The United Nations: law and practice

THE UNITED NATIONS LAW AND PRACTICE

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The United Nations Law and Practice

Edited by

Franz Cede and

Lilly Sucharipa-Behrmann

Kluwer Law International The Hague / London / Boston

Library of Congress Cataloging-in-Publication Data

ISBN 90-411-1563-3

Published by Kluwer Law International, P.O. Box 85889, 2508 CN The Hague, The Netherlands. Sold and distributed in North, Central and South America by Kluwer Law International, 101 Philip Drive, Assinipi Park, Norwell, MA 02601, U.S.A. In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322, 3300 AH Dordrecht, The Netherlands.

First published in German: Die Vereinten Nationen: Recht und Praxis © 1999 Manz Verlag, Vienna Coverphoto: ANP

Printed on acid-free paper

All Rights Reserved © 2001 Kluwer Law International Kluwer Law International incorporates the publishing programmes of Graham & Trotman Ltd, Kluwer Law and Taxation Publishers, and Martinus Nijhoff Publishers. No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner. Printed in the Netherlands.

Preface*

The United Nations was established to serve the peoples of its Member States, in whose name ("We the peoples of the United Nations ...") the Charter was issued. The common aim of all the Organization's activities is to improve human dignity and security, and to obtain for all human beings the essential conditions — political, economic and social - which would enable them to live free and fulfilling lives. That aim requires action by governments, but governments alone cannot achieve it. The United Nations can only succeed if it reaches out and enlists the full support of civil society. Therefore, my personal objective, as we approach the new millennium, is to engage the diverse elements of civil society, in all Member States, in the work of the Organization. We live in an age of globalization, which may prove unsustainable unless we ensure that its benefits, as well as its costs, are more equitably shared, and that the human rights of the poorest as well as the richest are recognized and respected. The UN can help achieve this, but only if its manifold activities are understood and supported by a broad swathe of stakeholders and opinion leaders, present and future, around the world. And those we must reach in the first instance - so that they can pass on the message to others - are students of international law and international relations, and those in the media who write and speak about such issues - as well as civil servants, political leaders, and public figures generally. It is those people, in the German-speaking world, who are the target audience of this book. I commend the editors and authors for the breadth and depth of their coverage of the subject, to which they bring an impressive range of both academic knowledge and practical experience. I have every hope that their book will succeed in making the work of the United Nations better and more widely known. New York, March 1999

Kofi A. Annan (Secretary-General of the United Nations)

*Preface to the German edition by the Secretary-General of the United Nations

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Introduction The idea to present the law and practice of the UN in a compact and concise book in German and now in English has matured as a result of recent experience. As surprising as it may seem at first sight, the voluminous literature existing in German on nearly all aspects of the UN and of the "family" of UN organizations contains no modern publication, which would offer basic information about the institutions of the UN and its activities in the current practice of international relations. Among the many publications in German concerning the UN system the commentary on the UN Charter edited by Bruno Simma (published in an English version in 1994) stands out like a monolith. Obviously this excellent anthology comprising over 1200 pages was not conceived as an introduction but serves as a reference book for more in-depth studies of the UN. Looking for a concise publication in German on the UN and its specialized agencies one would certainly turn to Giinther Unser, Aufgaben und Strukturen der Vereinten Nationen, (6th ed., 1997), to be recommended as the only short book about the UN institutions. The picture is quite different in the English UN literature. Next to the Commentary by Simma there are a number of books, which deal in depth with the UN subject. Just to mention some: Oscar Schachter/Christopher Joyner (eds.), United Nations Legal Order, 2 vols, 1995; Adam Roberts/Benedict Kingsbury (eds.), United Nations, Divided World. The UN's Roles in International Relations, 2nd updated edition 1995. What makes this book different from the others on the UN? Limiting itself strictly to the main organization, particular consideration is given to the combination of both the legal and political perspective. Our book is the joint product of authors carefully selected, either as representatives of the academic community or as diplomats. All of them dispose of a comprehensive theoretical and practical experience in dealing with the subject matter. The combined talents of the authors should ensure a realistic approach to the issues. In answering the question to what extent the present book is different from the usual literature on the UN, the editors would certainly point to the special focus on the practice of the UN. Each author has a wealth of practical experience with the real work of the UN. The views expressed in the various contributions are the personal opinions of the respective authors and each author is solely responsible for his or her own contribution. The second decisive aspect for the realization of the present book project was the challenge to fully grasp and demonstrate the impact on the UN of the fundamental changes that occurred in world politics over the last decade. In this regard a new assessment of the system of collective security as well as a description of the new fields of activities of the UN constituted the major task of the authors.

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The third aspect underlying the concept of our UN book, conceived as an introduction, is the endeavor to put the UN in the right place within the international system as a whole. Only an evaluation, which is in tune with the current state of world politics will allow to come to a realistic assessment both of the potentials and limitations of the UN at the beginning of the third millennium. As a final note we regret that the newest developments such as the Millennium Report of the UN-SG, the Millennium GA and its Declaration as well as the Report of the Panel on Peace Operations (Brahimi-Report) could not be dealt with in detail by the authors. They came out when the manuscripts were already delivered to the publisher. We tried to refer to these documents as far as possible under the restrictions given for last-minute changes and amendments. For this reason we also decided to annex two of the documents, the "Millenniums Declaration of the GA" and the Conclusions and Recommendations of the Brahimi-Report. At this point both editors wish to thank all those who have contributed to the making of this book by offering many valuable suggestions and by encouraging us all along. Our special thanks go to Ms Isabella Wimmer for her precious technical assistance, which has greatly facilitated the completion of this work. Vienna, September 2000

Franz Cede, Lilly Sucharipa-Behrmann

Contents

Preface

v

Introduction

vii

List of Authors

xii

List of Abbreviations

xiv

Shortlist of Publications and Internet Links

xxi

Chapter 1: Historical and Legal Framework For Activities of the United Nations Historical Introduction Franz Cede

1 3

The Purposes and Principles of the United Nations Franz Cede

11

The Organs of the United Nations Ferdinand Trauttmansdorff

25

Chapter 2: Main Activities of the United Nations

57

The United Nations System for the Peaceful Settlement of International Disputes Hanspeter Neuhold

59

Collective Security Helmut Freudenschufi

73

Peace-Keeping Operations of the United Nations Lilly Sucharipa-Behrmann

89

Peace-Building Activities of the United Nations Bert Theuermann

105

Disarmament Issues Winfried Lang/Andreas Kumin

127

IX

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Codification and Progressive Development of International Law Gerhard Hafrier The Development of the International Human Rights System by the United Nations Christian Strohal

143

157

Gender Issues in the United Nations Aloisia Worgetter

177

Environmental Protection and Sustainable Development Gerhard Loibl

195

An Agenda for Development Hans-Peter Glanzer

215

Refugees and Humanitarian Assistance Franz Josef Homann-Herimberg

231

Population Issues at the United Nations Irene Freudenschuji-Reichl

245

Measures to Counter Drugs and Crime Ferdinand Mayrhofer-Grunbiihel/Christian

257 Ebner

Non-Governmental Organizations (NGOs) and the United Nations Susanne Keppler-Schlesinger

275

Chapter 3: The Future of the United Nations

287

Financing and Financial Crises Thomas Schlesinger

289

The Reform of the Security Council Karin Proidl

303

The United Nations Today: It's Current Status, Reforms and Perspectives for the Future Ernst Sucharipa

313

Annexes Annex I: United Nations Millennium Declaration, A/RES/55/2 of 18 September 2000

333

Annex II: Report of the Panel on United Nations Peace Operations (Brahimi-Report). Conclusions and Recommendations A/55/305S/2000/809 of 21 August 2000 Annex III: Declaration on ensuring an effective role for the Security Council in the maintenance of international peace and security, particularly in Africa (S/RES1318 (2000) of 7 September 2000) Index

344

352 357

List of Authors

Franz Cede Austrian Ambassador to the Russian Federation; former Legal Adviser, Austrian Ministry for Foreign Affairs. Christian Ebner Member of the Austrian Permanent Mission to the United Nations in Vienna. Helmut Freudenschu.fi Austrian Ambassador to Lebanon; 1991-92 Alternate Representative of Austria to the United Nations in the Security Council, New York. Irene Freudenschufi-Reichl Permanent Representative of Austria to the United Nations in Vienna. Hans-Peter Glanzer Counselor, OSCE-Department, Austrian Ministry for Foreign Affairs; former member of the Austrian Permanent Mission to the United Nations in New York with special competence for ECOSOC affairs. Gerhard Hafner Professor of International Law at the University of Vienna; member of the International Law Commission of the United Nations; member of the faculty of the Diplomatic Academy, Vienna. Franz Josef Homann-Herimberg Special Adviser to the United Nations Emergency Relief Coordinator on Humanitarian Affairs, OCHA, Geneva; former Director at the UNHCR. Susanne Keppler-Schlesinger Counselor, member of the Austrian Permanent Mission to the United Nations in New York with special competence for questions of the 3rd Committee. Andreas Kumin Counselor at the Austrian Permanent Mission to the United Nations in Geneva; member of the Austrian Delegation to the Conference on Disarmament. Winfried Langf Former Permanent Representative of Austria to the United Nations in Geneva; Former Ambassador to Belgium, NATO and the WEU; Professor of International Law at the University of Vienna.

Gerhard Loibl Professor of International Law at the University of Vienna; Visiting Professor at the University of London; member of the faculty of the Diplomatic Academy, Vienna; Chairman of the ILA Water Resources Committee. Ferdinand Mayrhofer-Grunbuhel Director, OSCE-Secretariat; former Austrian Permanent Representative to the United Nations in Vienna. Hanspeter Neuhold Professor of International Law and International Relations, University of Vienna, member of the faculty of the Diplomatic Academy, Vienna. Karin Proidl Counselor, Austrian Ministry for Foreign Affairs, Department for Minority Affairs; former member of the Austrian Permanent Mission to the United Nations in New York with special competence for Security Council Affairs and the 6th Committee. Thomas Schlesinger Counselor at the Austrian Permanent Mission to the United Nations in New York; Austrian Representative to the 5th Committee, dealing with administrative and budgetary questions. Christian Strohal Austrian Ambassador to Luxembourg; Former Director of the Department for Human Rights, Austrian Ministry for Foreign Affairs; Austrian Representative to the United Nations Human Rights Commission. Ernst Sucharipa Director of the Diplomatic Academy, Vienna; former Austrian Permanent Representative to the United Nations in New York (1996-1999), Lecturer at the University of Vienna. Lilly Sucharipa-Behrmann Lecturer of International Law, University of Vienna; Senior Fellow, New York University School of Law; Consultant to the Austrian Ministry of Agriculture, Forestry, Environment and Water Management. Engelbert Theuermann Counselor at the Austrian Permanent Mission to the United Nations in New York with special competence for Human Rights Affairs, Preventive Diplomacy and Peace Building. Ferdinand Trauttmansdorff Austrian Ambassador to Egypt; former Director at the Office of the Legal Adviser, Austrian Ministry for Foreign Affairs. Aloisia Worgetter Counselor, Austrian Embassy London; Chairperson of the UN Ad Hoc Working Group on the Elaboration of an Optional Protocol to CEDAW.

List of Abbreviations

ACABQ ACC ace. AFDI AJIL AJPIL Art. ASEAN ASG

Advisory Committee on Administrative and Budgetary Questions Administrative Committee on Coordination according Annuaire Fran^ais de Droit International American Journal of International Law Austrian Journal for Public International Law Article Association of South East Asian Nations Assistant Secretary-General

c. CAP CC CCA CCPCJ CEDAW

circa Consolidated Appeals Process Committee on Conferences Common Country Assessment Commission on Crime Prevention and Criminal Justice Convention on the Elimination of All Forms of Discrimination Against Women Central Emergency Revolving Fund confer Common Foreign and Security Policy chapter Commission on Human Rights Inter-American Drug Abuse Control Commission Center for International Crime Prevention Commonwealth of Independent States Convention on International Trade in Endangered Species of Wild Fauna and Flora Commission for Narcotic Drugs Conference of NGOs in Consultative Status with the UN ECOSOC United Nations Committee for the Peaceful Use of the Outer Space Committee for Program and Coordination Commission on Population and Development Crime Prevention and Criminal Justice Division Conference on Security and Cooperation in Europe Commission for Sustainable Development Commission for Social development Commission on Science and Technology for Development Commission on the Status of Women Comprehensive Test Ban Treaty (Organization)

CERF cf. CFSP chap. CHR CICAD CICP CIS CITES CND CONGO COPUOS CPC CPD CPCJD CSCE CSD CSocD CSTD CSW CTBT(O)

Abbreviations

DAC DESA DHA Doc. DPA DPI DPKO

Development Assistance Committee Department for Economic and Social Affairs Department of Humanitarian Affairs Document Department of Political Affairs Department of Public Information Department of Peace-Keeping Operations

e.g. EBRD ECA ECE ECHA ECLAC ECOMOG ECOSOC ECOWAS ed(s.) ed. EJIL EMCDDA EMEP EPIL ERC ESCAP ESCWA et al. EU

for example European Bank for Reconstruction and Development Economic Commission for Africa Economic Commission for Europe Executive Committee on Humanitarian Affairs Economic Commission for Latin America and the Caribbean Monitoring Group of the Economic Community of West African States Economic and Social Council Economic Community of West African States editor(s) edition European Journal of International Law European Monitoring Center for Drags and Drug Addiction European Evaluation and Monitoring Program Encyclopedia of Public International Law Emergency Relief Coordinator Economic and Social Commission for Asia and the Pacific Economic and Social Commission for Western Asia et alia European Union

FA FAO FRY FWCW FYROM

Foreign Affairs Food and Agriculture Organization Federal Republic of Yugoslavia Fourth World Conference on Women Former Yugoslav Republic of Macedonia

G-77 GA GATT GEF GEMS GNP GPML

Group of 77 General Assembly General Agreement on Tariffs and Trade Global Environmental Facility Global Environmental Monitoring System Gross National Product Global Programme on Money Laundering

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HABITAT HEUNI HRC HRFOR

Commission on Human Settlement Helsinki Institute for Crime Prevention and Control Human Rights Committee United Nations Human Rights Field Operation in Rwanda

i.e. IAEA IASC IBRD ICCPR ICESCR ICJ ICPD ICPO ICRC ICTR ICTY IDA IDP IEFR IFOR ILA ILANUD

10 IOM IPC IPPC IRO ITC

id est International Atomic Energy Agency Inter-Agency Standing Committee International Bank for Reconstruction and Development International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International Conference on population and Development International Criminal Police Organization International Committee of the Red Cross International Tribunal for Rwanda International Tribunal for the Former Yugoslavia International Development Association Internally Displaced Person International Emergency Food Reserve Implementation Force International Law Association Latin American Institute for the Prevention of Crime and the Treatment of Offenders International Law Commission International Labor Organization International Monetary Fund International Maritime Organization International Narcotics Control Board Intermediate-Range Nuclear Forces International Research and Training Institute for the Advancement of Women International Organization(s) International Organization for Migration International Prison Commission International Penal and Penitentiary Commission International Refugee Organization International Trade Center

JIU

Joint Inspection Unit

LCDs lit.

Least Developed Countries litera

ILC ILO IMF IMO INCB INF INSTRAW

Abbreviations

MICIVIH MINUGUA MINURCA MINURSO MINUSAL MISAB MONUA MONUCA

International Civilian Mission in Haiti United Nations Verification Mission in Guatemala United Nations Observer Mission in Angola United Nations Mission for the Referendum in Western Sahara United Nations mission in El Salvador Inter-African Mission for the Observation of the Bangui Treaties United Nations Observer Mission in Angola United Nations Peace-building Support Office in the Central African Republic

NAM NATO NGO(s)

Non-Aligned Movement North Atlantic Treaty Organization Non-Governmental Organizations

OAS OAU OCHA ODA ODCCP OECD OHCHR OIC OIOS ONU ONUC ONUCA ONUMOZ ONUSAL ONUV OP OSCE

Organization of American States Organization of African Unity Office of the Coordinator for Humanitarian Affairs Official Development Assistance Office for Drug Control and Crime Prevention Organization for Economic Cooperation and Development Office of the High Commissioner for Human Rights Organization of Islamic Countries Office of Internal Oversight Services Organisation des Nations Unies United Nations Operation in the Congo United Nations Observer Group in Central America United Nations Observer Mission in Mozambique United Nations Observer Mission in El Salvador United Nations Verification Office in Nicaragua Optional Protocol Organization on Security and Cooperation in Europe

P5 PCI PCIJ PCPB PIP PKO Proc.

Five Permanent Members of the Security Council Per Capita Income Permanent Court of International Justice Post-Conflict Peace-Building Peace Implementation Programme Peace-Keeping Operations(s) Proceedings

RdC RDMHQ Rec.

Recueil de Cours Rapidly Deployable Missions Headquarters Recommendation

The United Nations

Res. RF

Resolution Russian Federation

SC SFOR SHIRBRIG SOFA(s) SRSG START SU

Security Council Stabilization Force Multinational United Nations Stand-by Forces High-Readiness Brigade Status of Forces Agreement(s) Special Representative of the Secretary-General Strategic Arms Reduction Treaty Soviet Union

TC TDB

Trusteeship Council Trade and Development Board

UDHR UK UN UNAFEI UNAFRI

Universal Declaration of Human Rights United Kingdom United Nations Asia and Far East Institute African Institute for the Prevention of Crime and the Treatment of Offenders UNAMET United Nations Mission in East Timor UNAMIR United Nations Assistance Mission for Rwanda UNAMSIL United Nations Mission in Sierra Leone UNAT United Nations Administrative Tribunal UNA-USA United Nations Association of the United States of America UNAVEM United Nations Angola Verification Mission UNCC United Nations Compensation Commission UNCDF United Nations Capital Development Funds UNCED United Nations Conference on Environment and Development UNCHS United Nations Center for Human Settlements UNCIO United Nations Conference on International Organization UNCITRAL United Nations Commission on International Trade Law UNCJIN United Nations Crime and Justice Information Network UNCLOS United Nations Conference on the Law of the Sea UNCOPUOS United Nations Committee on Peaceful Uses of Outer Space UNCTAD United Nations Conference on Trade and Development UNDAF United Nations Development Assistance Framework UNDCP United Nations Drug Control Program UNDG United Nations Development Group UNDOF United Nations Disengagement Observer Force UNDP United Nations Development Program UNDRO United Nations Disaster Relief Office UNEF United Nations Emergency Force

Abbreviations

UNEP UNESCO UNFICYP UNFPA UNGASS UNHCR UNICEF UNICRI UNIDO UNIFEM UNIKOM UNITAR UNMIBH UNMIK UNMOGIP UNMOP UNMOT UNOF UNOG UNOGBIS UNOMIG UNOMIL UNOMOZ UNOMSIL UNON UNOPS UNOSAL UNOSOM UNOV UNPREDEP UNPROFOR UNRRA UNRWA UNSCOM UNSDRI UN-SG UNTAC UNTAES UNTAET UNTAG UNTAT

xix

United Nations Environmental Program United Nations Educational, Scientific and Cultural Organization United Nations Peace-Keeping Force in Cyprus United Nations Population Fund Special Session of the United Nations General Assembly United Nations High Commissioner for Refugees United Nations Children's Fund United Nations Interregional Crime and Justice Research Institute United Nations Organization for Industrial Development United Nations Development Funds for Women United Nations Iraq-Kuwait Observation Mission United Nations Training and Research Institute United Nations Mission in Bosnia and Herzegovina United Nations Interim Administration Mission in Kosovo United Nations Observer Group in India and Pakistan United Nations Mission for Prevlaka United Nations Mission of Observers in Tajikistan United Nations Offshore Forum United Nations Office in Geneva United Nations Peace-Building Support Office in Guinea Bissau United Nations Observer Group in Georgia United Nations Observer Mission in Liberia United Nations Mission in Mozambique United Nations Observer Mission in Sierra Leone United Nations Office in Nairobi United Nations Office for Project Services United Nations Observer Mission in El Salvador United Nations Operation in Somalia United Nations Office in Vienna United Nations Preventive Deployment Force United Nations Protection Force United Nations Relief and Rehabilitation Agency United Nations Relief and Works Agency for Palestine Refugees in the Near East United Nations Special Commission (Iraq) United Nations Social Defense Research Institute (UNSDRI) Secretary-General of the United Nations United Nations Transitional Authority in Cambodia United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium United Nations Transitional Authority in East Timor United Nations Transition Assistance Group United Nations Training Assistance Team

The United Nations

UNTSO UNV USA USG USSR

United Nations Truce Supervision Organization United Nations Volunteers United States of America Under Secretary-General Union of Socialist Soviet Republics

VCLT vol(s).

Vienna Convention on the Law of Treaties volume(s)

WCJL WEOG WEU WFP WG WGFS WHO WTO WW

World Criminal Justice Library Group of Western European and Other States Western European Union World Food Program Working Group Working Group on the Financial Situation of the United Nations World Health Organization World Trade Organization World War

Shortlist of Publications and Internet Links

Each chapter contains at the beginning a list of literature which should enable the reader to easilyfindmore in-depth reading on the respective issue. In addition, the editors recommend the following publications for an in-depth study of the UN system or simply for reference concerning specific UN issues. This list is not supposed to give a comprehensive bibliography on the UN, it rather indicates the publications, which, in the opinion of the editors, should not be missing on a reading list. Publications of the UN Basic facts about the United Nations, 1998 Boutros Boutros-Ghali, An Agenda for Peace (With the New Supplement and Related UN Documents), 2nd edition 1995 An Agenda for Development, Report of the Secretary-General, UN Doc. A/48/935 Renewing the United Nations. A Reform Program. Report of the Secretary-General, UN Doc A/51/950 We the Peoples: The Role of the United Nations in the Twenty-first Century. Report of the Secretary-General to the Millennium Summit, UN Doc. A/54/2000 The Blue Helmets: A Review of United Nations Peace-keeping, 3rd edition 1996 50 Years UN Peace-keeping, 1999 UN Blue Book Series (comprehensive background information and compilation of documents on various issues such as Human Rights 1945-1995; Apartheid 1945-1995; Nuclear Non-Proliferation; The Advancement of Women 1945-1996; and on a number of peace-keeping operations) Report of the Secretary-General on the Work of the Organization (annually, last report UN Doc. A/55/1) Yearbook of the United Nations (last volume published 1997) Yearbook of the United Nations, Special Edition: UN Fiftieth Anniversary 1945-1995. UN Chronicle (published quarterly) Internet sites Homepage of the UN: http://www.un.org The UN Homepage provides links to the UN Organs, the UN Specialized Organizations, and to conferences organized by the UN. It contains a comprehensive documentation of resolutions and other documents of the Security Council, the General Assembly and ECOSOC. The Office of Drag Control and Crime Prevention provides the most comprehensive list of links on organizations as well as thematic links: http://www.undcp.or.at/unlinks.html

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Handbooks New Zealand Ministry of Foreign Affairs, UN Handbook, published annually, contains continually updated information on the structure and composition of UN organs and the most important institutions. This handbook is most valuable for the practitioner. Charter Commentaries Leland M. Goodrich/Edvard HambrolAnne Patricia Simons, The Charter of the United Nations, 3rded., 1969 Jean-Pierre CotlAllain Pellet, La Charte des Nations Unies, Commentaire article par article, 2nded., 1991 Bruno Simma (ed.), The Charter of the United Nations. A Commentary, 1994 Rudiger Wolfram (ed.), United Nations: Law, Policies and Practice, 2 vols, 1995 Other Publications Adam Roberts/Benedict Kingsbury (eds.), United Nations, Divided World. The UN's Roles in International Relations, 2nd updated edition 1995 Oscar SchachterlChristopher Joyner (eds.), United Nations Legal Order, 2 vols, 1995

Chapter 1

Historical and Legal Framework For Activities of the United Nations

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Historical Introduction Franz Cede Literature: Russell/Muther, A History of the United Nations Charter (1958); Luard, A History of the United Nations (1982); Grewe, The History of the United Nations, in Simma (ed.), The Charter of the United Nations, A Commentary (1994), 1; Roberts/Kingsbury (eds.) United Nations, Divided World, The UN's Role in International Relations (1993); Kimminich, History of the Law of Nations since WWII, in EPIL 2 (1995) 894.

1. Peace Concepts Prior to the League of Nations The concept of a world-wide organization to secure peace is a relatively recent phenomenon in the history of international relations. The League of Nations developed it in concrete terms for the first time. In previous times various attempts at organizing collective security can be traced. However, the preconditions to realize such projects had not existed before the beginning of the 20th century. Among the projects conceived already in the Middle Ages as schemes to organize the community of States particular mention is to be given to the works of the French authorDubois ("De recuperatione terrae sanctae", c. 1306) and of Dante Alighieri ("De Monarchia", c. 1312). Among the peace concepts elaborated in modern times which present already a certain structure the plans of a European peace order by the Duke of Sully ("Grand Dessein", c. 1640) or by two other French authors Cruce ("Le Nouveau Cynee", 1623) and Abbe de St. Pierre ("Projet pour rendre la paix universelle en Europe", c. 1716) also deserve to be mentioned. The latter concepts are often seen as precursors of the League of Nations and indirectly of the United Nations. In England in 1693, Penn proposed a peace project ("Project towards the present and future peace in Europe") that provided for a European congress of States for the settlement of international disputes. In Germany it was mainly Kant who enriched the political discussion with his philosophical project "Zum Ewigen Frieden" ("Towards Eternal Peace", 1789). In his ideas Kant developed the concept of a federation which would form the institutional basis for an international system of equal States entrusted with the safeguarding of world peace. Against this philosophical background the project matured to establish an organization of the international community of States for the purpose of maintaining the peace. However, it took the catastrophe of World War I (WW I) to make the time ripe for translating these noble ideas into reality. The devastating forces of modern war

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 3-9 ©2001 KluwerLaw International. Printed in the Netherlands.

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The United Nations

technology mobilizing all human and economic resources of the conflicting powers had led to hitherto unknown levels of mass casualties and destruction. In view of such horrors the call to stop war altogether as a means of settling disputes between States became imperative. The slogan of the time was "No more war". In this spirit

the prohibition to use armed forces in international relations gradually developed leading to the replacement of the conviction prevailing before W W I that States could in principle go to war alone or in alliance with others without any restriction to pursue their real or supposed interests. This change of attitude has certainly constituted the main factor in the development of an international organization designed to counter aggression through efficient action taken by its members. The longing for peace and the prohibition of war as a means of international politics, although revolutionizing the minds, were not decisive by themselves. They were unable to create the necessary conditions for the establishment of an international organization with a global dimension. These prerequisites were present only with the rapid development of the modern means of world traffic and communication.

