs,
agencies and other bodies; making the UN more democratic; (more) effective protection of human
rights; partnership with business sector; and enabling the UN to respond to environmental challenges.
These initiatives also reflect the changes that have (and continues to) take place in international law
and in the international community.
Security Council Reform
The Security Council has been a subject of criticism since its establishment. The veto power of the
permanent members gave rise to a reform as early as 1950 when the Soviet Union vetoed the
peacekeeping plans relating to the Korean War. As a reaction, the General Assembly adopted its
famous Uniting for Peace Resolution (GA Res 377 (1950)), which authorised the General Assembly to
recommend the use of force when the Security Council fails to respond to a threat to peace.
Accordingly, this resolution seemed to reduce the power of veto at least in principle, and made it clear
that the General Assembly has powers which can be used to override the monopoly of the Security
Council in resolving international peace and security related matters.
● Another reform concerned the number of non-permanent members, which was increased
from 6 to 10, in 1965.
A more recent reform is closely related to the series of Kadi cases that was heard before the Court of
Justice of the European Union. In the Kadi cases, the applicant complained of the lack of a review
procedure for contesting his placement on the so-called Consolidated List, which lists individuals and
organisations suspected of terrorist activities or links to terrorists. In order to provide a review
procedure for the individuals, groups and other entities who seek to contest their placement on this
list, the Security Council established the Office of the Ombudsperson on December 17, 2009, by
means of Resolution 1904 (2009). The Security Council extended the Ombudsperson's mandate in
2011, by means of Resolution 1989 (2011). Whether the procedure before the Ombudsperson is
sufficient to address concerns – as highlighted in the Kadi cases – remains contested, especially
because the Office of the Ombudsperson is not a court of law; it only has advisory powers and
operates subject to the control of the UN Security Council.
Module 8: State Responsibility
A widely used classification in public international law distinguishes between:
a. Primary rules: are those rules that stipulate substantive obligations, such as the rules that
prohibit the use of aggressive force or the rules that prohibit the violation of human rights.
These rules of international law may derive from treaties, customary law, binding judicial
decisions or other sources of international law.
b. Secondary rules: are those rules that determine how primary rules are created, interpreted or
enforced. In other words, secondary rules are 'rules about rules'.
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