2. The League of Nations Already during WW I plans were devised in the US and in Great Britain that provided for a permanent world-wide organization to be established after the war with the main purpose to secure once and for all international peace and security through efficient and legally binding safeguards. It was US President Wilson in the first place who committed himself personally to the promotion of the project of a League of Nations as the central world peace organization and as the fundament of a new political order after the war. On 8 January 1918 President Wilson made a statement before the US Senate in which he submitted 14 proposals (Wilson's 14 points) including the project of the establishment of such international organization. At the Paris Peace Conference under US leadership the victorious powers were quick to agree to the Statute of the League of Nations forming an integral part of the various Paris peace treaties. The new world organization was established and Geneva became its headquarters. The organization started its activities in 1920. Its goals and principles as well as its structure (Council, Assembly, and Permanent Secretariat), in spite of all differences, resemble that of the UN as its successor organization to a high degree. The basic concept of the League of Nations itself, namely to secure peace among nations through a system of collective security, is identical with the project of the future UN. The institutions of the League of Nations have many parallels with the later UN or were taken over by the latter with appropriate adjustments. For instance the mandate regime under the League devised for the former colonies of the German

Historical Introduction

5

and the Turkish Empires is the obvious model for the Trusteeship system of the UN. The model character of the League of Nations for the UN can be demonstrated particularly well by the Permanent International Court of Justice (PCD), the Statute of which, although not an organ of the League, was taken practically unchanged for the future International Court of Justice (ICJ), the principle judiciary organ of the UN. However, the ICJ Statute was incorporated as integral part of the UN Charter in its annex. The prohibition to use force in interstate relations as established in the Statute of the League of Nations was not absolute in character. For the solution of conflicts the Statute did little but to provide for rather complicated procedures for their settlement and for mechanisms of sanctions which turned out to be less than efficient. After exhaustion of these remedies and a cooling off period of three months a conflicting party was free to use military force without any infraction of the rules prescribed by the Statute. Obviously the League of Nations was unable to fulfill the core of its mandate, i.e. to prevent future wars. Its failure was definite when it could not forestall the outbreak of WW II. During the war the League of Nations was of no political relevance whatsoever. To explain the historic failure of the League of Nations to carry out its main task of securing international peace and prevent armed conflicts the following reasons can be mentioned: Its structural weakness (e.g. the unanimity rule for decision taking both in the Council and the Assembly), the deficient regulation of the prohibition to use military force and the lack of universal membership. The US never became a member of the League of Nations. Furthermore important players on the international plane (such as Germany, Italy or Japan) left the organization after a short time or (such as the Soviet Union) were excluded. The Third World was conspicuously absent since wide areas of Africa or Asia still stood under colonial rule and therefore did not fulfill the requirement of sovereignty prescribed for membership. The balance sheet of the League of Nations is not entirely negative as it soon developed into a useful platform for international cooperation in the social and economic field, which intensified significantly. All things considered, however, the League of Nations was not a success story. The responsibility for its collapse did not rest solely on the deficiencies described but was mainly caused by the power interests of some political key players of the time who disregarded the principles and objectives of the League's Statute and who resorted to the use of military force without restriction whenever they found it appropriate to settle their scores. Soon after the outbreak of WW II a discussion started first in academic circles in the US and Great Britain, focusing on the League of Nations' failure and the

6

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lessons to be drawn therefrom for the reshaping of the international system once the war would be ended. Soon after the entry into the war by the US in December 1941, leading politicians of the Western Allies participated in this discussion offering contributions to the fundamental issue of what organization should be created after the war to make new wars impossible.

3. The Founding of the UN As was the case with the League of Nations, the US once again played a leading role in the making of the UN. At the political level the Atlantic Charter of August 1941 marked the decisive step on the road to the establishment of the UN. In this document the creation of a universal security system was proposed for the time after the war. On 1 January 1942, shortly after the entry into the war by the US the representatives of 26 States, allied against the axis powers, issued the "Declaration by United Nations". In it the signatory States solemnly committed themselves to continue the fight against the axis powers by all means until the unconditional surrender of the latter. The declaration uses for the first time the term "United Nations" not as a description of the future world organization but as a label for the alliance of States against the axis powers. The political will of the allied to establish after the war a universal organization with the main purpose to maintain international peace and security was formally reaffirmed at the Moscow conference of Foreign Ministers (30 October 1943) and at the Teheran summit conference (Churchill, Roosevelt, Stalin; 28 January - 1 December 1943). Upon US invitation a conference of experts took place in the summer of 1944 at Dumbarton Oaks, a part of the US capital Washington D.C. At this technical conference Soviet and Chinese representatives joined American and British experts to elaborate the legal basis of the new organization. The proposals for the establishment of a general international organization which had been formulated primarily by American legal experts were then submitted as "the proposals of Dumbarton Oaks" to the Yalta Summit Conference (4-11 December 1945) assembling the heads of State and government of the US, Great Britain and the Soviet Union. At Yalta the unresolved voting procedures in the future Security Council (SC) of the UN turned out to be the most difficult issue. The compromise finally agreed upon (Yalta formula) provided a right of veto for the big powers having a permanent seat in the SC on all matters of substance. Part of the bargain deal made at Yalta was a concession to Stalin who succeeded in convincing the other participants at the conference to accept membership rights in the UN for two constituent republics of the Soviet Union (Byelorussia and Ukraine). Obviously such an agreement is not in conformity with the basic concept of the UN providing membership only to sovereign States.

Historical Introduction Immediately after the end of WW II the US convened the UN Conference on international Organization (UNCIO) in San Francisco. High ranking government representatives from 50 States attended the conference that lasted from 25 April to 16 June 1945. After strenuous negotiations they agreed to the Charter of the world organization on the basis of the proposals submitted by the great powers. The conference ended successfully by the unanimous adoption of the UN Charter, which was signed on 26 June 1945 by the representatives of all 50 participating States. The term "United Nations", under the Charter means the Organization of the UN. The close link between the founding of the UN and the wartime alliance against the axis powers can be shown by the fact that only those States which were allies, counted among the original members of the organization. In its beginnings the UN was also conceived as an instrument against the "enemy States" of WW II. The UN Charter entered into force on 24 October 1945 after a majority of signatory States including all five permanent members of the SC had deposited their instruments of ratification. The prerequisite that the Charter could enter into force only after ratification by all five permanent members of the SC (US, Soviet Union, UK, China, France) was to ensure the participation of the great powers and in particular of the US - in the system from its inception. This lesson was drawn from the failure of the League of Nations, which was partly explained by the absence of the US. Contrary to the proposed membership of the US in the league of Nations, which did not find the necessary two-thirds majority in the US Senate, an overwhelming majority of senators voted in favor of the ratification of the UN Charter. With the founding of the UN a new chapter began in the history of international relations. For the first time there was a permanent organization of universal character, which in principle offered to its members an efficient system of collective security through the participation of the great powers, having a permanent seat in the SC. In addition to ensuring collective security to its members the institutions created in the UN framework offered a unique forum for international cooperation in all areas of political, economic and social life. It is one of the challenges of this book to present the fundamental changes that the world organization has undergone through its 50-year history. These changes can be addressed only briefly in this introductory chapter. One of the key elements of the evolution of the UN clearly constitutes the gradual enlargement of its membership comprising today nearly all States of the world, including Germany, Japan and Italy, which as enemy States did not figure among the original members. As of September 2000189 States are members of the UN which therefore can be truly called a universal organization. In its initial phase the influence of the US and of the West were clearly dominant in the UN. This state of affairs changed suddenly with the rapid expansion of membership in the early 1960s when a large

The United Nations

number of former colonies joined the UN as newly independent States. The many new members changed the majority in the General Assembly to their advantage. As a consequence issues in the North-South relationship increasingly gained prominence together with an increased focus on social and economic questions. Another feature characterizing the UN over many decades was the East-West tension polarized in the conflictive relationship between the US and the Soviet Union, the two super-powers of the time. The latter often acted as "natural ally" of the Third World. During the period of the Cold War the use of the veto power in the SC prevented the instruments of collective security provided by the Charter from becoming operative. After the political changes in the early 1990s (reunification of Germany, dissolution of the Soviet Union and of the Warsaw Pact) the UN has again arrived at a crossroads: Plagued by the greatest financial crisis in its history the UN now faces the necessity of stringent reform measures to solve the budget problem. In addition, the UN needs to adapt itself to the fundamental political changes that occurred over the last years. It has to draw the necessary conclusions of these changes for the system of collective security. At the same time the UN must demonstrate its capacity to solve the burning social and economic problems besetting the world at the close of the 20th century. As the world in political terms can no longer be seen in a simple bi-polar scheme the UN has to redefine its potential and responsibility to enable it to continue its useful role for the benefit of the entire international community. The very fact that the UN has proven during its history an astonishing capacity to adjust to changed political circumstances and to the various tasks assigned to it over time (e.g. peace-keeping operations) gives reasons to believe in a meaningful future of the organization. For the international community the UN as well as its legal and institutional framework have proven to be viable and thus indispensable.

4. The Charter of the UN as the Constitution of the International Community of States The great authority the UN Charter enjoys today and its universal validity are further strong arguments in favor of the world organization. As nearly all States have become members of the UN, the UN Charter occupies a position that gives it an enhanced status among all other international treaties, insofar as the priority of the obligations deriving from the Charter enshrined in Art. 103 sets it apart from other instruments of international law. Within its objectives and principles the Charter contains a number of rules which are of central importance to the peaceful cooperation among States. It provides instruments for the peaceful settlement of disputes and a system of collective security in cases of threats to the peace or

Historical Introduction

breaches of the peace. Since at present nearly all States are obliged to honor the provisions of the Charter as members of the UN and in view of the high degree of international cooperation in the UN framework some authors describe the Charter as the constitution of the international community. This approach to the Charter derives from national legal concepts. It views the UN as the custodian of the values and interests common to the international community as a whole (community interests). In such a perspective the community of States assembled under the umbrella of the UN is quite different from the sum of all Member States. It is, however, doubtful whether the vision of a harmonious community of nations peacefully gathered under the roof of the UN Charter corresponds to the harsh realities of the present world.

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The Purposes and Principles of the United Nations Franz Cede Literature: Salomon, Le Preambule de la Charte: base ideologique de l'ONU (1947); Wengler, Das volkerrechtliche Gewaltverbot, Probleme und Tendenzen (1967); Wolfrum, Purposes and Principles, in Simma (ed.), The Charter of the United Nations, A Commentary (1995) 49; Bleckmann, Commentary to Art. 2(1), in Simma (ed.), The Charter of the United Nations, A Commentary (1995) 77; Randelzhofer, Introduction to Art. 2 and Commentary to Art. 2(4), in Simma (ed.), The Charter of the United Nations, A Commentary, (1995) 72, 106; Tomuschat, Commentary to Art. 2(3), in Simma (ed.), The Charter of the United Nations, A Commentary, (1995) 97; Vitzthum, Commentary to Art. 2(6), in Simma (ed.), The Charter of the United Nations, A Commentary (1995) 131; Ermacora, Commentary to Art. 2(7), in Simma (ed.), The Charter of the United Nations, A Commentary, (1995) 139; Vitzthum, Das Selbstbestimmungsrecht der Volker und die Anerkennung neuer Staaten in Neuhold/Simma (eds.), Europaisches Volkerrecht nach dem Ende des Ost-West-Konflikts? (1996) 43.

The preamble and the first two articles of the Charter contain the central purposes and principles of the UN in very brief and general formulations. In this book an attempt is made to explain the meaning of these terms today in the light of over 50 years of UN practice. For "a modern understanding" of the principles and objectives a number of key resolutions of the GA are regularly referred to such as the "Friendly Relations Declaration" (Res. 2625 (XXV)) or Res. 3314 (XXIX) on the definition of aggression. In addition, a whole series of legal instruments elaborated under the aegis of the UN such as the two human rights covenants of 1966 are often used for the current interpretation of the general provisions of the Charter. Important judgments of the ICJ are also used for interpretation purposes. The preambular paragraphs of the Charter are closely interrelated and have to be read always in conjunction with the corresponding articles. Furthermore, there is a clear connection between the general provisions and structural provisions set out in other Chapters of the Charter. The following two examples seek to illustrate this point: The description of the UN as a system of collective security is given in the penultimate two paragraphs of the preamble and in Art. 1 (1) and Art. 2 (3), 2 (4) and 2 (5). The mechanism provided to implement these provisions are then to be found in Chapters VI, VII and VIII conferring special responsibility upon the SC. The principle of international cooperation, especially in the economic and social fields, is expressed in the last paragraph of the preamble and in Art. 1 (3). The corresponding Chapters IX and X are then regulating in detail how international cooperation should be

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 11 -24 ©2001 Kluwer Law International. Printed in the Netherlands.

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developed in terms of substance and organization. As the preamble and the first two articles relating to the objectives and principles are of paramount importance in the system of the UN it is correct to call them - in a terminology borrowed from national legal systems - the constitutional foundation of the UN. In UN practice a great number of decisions refer to the objectives and principles thus underlining their central role in the whole UN system.

1. The Preamble The preamble, forming an integral part of the Charter, was not provided for in the initial drafts of the Charter but was elaborated only at the San Francisco Conference. A careful reading shows that its wording was not coordinated with Art. 1 and 2 of the Charter. This explains the slightly different formulations of the objectives and principles in the preamble and in the first two articles. At its beginning the preamble recalls the determination of "the peoples of the United Nations" to save succeeding generations from the scourge of war. This reaffirmation couched in pathetic language contains the very essence of the UN peace concept. The words chosen proceed from the proposition that there is a community of peoples congregating under the aegis of the UN. They foreshadow the modern concept of the UN as the organized community of States. Thereby the UN is endowed with a superior degree of legitimacy giving it a unique status in the international community. The preamble then addresses the fundamental rights of the human person, surprisingly mixing the equality of men and women with the equality of nations. The explicit reference to human rights among the objectives of the United Nations certainly constitutes an important innovative element. It is grounded on the founding fathers' firm belief that the new world order established after WWII ought to be committed to the protection of human rights since the painful experience of the recent past had shown that international peace and security were truly dependent on the respect for the fundamental right of the individual in each and every State. In the meantime this commitment to the protection of the fundamental rights of man has become a legitimate concern of the entire international community. The way a State treats its own people can no longer be considered as a matter falling "essentially within its domestic jurisdiction" (Art. 2 (7)) whenever that State bears responsibility for the violation of such fundamental rights. This conviction, reaffirmed by the Vienna World Conference on Human Rights in 1993, marks the culmination point in the development of human rights protection within the UN system as provided in the preamble and in Art. 1 (3) of the Charter. It can be said without exaggeration that the universal standard setting in the field of human rights continuously advanced and that the world-wide acceptance of these human rights instruments through

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ratification counts among the true achievements reached by the UN. As to the wording of the preamble concerning "equal rights of nations large and small" it has to be read in conjunction with Art. 2 (1) of the Charter speaking about "the sovereign equality" of all its members as a principle of the UN. A more detailed discussion of this principle will follow under the discussion of Art. 2(1). Suffice it to mention here the difference in the language of the preamble and in Art. 2(1). The preamble uses the term equal rights of nations and thereby stresses the concept of nations at the basis of the UN whereas Art. 2 (1) refers to the sovereign equality of the members, i.e. the Member States. The next paragraph of the preamble relates to the dimension of the UN as a community of law. According to this paragraph the UN and the international community are to carry out all activities within the framework of international law: Not only the obligations explicitly mentioned must be obeyed but also all other norms of international law referred to in general terms (customary law, general principles of law). In addition to the norms of international law contained in the Dumbarton Oaks proposals the principle of justice, an element derived from natural law, was introduced in the Charter (cf. Preamble, Art. 1(1), Art. 2 (3)). The inclusion of the principle of justice into the scope of legal obligations may be explained by the founding fathers' vision of the UN to be first and foremost a community of values to be obeyed not only formally in a purely juridical sense. A present-day reading of the principle of justice enshrined in the UN Charter obviously has to bear in mind also the social and economic conditions prevailing in the Member States. As a matter of fact, the different nature of legal standards (e.g. soft law) as it became apparent in the second part of the 20th century could not be taken account of in the Charter. However, any present review of the legal and political obligations within the UN has to recognize that Member States are committed to more than just to obey the rules of international law explicitly mentioned in the Preamble. The consistent practice of implementing the resolutions of the SC and of the GA clearly show that the legal framework of rules which are considered binding upon Member States has become broader than that denned by the Charter in 1945. The next paragraph of the preamble addresses the social and economic dimension of the UN. As respect for human rights is considered a precondition for peace the development of international relations free of tensions demands fruitful cooperation among Member States. The preamble as well as Art. 1 (3) and 13 (1) lit. b make brief references to the international cooperation. In Chapter IX and X of the Charter a whole program is developed to further such cooperation. From today's perspective the activities of the UN in the areas of economic and social cooperation are no less important than the system of collective security whose

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creation was the main ambition of the founders of the UN. The following paragraph of the preamble speaking about the resolve of the Member States "to live together in peace with one another as good neighbors" has at times raised the question whether this phrase meant the relationship of neighboring States in a geographical sense. However in the light of many GA resolutions using the term "good neighborliness" (e.g. Friendly Relations Declaration) this ground rule for constructive interstate relations addresses itself to all States irrespective of their geographic vicinity. It is meant to induce all States to conduct their respective relations in a fashion that corresponds to the image of good neighbors. The following two paragraphs reiterate earlier formulations used in the preparatory stages of the UN Charter. They basically reaffirm the resolve of the UN to cooperate in safeguarding international peace and to guarantee that armed force will be used only in the common interest. These propositions presuppose an efficient and exclusive operation of the UN system of collective security in case of threats to the peace or acts of aggression (cf. Chapter VII and VIII). These words of the preamble exude an optimistic belief in the effective capacities of the UN to maintain peace, a view that has been all too often disappointed by the political realities after 1945.

2. The Purposes of the UN Art. 1 enumerates four purposes of the UN. Together with the principles (Art. 2) they determine all activities of the UN and its organs. Anumber of Charter provisions make reference to the principles and purposes. In view of the overriding importance many resolutions and decisions of UN organs invoke them. a) Securing peace, Art. 1 (1) The objective put at the top of Art. 1(1), i.e. the maintenance of international peace and security constitutes the primary goal of the UN. All other objectives and tasks of the UN are subordinated to this main purpose justifying alone the very existence of the world organization. Art. 1(1) contains a few key terms of the Charter that merit some comments: The words "international peace and security" are rarely used separately in the Charter. Already in the Statute of the League of Nations they appeared mostly in tandem. In the meantime the expression "international peace and security" has entered the standard political vocabulary. The notion "international peace" in the Charter does not only denominate the absence of war and armed conflicts but purports to cover a positive state of affairs characterized by harmonious and tension-free cooperation of the international community. This meaning results from

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the letter and the spirit of the Charter as a whole (cf. the explicit calls for cooperation in the preamble, in Art. 1(1) and (3), Art. 13 and Chapters IX and X). Art. 1(1) further addresses the core of the collective security system of the UN. It mentions efficient collective measures to prevent and remove threats to the peace, and for the suppression of acts of aggression or other breaches of the peace. Art. 1(1) outlines in a nutshell what the Charter further regulates more comprehensively. It is therefore advisable to read always this key provision in conjunction with the relevant Chapters of the Charter (see Chapter VI, VII, VIII). It is for the SC, entrusted with the main responsibility for the maintenance of international peace and security (Art. 24), to determine in each case if a threat to the peace, a breach of the peace or an act of aggression exists. In Art. 1(1) and in Art. 39 also "situations" are mentioned which may call for collective action. The Charter does not specify what these situations might be. Therefore the GA attempted in the framework of a Committee especially created for this purpose to define at least the gravest breach of peace, i.e. armed aggression. As a result of these efforts the GA on 14 December 1974 adopted Res. 3314 (XXIX) giving a definition of acts of aggression. The definition lists by way of example a series of acts, which give prima facie evidence of the first use of military force by a State, and qualifies them as acts of aggression. In the turbulent history of the UN the determination by the SC that in a given case a threat to the peace or breach of international peace and security exists has always been a highly political decision in which, because of the right of veto, the permanent members of the SC played the decisive role. The SC does not consider itself bound by the criteria set out in the GA's definition of aggression but usually follows its own political considerations in determining the acts referred to in Art. 39 of the Charter. The obligation to settle international disputes by peaceful means in accordance with the principles of justice and international law prescribes for the UN and its members to avail themselves of the entire spectrum of peaceful settlement procedures in order to ensure that the threshold leading to threats to the peace or breaches of peace is not transgressed. Chapter VI of the Charter setting up the system of peaceful settlement of disputes offers a whole array of methods to meet this obligation. b) The fostering of friendly relations, Art. 1 (2) The second objective set out in the Charter concerns the development of friendly relations between nations. This prescription, resulting from the positive peace concept underlying the entire UN Charter, was further developed by practice especially by the landmark "Friendly Relations Declaration" (GA Res. 2625 (XXV) 24 October 1970). The declaration goes well beyond the parameters set

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out in Art. 1 (2) as it covers the most central principles of the UN which in the meantime have found universal recognition as the "basic rules of international relations". Art. 1 (2) explicitly mentions the "principle of equal rights and self- determination of peoples". The principle of equal rights, also enshrined in the preamble, will be examined in more detail under the title of "sovereign equality of States" in the context of Art. 2(1). With regard to Art. 1 (2) the controversial concept of the right of peoples to selfdetermination needs further consideration. This political and legal principle which has developed its gigantic explosive potential during the 20th century, is mentioned twice in the Charter: in Art. 1 (2) and in Art. 55. In addition, Chapter XI (Declaration regarding non-self-governing territories) and Chapters XII and XIII instituting the Trusteeship system, are intrinsically linked to the realization of the right of peoples to self-determination. This right was most visibly expressed in the process of decolonization pushed forward decisively by the UN and which is practically completed today. The right of peoples to self-determination belongs to the most controversial concepts of international law and international politics regarding its scope as well as to its beneficiaries. For some time the assumption was that after the end of decolonization a more stable period of international relations would follow making the problem of self-determination more or less irrelevant. The fundamental changes of world politics over recent years, however, leading inter alia to the cases of state succession in a number of Central and Eastern European States (Dissolution of the SU and of Yugoslavia, breaking-up of Czechoslovakia) moved the issue of self-determination once again up on the political agenda. Besides being expressly mentioned in the Charter, the right to self-determination is contained in many international documents ranging from binding instruments of international law (cf. Art. 1 of the International Human Rights Covenants) to political pronouncements (cf. Declaration on the granting of independence to colonial countries and peoples 1960, Final Act of the CS CE1975, Paris Charter on a new Europe 1990, Friendly Relations Declaration 1970). The right to selfdetermination thus can no longer be considered just as a purely political postulate. It certainly enjoys validity as a legal principle too. When the former colonies gained independence the debate relating to self-determination within the UN had clearly denned contours. In essence self-determination meant the claim staked by the peoples then under colonial rule to be granted complete independence and to be given the right to organize them as sovereign States within the boundaries inherited by the colonial powers. After the end of decolonization the debate that had focused on the external

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aspects of self-determination shifted noticeably to internal self-determination by which the broadest possible participation of people in the political process was understood. According to the latter concept this process should develop in an orderly fashion that would honor human rights and the principles of social justice ("good governance"). Only recently the different cases of state succession in Europe again stimulated the discussion about self-determination. Whereas international law as it stands does not recognize the right to secession as a rule the various developments that led to the dissolution of the SU, of Yugoslavia and of Czechoslovakia have shattered this very dogma. No doubt, the UN took rapidly account of the new realities in Europe when the new States were admitted to the organization and Russia inherited the permanent seat in the SC from the Soviet Union. It is noteworthy that contrary to the decolonization process the UN did not play any important role in the recent cases of state succession in Europe. c) International cooperation, Art. 1 (3) Art. 1 (3) enumerates the main areas in which international cooperation should be developed in the UN framework. Specific reference is made to economic, social, cultural and humanitarian issues and to the promotion of human rights. Art. 1 (3) is the key to those provisions of the Charter, which deal with international cooperation (Art. 13, Chapters FV, EX and X). In Art. 1 (3) the principle of international cooperation is formulated in a very general way. It calls on Member States to promote international cooperation in every respect. Such a broad agenda makes the UN competent to deal practically with each and every issue, which is not essentially within the domestic jurisdiction of this State. This wide interpretation of the UN mandate makes it possible, for instance, to put nearly all matters within the framework of the UN. For instance, the world-wide efforts undertaken to resolve the burning problems of the environment can thus be seen as an obligation deriving from the Charter's principle of international cooperation (cf. the activities of the 2nd Committee of the GA, the Commission on Sustainable Development or the UN Program on the Environment). Obviously in 1945 the founding fathers of the UN could not possibly foresee the later dimension of these issues. In its history the UN has succeeded remarkably well in serving as a global platform for dialogue on the manifold problems in the economic, social, cultural or humanitarian fields. The world-wide development of human right presents a case in point to demonstrate the impressive capacity of the UN in the area of codification, which is significant for the cooperation in the legal field. An overall assessment of the role played by the UN in fostering international cooperation has to recognize the fact that its actual operation is carried out by the various

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specialized agencies rather than by the main organization itself. As far as international economic issues are concerned for example the Bretton Woods Institutions (World Bank Group, IMF, WTO) are playing a central role. With regard to cultural cooperation UNESCO is the appropriate forum in the UN family. There is a long list of subject matters that are dealt with primarily by specialized agencies or by particular UN institutions. This shows how the UN can integrate all areas of international cooperation in its wide and flexible system. Sometimes the link to the mother organization has become very loose. d) The UN as the focus of common objectives, Art.1 (4) Art. 1 (4) realizes the concept that in the international system created after WWII the UN is to be the central institution in which the community of States has to consider matters of common concern, in particular all issues relating to the maintenance of international peace and security. It was assumed that the SC and its permanent members would bear the main responsibility to carry out the task of maintaining and restoring international peace and security. A critical analysis of this concept that would have resulted in a sort of world government led by the permanent members of the SC soon revealed the gap that existed between project and reality. The tense and often crisis-ridden relationship between the super-powers rapidly made the realization of the UN peace concept illusory. It is fair to say, however, that the ambitious project to put the entire international system within the framework of the UN has not failed altogether. The flexible mandate of the UN has given it an astounding capacity to adjust itself to new realities making it still useful for advancing international cooperation and dialogue. The reactivation of the UN mechanisms of collective security following the recent changes in the international system is further proof of the usefulness of the organization whenever political circumstances are ripe.

3. The Principles of the UN a) The sovereign equality of all Member States, Art. 2 (1) The principle of sovereign equality of all members of the UN corresponds to one of the central elements of international law. It affirms that States as the main actors on the international stage are endowed with equal rights irrespective of all their factual disparities. According to this principle States as the principle subjects of international law possess the attributes of external sovereignty. They have all essential characteristics of statehood. These consist of three elements of territory, people and an effective government. The principle of sovereign equality finds its

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expression in the fact that each Member State, regardless of its size, has only one vote in the GA. The principle of sovereign equality was only infringed upon by the rule that the permanent members of the SC have the privilege of veto power. In spite of these obvious disparities the principle of equal rights and of the sovereignty of all States remain unchallenged. The system of orderly relations between States based on international law would rapidly break down if one of these structural elements of "sovereign equality" in Art. 2(1) would no longer be respected. The principle of formal equality is severely put to test by the disparities of size and power of different States. Since 1945 further developments have contributed to the erosion of the founding fathers' conviction that the sovereign States are the only decisive players on the international plane. At present, international organizations, religious and political groups, the media as well as economic and social players may exert influence powerful enough to compete with that of States. In addition, two further phenomena come into play today which are eroding the classic concept of statehood. First, the high intensity of international cooperation and secondly, the implosion or the collapse of certain Member States of the UN. The first development can best be exemplified by the advanced forms of integration of States in the regional context such as the European Union (EU). No doubt the principle of sovereign equality looses much of its relevance as the EU in the framework of its common foreign and security policy (CFSP) often speaks with one voice and takes common positions on important issues before the UN. On the other hand, the dissolution of the SU as one of the most important Member States of the UN having a permanent seat in the SC together with other recent cases of state succession in Europe have proven how fast sovereign States may disappear or fundamentally alter their existence. b) The principle of good faith (Art. 2 (2)) The principle of good faith (bona fides) which is considered to be a general principle of international law was introduced into the Charter upon a proposal made at the San Francisco Conference. It underlines the view that the UN and its members have to fulfill their obligations deriving from the Charter honestly and seriously. Outside the Charter the principle of good faith permeating modern international law was reaffirmed explicitly in the Vienna Convention on the law of treaties (Art. 26). The often quoted Friendly Relations Declaration again stressed this principle and thereby made it clear that Member States are bound to meet their obligations not only in a legalistic fashion. The spirit of trust and seriousness, which should prevail in the implementation of international commitments together with the principle of justice included in the Charter, constitutes an

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element of natural law. From a European point of view a comparison may be made between the prescriptions of loyalty and solidarity, which characterize the behavior of Member States in the European Union, which is seen as a community of values. c) The peaceful settlement of disputes, Art. 2 (3) The principle of peaceful settlement of disputes has gained authority in international law to the same extent as the prohibition to use force in international relations. In the Charter it was, therefore, logical to put the principle of the peaceful settlement of disputes above the principle of the prohibition to use force (Art. 2 (4)). According to the present state of law, the obligation enshrined in Art. 2 (3) enjoys general validity irrespective of a State's membership in the UN. In essence the principle obliges States to settle all disputes in which there is a conflict between legal positions and political interests exclusively by peaceful means. The Charter does not prescribe the instrument which has to be chosen for the settlement of disputes by the parties but leaves them the choice of means (see Art. 33 (1)). In the ensuing practice the principle of peaceful settlement of disputes was further developed in a series of declarations and resolutions (cf. the Friendly Relations Declaration, the Manila Declaration on the peaceful settlement of disputes 1982, the Declaration finalized by the Charter Committee in 1988 on the prevention and elimination of disputes and situations which may endanger international peace and security and on the role of the UN in this area). d) The prohibition to use force in interstate relations, Art. 2 (4) The codification of the prohibition to use force in the formulation of Art. 2 (4) can be described as the core provision of the Charter. As the fundamental rule of the UN Charter Art. 2 (4) marks the culmination of the efforts that started in the 20th century to outlaw war as a means to conduct national politics. Important markings on the road to the outlawing of force in interstate relations are the Bryan Treaties concluded in 1912, the Statute of the League of Nations (Art. 10) and above all the Briand Kellog Pact of 1928 which obliged the contracting States in a more comprehensive way than earlier agreements to renounce war as a means of national politics. In order to understand the scope and contents of Art. 2 (4) it is advisable to put this principle in the wider context of the UN as a peace organization for a new era of international politics after WWII. The founding fathers of the UN were deeply convinced that after the two world wars international relations had to be reorganized in a radically new way to prevent once and for all similar catastrophes. They conceived the general prohibition to use force as the foremost rule to be observed in interstate relations. As the only exception to this rule, self-defense

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is permitted in case of armed attacks (Art. 51). The right to self-defense should be exercised only as long as the system of collective security does not come into effective operation. Respect for the prohibition of the threat or use of force thus constitutes the cornerstone of the UN security system. The collective security system under the main responsibility of the permanent members of the SC can be activated only when this basic rule was breached. In that case the collective security system of the UN is called upon to stop the aggressor and to restore international peace (cf. Chapters VII and VIII). Bearing in mind the political realities and with the benefit of hindsight half a century after the establishment of the UN, it would be easy to discard the UN security system as an illusion. The UN, however, deserves credit for having commanded universal recognition of the general rule prohibiting force in international relations which figures among the few precepts considered as ius cogens, i.e. as the most stringent obligation in international law. The term "force" in the meaning of Art. 2 (4) primarily comprises the first use of military force directed against the territorial integrity of a State. The two other criteria mentioned in Art. 2 (4), namely the obligation to refrain from the threat or use of force against "the political independence of any state, or in any other manner inconsistent with the purposes of the United Nations", are more difficult to circumscribe. There is a wide spectrum of possible aggressive behavior, which might be subsumed under these labels. Only most serious state conduct, such as evident cases of destabilization of a state by another state through direct action, are cited in the context of these criteria. In the current practice of the UN, however, the exercise of economic or political pressure which under certain circumstances may also be contrary to international law does not fall within the scope of Art. 2 (4) but is generally rather seen as an infringement of the general rule forbidding intervention. The application of the rule outlawing force does not only cover direct aggression but also its abetting by third States. The most important exception to the prohibition to use force namely the individual or collective right to self-defense in accordance with Art. 51 of the Charter has already been mentioned. For the sake of comprehensiveness the exceptions of Art. 53 (1) and Art. 107 of the Charter relating to the so-called enemy States which today have only historic significance need mentioning. Finally it has to be stressed that an activation of the collective security system of the UN in the form of coercive measures decided by the SC in the framework of Chapters VII or VIII is not to be considered as a violation of the prohibition to use force in the sense of Art. 2 (4). Some conflicts or situations not falling under the category of interstate disputes have raised complex questions of interpretation of this principle. For instance,

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there is no prevailing opinion on the issue whether in cases of grave human rights violations within a state outside military intervention ("humanitarian intervention") without SC authorization is permissible as another exception to the principle enshrined in Art. 2 (4). The recent Kosovo crisis provided a casebook study for the controversial nature of such interventions in the context of the UN collective security system. The debate was similarly heated over the issue of permissibility of military action taken for the protection of a state's citizens in some extreme situations without consent of the territorial state (cf. US military operation to liberate the US Embassy staff in Iran). c) Assistance of the UN by all members, Art. 2 (5) The focus of this provision is on assistance in support of measures decided by the SC under Chapter VII of the Charter, i.e. preventive or coercive action within the collective security system. Art. 2 (5) can be placed in the context of Art. 25, which obliges the members of the UN to accept and to carry out the decisions of the SC in accordance with the present Charter. This needs to be stressed since a cursory reading of the first part of Art. 2 (5) may lead to the conclusion that the obligation is so general in nature that it covers each and every action decided by any organ in conformity with the Charter. Secondly, it has to be clarified that the obligation to assist the organization under this article requires the conclusion of agreements in accordance with Art. 43 of the Charter whenever such measures decided by the SC comprise military action and the contribution of troops. Since to date such agreements have not been concluded the obligation stated in Art. 2 (5) concerning military action has remained theoretical. If, on the other hand, the SC has decided to take coercive measures, for instance in the economic or political field, this Charter provision together with Art. 25 clearly comes into play. Member States are then obliged to give effect in their jurisdiction to the action decided by the SC. The obligation to assist the UN is a corollary of the prescription explicitly stated in the last part of Art. 2 (5) prohibiting assistance to those States, which are made the target of either preventive or coercive measures by the UN. The latter provision seems self-evident since assistance to the UN would be undermined if its members would support those who are the objects of punitive measures imposed by the UN. f) Respect for the principles of the UN by non-members, Art. 2 (6) The provision introduced in the overall interest of peace obliges also non-members of the UN to honor the principles of the Charter. It clearly stands in conflict with the general principle of international law which provides that a treaty does not confer obligations or rights to third States without their consent (Pacta tertiis non

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nocent, cf. Art. 34 Vienna Convention on the Law of Treaties). In view of the fact that by now nearly all States have become members of the UN Art. 2 (6) has practically lost its relevance. g) The principle of non-intervention in internal affairs, Art. 2 (7) The prohibition of intervention in the internal affairs of States, which was, included in Art. 2 (7) as one of the principles of the UN addresses itself to the organs of the world organization. The principle is generally understood, however, to bind not only the organs of the UN but also the States in their mutual relations. The principle of non-intervention determines the outer limits of what is described by international law as the exclusive sphere of domestic jurisdiction, which is free from interference by the UN. Art. 2 (7) makes it explicitly clear that members are not obligated to submit matters falling essentially within their domestic jurisdiction to the authority of the UN. In accordance with the last phrase of Art. 2 (7) the present rule does not, however, restrict in any way the operation of the collective security system as provided by Chapter VII. In the development of the UN reference to the principle of non-intervention as a ground rule of international relations has inspired a number of GA declarations which because of their controversial and contradictory contents have at times contributed to confusion rather than to clarity (cf. Friendly Relations Declaration and the two GA declarations addressing the principle of non-intervention, Res. 2131 (XX) and Res. 36/103). The difficulty in determining what in a given case and under the present circumstances pertains to the exclusive sphere of domestic jurisdiction lies in the fundamental changes of this concept over the last 50 years. As was already outlined in the consideration of Art. 2 (1) the principle of state sovereignty has shrunk significantly with the intensification of international cooperation and the concern of all States with the global problems that transgress national boundaries. Also the development of international law that regulates many more subjects today than it did in 1945 contributes to the shrinking of matters essentially within the domestic jurisdiction of a State. The concern of the international community about serious human rights violations committed inside the territory of a state is an example for this change. According to the prevailing view today criticism about such violations can no longer be put aside as intervention in the internal affairs. As an example for matters which even by present standards fall within the exclusive domestic domain in the meaning of Art. 2 (7) the constitutional system of a state could be cited leaving the choice to the latter whether it is organized as monarchy or republic, as centralized state or as federation.

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The precise determination of the principle of non-intervention is further complicated by the wide spectrum of possible political, economic or other pressures. It requires quite a balanced judgement to distinguish in a concrete case between the exercise of permissible influence and forbidden interference in domestic affairs. Bearing in mind their respective interests the States concerned are rarely in a position to make a fair distinction by them. For these reasons the definition of the exact scope of the principle of non-intervention remains a difficult undertaking always bearing the risk of controversy.

The Organs of the United Nations Ferdinand Trauttmansdorff

Literature: Bailey, The General Assembly of the United Nations, A Study of Procedure and Practice (1960); Rosenne, The Law and Practice of the International Court (1965); Bailey, The United Nations Secretariat, in Luard (ed.), The Evolution of International Organizations (1966); Bertrand, Reporting to the Economic and Social Council, JIU/REP/84/7 (UN Doc. A/39/281 31.5.1984); Finley, The Structure of the United Nations General Assembly: its Committees, Commissions and other Organisms, 3 vols., (1977); Gross, The International Court of Justice and the United Nations, 120-1 Receuil des Cours (1967) 313; Hiscocks, The Security Council: a study in adolescence (1973); Meron, The United Nations Secretariat: the rules and practice (1977); Renninger, Survey and Analysis of Evaluations of the United Nations Intergovernmental Structure and Functions in the Economic and Social Fields (1987) (United Nations, Informal Paper No. 15); Rosenne, The World Court, What it is and how it works (4th ed., 1989); Robert/Kingsbury, United Nations, Divided World (1993); Simma (ed.), The Charter of the United Nations. A Commentary (1994); Fiedler, The Secretariat, in Bruno Simma (ed.), The Charter of the United Nations. A Commentary (1995) 1019; Mosler, The International Court of Justice, in Simma (ed.) The Charter of the United Nations. A Commentary (1995) 973; Boutros-Ghali, "Agenda for Peace", UN Doc. A/47/277-S/24111 (17 June 1992); Jennings, The International Court of Justice after 50 Years, AJIL 89 (1995) 493; Schachter/Joyner, United Nations Legal Order, 2 vols. (1995); Guilleaume, De l'execution des decisions de la Cour Internationale de Justice, Schweizerische Zeitschrift fur Internationales und Europaisches Recht, 4 (1997) 437; Peck/Lee (eds.), Increasing the Effectiveness of the International Court of Justice - Proceedings of the ICJ/UNITAR Colloquium to Celebrate the 50th Anniversary of the Court (1997).

1. Preliminary Remarks - The UN System in General Under the United Nations Charter six principal organs of the UN Organization have been established (GA, SC, ECOSOC, UN-SG/Secretariat, ICJ and Trusteeship Council). Since the organization came into existence, its principal organs, and in some cases also its Member States on the basis of specific international treaties, established secondary organizational structures such as Committees, Commissions, Standing Conferences, Funds, Programs, High Commissioners, different secretarial structures, Offices and Representatives, all commonly referred to as subsidiary bodies of the United Nations. These secondary structures are usually the result of a process of "natural" growth of the organization, whereby some subsidiary bodies developed different degrees of autonomy from the organizational structures originally provided for by the Charter. At the same time, the subsidiary bodies developed certain characteristics regarding inter alia their structure, their degree

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 25-56 ©2001 Kluwer Law International. Printed in the Netherlands.

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of autonomy from the principal organs and their modes of financing. In the field of maintenance of international peace and security the United Nations, based on its Charter and subsequent practice, assumed de facto a power monopoly under international law. In this field the SC is assigned the primary responsibility under the Charter, whereas the GA assumes a secondary role. In addition, the UN-SG has gradually assumed substantial functions, in particular in the areas of preventive diplomacy and of peace-keeping operations, carried out under the authority of the SC. Some subsidiary bodies as well as UN-sponsored conferences gravitating institutionally around the Committee on Disarmament and the Conference on Disarmament have developed substantial activities in the field of disarmament. The organized economic, social and cultural cooperation at the universal level has been taken over in its substance primarily by Specialized Agencies. In these fields, the principal organs under the Charter, i.e. the GA and, under its authority, ECOSOC and the Secretariat assumed essentially coordination functions. The subsidiary organs established by the principal organs, however, have increasingly also taken over substantial functions in the field of economic and social cooperation. In this regard, the following priority areas may be underlined: • Protection and promotion of human rights including the rights of women and children; such tasks under the universal human rights system are assumed by the Third Committee of the GA, the UN Commission on Human Rights, the UN High Commissioner for human rights as well as by the treaty organs under the different human rights instruments. The area of the promotion of women's rights has developed a distinct institutional profile (see infra Worgetter); • General promotion of the economic and social development; in this field UNDP acts as the principal operative branch of the UN. UNICEF assumes the key role in the universal promotion of children, including the immediate care for survival, relief and subsistence of children. The World Food Program (WFP), too, is increasingly involved in survival and relief assistance, besides its tasks in the field of long-term development. The Conference on Trade and Development (UNCTAD) has, over the years, developed intensive conference activities in the field of development related trade policy, however with limited operative effect. The Population Fund (UNFPA) focuses its substantial financial means and activities on the financing of programs concerning population control in development countries as well as on analysis, counseling and information in this field;

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• Humanitarian assistance and refugee protection; the High Commissioner for Refugees and her office in Geneva (UNHCR) has achieved a pivotal role in this field on the universal level. After several other attempts to create separate institutional structures for universal disaster relief and prevention, the Office of the Coordinator for Humanitarian Affairs (OCHA), a department within the Secretariat, has assumed the task to coordinate humanitarian assistance including disaster and emergency relief within the UN system; • Crime prevention and drug control; this is obviously a growth-sector within the UN activities for which the Commission on Narcotic Drugs and the Commission for the Prevention of Crime and Criminal Justice constitute the institutional center. The Commissions are supported by the Vienna-based Office for the Drug Control and Crime Prevention Program; • In the field of regional economic cooperation, the UN has established regional commissions: one for Europe (ECE), two for Asia (ESCAP and ESCWA), one for Africa (ECA) and one for Latin America and the Caribbean (ECLAC). In practically all of the above-mentioned fields of activities, the UN, since its inception, has achieved substantial results in the codification and the progressive development of international law and in fostering the legal cooperation and harmonization between Member States. Already since the early years of the UN, the peaceful use of the outer space constituted a major goal of the UN-based cooperation, again with a particular view to the codification of the international law regulating the use of the outer space; the UN Committee for the Peaceful Use of the Outer Space (COPUOS), supported by the competent Vienna based units of the UN Secretariat, acts as central body for the UN activities in this field. A number of subsidiary bodies are active in the fields of internal coordination and organization as well as on issues of budget and personnel. Among the most important subsidiary organs in this field of activities the following should be mentioned: The Fifth Committee of the GA, the Administrative Committee for Coordination (ACC) which comprises under the Chairmanship of the UN-SG the chief executives of the Specialized Agencies and is therefore sometimes referred to as the "government of the UN system", the Advisory Committee on Administrative and Budgetary Questions (ACABQ), the Committee for Program and Coordination (CPC), the Committee on Conferences (CC), the Joint Inspection Unit (JIU), the Administrative Tribunal of the UN (UNAT), the Board of Auditors and the USG acting as "Inspector General" for internal oversight (Office of Internal Oversight Services - OIOS).

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2. The General Assembly a) Legal basis Composition, powers and voting procedures of the GA are regulated in: Chapter IV (Art. 9-22), special functions and powers: Art. 4-6 (Membership), Art. 23 (election of non-permanent members of the SC), Art. 24 (review of the annual report of the SC), Art. 35 (role in the settlement of disputes according to Chapter VI), Art. 60,61,64,66 (functions related to ECOSOC), Art. 63 (approval of agreements with Specialized Agencies), Art. 85-88 (functions in the trusteeship system), Art. 93,96 (functions regarding the ICJ), Art. 97 (appointment of the UN-SG upon recommendation of the SC), Art. 98 (report of the UN-SG), Art. 101 (adoption of the Statute of the members of the Secretariat), Art. 105 (privileges and immunities), Art. 108, 109 (amendments to and review of the Charter). Furthermore: "Uniting for Peace" - Resolution [GA Res. 377 (V)], which attributes subsidiary powers to the GA in case of a stalemate in the SC; rules of procedures of the GA according to Art. 21. b) General remarks All members of the UN are represented in the GA (Art. 9 (1)). Furthermore, there are various ways in which also non-members, Specialized Agencies, other intergovernmental organizations and national liberation movements may participate in the work of the GA. All members participate in the work of the GA on an equal level, i.e. each has one vote, independent from its size and political influence (Art. 18(1)). This provision is based on the principle of sovereign equality of states and on the democratic principle. The functions and powers of the GA under the Charter include the right to discuss all questions and matters within the scope of the Charter or relating to powers and functions of any organ provided for in the Charter (Art. 10). The GA, thus, is empowered to deal with any matter regarding the objectives of the UN embodied in Art. 1, its principles (see supra Cede, "Purposes and Principles") or any function of organs within the scope of the Charter. There remain only few conceivable international matters, which would not fall under the broad powers of the GA to discuss matters of international concern. The GA is therefore the only intergovernmental organ being assigned de facto universal and comprehensive powers to take up any international matter. The GAhas, however, no powers to adopt binding resolutions or decisions which would correspond to the comprehensive right to discuss matters. On the basis of the Charter, the GA has the right to adopt only recommendations in all matters under its competence. But Art 12 (2) restricts this competence too. The importance

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of this restriction, which suspends the right of the GA to make recommendations regarding disputes and situations under consideration by the SC, has, however, been substantially reduced in practice: the SC has not insisted on the curtailment of the powers of the GA vis-a-vis the SC as provided for in the Charter in the field of the maintenance of international peace and security. Besides the comprehensive right to discuss matters the GA is also empowered to initiate studies and make recommendations in matters concerning international cooperation including the promotion of human rights and the codification and progressive development of international law (Art. 13(1)). The recommendations adopted by the GA are as such not binding under international law. Resolutions and decisions by the GA, which adopt budgetary, administrative and other internal regulations create, however, legally binding effects. Thus, the resolutions and decisions of the GA in the exercise of its budgetary powers are legally binding. By approving the budget (Art. 17(1)) and by fixing the apportionment of the expenses to be born by the members (Art. 17 (2)) the GA creates the legal obligation for members to bear the share of the expenses attributed to them by the GA. (See infra Schlesinger.) Decisions by the GA in the exercise of its organizational powers according to Art. 97 are also legally binding. (Appointment of the UNSG upon recommendation by the SC.) Although the recommendations made by the GA do as such not have legally binding force, resolutions of the GA which restate and thus confirm certain legal opinions over a longer period of time without persistent objection have, in the light of existing State practice, indeed legally binding effects under international law despite the lack of formal powers of the GA under the Charter to adopt acts creating legal obligations for members. The GA adopted, furthermore, declarations regarding certain essential international matters, which established basic rules for the community of states. Their legally binding character is not uniformly accepted. It can, however, be hardly denied that the "Universal Declaration on Human Rights" of 1948, the so called "Declaration on Decolonization" of 1960 and the "Declaration on the Principles of International Law concerning the Friendly Relations and Co-operation between States" of 1970 are instruments, which, given their sustainable effect on State behavior and their "restatement" of international legal norms, obviously have international legal effects. In the field of codification and progressive development of international law, also a task assigned to the GA by the Charter, the GA, too, went beyond the mere adoption of recommendations and assumed de facto the function of international diplomatic State Conferences to adopt texts of international conventions (including the Convention on the Safety and Protection of UN Personnel, Convention against Terrorist Bombing, Convention on the Non-navigational Use of International Water Courses).

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c) Working methods and procedures of the GA aa) General remarks Decisions concerning certain items on the GA's agenda are often taken by the plenary without direct preparation by a main committee. This concerns mainly such agenda items, which are considered as agenda items of political priority and are therefore taken up directly by the plenary (inter alia questions concerning the Middle East, reform of the SC, consideration of reports by the ICJ and the International Criminal Tribunals on Yugoslavia and Rwanda). Drafts by the Main Committees are the basis for the overwhelming majority of GA resolutions. The GA approves, usually without changes, the texts of resolutions adopted by the Main Committees and attached to their reports to the plenary. Within the Main Committees there is a tendency, although not uniform, to adopt resolutions to the extent possible by consensus (without vote). Particularly in the Sixth Committee, which focuses on the adoption of international legal instruments on the basis of broad acceptance by the Member States, the consensus method is applied as a matter of principle, i.e. decisions are adopted usually without a vote. The Fifth Committee, which deals with administrative and budgetary questions, also as a matter of principle does adopt its decisions by consensus. The same is true for the Second Committee. The regular sessions of the G A start in the month of September and usually last until middle of December. During the last years, the Sessions, have, as a rule, resumed after the beginning of the new year, and have taken until the beginning of the next Session in the following September. The essential part of the work, however, is carried out between the beginning of the Session and Christmas. During this period the Main Committees, which usually present their reports including the annexed draft resolutions to the plenary for adoption, are in session. The Fifth Committee usually meets in "resumed sessions" during the entire year. Special sessions of the GA are convoked by the UN-SG upon request by the SC or by the majority of the members of the GA. Until June 2000, 23 such special sessions have taken place and have usually dealt with most relevant subjects (so for instance the 20th Special Session against the Use of Narcotic Drugs or the 23rd Special Session on Women 2000). By adopting the "Uniting for Peace Resolution" [GA Res. 377 (V)] the GA has created the possibility, in case of emergencies, to convoke the GA within 24 hours to hold an Emergency Special Session. The UN-SG convokes such sessions upon request of (any) nine members of the SC or by the majority of the GA. So far 10 such emergency special sessions have taken place, the last after a pause of 16 years on the situation in the occupied Palestinian territories.

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bb) Voting procedure In the GA every member has one vote. In the voting procedure, a distinction has to be made according to Art. 18 between "important" and "other" questions. Important questions require a two-thirds majority whereas other questions are voted upon by simple majority. Anon-conclusive listing of "important" questions is contained in Art. 18 (2). These include for instance the admission of new members, the election of non-permanent members of the SC and recommendations regarding the maintenance of international peace and security. With simple majority, the GAcan determine also other groups of questions to be "important" under Art. 18. The vast majority of resolutions and decisions are in practice adopted by consensus, i.e. without formal vote. In such cases, negotiations on a draft resolution continue until it can be expected that no delegation will ask for a formal vote. Sometimes the members vote only on certain provisions of a draft resolution in order to give member delegations the possibility to express their acceptance, rejection or abstention towards these provisions. The votes on the specific provisions may in such cases often differ from the position taken on the resolution as a whole. d) The subsidiary bodies of the GA aa) The main committees Until its 48th session the GA maintained seven main committees. By Res. 47/ 233, however, the GA reduced the number of main committees to six by merging the Special Political Committee with the 4th Committee, which, until then, dealt with issues concerning decolonization. The six main committees cover the principal fields of activity by the GA. The First Committee deals with disarmament and questions of international peace and security. The Special Political Committee focuses on certain political issues and on the remaining questions concerning the decolonization process, as far as they are not directly taken up by the plenary. Furthermore, the agenda of this Committee includes items like outer space issues and questions concerning information. The Second Committee covers economic, financial, development and environmental issues. The Third Committee deals with social, humanitarian and cultural questions. The lion's share of the work of this Committee is usually dedicated to human rights issues on the basis of the activities in particular of the Commission on Human Rights in Geneva and of ECOSOC. The Fifth Committee is, besides the Standing Committees ACABQ and Committee on Contributions, the main body of the UN dealing with administrative

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and budgetary questions. The agenda of the Sixth Committee contains issues of international law and other legal questions, in particular the codification and progressive development of international law. This Committee closely cooperates with the International Law Commission (ILC). Furthermore, the GA maintains a number of other subsidiary organs, the work of which flows in its majority directly into the work of the main committees. These organs in their overwhelming majority are established as standing bodies but may also be established as ad-hoc-committees with a limited existence only for certain sessions or for certain specific tasks. bb) Procedural Committees The GA maintains two Procedural Committees for every session: The General Committee plays a key role in steering the work of the GA. It consists in the President of the GA, its 21 Vice Presidents and the Chairpersons of the six main committees. The General Committee inter alia prepares the provisional agenda of the GA Session, designates priority items and advises the president of the GA on the organization and management of the work of the entire session. The main committees in turn maintain bureaus for the advice to their chairpersons, which include three Vice-Chairpersons and a rapporteur. Despite its importance for the work of the GA, the General Committee has usually only limited political influence, since most of the important decisions on the organization of work of the GA are submitted to it on the basis of consultations, which its president is carrying out with the most important political and regional groups among the members. The Credentials Committee as the second procedural Committee has the mandate to examine the credentials and full powers of the delegations. It assumes special relevance only if objections are raised against the participation of certain delegations and representatives on legal or political grounds. cc) Standing Committees The Standing Committees advise the GA on its administrative and budgetary functions according to Art. 17 of the Charter. The Advisory Committee on Administrative and Budgetary Questions (ACABQ) plays a key role in all budgetary questions and the related administrative, organizational and personnel issues also in the important field of peace-keeping operations. The 16 members of the Committee are elected by the GA upon proposal by the Fifth Committee and have to include at least three internationally renowned financial experts. Given the inherent authority of the Committee, its reports exert a major influence on budgetary decisions by the GA. As far as substance is concerned, its work is closely connected

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to the work of the Fifth Committee. The second Standing Committee, the Committee on Contributions; also plays an important role in assessing and apportioning the contributions by members. This Committee also has a primary advisory function for the application of the politically sensitive procedure for the suspension of the voting rights of members according to Art. 19 in case of arrears in contributions.

3. The Security Council a) Legal basis The SC, its powers and functions is by far the most extensively regulated field within the Charter: Chapter V (Art. 22-32, general provisions), Chapter VI (Art. 33-38, peaceful settlement of disputes), Chapter VII (Art. 39-51, measures with respect to threats to the peace, breaches of the peace and acts of aggression), Chapter VIII (Art. 52-54, regional arrangements), Art. 83 (functions of the SC in the trusteeship system); further special provisions: Art. 4-6, 7,10-12, 15, 18, 20, 65, 93,94,96,97-99,106, 108,109 as well as Art. 4,7-15, 35,41 and 69 of the Statute ofthelCJ. b) General remarks, powers and functions The SC as further principal organ holds a singular position within the organized State community. According to Art. 24 of the Charter it is assigned the primary responsibility for the maintenance of international peace and security: no other body within the community of states and also no State has comparable authority and functions. In order to fulfill these functions, the Charter assigned to it a number of political functions and powers, which are to be considered as extraordinarily far reaching, given the traditional reticence of states to transfer parts of their sovereignty to an intergovernmental authority. In order to be able to assume its primary responsibility, the Charter has given the Council step-by-step tools reaching from the peaceful settlement of disputes (Chapter VI) (see infra Neuhold) until

the coercive measures of collective security (Chapter VII) (see infra FreudenschuG). Furthermore, this system also provides for the possibility to make use of "regional arrangements" (Chapter VIII) for regional activities in the service of peace under the authority of the SC. Given the changes in world politics, the UN practice, over the years, has developed a concept of maintenance of international peace and security which deviates somewhat from the system provided for by the Charter. Typical for this fact is the development of the practice of PeaceKeeping Operations which as such are not provided for in the Charter. (See infra Sucharipa-Behrmann.)

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In a "dynamic" phase after the fall of the iron curtain, the SC has used alternative methods in order to carry out coercive military measures short of the full implementation of the system of collective security, which would have required the conclusion of agreements on making available military forces according to Art. 43 of the Charter. These methods have been used towards the former Yugoslavia, Somalia, Rwanda and Haiti. Art. 42 second sentence (operations using military forces by members), Art. 48 (implementation of the decisions of the SC according to Chapter VII immediately by members or by making use of appropriate international agencies) and Art. 51 (right to self defense) of the Charter are considered to provide the legal basis for such alternative possibilities of military operations of the 1990s under the "mandate" by the SC although this legal basis is in the practice of the SC, who merely generally refers to "Chapter VII", not clearly specified. The SC obviously reached the limits of its powers under the Charter by creating the two Criminal Tribunals for the prosecution of War Crimes in the Former Yugoslavia (1993) and Rwanda (1994). Here, too, the SC referred without further specification to "Chapter VII" of the Charter, evidently based on the idea that the establishment of the tribunal constituted a contribution to the restoration and maintenance of world peace and international security. The SC, furthermore, has the possibility to activate the use of "regional arrangements" for the maintenance of peace as well as for measures of so called "peace enforcement". Although not specifically defined in Chapter VIII of the Charter regional organizations such as the OAU for Africa, the OAS for the Americas, ASEAN for East Asia, the OSCE and the EU for Europe will have to be considered typical for such regional arrangements. Whether NATO is to be considered as such an arrangement is in dispute. NATO itself does not accept such characterization. In the Agenda for Peace of 1992, which has been elaborated under UN-SG Boutros Boutros-Ghali, the functions of the SC under Chapter VI to VIII of the Charter are described in detail with particular regard to the long-standing practice of Peace-Keeping Operations and the extended application of the Chapters VII and VIII made possible by the changes in world politics after 1989. According to this program the concept of peace-keeping shall rest on four pillars: preventive diplomacy (primarily task of the UN-SG), peace-making (Chapters VI and VII), peace-keeping measures and peace-building and peace consolidation after a conflict. To the extent as changes in world politics do not lead again to a mutual blocking in the SC by making use of the veto by its permanent members, this program describes a broad spectrum of options, which a "new" SC may exhaust based on a dynamic interpretation of its functions and powers under the Charter. (See infra FreudenschuB.) According to Art. 94 (2) it is the task of the SC to make sure that judgments of

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the ICJ are given effect, if a party is not abiding by them. The SC, however, has so far not taken any specific action in this regard. (In the case of the judgment of the ICJ on Nicaragua, action by the SC giving effect to this judgment has been blocked by a veto of the United States.) Apart from its political functions, the SC, in cooperation with the GA, also assumes internal functions within the organization. Thus, the SC has a right to initiative under the Charter by making recommendations to the GA concerning admission of new members (Art. 4), suspension of membership (Art. 5), the expelling of members (Art. 6) and the election of the UN-SG (Art. 97). The SC, furthermore, plays a role in the election of members of the ICJ and of the members of the two criminal tribunals, established by the SC for the former Yugoslavia and Rwanda. According to Art. 4 -14 of the Statute of the ICJ, its members are elected by a special procedure, which provides for election jointly by the GA and the SC with separate votes. For the election of the judges of the two criminal tribunals, the SC establishes a shortlist among the candidates from which the GA selects the judges. c) Composition Initially, the SC had 11 members, five permanent members and six non-permanent members. Taking into account the drastic enlargement of the membership of the UN, an amendment to the Charter entered into force 1965, according to which the number of non-permanent members has been raised to ten (Art. 23). At the same time different majority requirements have been introduced (Art. 27, Art. 109). The permanent members are China, France, Russia (successor of the USSR), the United Kingdom and the United States of America. The GA elects non-permanent members for two years with a two-thirds majority requirement (Art. 18 (2)). Each year half of the non-permanent members are replaced. The criteria for the election of members of the SC, which have been laid down in Art. 23 (1) of the Charter were replaced in 1966 by political and geographical preferences, which, in 1966, led to the obligatory distribution of seats according to regional criteria: Five seats are attributed to the Afro-Asian group, two for the Latino-American, two for the Western European and others (WEOG) and one for the Eastern European group. The debate on the reform of the SC, which was repeatedly taken up since then, focused on the enlargement of the number of permanent seats in the SC (including for instance Germany and Japan and corresponding countries of Asia, Africa and Latin America and the Caribbean) and on an increase of the number of nonpermanent members. All concrete proposals brought forward in this regard have so far not been successful. (See infra Proidl.)

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d) Decision-making and procedures Decisions by the SC are, according to Art. 25, binding for the UN members to the extent as such binding force is provided for in the Charter. (This, however, does not apply for recommendations of the SC.) Art. 103 further provides that obligations under the Charter have precedence over any treaty obligations. This means that also binding decisions of the SC are prevailing over any treaty obligations of the members. These provisions are, in the history of the organized international relations, all the more noteworthy, since these extended powers have been conferred upon a body which has only a limited number of members vis-a-vis a quasiuniversal membership. Since the foundation of the UN, the great powers existing after the Second World War have preserved their privileged position in protecting their interests on the one hand by anchoring their permanent membership in the Charter and on the other hand by safeguarding it through the veto-power (Art. 27 (3)). Concerning the exercise of the veto-power, the Charter distinguishes between decisions on procedural questions (requiring according to Art. 23 (2) only the consent of any nine members) and "other questions". All "other" questions require, for a valid decision, strictly speaking the consent of nine members including all permanent members. This strict requirement has been moderated by the practice that a decision is also valid, as long as no permanent member is voting against. Abstention or absence of a permanent member does not hinder a decision. The permanent members of the SC claimed the right to make use of their veto power also for decisions on whether a question is to be qualified as constituting a procedural or "other" question according to Art. 27 (2) ("double veto"). In some cases, a ruling of the president of the SC that a certain issue is to be qualified as procedural question has circumvented the double veto. Such a ruling could subsequently only be overruled by a majority of nine votes. The president of the SC calls the meetings of the SC. He is thereby acting upon request by any member of the SC, any other member of the UN or upon request by the SC as a whole, the GAor the UN-SG. The Council meets in ordinary, extraordinary, urgent and informal meetings. The number of meetings of the Council has substantially increased during the last two decades, whereby the meetings, particularly during the last years, have been held primarily as informal consultations without access for the public. Formal resolutions and decisions, however, are regularly adopted in public meetings. In the UN practice during recent years, press statements, concerted among all members of the SC, have gained increasing significance. The number of such expressions of the opinion of the SC is today higher than the number of adopted resolutions, although the latter are, in principle,

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the form of decision making based on the Charter. Thus, de facto a certain hierarchy among decisions and other expressions of opinion by the SC has gradually been established. e) Subsidiary organs The SC established a number of subsidiary organs according to Art. 29. The Military Staff Committee according to Art. 47 is composed by the chief of staffs of the permanent members of the SC. The Committee was conceived by the Charter as organ advising the SC in all military matters under its responsibility, but it was, thus far, not able to fulfill this mandate. Furthermore, the SC has established three standing committees in order to deal with procedural matters: these are the Committee of Experts on the Rules of Procedure, the Committee on Council Meetings away from the Headquarters (which take place only rarely) and the Committee on the Admission of New Members for the preparation of recommendations according to Art. 4 (2). Furthermore the SC regularly establishes ad hoc committees for certain functions such as the committees for the monitoring and implementation of sanctions adopted by the SC (Sanctions Committees) or special commissions such as the Special Commission to Oversee Certain Disarmament Measures against Iraq (UNSCOM), the UN Compensation Commission for Iraq (UNCC) and the International Commission of Inquiry on monitoring the enforcement of the arms embargo in Rwanda. The two Criminal Tribunals on the prosecution of war crimes in the former Yugoslavia (ICTY) in The Hague and Rwanda (ICTR) in Arusha constitute a new generation of further special organs created by the SC. As much as these bodies may have been disputable as far as the proper legal authority of the SC under the Charter for their establishment is concerned, the significance of their creation is fully recognized by the international community. The start of the activities of the two tribunals has doubtlessly contributed to the progressive development of the concept of an international criminal regime and has evidently also exerted a very positive influence on the elaboration of the Statute of the International Criminal Court (Rome 1998). In the course of the practice of the SC to launch peace-keeping operations a number of new subsidiary organs of the SC have been established, since these operations have either been instituted as subsidiary bodies of the SC according to Art. 29 or as subsidiary bodies of the GA according to Art. 22. (See infra SucharipaBehrmann.)

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4. The Economic and Social Council a) Legal basis UN Charter: Chapter IX - Art. 60 in conjunction with Art. 55-59 (functions of the UN in the field of international economic and social cooperation - definition of contents of the functions of ECOSOC under the authority of the GA); Chapter X, Art. 61-72 (composition, functions, voting, procedure); further special provisions Art. 7, 15,18,91,96,98,101. Resolutions of the GA: amendment of Art. 61 concerning the enlargement of membership from initially 18 to 27 by GA Res. 1991 B (XVIII) (1963) and finally to 54 by GA Res. 2847 (XXVI) (1971) - entering into force 12 December 1973. The latter resolution also determined the geographical distribution of seats. b) Composition and role of ECOSOC within the UN system The ECOSOC is composed of 54 members, which are geographically distributed as follows: 14 Africa, 11 Asia, 10 Latin America and the Caribbean, 13 Western Group (WEOG) and 6 Eastern European states. The duration of membership is three years. Although neither established in the Charter nor otherwise legally determined, the permanent members of the SC are de facto permanently represented in ECOSOC. The non-members of ECOSOC may participate in the work of ECOSOC as observers without the right to vote. Upon request they may also participate in the debate. As opposed to the GA and the SC, ECOSOC does not act in its own authority in the fulfillment of its functions. According to Art. 60, ECOSOC is responsible for the discharge of its functions under Chapter IX only concurrent with the GA and under its authority. According to Art. 66, ECOSOC, in addition to its "original" functions under the Charter, is also responsible to carry out functions falling under its competence in connection with the implementation of recommendations adopted by the GA. With authorization by the GA ECOSOC may furthermore carry out functions upon request by members of the UN or by UN Specialized Agencies. The GA is finally given the authority to assign functions to ECOSOC additional to the functions under the Charter. The relationship between the two principal organs GA and ECOSOC, which the Charter otherwise left somewhat undetermined is, thus, a hierarchical one. In practice, the relationship between the two organs in carrying out their functions in the economic, social and cultural field shows a high degree of flexibility. The lack of clarity in regard to the relationship between the two bodies and the distribution of functions among them has, however, also contributed to the fact that ECOSOC, since the foundation of the UN, has repeatedly been the focus of discussions on

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institutional reform. The unclear distribution of functions, the overlapping of activities of the GA and ECOSOC together with a certain organizational jungle regarding the subsidiary organs established by both organs, have repeatedly been rightfully criticized in the past. c) Working methods Since 1991, ECOSOC only holds one substantial session instead of the previous two. This session, which since 1996 (GARes. 50/227 (1996)) has been reduced to a duration of four weeks and which is held alternatively in New York and in Geneva during the month of July, is cut in "segments". A "high-level segment" - in principle on the level of ministers - is followed by a segment on coordination, a segment for operational activities, a segment for humanitarian affairs and a general segment. As a consequence inter alia of the open distribution of functions between GA and ECOSOC, the latter has in practice assumed the role of a preparatory body for the GA in which the questions to be dealt with by the Second and Third Committee of the GA are prepared. This, first of all, reduces somewhat the institutional weight of the Council, which has been perceived as a principal organ under the Charter. As far as the effects of the activities of the UN in the area of competence of ECOSOC is concerned, it is in practice rather irrelevant, whether decisions are taken by the GA or ECOSOC, since both organs can in principle, only adopt recommendations and the budgetary competence lies anyway clearly with the GA. The discussions concerning the distribution of functions between the two organs have therefore rather an institutional than a practical significance. Furthermore, the distribution of seats in ECOSOC usually reflects widely on the majority relationships in the GA. It is also to be noted that the group of persons dealing in New York and Geneva as well as in the capitals of the members with issues on the agenda of ECOSOC on the one hand and of the Second and the Third Committee of the GA on the other, is to a wide extent practically identical. It is, therefore, not astonishing that the decisions of ECOSOC are in most of the cases endorsed without change in substance, when being treated by the GA. ECOSOC was never capable to develop its own authority under the Charter to such an extent as to emancipate itself from the tutorship of the GA. A possible explanation for this fact may be that the developing countries, despite corresponding majority relationships in both bodies, may feel to be better represented in the GA. d) Functions and area of activities On the basis of Art. 62 (1), ECOSOC, within the economic, social, cultural, educational and health and related domains, is active in the following particular fields:

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The council serves as central discussion forum for economic and social matters and elaborates recommendations to the Member States. In this regard, it regularly makes ample use of its competence to initiate inquiries and reports concerning different groups of questions. Its recommendations are addressed to the GA, the Member States or the Specialized Agencies concerned (Art. 63 Its competence to make recommendations also in the field of the promotion of the respect for, and observance of, human rights and fundamental freedoms serves as basis for the human rights system of the UN which, in the meantime, has reached considerable dimensions. The Human Rights Commission, which has been established as subsidiary body of ECOSOC, and the units of the Secretariat linked to it, have taken over an essential part of the substantial UN activities in the field of human rights. (Art. 63 (2)). (See infra Strohal.) Afurther function of ECOSOC is the drafting of multilateral agreements to be presented to the GA (Art. 63 (3)). The council thereby makes use of its powers to delegate this function to its subsidiary bodies or to diplomatic State conferences or to request the UN-SG to provide services on certain matters. Since the GA and the Specialized Agencies have corresponding powers in these fields, coordination is required. A substantial share of the international conference diplomacy of the UN is also essentially based on the competence of ECOSOC to call international conferences on governmental and non-governmental level. (Art. 62 (4)). This, too, requires coordination particularly with the GA and the Specialized Agencies. To facilitate such coordination, the GA has, inter alia, established the Committee on Conferences with the task to coordinate the conference schedule within the UN system. According to the Charter, the council was also assigned a coordination and supervisory function vis-a-vis the Specialized Agencies. So, subject to approval by the GA, it may conclude agreements between the UN and Specialized Agencies in order to regulate the relations among them (Art. 63 (1)). The conclusion of such an agreement is the precondition for an intergovernmental organization to become a specialized agency of the UN. ECOSOC may agree with such agencies to provide it with regular reports on their measures to give effect to recommendations adopted by the GA and ECOSOC. According to the Charter, the instruments offered to ECOSOC for the discharge of its coordination function towards Specialized Agencies consists in consultations with the organizations as well as in recommendations to them,

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the GA and the members of the UN (Art. 63 (2)). Given the degree of institutional self-reliance of the Specialized Agencies and the dynamics of their own activities, the actual influence of ECOSOC on their programs is in fact relatively limited. To the extent that ECOSOC examines reports by Specialized Agencies, it, however, facilitates the inter-agency flow of information, which may indirectly influence also the decision making of the relevant organs of these agencies. • In the relationship between ECOSOC and the SC, the functions of ECOSOC according to Art. 65 have not, inspite of recent attempts by the Italian ECOSOC presidency in 1999, gained particular significance, neither as far as the furnishing of information by ECOSOC to the SC nor as far as the providing of assistance to the SC is concerned. • Particularly in connection with the work of the UN in the field of human rights and other questions concerning social, humanitarian relief and well fare questions, the work of non-governmental organizations (NGOs) gains ever increasing relevance and influence. Art. 71 provides for the right of ECOSOC to make arrangements with non-governmental international as well as, after consultations with the Member State concerned, also national organizations regarding the assignment of a consultative status of such organizations. Such status is valuable to such an organization, since they are thus institutionally included in the work of the UN (inter alia by gaining access as observers to the meetings of the different organs of the UN) and, as a consequence, may gain world-wide recognition and publicity. Since the Charter does not contain specific provisions in this regard, ECOSOC has provided the legal basis for the granting of consultative status by way of resolutions. (See infra KepplerSchlesinger.) e) The subsidiary bodies of ECOSOC Art. 68 provides for the establishment by ECOSOC of commissions as may be required for the performance of certain of its functions, among which the economic and social questions and the promotion of human rights are particularly underlined. In the exercise of this function the council established a considerable number of Commissions and in addition also further subsidiary organs in accordance with Art. 7 (2). Nine functional commissions as well as five regional commissions have been established as commissions in the strict sense of Art. 68. To be clearly distinguished from the subsidiary bodies of ECOSOC are the Specialized Agencies and the relatively autonomous special programs and

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special funds of the UN. The council receives reports from Specialized Agencies on the basis of special relationship agreements, concluded with them according to Art. 63, and from recognized programs and funds on the basis of the relevant founding instruments. The following most important groups of subsidiary organs should be mentioned: Functional Commissions: • Commission on Human Rights (CHR): as far as the volume of the matters falling within the competence of the Commission and also its subsidiary organs is concerned, the Commission is to be considered the most important subsidiary organ of ECOSOC; it acts as institutional Center of the entire human rights system of the UN. (See infra Strohal.) • Commission on the Status of Women (CSW): most important body of the UN dealing with questions concerning the advancement of women. (See infra Worgetter.) • The two functional commissions which are located in Vienna, the Commission on Narcotic Drugs (CND) and the Commission on Crime Prevention and Criminal Justice (CCPJ) deal with an area of ever increasing significance given the mounting requirements for coordination and codification of international instruments in these fields. (See infra Mayrhofer-Griinbiihel.) Five additional Commissions deal with aspects of development: 9 Commission on Sustainable Development (CSD). (See infra Loibl.) • Commission on Social Development (CSocD). • Commission on Science and Technology for Development (CSTD). (See infra Glanzer.) • Commission on Population and Development (CPD). (See infra FreudenschuB-Reichl.) • Statistical Commission. Regional commissions: • Economic Commissions for Europe (ECE), for Africa (ECA), for Latin America and the Caribbean (ECLAC) as well as the two Economic and Social Commissions for Asia and the Pacific (ESCAP) and for Western Asia (ESCWA). (See infra Glanzer.) The Commissions as well as the subsidiary bodies established by them constitute the regional centers for the economic, social and technical activities of the UN. They have elaborated numerous instruments which concern the daily life of people such as inter alia technical

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standards, traffic rules and traffic signs, matters concerning public transport and regional energy policy. They belong to the most efficient institutions of the UN for the development of the well being and standard of living in the Member States.

5. The Trusteeship Council a) Legal basis Chapter XIII of the UN Charter (Art. 86-91) contain rules regarding institutional aspects of the Trusteeship Council (TC); Chapter XII (Art. 75-85) is regulating the International Trusteeship System as a basis for the activities of the TC; Chapter XI defines the obligations of the Member States vis-a-vis the non-sovereign territories. Further provisions are contained in Art. 7, 15, 16, 18, 96 (2), 98 and 101(2). b) Historical significance On 1 October 1994 the last remaining Trusteeship territory, the island republic of Palau, was granted independence. This act terminated the last existing trusteeship agreement. The trusteeship system of the UN, which represents a continuation of the system of mandates under the League of Nations, has thus come to an end. This also constituted the implementation of the last actual function of the TC under the Charter. According to its rules of procedure, which have been revised for the last time in 1994, the TC shall also meet in the future if circumstances so require. Its significance as principal organ of the UN has, however, been lost. Recently, some initiatives within the framework of the GA have envisaged a transformation of the TC and an assignment of new functions to it. These efforts, so far, have not led to any concrete results. The TC had achieved substantial relevance as administrator of the Trusteeship System particularly during the first two decades of the UN's existence. It should, however, be noted that the TC, according to Art. 87 under the authority of the GA, has only assumed certain functions in connection with the administration of the Trusteeship System and the trusteeship agreements concluded under Art. 79 UNC. The following territories have been included in the system: • the mandate territories under the League of Nations, which existed at the time of the entering into force of the Charter (originally 11 territories); • territories, which have been separated from the enemy states as a consequence of World War II (Somalia);

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• territories, which were to be voluntarily submitted to the Trusteeship system (did not achieve any significance in practice). The functions of the TC under the International Trusteeship System are to be distinguished from the process of de-colonization. The latter is based on Chapter XI of the UN Charter and the obligations for the Member States contained in it. The GA (Fourth Committee) has carried out the functions relating to this Chapter. The process of de-colonization, based on the Declaration on the Granting of Independence to colonial countries and peoples of 14 December 1960, has been practically completed as well.

6. The Secretariat a) Legal basis Chapter XV of the UN Charter (Art. 97-101), further Art. 7 (organs of the UN), Art. 12 (obligation of the UN-SG to report on questions concerning international peace and security), Art. 20 (calling of extraordinary sessions of the GA by the UN-SG), Art. 73 lit. e (functions relating to trusteeship territories), Art. 102 (registration of treaties), Art. 105 (privileges and immunities of the staff members of the Secretariat), Art. 110 (information on ratification of the Charter). In addition, the GA has, in accordance with Art. 101 (1), to adopt regulations for the appointment of staff members of the Secretariat. In practice Staff Rules have been established on the basis of Staff Regulations, which have been adopted by the GA. Later, these rules have been repeatedly adapted. b) General remarks According to Art. 79, "the Secretariat" is a further principal organ of the UN. It is composed of the UN-SG and the necessary staff. Thus, the UN-SG is formally part of "the Secretariat" and represents the top of its hierarchy. Art. 97 expressly attributes to the UN-SG the function "chief administrative officer" of the UN organization. The Charter is, however, not sufficiently clear on the relationship between the Secretariat and the UN-SG. Since the UN-SG is on the one hand part of the Secretariat and chief administrative officer of the organization and since the Secretariat acts, on the other hand, as Office of the UN-SG in the discharge of his functions, in practice the UN-SG and the Secretariat cannot be separated from each other. Furthermore, given the monocratic structure of the Secretariat with the UN-SG at its top, it clearly appears that the activities of the Secretariat are falling within the area of responsibility of the UN-SG. The Secretariat is hierarchically structured, i.e. all positions of members of

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the staff derive their powers from the UN-SG and have to report to him. According to Art. 101 (1), the UN-SG appoints members of the staff in accordance with guidelines established by the GA. In 1997, for the first time, a Deputy SecretaryGeneral has been appointed in order to assist the UN-SG in the discharge of his functions and in order to assume a key role for coordination within the entire UN system. The Secretariat structure consists of offices and departments, which are headed by either an Under Secretary-General (USG) or an Assistant Secretary-General (ASG). The Secretariat in the New York Headquarters is presently divided into seven departments, which also assume important steering functions for essential fields of activities of the UN. Among these, the Departments for Political Affairs (DPA) and for Peace-Keeping Operations (DPKO) and the Office of the Coordinator of Humanitarian Affairs (OCHA) should be mentioned. The UN Offices at the other UN Headquarters are also headed by USGs. The offices and departments are subdivided into divisions, services, sections and branches and units, which are headed by directors. The different categories of staff are the directors, professional staff of different ranks and general service staff, again of different ranks. The notion "Secretariat" comprises sectors of the Secretariat in the narrower sense, which are directly subordinate to the UN-SG as well as such units, which service principal organs and subsidiary organs established by them. These sectors of the Secretariat may be seen as the nucleus of the Secretariat. Furthermore, there are units of the Secretariat, which display certain degrees of autonomy towards the UN-SG. The degree of dependence or autonomy is inter alia determined in particular by the question, whether these units are financed through the regular UN budget or by way of voluntary contributions by Member States. If such units belong for instance to the recognized funds (i.e. UNICEF or UNFPA), to special programs (i.e. UNDP, UNDCP, UNEP, WFP) or to secretariats belonging to bodies based on international treaties like the human rights instruments, the Law of the Sea agreements or environmental law treaties, the degree of autonomy may also be determined by the founding instruments and by practice. Also the titles of the chief executives of the different secretarial units may vary considerably (Director General, Director, Executive Secretary, Executive Director, SecretaryGeneral). Altogether the Secretariat, which does not comprise the Specialized Agencies, numbers about 29,000 staff members. The majority of staff members are employed at the main seats of the UN in New York, Geneva, Nairobi and Vienna as well as at a number of other UN seats (The Hague, Bonn, Rome, Paris, etc.) In all developing countries, where several UN bodies with secretarial units and often also Specialized Agencies are active, the UN establishes Resident Coordinators, who are usually heading the local UNDP

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office. They coordinate the activities of the UN "in the field", which gain ever increasing significance. c) Functions of the Secretariat (in the narrow sense) The tasks of the Secretariat in the discharge of its service function are manifold and not determined by the Charter. In practice the service function leave various options for the Secretariat to exert a certain substantial influence on the activities and even decision-making of UN organs. For instance through its participation in the elaboration of information, by presenting its opinion in debates and by its participation in the preparation of reports and draft resolutions the Secretariat, by using its expertise in the matter, may have factual influence on the contents of deliberations and decisions. By advising the chairpersons of conferences or committees and by factually participating in the selection of persons for certain functions, the Secretariat has further possibilities to substantially influence the work of UN bodies. In the discharge of its public information function, which serves either the self-presentation of the UN or particular other intentions, the Secretariat uses increasingly modern media. In the field of communication, the Internet turned out to be a particularly useful instrument. By elaborating, editing and distributing documents, the Secretariat assumes another important role in facilitating the functioning of the UN system. By securing the high quality of the documents and their timely distribution, the Secretariat has a clear and sustained influence also on the substantial quality of the work of the organization. d) Functions of the UN-SG Among the functions assigned to the UN-SG by the Charter (Art. 98) and by the main organs (except the ICJ), functions of political character may be distinguished from functions of administrative character. The tasks, which the UN-SG fulfils in his administrative function, overlap with the functions of the Secretariat in the narrower sense. Among the functions of administrative character the coordination function of the UN-SG not only within the Secretariat but also vis-a-vis the other main organs except the ICJ seems particularly important. In his position as chairman of the Administrative Committee on Co-ordination (ACC), the UN-SG also plays a major role in the coordination between the organs of the UN and the Specialized Agencies. The following additional functions should be mentioned as the most significant among the further administrative functions of the UN-SG: • calling of extraordinary sessions of the GA;

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• • • •

preparation of the sessions and meetings of the GA, the SC and ECOSOC; preparation of the budget of the organization; responsibility for the financial administration; registration and publication of international treaties; in addition the UN-SG assumes also the depository function for a number of essential multilateral conventions; • external legal representation of the UN including the conclusion of treaties; • accreditation of diplomatic representatives of Member States and surveillance over the maintenance of discipline and privileges and immunities of the staff of the Secretariat.

The political functions of the UN-SG are based on Art. 98 and 99. According to Art. 98 the other main organs (except ICJ) may entrust functions to the UN-SG. These organs have increasingly made use of this right. Further specific tasks are assigned to the UN-SG ad personam by the Charter according to Art. 98 or on the basis of special treaty provisions. The right to initiative assigned to the UN-SG according to Art. 99, i.e. the right to bring any matter which in his opinion may threaten the maintenance of international peace and security to the attention of the SC, provides the UN-SG on the basis of the Charter with considerable institutional influence which has contributed to strengthen the political position of the UN-SG vis-a-vis the other main organs of the UN. The UN-SG has in the past deducted from this position also the power to take autonomous measures like observing the international political developments, establishing a political early warning system within the Secretariat, "silent" and preventive diplomacy, offering of good offices or appointing of special envoys and special representatives for certain areas of conflict. The presentation of the annual report on the work of the organization to the GA and the preparation of the GA's agenda provide the UN-SG with further possibilities to influence the activities of the UN as a whole. e) Appointment of the UN-SG Given the significance of his position, the UN-SG is elected according to Art. 97 by the SC and the GA under a procedure consisting of two phases. In the first phase the SC elects a candidate which it recommends to the GA. The GA, in turn, appoints the UN-SG. Thus, none of the two organs has the power to decide alone over a candidate. The election procedure within the SC is subject to the vetopower of the permanent members. Therefore, intensive and confidential consultations among the SC members before any election of a new SG have become a

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well-known ritual. As soon as the SC has recommended a candidate, the GA votes by confidential vote but in public session on the candidate. Although the Charter does not define a term of office of the UN-SG, a period of five years has been established by practice.

7. The International Court of Justice a) Legal basis Chapter XTV of the UN Charter (Art. 92-96); the Statute of the International Court of Justice, which forms an integral part of the UN Charter; the rules of procedure according to Art. 30 of the Statute. b) General remarks The International Court of Justice (ICJ) is the principle judicial organ of the UN. Thus, the ICJ appears as the most far-reaching attempt so far, to realize the century-old idea of a world court. Already the League of Nations, by establishing the Permanent International Court of Justice in 1921, created a judicial organ, which envisaged this idea. Between the start of its activities in 1922 and their termination during the Second World War in 1940, the Permanent Court has acted in 29 cases of litigation and has provided 27 legal opinions. Despite its successful activity and the great relevance of this court for the recognition of international law it could never realize the ideal of a universal intergovernmental judiciary due to the limited membership of the League of Nations. Although there exists no legal continuity between the Permanent International Court and its successor, the ICJ, the founders of the United Nations essentially took over the Statute as well as the rules of procedure of the Permanent Court. A substantial difference between the ICJ and its predecessor consists in the fact, that the ICJ has, at least formally, realized the principle of universality: members of the UN automatically become members of the Statute of the ICJ (Art. 93 (1)), which constitutes an integral part of the Charter. Also States which are members of the UN can become parties to the Statute under conditions determined by the GA upon recommendation of the SC (Art. 93 (2)). Thus Switzerland after accepting the financial obligations as well as the obligation to comply with the decisions of the ICJ (Art. 94), became party to the Statute. According to Art. 35 (2) of the Statute, even non-parties to the Statute may have access to the ICJ under conditions established by the SC in Res. 9 (1946). The ICJ may, on the one hand, decide in a case between states, on the other

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hand, the GA, the SC and other organs of the UN or Specialized Agencies upon authorization by the GA may request an advisory opinion of the ICJ on any legal question (Art. 96). Significant for the authority of the ICJ as an organ for the settlement of disputes is the obligation by Member States contained in Art. 94 to comply with decisions of the court in any case to which it is a party. If one party to a case fails to comply with a decision, the other party may have recourse to the SC, which may make recommendations or decide upon measures in order to give effect to the decision. De facto, this competence of the SC has not gained the intended relevance. Stocktaking of the compliance with decisions of the ICJ shows, as already in the case of the Permanent International Court of justice, a positive balance. Apart from a few exceptions, where judgments by the ICJ have not or only partially been complied with over a longer period of time, all decisions have been implemented or are in the process of implementation. The jurisdiction of the ICJ is not compulsory, i.e. the Member States of the Statute may refer their disputes to the ICJ, but there is no general obligation to do so. Even under the dispute settlement system of the UN (Chapter VI of the Charter), the ICJ does not have exclusive jurisdiction. Art. 33 refers to "judicial settlement" only as one among the means of dispute settlement. Art. 36 (3), however, underlines the role of the ICJ as an instrument for the settlement of disputes, since it suggests that "as a general rule" legal disputes should be referred to the ICJ by the parties. Recommendations of the SC in this regard remained, however, so far the exception (Corfu Channel case). That the ICJ, nevertheless, has since its establishment not attained the kind of significance as international dispute settlement organ which its founders obviously have expected, may have a number of reasons. The judicial dispute settlement among states has not gained the acceptance, which was hoped for under the impression of the horrors of the Second World War. The formalized dispute settlement systems in numerous multilateral conventions, remained, as of today, to a large extend dead letter. Many of the officials, carrying the political responsibility, may be deterred from seeking this form of judicial settlement of disputes, given the length of the proceedings and the fact that the outcome cannot be calculated. Nevertheless, during recent years, a number of new cases (in particular disputes concerning territorial boundaries) have been referred to the ICJ. Since about the middle of the 1990s, so many cases have been referred to the ICJ that a reform of the ICJ in order to cope with the increased workload has been called for. c) Organization and procedure The ICJ consists of 15 independent judges (Art. 2 and 3 ICJ Statute). Its seat is in The Hague. The members are elected by the SC and the GA in separate voting procedures for a period of nine years and may be re-elected (Art. 8-15 ICJ Statute).

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Every three years a third of the members come up for election. The Member States when electing the judges shall take into account personal qualifications of the candidates (Art. 2 and 3 of the Statute), such as independence, impartiality, qualifications and personal integrity. In addition, according to Art. 9 the judges shall represent the main forms of civilization and the principal legal systems of the world. Thus, Asia, Africa and Latin America are presently represented by three judges each, the Western Europe, by four judges, Eastern Europe only by two. This has to be seen inter alia in connection with the fact that the candidates presented by the permanent members of the SC are usually elected or re-elected. In case one of the parties to a legal dispute between states is not represented among the judges, this State may appoint an ad hoc member of the court (Art. 31 of the Statute). On the basis of regulations adopted by the GA according to Art. 30 (2) of the Statute, experts may sit in a case as assessors. The registrar is responsible for the administration of justice. He is the chief executive of the administration of the Court and is to be elected by the court. The procedure is regulated in Chapter III of the Statute and in the Rules of Procedure. It consists of two parts or phases: written proceedings, in which the parties present through the registrar their memorials, counter-memorials and, if necessary, replies or other documents. The written proceedings are followed by oral proceedings, which are held in public, unless decided otherwise. The languages of the court are English and French. After the oral proceeding, the court holds its deliberations in private {in camera) (Art. 54 (3) of the Statute) and publicly announces the judgment. Usually the Court meets in plenary sessions, but it may also, upon request by a party, establish a chamber, a procedure, which was only recently introduced in practice. The first of these chambers, apart from the chamber, which is meeting yearly in accordance with Art. 29 of the Statute for speeding up the proceedings, has only been established in the 1980s. In 1993 the Court established a chamber, consisting of seven judges, for cases dealing with environmental affairs. In half a century's existence, until March 2000 the ICJ passed 69 judgments. 24 cases are currently pending. The litigations concerned inter alia territorial and maritime boundaries, territorial sovereignty, prohibition of the use of force and of intervention into internal affairs, diplomatic relations, hostage taking, asylum, nationality, transit rights, treaty law, economic law and environment. In many of these issues, the ICJ contributed substantially to the consolidation and the progressive development of international law. Less often the court has acted in the exercise of its function as organ competent for giving advisory opinions according to Art. 96. The GA and the SC have the right to request an advisory opinion of the ICJ on any legal question. Other organs

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of the UN and Specialized Agencies may, if authorized by the GA, ask for an advisory opinion on questions arising within the scope of their activities. Proposals for investing also the UN-SG with this right met with the opposition of many states who did not want to disturb the balance among the main organs of the UN by providing the SG with new powers. During the period between 1945 and 2000 the ICJ has been requested in 24 cases by the GA, the SC, ECOSOC, the Committee on the review of judgments by the Administrative Tribunal and by Specialized Agencies (inter alia UNESCO, WHO and IMO) to provide advisory opinions. The advisory opinions often attain a legal significance, which goes well beyond the field of activities of the bodies requesting such opinions. Art. 38 of the Statute contains a conclusive listing of the materials on which the ICJ shall base its decisions, apart from the power to decide a case "ex aequo et bond", if the parties so agree: • international conventions; • international customary law; • the general principles of law recognized by civilized nations; • as subsidiary means and subject to the provision that decisions by the ICJ have binding force only for the parties and in respect of the particular case in question, judicial decisions and teachings of the most highly qualified publicists of the various nations. d) Jurisdiction The jurisdiction of the court is regulated in Chapter II. Only states may be parties

to a case. The jurisdiction for cases of litigation depends on the one hand on the status of the parties to the dispute ("ratione personae"), on the other hand from the subject under dispute ("ratione materiae").

Since neither the Charter nor the Statute has provided for an obligatory jurisdiction, there is no jurisdiction of the court without consent of the parties. Thus a "lien jurisdictionel" (a jurisdictional link) is to be created between the parties in order to establish jurisdiction of the ICJ. The parties may thus establish jurisdiction beforehand by either having recognized the compulsory jurisdiction of the court by special international agreement or by having made a declaration under the so-called optional clause in Art. 36 (2) of the Statute. According to this provision states may declare that they recognize the jurisdiction of the court as compulsory ipso facto and without special agreement in relation to any other State accepting the same obligation. Up to March 2000 over 60 states have made such a declaration.

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The jurisdiction may also be established on the basis of the subject matter under dispute. Thus, the ICJ has jurisdiction over • cases which the parties refer to it; • cases which are falling under its jurisdiction on the basis of international treaties or conventions in force (Art. 36 (1) of the Statute); • matters, which are specially provided for by the Charter: Art. 36 (3) of the Statute, (general reference, does not establish compulsory jurisdiction), further Art. 92, 96, 102, 103 of the UN Charter; • matters listed in Art. 36 (2) of the Statute. If the jurisdiction of the ICJ is disputed, the ICJ settles this dispute by decision (Art. 39 (6)). Such a decision has binding force for the parties and the parties cannot escape a jurisdiction so established by invoking the voluntary character of their recognizing the jurisdiction of the court. If the ICJ is requested to provide an advisory opinion, it may pass such an opinion but it is not obliged to do so (Art. 65 of the Statute). The jurisdiction of the court ratione materiae regarding the giving of an advisory opinion is only limited by the functions and powers of the international bodies requesting such an opinion. If the SC or the GA request an opinion, the jurisdiction of the court based on the subject matter is de facto nearly unlimited given the wide area of functions and powers of these organs. This has been confirmed by the ICJ inter alia in relation to the question of the legality of the threat with or the use of nuclear weapons (July 1996). Thus it is even possible that the interests of one or more states are affected by such advisory opinions without them having the possibility to represent their interests as parties before the court. Advisory opinions do in principle not have binding effect, unless provided for by the founding instruments of these bodies. Advisory opinions asked for to decide a legal dispute between a State and an International Organization according to the Convention on the Law of Treaties between States and International Organizations and between International Organizations are binding as well as advisory opinions on the review of judgments by the UN Administrative Tribunal, which have the legal effect of a judgment of a supreme court. e) The concurring roles of the SC and the ICJ as organ for the settlement of disputes The ICJ always rejected objections to its jurisdiction over disputes on the agenda of the SC (inter alia in the Case Concerning the Diplomatic and Consular Personnel of the US in Teheran, 1980 and in the Nicaragua case, 1984). Thus the SC and the

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ICJ may act on the same dispute at the same time. Both organs, however, will mutually have to take into account in their procedures the activity of the respective other organ.

f) Assessment All things considered, the relevance of the ICJ is not necessarily determined by the mere number of cases decided upon and advisory opinions given. Its significance is rather based on its particular position as "universal" jurisdictional organ and the authority of its jurisdiction flowing from this position. Apart from this "universality" the ICJ constitutes the only international jurisdictional instrument, which has the authority to interpret generally binding international law without restriction to a particular treaty regime and without specialization to a particular scope of activities. It, therefore, possesses considerable weight regarding the determination ("restatement") and progressive development of international law. Thus, the ICJ has given important impulse for the codification and progressive development of the law of the sea, the international law of treaties and the universal environmental law. As in the case of its predecessor, the jurisdiction of the ICJ is an indispensable means for the international legal practice. It influences more or less directly the behavior of states. The importance of the ICJ as instrument for the attainment of the most important principles and objectives of the UN, namely the maintenance of international peace and security, should, therefore, not be underestimated.

8. Other Subsidiary Bodies The principal organs of the UN (i.e. primarily the GA and, under its authority, ECOSOC) have established a number of subsidiary bodies, among which particularly the recognized funds and programs of the UN have assumed a relatively autonomous and central role in the operative field of the UN activities. Furthermore, a number of treaty organs have been established within the framework of multilateral conventions (like conventions on human rights, environment and law of the sea), which report to the principal organs of the UN and which, therefore, are in a certain sense subject to their authority or supervision. Units of the Secretariat often service them. a) Specialized subsidiary bodies - Recognized Funds and Programs of the UN Over the years several institutions have been created as quasi-autonomous specialized subsidiary organs which, given their complex structure, show a character of rather autonomous institutions, although they constitute subsidiary organs to principal organs of the UN. They undertake the essential part of the

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operative activities of the UN, particularly those "in the field". Usually they are financed by voluntary contributions. Only the normal administrative costs are borne by the regular UN budget. Since the specialized subsidiary bodies are covering activities, which fall in their substance under the competence of ECOSOC, they cooperate closely with the council. Although there are no formal criteria for it, a number of funds and programs are specifically classified as "recognized" funds and programs. Among these, the following should be mentioned in particular: • UN Children's Fund (UNICEF): This specialized organ of the UN, which is the oldest and exists since 1946, has already in an early phase concentrated its activities on the developing countries. The fund, which cooperates with a number of Specialized Agencies, is recognized world-wide for its work particularly in the field of health services for children and their mothers, providing drinkable water and hygiene, food, education and child care. In 1965 the work of UNICEF was rewarded with the Nobel Peace Prize. The financing of UNICEF is primarily based on voluntary contributions but also on the successful sale of Christmas cards world-wide. UNICEF maintains numerous field missions in developing countries and is supported, particularly in industrialized countries, through fund raising and public relation activities of the national UNICEF-Committees. (See infra Glanzer.) • The UN Development Program (UNDP): The UNDP surely represents the most significant institution within the system of the UN in the field of development assistance and technical cooperation. Its activities focus on the planning, financing and coordination in the implementation of development projects. In carrying out its functions, UNDP also makes use of the services of other organizations within the UN system. UNDP maintains a world-wide network of 132 country and liaison offices. "Resident Representatives" (ResReps) act as chief executives of these offices and assume increasingly also local coordination functions in relation to other UN representations in the host State. (See infra Glanzer.) • UN Environment Program (UNEP): The creation of this body is a consequence of the conference of Stockholm in 1972, which gained special significance for the entire international environmental cooperation. The GA established it during the same year. More than two decades after its inception, the UNEP governing council adopted the so-called Nairobi Declaration (1997) which made UNEP de facto the most important global authority in the field of environmental cooperation. The governing board of UNEP consists of 58 members, which are elected by the GA for a four-year term of office. The

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organization with its seat in Nairobi gains increasing significance as liaison body to several thousand environmental NGOs all over the world. In the case of UNEP, too, the administrative costs are born by the regular budget of the UN, whereas the program budget (about US$ 100 million) is financed primarily out of voluntary contributions to the United Nations Environment Fund. (See infra Loibl.) • UN International Drug Control Program (UNDCP): This institution which was created in 1990 and is seated in Vienna, serves as a world-wide center for information and expertise in questions of the international drug control. The program maintains a fund and a network of field offices in states and regions with drug problems. (See infra Mayerhofer-Grunbuhel.) • UN Population Fund (UNFPA): The largest fund world-wide to finance population programs in developing countries (family planning, health care and programs for women). (See infra FreudenschuB-Reichel.) • World Food Program (WFP): This program serves as the principal institution of the UN for food aid. Its task is the providing of food in case of emergency relief as well as for areas with a particularly grave food situation. It is financed by voluntary contributions. (See infra Glanzer.) b) Further special institutions of the UN • High Commissioner for Refugees (UNHCR): the GA created the office of the High Commissioner for Refugees in 1951. The High Commissioner for Refugees, usually a person of high international standing and recognition, ensures high visibility for UNHCR. The office, therefore, gained considerable authority vis-a-vis the member governments. In implementing its protection and assistance functions, the work of the office of the High Commissioner makes use of more than 270 field offices in 120 countries. The office belongs to the financially strongest institutions of the entire UN system. The executive committee, consisting of 50 members, acts as governing body of UNHCR. (See infra Homann-Herimberg.) • High Commissioner for Human Rights: As a consequence of the Vienna Human Rights Conference in 1993, the GA established the position of the High Commissioner for Human Rights. The Center for Human Rights in the UN Secretariat in Geneva acts as her institutional basis. The High Commissioner carries the main responsibility for human rights activities of the UN. Given the institutional connection to the UN Secretariat, the High Commissioner is subject to the authority of the UN-SG. The Commissioner is appointed by the UN-SG and the appointment is approved by the GA for a term of office of four years. (See infra Strohal.)

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Conference on Trade and Development (UNCTAD): The world conference for trade and development was established in 1964 as subsidiary organ of the GA. Thus UNCTAD, focusing since its inception on the promotion of international trade as a vehicle for speeding up economic development, has become the leading conference organ of the UN in this field. It consists of the Conference on Trade and Development which, in its plenary, holds its session every four years at a different site, and of the Trade and Development Board which meets once a year. (See infra Glanzer.)

Chapter 2 Main Activities of the United Nations

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The United Nations System for the Peaceful Settlement of International Disputes Hanspeter Neuhold

Literature: Goodrich/Hambro/Simons, Charter of the United Nations: Commentary and Documents (3rd edition, 1969); Northedge/Donelan, International Disputes: The Political Aspects (1971); Neuhold, Internationale Konflikte - verbotene und erlaubte Mittel ihrer Austragung (1977); Economides, La Declaration de Manille sur le reglement pacifique des differends internationaux, AFDI 28 (1982) 613; Sohn, The Security Council's Role in the Settlement of International Disputes, AJIL 78 (1984) 402; Cot/Pellet (eds.), La Charte des Nations Unies (1985); Escher, Friedliche Erledigung von Streitigkeiten nach dem System der Vereinten Nationen (1985); Fisler Damrosch (ed.), The International Court at a Crossroads (1987); Singh, The Role and Record of the International Court of Justice (1989); Merrills, International Dispute Settlement (2nd edition, 1991); United Nations, Handbook on the Peaceful Settlement of Disputes between States (1992); Roberts/Kingsbury (eds.), United Nations, Divided World: The UN's Roles in International Relations (2nd edition, 1993); Rittberger, Internationale Organisationen - Politik und Geschichte (1994); Touval, Why the U.N. Fails, FA 73, No. 5 (September/October 1994) 44; Jennings, The International Court of Justice after Fifty Years, AJIL 89 (1995) 493; Ratner, Image and Reality in the UN's Peaceful Settlement of Disputes, EJIL 6 (1995) 426; Simma (ed.), The Charter of the United Nations: A Commentary (1995); Wolfrum (ed.), United Nations: Law, Policies and Practice (1995); Peck, The United Nations as a Dispute Settlement System: Improving Mechanisms for the Prevention and Resolution of Conflict (1996); Zemanek, The Legal Foundations of the International System: General Course on Public International Law, RdC 266 (1997) 274

1. The Basic Problem The UN is conceived as a comprehensive peace organization. On the one hand, it is charged with maintaining and restoring "negative" peace, i.e. the absence of armed violence. The UN system of collective security established by Chapter VII of the Charter, with the SC as the key organ, is to make sure that this objective is achieved, if necessary through appropriate enforcement action. (See infra FreudenschuB.) On the other hand, the organization is also designed to assure "positive" peace; this type of peace may be defined as the achievement of social justice and the resulting gradual elimination of the main causes of international as well as intrastate conflicts on a global scale. The principal means to accomplish this objective are the reduction of the prosperity gap between rich and poor countries through development cooperation and respect for human rights, more recently also the

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 59-71 . Kluwer Law International. Printed in the Netherlands.

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protection of the environment. Within the framework of the UN Charter, Chapter IX, in particular, deals with the promotion of "positive" peace. Among the main organs of the UN, this task is entrusted, first and foremost, to the ECOSOC. The UN regime for the peaceful settlement of disputes has its place between these two dimensions of peace. International conflicts, which cannot be prevented by dealing with their root causes, have to be solved without resort to armed force. The terms "settlement" or "solution" will be understood in this chapter as the consent of all disputants to an outcome they deem acceptable. The conflicting parties will therefore refrain from further pursuing their initial claims, even if their differences of opinion have not completely disappeared. With its dispute settlement provisions, the Charter also includes a system of cooperative security: All the procedures that are applied and all the measures that are adopted in the context of cooperative security require the consent of all the parties concerned. 2. The Principle of Peaceful Dispute Settlement The peaceful settlement of international disputes is to be found on the other side of the coin on which the prohibition of the threat or use of force is engraved. Since this prohibition cannot exclude the outbreak of international controversies, which have their origin in the continuing scarcity of goods or contradictory values, the conflicting parties must be obligated to seek a non-violent solution. This consequence was already drawn in Art. 2 of the Briand-Kellogg Pact signed in Paris in 1928; in Art. 1 of the Pact, the contracting parties renounced war as an instrument of national policy in their relations with one another. Consequently, one of the purposes of the UN listed in Art. 1 (1) of the Charter is to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. Furthermore, the third principle mentioned in Art. 2 of the Charter imposes on all members the obligation to settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. The wording of these two provisions takes account of central problems which may arise in international relations even in situations where the prohibition of the resort to force is respected. Quite significantly, the references to settlements conforming to justice and international law in Art. 1(1) and to justice in Art. 2 (3) were not yet contained in the draft charter elaborated by the great powers at Dumbarton Oaks in 1944. They were added one year later at the founding conference of the UN in San Francisco at the insistence of small and medium-sized States. These countries also considered the maintenance and restoration of ("negative")

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peace as the main task of the new organization, but not at the price of the imposition of pacific but inequitable solutions on the less powerful parties. The memory of the Western "appeasement" policy vis-a-vis Nazi Germany, in particular the 1938 Munich Agreement as the most dramatic example of such an unjust settlement where the weakest side had to foot the bill for the avoidance of an armed confrontation, was still fresh on the minds of the sponsors of those amendments at the end of the Second World War. The Charter thus indicates that there may be a discrepancy between "negative" and "positive" peace. It also implies that settlements in conformity with international law need not always correspond to considerations of justice. This results not only from Art. 1 (1) but also from the Preamble of the Charter, which calls for conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. Power realities are reflected even more crudely in international than in domestic law, in the sense that the interests of the weaker subjects worthy of protection are inadequately taken into account. This is true both of the norms of treaty and customary international law. The authors of the Charter, however, did not only lay down the principle of the peaceful settlement of disputes in general terms; they also devoted a special Chapter (Chapter VI) to more detailed rules. In addition, numerous other provisions of the constituent treaty of the UN - in particular on the SC, the GA, the ICJ and the SG, as well as on regional arrangements - are also relevant to the implementation of the principle. The modalities of the principle were further specified by GA resolutions, above all the Friendly Relations Declaration of 1970 (annex to Res. 2625 [XXV]), the Manila Declaration on the Peaceful Settlement of International Disputes of 1982 (annex to Res. 37/10) and the Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the UN in this Field of 1988 (annex to Res. 43/51). However, all these documents contained few substantive innovations that went beyond the rules of the Charter. As a rule of universal international law the principle in Art. 2 (3) of the Charter as further defined by the Friendly Relations and Manila Declarations obligates all States - including those very few that do not belong to the organization - to actively seek a peaceful solution to their international disputes. These disputes are, first and foremost, conflicts with other States but also include differences of opinion with other subjects of international law, in particular international organizations and peoples entitled to self-determination. However, there is no duty to achieve a specific result. Such an obligation would run counter to the principle of free consent which in turn results from sovereign

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equality, still the cornerstone of the international legal order. It means that all the States involved in a conflict have to agree both on the settlement method and the substance of the solution - a consent they may also refuse to give. Only a State that consistently obstructs all attempts at peacefully settling a dispute to which it is a party violates the above-mentioned rule.

3. The System of Chapter VI of the Charter: Priority for Settlement Efforts by the Parties Themselves Chapter VI of the Charter on the pacific settlement of disputes, which comprises Art. 33 to 38, is characterized by flexibility and a rather complex structure. This complexity is not matched by the practical relevance of the provisions concerned. In the first place, the settlement of an international dispute is left to the parties themselves. According to Art. 33 (1) of the Charter, the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, therefore, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. It should be noted that Chapter VI is limited to disputes endangering international peace and security. This restriction is evidently designed to avoid burdening the organs of the UN, above all the SC, with conflicts of secondary political significance. The consequences of this approach may be detrimental for a weaker State against which a more powerful adversary refuses to fulfill an international obligation. In such a situation, the stronger party does not exert pressure on the weaker side but merely fails to behave as required by international law; as the less powerful party lacks the means necessary to enforce compliance, it can do little about it. Since such a state of affairs may not be regarded as a danger to international peace and security, Art. 33 would not be applicable. In practice, however, the UN also became involved in this type of conflict, so that the distinction between major and minor disputes had little actual relevance. Art. 33 enumerates the traditional dispute settlement methods, each of which has its advantages and shortcomings. The order in which they are listed follows the criterion of the degree to which the disputants keep or relinquish control over the outcome of their conflict. Incidentally, this enumeration is not complete, because it does not include good offices, a method that has proven its worth in practice. Direct negotiations between the disputants without the participation of any non-party are simple, confidential, flexible and usually the least expensive procedure. Most importantly, a genuine settlement requires the consent of all parties to a solution which they find acceptable. This result can best be achieved

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through mutual concessions at the negotiating table. However, the power relationship between the parties is likely to have its strongest negative impact on face-to-face talks between them without the mitigating involvement of a third party, especially if the stakes of the dispute are high. If this relationship is symmetrical, negotiations are likely to soon lead to a deadlock, because neither party is ready to move toward a compromise. Should one side be clearly more powerful than the other, the weaker party may have to reckon with an inequitable solution that its more powerful opponent will force on it. The possibility of invoking the invalidity of a treaty concluded under coercion is not really helpful in this context. Not only are there differences of opinion on whether only the threat or use of armed force or also the exertion of economic or political pressure that is often equally effective should have this far-reaching effect on the validity of an international agreement. Moreover, to invoke coercion may be counterproductive for the less powerful side; for regardless of the legal situation, it may result in further disadvantages inflicted by the stronger on the weaker party. Third parties that offer their good offices (not mentioned in Art. 33) try to facilitate negotiations between the conflicting parties by placing communication channels or conference facilities at their disposal. The third party is not involved, however, in the settlement process itself. Good offices may pave the way to an eventual pacific solution, especially if no official relations exist between the disputants (any more) and each of them hesitates to take the first step toward a rapprochement for fear that the other side may interpret such a move as a sign of weakness and therefore adopt an even more intransigent stance. Another third-party contribution also not included in Art. 33 is the issuance of an early warning which, for example, is one of the functions of the High Commissioner on National Minorities of the OSCE and the new Policy Planning and Early Warning Unit of the EU set up by the Amsterdam Treaty. Such a warning should help to reduce tensions at an early stage before they escalate to a full-blown conflict. An enquiry is designed to clarify controversial facts without passing judgment on the legal aspects of the dispute. The decision on the consequences they wish to draw from the results of an investigation rests with the parties to the conflict. An enquiry may also contribute to the peaceful settlement of a dispute, although most international conflicts are not only caused by disagreements on verifiable facts. Mediation differs from good offices in that the third party is actively involved in the negotiations between the conflicting parties by commenting on their positions and/or submitting proposals of its own. Mediation may be performed by States, international organizations or eminent private persons. A mediator can offer useful intellectual, political and material contributions to an eventual agreement between the disputants. He may come up with a solution overlooked by the parties

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"in the heat of the controversy". For reasons of prestige and trust, one and the same proposal is more acceptable if it is presented by the mediator than if it is made by the other conflicting party. What from a formalistic legal point of view may appear as the shortcomings of mediation could turn out irrelevant or even prove to be additional assets. Apowerful mediator may compensate the fact that his proposal is not legally binding by throwing in his political weight and adopting a carrot-and-stick policy vis-a-vis the disputants: They are offered incentives if they accept and threatened with negative consequences if they reject the suggested solution. The possibility of introducing proposals that deviate from the law binding on the conflicting parties may lead to a truly satisfactory settlement from which each side benefits. That is why Far Eastern and African civilizations prefer an agreement facilitated by mediation which all parties are able to consider a successful outcome to a decision by a court. In the latter type of procedure, the litigant who has the law on his side wins, whereas the other party leaves the courtroom empty-handed. Quite significantly, some complex and politically explosive conflicts - for instance, in the Middle East and the former Yugoslavia - were settled at least to some extent with the help of mediators and not by international courts and arbitral tribunals. A conciliation procedure may be described as an institutionalized combination of enquiry and mediation. It emerged fairly late, with a certain intensification of international relations at the beginning of the 20th century, and was given a more important role in recent years. For instance, in 1995 the GA adopted the UN Model Rules for the Conciliation of Disputes between States (annex to Res. 50/50). International arbitration and adjudication differ from the above-mentioned "diplomatic" settlement methods in two respects: • an arbitral award or judgment is legally binding on the litigants; • the decision is based on international law as it exists between the parties. Like the other methods, the two "judicial" procedures also require the consent of all the parties to the dispute. The jurisdiction of an international court or arbitral tribunal may be recognized after the outbreak of a concrete dispute or also, to different extents, in advance for the decision of future cases. The two similarities between adjudication and arbitration, which is characterized, as a rule, by greater flexibility, outweigh the differences. The lines between the two methods are often blurred in practice, for example with regard to the composition of a court and tribunal or the duration of proceedings before them. According to Art. 33 (1) of the Charter, conflicting parties are under no obligation to apply all the means enumerated in this provision, or to resort to them in a given order. None of these methods has priority neither negotiation mentioned there

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first, as the former "socialist" States had claimed, nor international adjudication and arbitration for which Western States declare a certain preference. All the parties have to do is to make a serious attempt in good faith at reaching an agreed settlement before the dispute is dealt with at the UN level.

4. The Security Council as an Institution for the Peaceful Settlement of Disputes The central role at the second stage of the settlement regime of Chapter VI of the Charter, at which UN organs become involved, is played by the SC. It acts as a permanently available conciliation body that may conduct inquiries and submit proposals for a solution. The Council's powers under Chapter VI are limited in principle to recommendations that have no legally binding effect on the conflicting parties. The SC may act on its own initiative, ex officio (Arts. 34 and 36 of the Charter), or at the request not only of the disputants but also of UN Member States not directly involved in the conflict. Under Art. 35 (1) of the Charter, any member of the UN may indeed bring any dispute, or any situation of the nature referred to in Art. 34, to the attention of the SC or the GA. Thus the "private law structure" of traditional international law is replaced by a different approach in Chapter VI: According to it, international disputes do not only regard the conflicting parties themselves but the other members of the world organization as well, even below the threshold of the activation of the system of collective security under Chapter VII. In Art. 34 a distinction is made, in the context of an investigation by the SC, between a dispute and a situation which might lead to international friction or give rise to a dispute. The parties to a dispute have already formulated their opposing positions. The broader notion of a situation refers to an early phase, to a conflict in statu nascendi, where the parties have not yet taken a clear-cut stance and have not yet articulated their claims. However, this distinction is of little practical relevance. The SC used both terms, for example, in Res. 479 (1980) on the Gulf conflict between Iran and Iraq. Moreover, even a State that does not belong to the UN may bring a dispute to the attention of the SC or the GA by virtue of Art. 35 (2) of the Charter, provided two conditions are met: The non-Member State must itself be a party to the dispute and has to accept in advance, for the purposes of the dispute, the obligations of pacific settlement in the Charter. UN members that were not parties to a dispute frequently resorted to the "actio popularis" provided for in Art. 35 (1) and turned to the Council. By contrast, the provision in Art. 35 (2) in favor of non-UN members acquired little significance in

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political reality, because the UN reached the goal of (almost) universal membership relatively soon. Within the framework of Chapter VI the SC has at its disposal an "escalation ladder" composed of several "rungs" of wielding influence on the conflicting parties in order to move them toward a pacific solution. As already pointed out, however, the pressure exerted by the Council in the context of this Chapter is restricted to non-binding recommendations. Even the mere decision by the SC to place a conflict on its agenda ought not to be simply ignored by the parties, because their dispute thereby receives increased publicity. Most governments cannot afford to just shrug off negative coverage by the international media of their behavior in a given conflict. On the next rung of the ladder the parties are offered the opportunity to present their positions to the SC. They can thereby ascertain whether and to what extent their arguments are supported or rejected by the Council members and other UN Member States invited, in accordance with Art. 31 of the Charter, by the SC to participate, without vote, in the discussion, because in the Council's opinion their interests are specially affected. Public debates in the SC may, however, make subsequent concessions by a conflicting party more difficult, since it may regard such a move as an unacceptable loss of face. That is why after the first statements by the disputants Council meetings are frequently adjourned. This move should permit the President of the SC or other particularly qualified members to enter into informal contacts with the conflicting parties and sound out the possibilities for a mutually acceptable solution. Under Art. 34 of the Charter, the Council may investigate any dispute or potentially explosive situation as referred to above in order to determine whether their continuance is likely to endanger the maintenance of international peace and security. The SC is thus in a position to clarify controversial facts on its own initiative and at any stage of a dispute. Furthermore, the principle of free choice of the settlement methods by the parties themselves, which in general underlies Chapter VI, does not apply to Art. 34. As a result, the Council does not need the consent of the conflicting parties to the launching of an inquiry; what is more, the parties are under an obligation to cooperate with the investigators appointed by the SC, because the Council must be able to decide whether the continuance of a dispute is likely to endanger the maintenance of international peace and security before exercising its powers under Art. 37 (2) of the Charter. In practice, however, the SC conducted investigations under Art. 34 only rarely. For a decision under this provision is also subject to the "veto" of the permanent members according to the "chain-of-events" concept. The Council therefore undertook most inquiries without reference to Art. 34. The establishment by the

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SC of subsidiary organs under Art. 29 that may also be charged with investigation tasks is a procedural matter to which the "veto" does not apply. The SC also requested the SG of the organization to undertake inquiries. Finally, the Council may also express its views on the settlement of a dispute in resolutions in which it can again dose to varying degrees its pressure on the parties to reach a solution. The SC may limit itself to stating its concern about and its interest in the pacific settlement of a conflict and call on the parties to keep it informed about their efforts in this regard. This is a signal to the parties that they will have to explain their future behavior in the conflict to the Council. This message should, in particular, prevent the more powerful from imposing an inequitable solution on the weaker side. The same purpose is served by a decision of the SC to keep a dispute on its agenda. The removal of the issue from the agenda must be decided by the Council. A joint request by the parties pointing to a settlement to which they have agreed is not sufficient. Under Art. 33 (2) of the Charter, the SC shall, when it deems necessary, call upon the parties to settle their dispute by the means mentioned in Art. 33 (1), without specifying in its resolution the method which it considers most conducive to a pacific solution. The Council may, however, at any stage of a dispute referred to in Art. 33 (1) or of a situation of like nature, recommend appropriate procedures or methods of adjustment on the basis of Art. 36 (1) of the Charter. Such a recommendation does not require a request by the conflicting parties or other UN members but may be adopted ex officio. In making such recommendations, the SC should also take into consideration that legal disputes should as a general rule be referred by the parties to the ICJ (Art. 36 [3] of the Charter). However, the Council has so far only once recommended recourse to the World Court to conflicting parties, namely to Albania and the United Kingdom in the Corfu Channel case in Res. 22 (1947). Legal disputes concern the application or interpretation of international law to which the parties are bound. By contrast, the parties to a "political" dispute or "conflict of interests" demand a change in the existing or the creation of new law or do not raise legal issues at all. The reason why this distinction is criticized is the discretion it leaves to the parties. Whether one and the same conflict is addressed as a legal or political dispute depends on the formulation of their claims by the parties. Moreover, a legal dispute also includes political aspects and involves interests. Under Art. 37 (2) of the Charter the SC not only has the power but is under an obligation ("shall") to recommend not only procedures or methods of adjustment but also such terms of settlement as it may consider appropriate, that is the substance of the solution, of a major dispute as defined in Art. 33, provided two preconditions are fulfilled: Firstly, the conflicting parties must have failed to settle

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their dispute by the means indicated in Art. 33; they have then to submit the conflict to the SC (Art. 37 [1]). Secondly, the Council must conclude that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security. Art. 37 (1) thus constitutes another exception to the principle of the free choice of settlement methods by the parties. Finally, according to Art. 38 of the Charter, the SC may, without prejudice to the provisions of Arts. 33 to 37, make recommendations to the parties to any dispute with a view to its pacific settlement if all the parties so request. However, under Art. 38, the Council is under no obligation to adopt such a recommendation. It stands to reason that a SC recommendation which proposes not just a certain settlement procedure but contains concrete terms for a solution exerts the strongest pressure on the parties. If the Council opts for such a substantive resolution, it is faced with a dilemma in case one of the parties has committed a manifest breach of international law. Should the Council propose a solution in accordance with the rules of international law, it runs the risk of being perceived as partial by the party that perpetrated the violation. This party is likely to reject the proposal and to refuse to cooperate with the UN. The alternative for the Council would be to act as a "neutral" mediator and aim at a settlement acceptable to all parties irrespective of the legal situation. This approach would undermine, however, the common values and rules of behavior of the international community. In practice, the SC circumvents the complexity of the system under Chapter VI by not invoking any specific provision of the Charter when acting as an organ for the peaceful settlement of disputes. Hence it remains unclear on the basis of which specific Article the Council takes concrete action. In addition to the SC, another UN organ that plays a significant part in the area of pacific dispute settlement is the GA. Its role is founded on Arts. 10 to 14 and Art. 35. As in the context of collective security, however, the SC has priority in this field, too, by virtue of Art. 12(1): While the Council is exercising in respect of any dispute or situation the functions assigned to it in the Charter, the plenary organ of the UN may not make any recommendation with regard to that dispute or situation unless the SC so requests. When trying to help to bring about a peaceful solution of a conflict, the GA applies the same means as the SC. In particular, recommendations adopted by the Assembly may also range from general statements to specific proposals on the contents of a settlement, as, for instance, in GA Res. 181 (II) on the issue of Palestine. From the point of view of the disputants, the GA, to which, for example, Austria submitted its conflict with Italy over South Tyrol in 1960, has some advantages over the SC: It offers a larger forum and thereby a wider public that can be reached; moreover, the Assembly does not sit under the

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Damocles' sword of the "veto" of the "Big Five". On the other hand, the attractiveness of the SC as a dispute settlement organ lies in its permanent availability and its broader powers. The contributions of the SG to the pacific solution of conflicts are not restricted to ringing the "alarm bell" entrusted to him by Art. 99 of the Charter, a tool, by the way, which he uses very rarely in practice. Under this provision, he may bring to the attention of the Council any matter which in his opinion may threaten the maintenance of international peace and security. Of greater practical importance was the performance of functions conferred on the SG by the SC and the GA under Art. 98 of the Charter, for which the chief administrative officer of the UN in turn appointed special representatives. These tasks included not only good offices, investigations and mediation but also the implementation of peace-keeping operations. (See infra Sucharipa-Behrmann.) Furthermore, the SG also took action in the field of dispute settlement without any mandate from another UN organ in line with the "vacuum theory". The UN system also leaves room for the pacific solution of conflicts within a regional framework. In accordance with Art. 52 (2) of the Charter, UN members that belong to regional arrangements or agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the SC. The Council shall encourage such regional endeavors, although this provision in no way impairs the application of Arts. 34 and 35 (Art. 52 [4]). The higher degree of integration among the States of a given region as compared with the global level permits the development of regional peaceful settlement regimes that are more effective than the universal UN system. The most impressive example is provided by the EC/EU. Moreover, the participating States of the OSCE, which was declared a regional arrangement in 1992, have at their disposal various so-called mechanisms and a Convention on Conciliation and Arbitration. The practical relevance of these instruments has, however, been negligible so far.

3. The Record of the United Nations in the Area of the Peaceful Settlement of Disputes The performance of the World Organization both in the fields of "negative" and "positive" peace, of collective as well as cooperative security, has been disappointing so far. The prosperity gap and the resulting conflict potential all over the world has hardly been reduced; despite progress in the area of human rights, massive violations of these rights are still being committed; only the first steps have been taken in order to defuse various ecological bombs that keep ticking. Although the

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principal cause of the paralysis of the system of collective security has disappeared with the end of the East-West conflict, the effectiveness of this system still leaves a great deal to be desired; it has been seriously eroded by the resort to armed force by Western States against Iraq and the Federal Republic of Yugoslavia without authorization by the SC. Nor can the balance of the UN in the context of Chapter VI of the Charter, the "neglected step-child of the Charter" (Steven R. Ratner), be called satisfactory, especially if one does not try to squeeze peace-keeping operations, a successful innovation not mentioned in the Charter, into Chapter VI. It might be pointed out in favor of this inclusion that peace-keeping missions also need the consent of all the parties concerned and therefore fall into the category of cooperative security tasks. Yet a more convincing legal basis for peace-keeping by the UN should be sought outside the Procrustes' bed of any specific Article or Chapter of the Charter. (See infra Sucharipa-Behrmann.) In any case, a positive assessment is hardly possible in view of the fact that many international conflicts remained unsolved for a long time or are still not settled and that the UN was frequently unable to prevent the use offeree. The main reason for this negative record is not the flexibility of the regime established by Chapter VI of the Charter, which in a first phase leaves the principal responsibility for settling a dispute to the parties. Nor is the disenchanting performance due to the fact that under Chapter VI the SC may only address non-binding resolutions to the conflicting parties. The permanent Council members, in particular, could combine such recommendations with strong factual pressure. The disputants should therefore be well advised to comply with the proposals of the SC, even if this means that they modify their positions and make concessions to the other side. The SC may - although this option is somewhat controversial - regard at least a flat rejection of its recommendation for a peaceful solution as a threat to the peace under Art. 39 of the Charter and consequently take enforcement action within the framework of Chapter VII. However, such a crossing of the threshold from cooperative to collective security is rather unlikely. It may be one thing for a member of the SC, especially a permanent one, to vote for a resolution under Chapter VI in which a conflicting party, with which this Council member, in general, on friendly terms, is criticized. It is quite another thing for the same SC member to agree that its traditional friend is guilty of a threat to the peace by refusing to implement a recommendation adopted by the Council and that sanctions ought therefore to be applied against this State. This readiness may, moreover, also be quite low among those members of the SC whose relations with the prospective target State against which enforcement action is considered are strained, because such action could lead to an escalation of the

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conflict and also entail costs and disadvantages for whose who apply the sanctions. In this connection, it should be noted that the contributions of the ICJ to the settlement of international disputes have so far also been rather modest. This assessment applies both to the number of the disputes decided by the World Court and the political importance of these cases. States still hesitate to recognize the jurisdiction of the ICJ, and even if they do, to submit actual disputes to it. This reluctance is due to political and ideological reasons, but also to the basic approach to the solution of conflicts in non-Western societies that oppose the zero-sum game procedure of arbitration and adjudication. On the positive side, the ICJ has made noteworthy contributions to the clarification and development of international law through its judgments and advisory opinions. The lack of the necessary political will is thus also the main weakness in the realm of cooperative security, in particular of the system for the peaceful settlement of disputes of the UN. Conflicting parties show little inclination to make effective use of the regime at their disposal. Similarly, the members of the SC are reluctant to fully exploit the possibilities available to them under Chapter VI, so that conflicts could successfully be dealt with already at this level. In this respect, despite some progress, unfortunately continuity prevails, although significant changes have taken place in many areas of international relations. Furthermore, the UN as an interState organization has to grapple with inherent difficulties in coping with many of today's security problems that are of a domestic and non-military nature and in which non-governmental actors are also involved.

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Collective Security Helmut

Freudenschufi

Literature: Franck, General Course on Public International Law, Recueil des Cours, Vol. 240 (1993-III); Frowein, Articles 39-43, in Simma (ed.), The Charter of the United Nations (1994) 605; Freudenschufi, Between Unilateralism and Collective Security: Authorizations of the Use of Force by the UN Security Council, 5 EJIL (1994), 492; Delbrueck (ed.), Allocation of Law Enforcement Authority in the International System (1995); Doehring, Collective Security, in Wolfrum (ed.), UN: Law, Policies and Practice, Vol 1 (1995), 110; Glennon, Sovereignty and Community after Haiti: Rethinking the Collective Use of Force, AJIL 89 (1995), 70; Koskenniemi, The Place of Law in Collective Security, Michigan JIL 17(1996), 455; Pugh (ed.), The UN, Peace and Force (1997); Walter, Security Council Control over Regional Action, Max Planck Yearbook of the UN Law 1 (1997), 131; Oesterdahl, Threat to the Peace. The Interpretation by the Security Council of Art. 39 of the Charter (1998); Lobel/Ratner, Bypassing the Security Council: Ambiguous Authorizations to use force, cease-fires and the Iraqi Inspection regime , AJIL 93 (1999) 124.

1. Introduction The realization that many security policy challenges may - under certain circumstances - better be met by international agreements than by individual countries acting on their own is hardly new: Defensive alliances of centuries past as legal instruments of the political principle of balance of power testify to that. Collective security became, however, an institutionalized system only with the creation of the League of Nations in 1919. It was further developed in the UN Charter of 1945. Its main characteristic is that it is "inward-looking", i.e. that all members agree beforehand to act collectively against any member committing a grave violation of agreed rules of behavior. The determination that such a violation has occurred, the decision on collective countermeasures and their implementation can be made in a central (through a joint organ), decentralized (by each member) or mixed fashion. To be distinguished from such a system of collective security are measures of cooperative security (conflict prevention, peaceful settlement of disputes) and collective defense, either through ad hoc agreements or previously concluded military alliances. The latter are "outward-looking", i.e. directed against nonmembers. The right of individual or collective self-defense pursuant to Art. 51 UN Charter is contingent upon an "armed attack" and exists only "until the SC has taken measures necessary to maintain international peace and security".

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 73-8 ©2001 KluwerLaw International. Printed in the Netherlands.

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Contrary to this wording of the Charter, State practice and some scholars have interpreted the right of self-defense extensively: in case of any use of armed force, border incidents, preventive measures against allegedly imminent attacks, for the protection of the life and property of citizens abroad, even for safeguarding economic rights abroad. This contradictory State practice has impeded the right of self-defense in the narrow sense of Art. 51 UN Charter to become customary international law. The second restriction contained in Art. 51 ("until the SC ... has taken measures") has only gained some relevance during the Gulf conflict in 1990/91: When the US and some other allies of Kuwait initially claimed the right of collective self-defense and the SC had adopted non-military sanctions, critics argued that the SC had thus "taken measures necessary" under Art. 51 and thereby invalidated any claim of self-defense. This argument was, however, soon rendered moot at least in practical and political terms by the adoption of SC Res. 978(1990) authorizing the use of all necessary means to restore peace and security in the area. A functioning or effective system of collective security can be described as a compromise between intolerable international anarchy and an unreachable or undesirable "World State" - sufficiently different from anarchy to be useful, but also sufficiently distant from a "World State" to be feasible.

2. Requirements for a Functioning System of Collective Security It is useful to distinguish between objective and subjective requirements. Objective requirements of such a system are: • universality of membership, especially including the great powers; • indivisibility of peace; • a certain division of military and other sources of power; • the prohibition of the use of force coupled with the obligation of mutual support; and • the existence of a mechanism to impose sanctions, including the duty to initiate collective action. Subjective requirements are: • a high degree of international solidarity or consensus based on shared values or at least interests; • the readiness to run risks and even accept sacrifices; • the acceptance of impartiality in applying the system; and • the renunciation of a large part of national freedom of maneuver or autonomy.

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3. The System of Collective Security of the UN in Theory (Chapter VII UN Charter) The failure of the League of Nations - apart from the lack of the subjective requirements of a system of collective security - was caused by the lack of universality, the absence of a prohibition of the use of force and the unavailability of an effective sanction mechanism. The UN Charter attempted to correct these deficiencies and to fulfill the objective requirements of an effective system of collective security. At least on paper some improvements were indeed made: • universality of membership to a large extent; • comprehensive prohibition of the use of force (Art. 2 (4)); • obligation to assist in carrying out decisions of the SC (Art. 2 (5), Art. 25 and 48); • possibility of measures not only against acts of aggression but also against any threat to the peace (Art. 39); • creation of a central mechanism: The SC determines the existence of a basis for sanctions and decides whether to apply non-military (Art. 41) or military (Art. 42) measures to be carried out by some or all Member States (Art. 48); • creation of a quasi-monopoly of the SC in issues relating to the use of force. Even on paper, however, this system of collective security contains several restrictions and limitations, which have the potential to affect negatively its effectiveness. a) The discretionary powers of the SC Because of the vagueness of Chapter VII in general and of Art. 39 in particular, the SC has practically unlimited discretionary powers to decide whether to act at all, whether one of the constituent facts of Art. 39 is present, and whether to take (or authorize) any measures against the offender. The same is true of course with regard to the freedom to exceed its sphere of competence. Apart from the loss of credibility, acceptability and authority - which are obviously political criteria - there are no legal consequences for inaction (or overreaction) of the SC. The way the SC behaves (or is perceived to behave) is, however, of paramount importance for the effectiveness of collective security. b) The veto power of the permanent members of the SC Pursuant to Art. 27 (3), all non-procedural decisions of the SC require an affirmative vote of nine members including the concurring votes of the permanent members

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(in practice their abstention suffices). This means that collective security measures are from the outset limited to situations where no permanent member is involved. This "immunity" of the permanent members was the price to pay for the participation of the great powers in the UN. Peace - and conflicts - remained thereby divisible. c) The need for special agreements under Art. 43 All Member States undertake to make available to the SC armed forces, assistance and facilities in accordance with special agreements. Furthermore, members shall hold immediately available national airforce contingents for combined international enforcement action, whose strength shall be determined by the SC within the limits laid down in the special agreements (Art. 45). This means a significant weakening of the duty of members to provide assistance. Indeed, efforts to arrive at the elaboration of principles governing such special agreements foundered in 1948 due to the lack of mutual trust among permanent members. No such special agreements have been concluded to date. d) Lack of a permanent international force As has just been shown, the maximum achievable would have been national contingents made available to the SC. The Military Staff Committee would, however, have been responsible under the SC for the strategic direction of any armed forces placed at the disposal of the SC (Art. 47). Questions relating to the command of such forces should have been worked out subsequently - but of course never were since there never were any such forces. e) Lack of disarmament obligations If a certain division of military power was a requirement for a functioning system of collective security because collective action against a super-power would be suicidal and could therefore not be expected, then the lack of disarmament obligations would be an element of imperfection of this system. However, the veto power of the permanent members already ensure that no such collective action would be taken against any one of them.

4. The Older Practice of Applying Chapter VII As we have just seen the UN Charter - despite improvements over the League of Nations - suffers from severe limitations placed on the objective requirements of an effective system of collective security. It might have nonetheless worked if its subjective requirements had been met. Due to the lack of trust during the Cold War

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no consensus on the application of Chapter VII was possible. Even the following three exceptional cases prove this. a) Korea In response to North Korea's attack on the South in 1950 the SC, by SC Res. 82, 83 and 84, determined the existence of a breach of international peace, invited Member States to provide military forces and other assistance for a unified command under the US and authorized the use of the UN flag. This became only possible because the Soviet Union boycotted the SC at the time to protest the non-admission of the PR of China to the UN. Since the West could not count on this situation to be repeated but, at the time, was still able to command a comfortable majority in the GA, the so-called Uniting for Peace resolution was adopted (GA Res. 377(V)) which stated the subsidiary competence of the GA to recommend collective measures including the use of military force in case of a paralysis of the SC due to a veto. In practice, however, no such recommendations were ever adopted. b) Rhodesia After the Unilateral Declaration of Independence by the Ian Smith regime, the SC determined a threat to international peace (Res. 217(1965)) and authorized the UK to prevent oil shipments (Res. 221(1966)). Later on comprehensive economic sanctions were imposed (Res. 236(1966)). c) South Africa Since North Korea and Southern Rhodesia were not members of the UN, the arms embargo imposed on South Africa by SC Res. 418 (1977) was the first case of sanctions taken against a Member State. In determining the existence of a threat to international peace, the SC cited both internal (human rights violations) and external (attacks on neighboring States) actions of the apartheid regime. While the latter two situations were placed outside the East-West confrontation and North Korea was a special case (apart from the absence of the USSR from the SC, it was debatable whether the SC Resolutions were not merely a reaffirmation of the right of collective self-defense) there were, until 1990, no more decisions under Chapter VII. On the contrary: Close to 300 vetoes, out of which some 100 concerned questions of international peace and security (e.g. the Middle East, IndiaPakistan, Hungary, Cyprus, Afghanistan, Falklands), prevented the adoption of any such SC resolution. In cases where the interests of great powers permitted cooperation even during the Cold War, peace-keeping operations were established in lieu of measures

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under Chapter VII. These operations have no explicit basis in the Charter and are often referred to as Chapter VI Vi-operations.

4. The Practice of Applying Chapter VII since 1990 After long years of imposed inactivity, the UN began to contribute to the resolution of conflicts (Iran-Iraq, Afghanistan, Cambodia, and Namibia) in 1987/88. In 1990/ 91, in the aftermath of the Iraqi invasion of Kuwait, the SC gained unprecedented visibility. This led to exaggerated hopes - and fears. Some saw a new era dawning: The system of collective security as envisaged by the Founding Fathers of the UN was at long last coming into existence, free from the shackles of the Cold War. After 1991 it became, for a while, almost a foreign policy reflex to seize the SC with all kinds of matters large or small. The SC continued to expand its role (or, rather, was allowed to do so); both with regard to reasons for getting involved and measures taken. Others criticized this development: Cries of "double standards" were heard, fears of "a new colonialism in humanitarian disguise" were expressed and the legitimacy of such far-reaching decisions of the SC in its present, unrepresentative composition was questioned. Some scholars even argued for judicial review of SC decisions by the ICJ. As of late the pendulum has swung in the other direction: The SC is again being increasingly marginalized. The US is accused of discovering its role as the only "hyper-power", of making little effort to secure agreement in the Council and of only using it selectively to get multilateral cover. In late 1998 on Iraq and in 1999 on Kosovo the SC has been sidelined. It is instructive to look in detail how these developments have come about.

a) Extensive interpretation of'threat to the peace" according to Art. 39 The prohibition of intervention in matters which are essentially within the domestic jurisdiction (Art. 2 (7)) does not apply to enforcement action under Chapter VII, initiated after the SC has determined the existence of a threat to international peace and security. The most important examples for the extensive interpretation of the term "threat to the peace" applied by the SC are: • the repression of Kurds by Iraq (Res. 688(1991) was however not adopted under Chapter VII) the consequences of which threaten international peace and security; • the non-military sources of instability in the economic, social, humanitarian and ecological fields and the proliferation of all weapons of mass destruction (Statement by the Heads of State and Government of members of the SC of 31 January 1992);

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• the failure by Libya to demonstrate by concrete actions its renunciation of terrorism and its continued failure to respond fully and effectively to the requests for extradition of suspects (Res. 748 (1992)); • the deterioration of the situation in Liberia (Res. 788 (1992)); • the magnitude of the human tragedy in Somalia, further exacerbated by the obstacles to the distribution of humanitarian assistance (Res. 794 (1992)); • the widespread and flagrant violations of international humanitarian law... including reports of mass killings, rape and ethnic cleansing in Bosnia and Herzegovina (Res. 827 (1993)); • the unique and exceptional circumstances in Haiti after the overthrow of an elected President (Res. 841 (1993)); • the extent of the humanitarian crisis in Rwanda (Res. 929 (1994)); • the present crisis situation in Albania (Res. 1101 (1997)); • the unresolved situation in Kosovo (Res. 1203 (1998)); • the present situation in East Timor (Res. 1264 (1999)). A special case altogether is Res. 1269(1999) in which the suppression of acts of international terrorism, including those in which States are involved, is called "an essential contribution to the maintenance of international peace and security." Whereas the SC had at the beginning used the external consequences of internal repression in Iraq as justification, it later assigned the character of a threat to the peace either to internal (often humanitarian) emergencies or, as in the case of Libya, even to the lack of certain actions without explicitly assuming any external consequences. In the Former Yugoslavia, SC decisions came to be regarded as a fig leaf meant to hide the will to act militarily. Interventions in Africa, often caused only by the "CNN effect", were half-hearted (like in Somalia after the first casualties), of short duration, uneven and too late. If indeed it is the daily showing of atrocities or humanitarian disasters on TV which spur governments into action, it is hardly surprising when the call for preventive measures in humanitarian crises goes unheeded in practice. Some argue that the new humanitarian interventionists should not be daunted by fears of destroying some imagined temple of law enshrined in the UN Charter. They claim that the lofty goal of achieving justice backed by power is the hard part, while revising international law to reflect it can come afterwards. Others regard the violation of obligations erga omnes (such as massive violations of human rights) perse as a threat to international peace, thereby legitimizing SC action under Chapter VII. Others still warn that outside military action cannot solve internal, often ethnic problems. Saving "failed nations" may be noble but was not feasible and without

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widespread international acceptance of (humanitarian) interventions they will not be accepted as justice but regarded as power politics. b) The frequent imposition of non-military sanctions As we have seen the SC had only imposed sanctions twice in its first 45 years of existence. Then, starting with the sanctions imposed against Iraq with SC Res. 661(1990), the SC fell into a sanctions frenzy: • additional sanctions against Iraq: Res. 687 (1991), 689 (1991) and 778 (1992); • arms embargo against Yugoslavia: Res. 713 (1991); • arms embargo against Somalia: Res. 733 (1992); • arms and air embargo against Libya: Res. 748 (1992), later tightened with Res. 883 (1993); • comprehensive sanctions against Serbia and Montenegro: Res. 757 (1992), 787 (1992), 820 (1993) and the Bosnian Serbs: Res. 942 (1994); • arms embargo against Liberia: Res. 788 (1992); • "soft sanctions" (not adopted under Chapter VII) against the Khmer Rouge in Cambodia: Res. 792 (1992); • arms and oil embargo against Haiti: Res. 841 (1993), 873 (1993), later comprehensive sanctions: Res. 917 (1994); • arms and oil embargo against UNITA in Angola: Res. 864 (1993), later comprehensive sanctions: Res. 1127 (1997) together with 1135 (1997); 1173 (1998); 1176(1998); • arms embargo against Rwanda: Res. 918 (1994); extended to persons in neighboring countries by Res. 997 (1995): • diplomatic sanctions against the Sudan: Res. 1054 (1996); the air embargo in Res. 1070 (1996) never entered into force; • arms and oil embargo and diplomatic sanctions against Sierra Leone: Res. 1132(1997), modified by Res. 1171 (1998); • arms embargo against the FRY including Kosovo: Res. 1160 (1998); • air embargo and freezing of funds against the Taleban in Afghanistan: Res. 1267 (1999); • arms embargo against Ethiopia and Eritrea: Res. 1298(2000); • diamonds embargo against Sierra Leone: Res. 1306(2000). Seeing this apparently impressive list is deceptive: there seems to be a negative correlation between the frequency of imposing sanctions and their effectiveness.

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There are a number of reasons why economic sanctions are often more of a placebo than a panacea. The implementation and supervision of sanctions are largely left to States themselves. The Sanctions Committees of the SC have a limited effectiveness because they work on the basis of State complaints and on the principle of consensus, i.e. there are potentially 15 vetoes. Sanctions often lead to enormous economic difficulties for neighboring countries, which may increase their predilection to cheat. Sanctions hit hardest the civilian population whereas the leadership may actually profit from them, thus rendering them even counterproductive. Normally, sanctions are imposed by the SC for an unlimited duration, which lessens the chances of lifting them as a reward for cooperative behavior: Art. 41 (according to which sanctions are only meant to give effect to SC decisions) notwithstanding, the lifting of sanctions (or their modification) is subject to the use of the veto power of permanent members. Only in some recent cases the automatic suspension of sanctions was tied to a report of the UN-SG. The main reason for the lack of enthusiasm for effective economic sanctions is to be found in their half-heartedness: Apart from tangible economic interests of the potential imposers, economic sanctions often serve only as a fig leaf to hide the lack of will to do more while wanting to appear to be doing something. c) International tribunals The international tribunals to prosecute war crimes and genocide created by SC Res. 827 (1993) for the Former Yugoslavia and 955 (1994) for Rwanda are sometimes (as are the still nascent International Criminal Court and the Independent Special Court for Sierra Leone called for in SCR 1315(2000)) also regarded as elements of an effective system of collective security. In addition to the hitherto limited relevance of the tribunals, there are also other considerations which cast more than a shadow of doubt on this: Again, in the face of the atrocities committed (and shown on TV), "something had to be done". However, already on the occasion of the creation of the Yugoslavia Tribunal, a number of members of the SC voiced their concern about the tendency of the Council to interpret its responsibilities extensively and stressed the exceptional nature of the case which created no precedent. Critics have also argued that the existence of such tribunals was not conducive to peaceful change and the transfer of power because no alleged war criminal in his right mind would be prepared to enter into negotiations at the end of which he might end up before a tribunal. Finally, the readiness to prosecute and extradite alleged war criminals might also be subject to other - often-overriding - considerations. Again we should not be overly optimistic. "Peace through law" remains a laudable but in practice largely unfeasible concept.

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d) Authorizations of the use offorce: a third way between unilateralism and collective security aa) Iraq-Kuwait After having determined a breach of the peace by Iraq in SC Res. 660 (1990) and having called on States cooperating with Kuwait which were deploying naval forces "to use such measures commensurate to the specific circumstances as may be necessary under the authority of the SC to halt all shipping" (SC Res. 665 (1990) but not adopted under Chapter VII), the SC authorized those States in case that Iraq did not comply with its previous resolutions within six weeks "to use all necessary means to uphold and implement SC Res. 660 (1990) and to restore peace and security in the area" (SC Res. 678 (1990)). The assessment of Iraq's compliance, the choice of "necessary means", the command of troops and the duration of their use were left to those States. Likewise SC Res. 686 (1991), 687 (1991), 773 (1992) and 833 (1993) contained Chapter VII decisions regarding the destruction of Iraqi means of mass destruction and all necessary measures to secure the border between Iraq and Kuwait. The extent and the duration of the authorization granted by SC Res. 678 (1990) has been contentious ever since. The US in particular has argued that Iraqi breaches of the terms of the cease-fire reactivate the authorization to use force. Critics however contend that it would be for the SC and not individual States to determine Iraq to be in "material breach" of the cease-fire resolution and thus authorize the use of force. bb) Former Yugoslavia SC Res. 770 (1992) called upon Member States to take nationally or through regional agencies or arrangements all measures necessary to facilitate, in coordination with the UN, the delivery of humanitarian assistance. The mandate of UNPROFOR was enlarged by SC Res. 776 (1992) to include the protection of humanitarian assistance. In SC Res. 787 (1992) the SC used the same convoluted language as in SC Res. 665 (see supra aa) to stop all shipping and to ensure strict implementation of the embargo. In SC Res. 816 (1993), after laborious negotiations with Russia, Member States were authorized to take, under the authority of the SC and subject to close coordination with the SG and UNPROFOR, all necessary measures in the airspace of Bosnia and Herzegovina to ensure compliance with the flight ban and proportionate to the specific circumstances of the flights. After Sarajevo, Srebrenica and four other towns were designated as "safe areas" in May, the SC in June decided to authorize UNPROFOR to take the necessary measures, including the use of force in reply to

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the bombardments of or to armed incursions into the safe areas and in the event of obstructions of UNPROFOR or protected humanitarian convoys in or around these areas (SC Res. 836 (1993)). In the same resolution, the SC decided that Member States, subject to the authority of the Council and to close coordination with the UN-SG and UNPROFOR, might take all necessary measures, through the use of air power, to support UNPROFOR. In August, the US - under strong pressure from its allies - conceded that air strikes were subject to prior approval by the UNSG. In SC Res. 908 (1994), close air support in defense of UNPROFOR was extended to the territory of Croatia. In SC Res. 1031 (995), 1088 (1996), 1174 (1998) and 1247 (1999) Member States, were authorized "acting through or in cooperation with the organization referred to in Annex 1-A of the Dayton Agreement" (a rather coy reference to NATO), to form a multinational operation (IFOR, later SFOR) to ensure implementation of the Dayton Agreement and to assist the force in carrying out its mission. cc) Somalia After the failure of UNOSOMI the UN-SG proposed a "new type of international police action to carry out humanitarian assistance". In SC Res. 794 (1994), the SC authorized the UN-SG and Member States to use all necessary means to establish a secure environment for humanitarian relief operations. Three month later however this force under US command was again replaced by a UN operation (UNOSOM II) with a mandate that included for the first time enforcement action [Res. 814 (1993)]. dd) Rwanda When the UN-SG was unable to find sufficient personnel for an expanded UN operation, he proposed a multinational operation commanded by France, following the Somalia precedent. In SC Res. 929 (1994), the SC indeed authorized Member States, cooperating with the SG, to use all necessary means to contribute to the security of displaced persons in an impartial way and limited to a period of two months. ee) Haiti With SC Res. 940 (1994), the SC authorized Member States to form a multilateral force led by the US and to use all necessary means to facilitate the departure of the military leadership and the return of the elected President. For the first time, international monitors were also sent to monitor the multinational operations.

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ff) Eastern Zaire The SC authorized Member States under the leadership of Canada to use all necessary means to reach the humanitarian objectives of a multinational operation (SC Res. 1080 (1996)) - which was, however, never put into practice. gg) Albania With SC Res. 1101 (1997) the SC authorized Member States to form a multinational protection force under Italian command to facilitate humanitarian assistance and to create a safe environment for missions of international organizations. hh) Central African Republic The States participating in the African Mission to supervise the implementation of the Bangui Agreement and those (i.e. France) providing logistic support were authorized by SC Res. 1125 (1997) and 1159 (1998) to ensure the safety and freedom of movement of their troops. ii) East Timor With SC Res. 1264 (1999) the SC authorized the establishment of a multinational force commanded by Australia to restore peace and security, to protect the UN operation UNAMET and to facilitate humanitarian assistance operations. The SC further authorized the States participating in this force to take all necessary measures to fulfill this mandate. jj) Sierra Leone The UN operation UNAMSEL was authorized to take the necessary action to ensure the security and freedom of movement of its personnel and, within limits, to protect civilians (SC Res. 1289 (2000)). kk) Democratic Republic of Congo Similarly, MONUC recieved the authorization to protect its personnle, facilities and civilians under imminent threat (SC Res. 1291(2000)). There were many attempts to fit this - varying - practice of the SC into a neat and tidy box: the Procrustes bed of the Charter of the UN and in particular of its Chapter VII. For good reasons the view held by some at the outset of the Gulf conflict, that the authorizations by the SC to use force was only a reaffirmation of the right to collective defense, did not prevail. It would have been even less applicable to the subsequent decisions of the SC based on extensive interpretations of threats to the peace.

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There are also good reasons why these authorizations cannot be subsumed under Art. 42, 48 or 106: the lack of a determination that measures provided for under Art. 41 would be inadequate or have proved to be inadequate before taking action under Art. 42, the lack of special agreements under Art. 43, the absence of overall UN command and the non-involvement of the Military Staff Committee. Instead it can be argued that the SC has found a third way between unilateralism hidden under the cloak of collective self-defense and collective security in the form given to it by Chapter VII which was politically undesirable. Not its rigid rules but the individual circumstances of a conflict, coupled either with a perceived national interest or a domestically created need to act determine whether SC authorizations are sought and adopted and the choice of means employed. As we have seen, the SC has not limited such authorizations to cases of armed attack but has also granted them in support of PKOs and in response to humanitarian emergencies. As their use - on paper - became more frequent and their field of application grew larger, the implementation in practice became more controlled (by the SC) and less forceful. Like PKOs, such authorizations of the SC cannot be found in the letter of the Charter. But they responded to a need - even if it was only the desired international political cover or political authority which was necessary or at least useful for reasons of both domestic and international politics. By involving Russia, China and others who continue to espouse (or at least pay lip service to) the principle of non-interference in internal affairs, the SC has also served as a useful instrument for the coordination of national policies. The forces assembled on the basis of such authorizations by the SC can be called "Chapter VI 3/4 operations". e) The role of regional organizations or arrangements Art. 53 (1) states that "[t]he SC shall, where appropriate, utilize such arrangements or agencies for enforcement action under its authority" and that "no enforcement action shall be taken [by them] without the authorization of the SC". Since international law does not generally prohibit the imposition of non-military sanctions, this provision means that only military enforcement is subject to SC approval. There is no consensus as to whether regional arrangements are entitled to impose sanctions on non-members or on States out of their area. If, however, the UN Charter is interpreted as a flexible instrument, there is no reason why the SC, which can authorize Member States to impose sanctions on any State, should be limited in its authorizations granted to regional arrangements. Recent SC practice in this field is again quite diverse.

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aa) Liberia At first the SC did not react at all to the military intervention of the Economic Community of West African States (ECOWAS) led by Nigeria by way of a misnamed - Monitoring Group (ECOMOG) in the civil war in mid-1990. Only in January 1991 the SC, in a statement by its President, welcomed ECOMOG's efforts to promote peace and normality. Beginning with SC Res. 788 (1992), the SC commended its efforts to restore peace, security and stability. In SC Res. 866 (1993), the SC stated in a somewhat contradictory fashion that the creation of UNOMIL was the first case where a PKO of the UN and of another organization were working together but then went on to differentiate clearly the mandate of UNOMIL from the military action of ECOMOG. Starting with SC Res. 1001 (1995), the SC called on ECOMOG to take the necessary measures to ensure the safety of UNOMIL personnel. Some have argued that ex-post or implicit authorizations by the SC have thus been rendered possible. bb) Former Yugoslavia As we have already seen above when discussing SC authorizations of the use of force, the SC began with SC Res. 770 (1992) to call on Member States to take certain measures nationally or through regional arrangement in parallel to UNPROFOR and subject to consent by the UN-SG. When this proved to be less than effective, the UN PKO was abandoned and the NATO-led IFOR and later SFOR were created [SC Res. 1031 (1995)]. cc) Haiti In order to implement economic sanctions, the SC called on Member States to take the necessary measures nationally or through regional arrangements [SC Res. 875 (1993)]. This was then organized through the OAS. dd) Georgia In SC Res. 934 (1994), the SC noted with satisfaction the deployment of a CIS force led by Russia alongside the UN Observer Mission UNOMIG. ee) Sierra Leone SC Res. 1132 (1997) was an exception insofar as ECOWAS itself, based on an explicit reference to Chapter VIII UNC, was authorized to ensure the strict implementation of the oil and arms embargo. ff) Tajikistan In SC Res. 1138 (1997) the SC limited itself to welcoming the decision of the CIS

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to authorize its collective peace-keeping forces to protect the personnel of the UN Observer Mission UNMOT. As we have thus seen, the SC (with one aberration in the case of Sierra Leone) never referred to regional arrangements as such but rather to their Member States. Consequently, those resolutions did not fall under the strict terms of Art. 53 but were also examples of the use of the new instrument of authorizations developed since the Gulf conflict. Practice shows once more that also regional peace is divisible: The SC only made use of regional arrangements when their members were prepared to take action. gg) Kosovo An entirely different case is the SC action (or rather inaction) regarding Kosovo. After NATO, led by the US after much hesitation by its allies, carried out air strikes against targets in the Federal Republic of Yugoslavia in March 1999 without explicit SC authorization, a number of arguments were advanced pro and contra. Some claimed implicit authorization by SC Res. 1199 (1998) adopted under Chapter VII, which had again demanded a number of concrete measures of the FRY. However, a number of equally unmet demands had also been made of the other side. Moreover, the SC stated that, should the specific measures demanded not be taken, it would consider further action and additional measures. Contrary to other cases such as in particular Iraq, no further efforts were made in the SC by the US and its allies to seek approval for such additional measures. Others have argued that a draft resolution put before the SC by Russia, which would have determined the use of force by NATO as constituting a threat to international peace and demanded an immediate end to it (UN Doc S/l 999/328 of 25 March 1999), was defeated by 12 votes to three, thereby implying acceptance of NATO action as legal. The fact remains however that the supporters of this text (Russia, China and Namibia plus India and Belarus as co-sponsors) contain 40% of the world's population, which would seem sufficient to prevent any creation of customary international law. Others still have based their support for unauthorized NATO action on considerations of legitimacy derived from fundamental principles of the international order at large, which overrule questions of legality under the Charter. Their critics pointed out that the aim of humanitarian interventions is preventing or stopping massive violations of human rights. If they cannot succeed or are even counterproductive because of the way they are carried out, they lose their humanitarian motive and thus their legitimacy.

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6. Conclusions Whether one believes that such unilateral use of force as in the case of Kosovo is legal, a politically "forgivable legal sin" or illegal, the fact remains that great perils exist: great powers using humanitarian concerns to mask their national interests, international anarchy arising from the bypassing of the only international body entitled to determine threats to the peace and creating precedents which may also be used in the future by those who are now (temporarily?) weakened. Indeed one of the main advantages of using the SC in the way it was used in the early 1990s, namely as a coordinating mechanism, was that it allowed powers other than the US to safeguard their interests - or at least save face by seeming to do so. By seeking a multinational veneer for the pursuit of essentially national interests, the US often had to make only cosmetic concessions while gaining the acquiescence of those who might otherwise have tried to oppose unilateral action. Nonetheless the balance sheet of the last decade can be seen as positive. Chapter VII in its strict sense - and thus the system of collective security as envisaged in the Charter - will remain dead letter. What should still be possible is a pragmatic case-by-case approach based on the instrument of authorizations by the SC. The use of force by the UN itself is no real alternative. Operations authorized to use force (like UNPROFOR and UNOSOM II) have failed, thus hastening the return to traditional peace-keeping. The challenge now is not only to define criteria for possible future interventions - laudable as such efforts are - but also to avoid falling back to unilateral action and thus also avoid falling prey to the illusions (or delusions) of the past. We need a SC powerful enough to authorize measures against aggressors or genocidal regimes - and a SC sufficiently united to lend quasi-universal blessing and thereby effectiveness and political legitimacy.

Peace-Keeping Operations of the United Nations Lilly Sucharipa-Behrmann

Literature: Diehl, International Peacekeeping (1993); FislerDamrosch (ed), Enforcing Restraint. Collective Intervention in Internal Conflicts, (1993); Ktihne, Blauhelme in einer Turbulenten Welt, (1993); Morphet, UN Peacekeeping and Election-Monitoring, in Roberts/Kingsbury (eds.), United Nations, Divided World. The UN's Roles in International Relations (2nd ed. 1993) 183; Bothe, Peace-Keeping, in Simma (ed.), The Charter of the United Nations. A Commentary, (1994), 565; Fetherstone, Towards aTheory of United Nations Peacekeeping (1994); Ratner, The New United Nations Peacekeeping: building peace in lands of conflict after the Cold War, (1995); Tomuschat (ed.), The United Nations at Age Fifty: A Legal Perspective (1995); Warner (ed.), New Dimensions of Peacekeeping, (1995); Peacemaking and Peacekeeping for the Next Century. Report of the 25th Vienna Seminar, 2-4 March 1995, International Peace Academy, (1995); Hirsch/Oakley, Somalia and Operation Restore Hope. Reflections on Peacemaking and Peacekeeping (1995); The Blue Helmets. A Review of United Nations Peace Keeping (3rd ed., 1996); Rossanet, Peacemaking and Peacekeeping in Yugoslavia (1996); Zacarias, The United Nations and International Peacekeeping (1996); Doyle/Johnstone/Orr (eds.), Keeping the Peace (1997); Otunnu/Doyle (ed.), Peacemaking and Peacekeeping for the New Century (1998); Sucharipa-Behrmann/Franck, Preventive Measures, NYU Journal of International Law and Politics 30 (1998) 485; Peck, Sustainable Peace. The Role of the UN and Regional Organizations in Preventing Conflict (1998); Luck, Mixed Messages. American Politics and International Organizations 1919-1999, (1999); Schmidt (ed.), Peace Operations Between War and Peace (2000); for a compilation of documents and background information concerning a number of peace-keeping operations see the "UN Blue Book Series", United Nations Publications; website of the DPKO: http://www.un.org/Depts/dpko.

1. History The main purpose of the UN is the maintenance of international peace and security (Art. 1(1)). To fulfill this goal the founding fathers of the UN envisioned a system of collective security in the Charter. (See supra FreudenschuB.) The effectiveness of this system, however, was diminished by the East-West confrontation during the Cold War. The Eastern and Western permanent members of the SC blocked every single action of collective security by their veto. Nevertheless, the UN played a significant role in the maintenance and reestablishment of international peace in conflict situations during the years of the Cold War. To be able to fulfill this role the UN developed and applied mechanisms, which were not explicitly mentioned in the Charter, so-called peace-keeping operations (PKOs). These operations were originally defined as deployment of military personnel in international conflicts on the basis of the consent of all parties concerned. Use of force was only allowed in

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 89-104 ©2001 Kluwer Law International. Printed in the Netherlands.

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self-defense. When PKOs were further developed this definition was expanded. UN-SG Boutros Boutros-Ghali defined peace-keeping in the Agenda for Peace as "deployment of a UN presence in the field, hitherto with the consent of all the parties concerned, normally involving UN military and/or police personnel and frequently civilians. Peace-keeping is a technique that expands the possibilities for both the prevention of conflict and the making of peace" (UN Doc. A/47/277-S/24111). PKOs are neither totally covered by Chapter VI of the Charter (peaceful settlement of disputes) because they comprise a military presence, nor by Chapter VII (actions with respect to threats to the peace, breaches of the peace and acts of aggression) because they are, in general, not enforcement actions. Therefore, they are often called Chapter VI Vi operations.

2. Legal Basis for Peace-Keeping Operations Since the Charter does not contain explicit provisions concerning PKOs the question arises whether such operations are in conformity with the Charter and which organ would be competent to establish such operations. When the USSR and other Eastern European States as well as France denied to pay their assessed shares for the PKO in Sinai (UNEF) and the operation in the Congo (ONUC) this question was brought before the International Court of Justice (ICJ). In its "Advisory Opinion concerning Certain Expenses of the UN" (1962) the Court addressed the question of Charter conformity in connection with the question whether expenses for PKOs are expenses of the Organization according to Art. 17(2). The Court answered this question in the affirmative. It stated that all activities, which are in fulfillment of the purposes mentioned in Art. 2 of the Charter could not be considered ultra vires and thus did not transgress the competency of the Organization. Therefore, expenses incurred by such activities constitute expenses of the Organization, which have to be born by the Member States. Since, nevertheless, the States mentioned above did not pay their assessed contributions the first financial crisis of the UN occurred. (See infra Schlesinger.) The ICJ addressed also the question of the competency to establish PKOs. The USSR had argued that only the SC was competent for maintenance of international peace and security. Therefore, a decision of the GA to establish a PKO could not be a valid legal basis. The ICJ rejected this reasoning stating that although the SC had primary responsibility for the maintenance of peace and security according to Art. 24( 1), the Charter, nevertheless, gave also the GA a competence in this respect (Art. 14 and Art. 11(2)). Thus, the Court determined the functional competency of both organs for the establishment of PKOs. Most PKOs are, however, established by the SC. PKOs are either sub-organs of the SC (Art. 29) or the GA (Art. 22).

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Before establishing a PKO the SC requests the UN-SG to prepare a report on the envisioned operation. This report describes the possible mandate, the necessary means (peace-keeping troops, military observers, police contingents, and civilian contingents) and the presumptive costs of the operation. The report is the basis for the decision of the SC, which normally refers to it when authorizing the operation. For the review of all general aspects of PKOs the GA established with GA Res. 2006 (XIX) the Special Committee for Peace-Keeping Operations (C-34). This Committee, which originally consisted of 34 members, was expanded in 1996 with GARes.51/136. Currently 85 States participate as members, with 11 States as well as UNICEF and the ICRC as observers. The Committee meets once a year and reports to the GA.

3. Requirements for Peace-Keeping Operations Based on the experience gained in the first PKOs, UNEF I and ONUC, the following requirements for the establishment of PKOs were developed: • existence of a truce or cease-fire; • consent of all parties to the conflict (UNEF I) or establishment of the operation at the request of the parties (ONUC); PKOs are not enforcement measures according to Chap. VII, the consent of the conflicting parties is necessary in order not to violate the sovereignty of the parties concerned and not to come into conflict with Art. 2 (7); • fixed time-limits for the operation with the possibility of extension of the mandate; the question of termination of an operation and who is entitled to decide this issue played a role in UNEF I, when Egypt withdrew its consent to the operation and asked for the withdrawal of the peace-keeping force. The question arose whether the operation can be terminated any time by unilateral withdrawal of the consent or only in agreement with the SC. Since that time all PKOs have been established for a fixed term (usually for 6 months). Shortly before the end of the term the SC examines, on the basis of a report of the UNSG, whether the operation should be extended; • the UN-SG must report to the SC or the GA on all important questions concerning the operation. This criteria was developed following UNEF I. The than UN-SG U Thant terminated the PKO after the withdrawal of Egypt's consent without consulting the SC or the GA. This was seen as a transgression of his competencies; • clear command and control structures: SC (overall political decisionmaking) -> UN-SG (strategic decision-making) ->- SRSG or Troop Commander (operational control in the field);

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• timely notice of planned withdrawal of troop contingents by troop contributors. In UNEFI India and Yugoslavia withdrew their contingents without prior notice so that there was factually no possibility for the UN-SG to continue with the operation; •

clear mandate to avoid misconceptions concerning the task of a PKO. During ONUC misunderstandings between the Congolese Government and the UN concerning ONUC's mandate caused grave difficulties for the operation;

• sufficient financial resources; • support by the SC, in particular by the permanent members; • separation of peace-keeping mandates from enforcement mandates. The following guiding principles for PKOs have been developed: • use of force only in self-defense or if hindered by force to fulfill the mandate; • impartiality/neutrality, i.e. no involvement in the conflict, no favoring of one party over the other; • PKO personnel must take orders only from the commander of the operation not from the organs of the sending State. The SC, when establishing an operation will, in addition, consider the following aspects: • whether a situation exists the continuation of which may be a threat to international peace and security; • whether regional or sub-regional organizations or agencies would be able and willing to help solving the conflict; • whether the parties to the conflict are willing to reach a political solution to their conflict; • whether a clear political goal can be identified and whether it could be expressed clearly in the mandate; • whether a budget estimate exists for the first 90 days as well as for the first 6 months of the operation.

4. Types of Peace-Keeping Operations a) Traditional operations ("first generation") PKOs of the first generation were in principle used in inter-State conflicts. Preconditions for their establishment were a truce or cease-fire as well as the

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consent or request of the parties. The actions of the PKO troops were guided by the principle of impartiality. Force could only be used in self-defense. This concept of self-defense, however, was wider than the usual definition of self-defense. It included the use of force in case of obstruction of the mandate. These traditional PKOs have foremost military functions, e.g. the separations of the conflicting parties by a buffer zone and its monitoring (UNEF, UNDOF), or the monitoring of a cease-fire (UNTSO, UNIKOM). Either single military observers or peace-keeping troops exercise these functions. Although the PKOs were installed only for a limited time, it became obvious in a number of cases that their long-term presence was necessary to avoid the reoccurrence of the conflict (e.g. UNFICYP, UNDOF). b) Multifunctional

operations ("second generation")

After the end of the Cold War and the dissolution of the two power blocks a different type of conflict took center stage. Those conflicts were not any more inter-State conflicts but intra-State conflicts. Next to the military function (monitoring of cease-fire agreements, disarming and cantonment of troops and former guerilla fighters) police and administrative functions became more and more important. These functions include e.g. organizing and monitoring of elections, human rights monitoring, rebuilding of the administration of a State (justice system, police force, military defense forces). Moreover, second generation PKOs often include further civilian functions such as humanitarian relief operations, monitoring of refugees, repatriation of refugees and internally displaced persons, local conflict resolution. These operations usually are established to monitor and implement peace agreements or to play a role in decolonization. Examples for multifunctional PKOs are the operations in Central America (ONUCA, ONUS AL), Cambodia (UNTAC), Namibia (UNTAG), Angola (UNAVEM), Mozambique (UNOMOZ), Croatia (UNTAES) and Bosnia and Herzegovina (UNMIBH). Examples for a new type of multifunctional PKO are UNMIK in Kosovo and UNTAET in East Timor. These PKOs are mandated with the transitional administration of the territory including institution-building, maintaining law and order intergration into the global economy, etc. These different functions make it necessary that the operations contain not only military personnel but also police and civilian personnel. The latter two components are of growing importance. c) Peace-keeping operations with enforcement character ("third generation") The SC authorizes this type of operation under Chapter VII to offensive use of force to reach the goals of the mandate ("robust action"). This combination of

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PKOs with military enforcement actions necessarily leads to a loss of impartiality. It impairs the ability of the PKO to cooperate with all parties to the conflict and can have a negative effect on the operation. One of the first PKOs, ONUC in the Congo, showed already the problems that can arise when peace-keeping is combined with offensive use of force. Examples from the recent past are UNOSOM and UNPROFOR, which was equipped with a mandate to use force for certain goals (protection of "safe areas" for Muslims in the Serbian parts of Bosnia and Herzegovina). An essential problem, which arose in these operations, is the phenomenon of "mission creep" that became evident in Somalia and in Bosnia and Herzegovina. An operation, which originally was planned as a PKO, e.g. with a mandate to provide humanitarian relief, is authorized to use force when problems arise. Since the peace-keeping troops are only equipped with light weapons, they lack the necessary means for deterrence or actual use of force. If military enforcement is expected it would be necessary to equip the troops adequately to be successful. d) Preventive peace-keeping operations In the "Agenda for Peace" UN-SG Boutros-Ghali stressed the special importance of preventive measures. One possible measure of prevention is the preventive deployment of peace-keeping troops. This measure can be applied both in interState as well as in intra-State conflicts. Such preventive deployment can be a means of stabilizing the situation, can have deterrent effect, or may be used as a means of confidence building. In inter-State conflicts preventive deployment can be used on request of both parties, if they are of the opinion that the deployment on both sides of the border would contribute to the easing of the tensions. If one of the parties to a conflict feels threatened by the other, e.g. by massive stationing of troops along the border, it may also request unilaterally the deployment of peacekeeping troops on its side. In intra-State conflicts, preventive PKOs can have various functions: monitoring of human rights, support for the impartial distribution of humanitarian relief goods, prevention of use of force between the parties to the conflict, support in the maintenance of law and order. The preventive presence of a PKO can contribute to a climate conducive to negotiations, which might lead to a peaceful settlement of the dispute. The consent of the host country is a precondition for preventive deployment. In intra-State conflicts it is advisable to seek the consent of all parties to the conflict, to be able to conduct a successful operation. The composition of the PKO has to be decided from case to case. Besides military contingents also police contingents

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and civilian experts can play an important role. Up to now UNPREDEP, the operation in the Former Yugoslav Republic of Macedonia (FYROM), was the only case of preventive deployment. This operation was established by SC Res. 795 (1992). At first its mandate was restricted to monitoring the border between FYROM and the Federal Republic of Yugoslavia as well as Albania. Later on the mandate was expanded. SC Res. 908 (1994) "encourage[d] the Special Representative of the Secretary-General ... to use his good offices as appropriate to the maintenance of peace and stability...". The SRSG used this very flexible mandate to address also internal problems such as the tensions between ethnic groups. UNPREDEP has successfully completed its mandate in as much as it prevented the overspill of the conflict. The military component prevented a spread of the conflict across the border onto FYROM's territory mainly because of its deterrent character not because of its actual military potential. The participation of a US contingent may have contributed to the deterrence. Thus the question arises in how far the participation by a politically and militarily strong power is essential to provide a preventive PKO with the necessary deterrence potential. The actions by the civilian component contributed to stabilization and confidence building. The example of UNPREDEP shows that preventive operations, if equipped with adequate means and a flexible mandate and deployed in time, can contribute considerably to the maintenance of peace and security. e) Peace-keeping operations by regional organizations Chapter VIII of the Charter provides a role for regional arrangements and agencies in the maintenance of international peace and security. Every effort shall be made to achieve pacific settlement of local disputes through such regional arrangements or agencies before referring them to the SC (Art. 52 (2)). The SC shall encourage the pacific settlement of local disputes through such arrangements or agencies (Art. 53(3)). These provisions are the basis for regional peace-keeping. Regional organizations may conduct PKOs as long as those operations are in accordance with the purposes and principles of the Charter. In case of enforcement measures or measures without the consent of the parties to the conflict those measures have to be authorized by the SC (Art. 53(1)). The UN has conducted a number of PKOs together with regional arrangements or agencies. As stated in the "Supplement to An Agenda for Peace" (UN Doc. A/ 50/60-S/1995/1) certain guiding principles can be identified for such operations. A very flexible mandate is, however, necessary to be able to take into account the

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different character of the organizations and the respective circumstances of the operation. The primacy of the UN must be respected at all times. The competencies must be distributed clearly between the UN and the regional organizations, to avoid duplication and divergences. The cooperation and coordination has to be guaranteed during the entire operation. Ongoing consultations between the UN and the regional organization are imperative for the success of the operation. Peace-keeping contingents of the UN and of regional arrangements or agencies can either be deployed in combination or parallel. In a combined operation, the management, the command, and the selection of the contingents will be shared by the UN and the regional arrangements or agencies. Also financing of the operation will be born together. Examples for such operations are MICIVIH in Haiti and UNMIK in Kosovo where the UN cooperates with EU and OSCE. In a parallel mission the UN can have a leading role and be supported by regional organizations or agencies (e.g. the support for UNPROFOR by NATO's close air support, WEU's and OSCE's support in monitoring sanctions). It can also have the supportive role (e.g. UNOMIG's monitoring of CIS peace-keeping troops in Georgia/Abchazia, or UNOMIL's support for ECOMOG in Liberia). In parallel operations each operation has its own command structure. Nevertheless, close cooperation is necessary to conduct such an operation. The comparative advantage of a regional PKO may consist in a better knowledge of the culture, history and traditions of the region. Common history and culture might facilitate a peaceful solution of the conflict. The proximity to the conflict region, the common history and culture might, on the other hand, also be of disadvantage. Regional PKOs might be seen as partial. They are also often dominated by the most powerful State of the region and thus can be perceived as cover-up for the pursuance of hegemonic goals. This argument arose in context of ECOMOG's role in Liberia. This operation was conducted mainly by Nigeria, the strongest power in the region. Similar arguments can be made in context of the operations of CIS, e.g. in Georgia or the US in the framework of OAS operations. Whether an operation should be conducted by a regional arrangement or agency must be decided in every single case. The potential of regional arrangements and agencies should, nevertheless, be strengthened if the UN wants to expand the use of regional peace-keeping. The efforts made by the UN in capacity building for regional peace-keeping in Africa are steps in the right direction.

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5. Recruiting and Financing of Peace-Keeping Operations Member States contribute military and police contingents for PKOs on a voluntary basis. Civilian personnel and experts are assigned by the UN Secretariat, provided by Member States or recruited locally. The UN-SG selects the troop contingents and appoints the commanders for a PKO with the approval of the SC. In general, only States which have not been involved in the conflict and which do not have special interests in the region shall contribute troops. For many years the permanent members of the SC did not take part in PKOs since they were seen as partial. Until the end of the Cold War they only took part in PKOs in exceptional cases (e.g. UK in Cyprus, France in Lebanon). This rule is no longer been followed. The UK, France, the RF and the US took part in UNPROFOR. Participation of the permanent members facilitates obtaining the logistic support necessary for today's highly complex missions. Troops should be selected according to balanced regional distribution. They remain members of their national military force, are wearing their national uniforms, but carry UN emblems and blue helmets/barrettes. They are under the exclusive command of the UN commander of the operation in the field. A troop contributing State concludes a Memorandum of Understanding with the UN, which regulates the provision of troops and equipment, the questions of responsibility, and reimbursement of costs. Costs have to be borne by the troop contributing country until later reimbursed by the UN. Because of the constant financial problems of the UN, reimbursement is very slow. (For details on the financing of PKOs, see infra Schlesinger.) The growing number of PKOs, the ever-growing security risks of operations as well as the problems of financing are the reasons why States are more and more reluctant to provide troops. In particular logistic support for operations is difficult to obtain. Recruiting police contingents is even more difficult since police is not easily expendable in the sending States. The equipment for PKOs is usually provided by the sending State, which creates the problems of varying equipment within troops for an operation. In cases were the troop contributing State cannot provide the equipment it is made available by other States generating the need for special training before being deployed since the troops will not be familiar with the equipment. These problems of recruiting and obtaining the proper equipment often lead to a considerable delay in deployment. To reduce the time-span from the decision of the SC to establish an operation to the actual deployment the UN has developed a system of Standby-Arrangements. Member States provide information to the UN about forces and other capabilities, which they would be willing to provide for

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a PKO. Such resources may include military units, civilian and military specialists, equipment, civilian police contingents. The States also provide information on the time needed for deployment (30 days, between 30 and 60 days, between 60 and 90 days). Sixty per cent of the announced capabilities would be available within 30 days. Until the end of 1999, 87 Member States have joined the system, 65 of them have provided detailed information on specific capabilities they are prepared to offer. A total of 31 Member States have formalized their Standby Arrangements by signing a Memorandum of Understanding with the UN. This system of Standby Arrangements makes planning easier for the UN-SG; nevertheless, it is no guarantee for the availability of troops in a specific conflict situation. In case of the establishment of a PKO the States taking part in the system of Standby Arrangements have to be asked if they want to contribute and can deny their participation. In 1994, when the UN-SG asked for troop contributions to the operation in Rwanda not one of the 19 States, which were part of the Standby Arrangement System at that time, was willing to provide troops for UN AMIR. The Standby Arrangements information is registered in a UN database and has already proved to be most helpful in the planning of operations. Another attempt to reduce response time (i.e. the time needed from the request of troops addressed to a Member State by the UN-SG to the actual deployment) is the Danish initiative to create a Multinational United Nations Standby Forces High Readiness Brigade (SHIBRIG). This brigade will be available at high readiness for PKOs where rapid response is important. It should consist of up to 5000 troops and be deployable within 15 to 30 days. It could have particular utility for the early stages of a new PKO. Its deployment may last only up to 6 months to be replaced by regular peace-keeping troops. The Brigade was established by a number of small and medium-sized Member States, which participate in the Standby Arrangement system. The troops remain on standby in their home countries. To increase the affectivity of the brigade compatibility of training, command and control structures and equipment are ensured. The planning element of SHIRBRIG has been established and operates in Denmark. The project of a Rapidly Deployable Missions Headquarters (RDMHQ) is based on a Canadian/Dutch idea. It should be ready for fast deployment as operational headquarters at the beginning of a new operation. These headquarters should consist of a small group of people, which are stationed permanently in New York at UN Headquarters and exclusively deal with the planning and organization of future operations (approximately 8 people), further of personnel, which normally is occupied with other tasks at the UN and will be drafted when a crisis erupts, and of personnel, which the Member States will hold on standby. When a new operation is established this unit should be deployed immediately as provisional headquarters

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to prepare the necessary infrastructure for the operation. As soon as the peacekeeping troops have arrived and are operational the RDMHQ should be replaced by permanent headquarters out of the ranks of the peace-keeping troops. RDMHQ contains not only military personnel but also civilian personnel to be able to make the necessary contacts to humanitarian and other civilian organizations acting in the area. RDMHQ is currently being established, lack offinancesand of personnel, however, is the reasons why it is not yet operational. The United Nations Training Assistance Team (UNTAT) was created to help ensure consistent training for PKOs. It provides the necessary expertise for multinational peace-keeping simulations for training purposes to Member States and organizes training seminars for the trainers of police and military. In the training for PKOs special attention should also be given to specific training addressing local cultural sensitivities and gender-sensitivity. Training for peace-keepers is also organized by NGOs and governmental organizations.

6. Control and Command Structures The SC is in charge of the overall political decision-making. The Council decides on the establishment, the extension and the phasing out of a PKO. It also decides what the mandate of an operation, which reflects the political goals, should be. The UN-SG is entrusted with the strategic decision-making. He uses the Department of Peace-Keeping Operations for this task. The operational command and control in the field lies with the Special Representative of the UN-SG (SRSG) or the military commander. The necessity to have a clear command and control structure became particularly obvious in the Somalia operation. An independently acting US Ranger unit was ambushed by one of thefightingfactions of Somalia. Since UNOSOMII was not informed about the US operation, it did not arrive in time to help. Heavy casualties were the result. Also in Somalia, some of the commanders of peace-keeping contingents followed the orders of the UNOSOM commander only after having consulted with their national command in the capitals. The lack of a clear and coherent command impairs the affectivity of the operation and might create dangerous situations for other contingents. Troop contributors should influence decision-making of the commander in thefieldonly through the UN-SG. To ensure that interference by troop contributors is avoided a continuous dialogue between troop contributors and the UN-SG providing information about the progress of the operation is necessary. The "Situation Center", which was established in the DPKO in 1993, communicates permanently with PKOs, collects data and provides information about

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the newest developments in the field. It also serves the Member States as source for information about current operations.

7. Status of Forces in the Host Country a) Status-of-Forces Agreements (SOFAs) Agreements between the host State and the UN regulate the status of peace-keeping troops in the host country (Status-of-Forces Agreements). For this purpose the UN has developed a model agreement (Model Agreement by the UN 1990, UN Doc. A/45/594), which is the basis for the agreements to be concluded. Until a specific SOFA is concluded the provisions of the Model Agreement are applied. SOFAs regulate on the one hand the status of the operation as such, on the other the status of the members of the PKO. The Model Agreement foresees the application of parts of the Convention on Privileges and Immunities of the UN (1946) to PKOs and contains further specific provisions. aa) Status of peace-keeping operations The PKO has the obligation to act impartially and to follow local laws and regulations. The host country is obliged not to interfere with the operation, to guarantee freedom of movement and of communication, which also encompasses the building and operation of radio stations. The PKO, as a subsidiary organ of the UN, enjoys privileges and immunities, which are similar to those of diplomatic missions. These privileges and immunities include, in particular, the inviolability of the premises (i.e. government officials of the host country may only enter the premises of the PKO with the consent of the commander), the freedom from search, requisition, attachment or execution, the inviolability of archives, and the exemption from taxes. It may use roads, bridges, harbors, airfields etc. without paying dues or charges. The host State is also committed to offer premises for the administration of the PKO and for the accommodation of troops free of charge. bb) Status of PKO personnel The host country grants certain privileges (such as exemption from taxes and duties) and immunities (such as exemption from the jurisdiction of the host State). The SRSG, the military commander of the PKO, the commander of the civilian police contingent and other high ranking officials enjoy immunity from criminal and civil jurisdiction of the host State for all their actions (absolute immunity) if so agreed by the host State. All other members of the PKO, including personnel recruited locally, enjoy immunity from legal process (criminal and civil) only for acts

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committed in their official capacity (functional immunity). Military personnel are exempt from the criminal jurisdiction of the host State for all its actions, also those not committed in their official capacity. They are exclusively subject to the criminal jurisdiction of the sending State. Civilians, on the contrary, are subject to the criminal jurisdiction of the host State for acts not committed in their official capacity. The SRSG/Commander shall conduct any necessary inquiry and agree with the Government whether or not criminal proceedings should be instituted. The Head of the PKO is to be informed if civil proceedings are to be instituted against a Member of the PKO. He will decide whether the acts concerned were committed in the official capacity of the person. In case the SRSG/Commander cannot reach agreement with the host State, the question will be decided by the "Standing Claims Commission" established according to the SOFA. Any dispute or claim of private law character to which the PKO or any member of it is aparty and over which the courts of the host country do not have jurisdiction because of immunity, shall be settled by the Standing Claims Commission. All disputes between the UN and the host country arising out of the interpretation or application of the SOFA, which involve questions of principle concerning the Convention on Privileges and Immunities of the UN, shall be subject to an Advisory Opinion of the ICJ, if the parties do not agree on any other procedure. The parties shall accept the Advisory Opinion as decisive. b) Convention on the Safety of United Nations Personnel and Associated Personnel- 1994 (UNSafety Convention) The number of attacks and other violent acts against peace-keepers rose considerably in the course of complex operations, in particular in intra-State conflicts. This breakdown of respect for UN peace-keepers made it necessary to urgently conclude a legal instrument for the protection of UN personnel taking part in PKOs. Neither the "General Convention on Privileges and Immunities of the UN"(1946), "the Convention on Experts on Mission for the UN" (1969), nor the "Convention on Crimes against Internationally Protected Persons" (1973) are applicable to all members of a PKO. This lacuna was filled by the elaboration of a "Convention on the Safety of United Nations Personnel and Associated Personnel". The 54th GA adopted in December 1994 the draft with GA Res. 49/59. The Convention came into force in January 1999. The Convention obliges the State parties to ensure the safety of UN personnel

and associated personnel stationed on their territory (Art. 7 UN Safety Convention). The intentional commission of the following crimes shall be made a crime under the national laws of the State parties and shall be made punishable by

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appropriate penalties, which take into account the grave nature of the crimes (Art. 9 UN Safety Convention): • a murder, kidnapping or other attacks upon the person or liberty of any UN or associated personnel; • a violent attack upon the official premises, the private accommodation or the means of transport of any UN or associated personnel likely to endanger his or her person or liberty; • a threat to commit any such attack with the objective of compelling a physical or juridical person to do or to refrain from doing any act; • an attempt to commit any such attack; and • an act constituting participation as an accomplice in any such attack, or in an attempt to commit any such attack, or in organizing or ordering others to commit any such attack. "Personnel of the UN" is defined as persons engaged or deployed by the UN-SG as members of the military, police or civilian components of a UN operation as well as other officials and expert on mission of the UN or its specialized agencies, who are present in an official capacity in the area where the operation is conducted. (Art. 1 lit. a UN Safety Convention). "Associated personnel" means persons assigned by a Government or intergovernmental organization with the agreement of the competent organ of the UN, persons engaged by the UN-SG, and persons deployed by a humanitarian non-governmental organization or agency under an agreement with the UN-SG to carry out activities in support of the fulfillment of the mandate (Art. 1 lit. b UN Safety Convention). "UN operations" is defined as operation established by the competent organ of the UN in accordance with the Charter and conducted under UN authority and control. The purpose of this operations must be maintaining or restoring international peace and security. The convention is also applicable to operations where the SC or the GA has declared that there exists an exceptional risk to the safety of the participating personnel (Art. 1 lit. c UN Safety Convention). The Convention is not applicable to UN operations authorized by the SC as enforcement action under Chapter VII, in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies (Art. 2 UN Safety Convention). The host State and the UN are under an obligation to conclude a SOFA for each operation as soon as possible (Art. 4 UN Safety Convention). The Convention also obliges all State parties to either try crimes committed against UN and associated personnel or to extradite the alleged offender {autdedere

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aut iudicare). In cases where the alleged offender is a national of the State party or the crime was committed in its territory, the State party has to establish jurisdiction and to try the offender. If the offender was a stateless person with habitual residence in the State, if the victim was a national of the State or if the act was committed to compel the State to do or refrain from any act, the State may establish jurisdiction and try the offender (Art. 10 UN Safety Convention). This very wide definition of jurisdiction and the obligation to either try or extradite the alleged offender should make impunity for the offender impossible. c) Observance by UNforces of international humanitarian law With the involvement of peace-keeping troops into enforcement action the question whether those troops are bound by international humanitarian law became more and more important. The UN itself is not a party to the Geneva Conventions of 1949 and the two Additional Protocols of 1977 and thus not legally bound by those treaties. To clarify this question the UN-SG issued a bulletin in August 1999 setting out fundamental principles and rules of international humanitarian law applicable to UN forces conducting operations under UN command and control. These fundamental principles are applicable for UN forces when they are actively engaged in situations of armed conflict as combatants, to the extent and for the duration of their engagement. These rules are accordingly applicable in enforcement actions and in peace-keeping operations where the use of force in self-defense is permitted. This bulletin states that members of a UN force will follow the rules established by humanitarian law on the protection of the civilian population, the means and methods of combat, the treatment of civilians and persons hors de combat, the treatment of detained persons and the protection of the wounded, the sick, and medical and relief personnel. In case of violations of these principles and rules of international humanitarian law, members of the military personnel of a UN force are subject to prosecution in their national courts. 8. Future Prospects for Peace-Keeping Operations The euphoria after the Cold War crisis led to a rise in PKOs culminating in 78,000 persons engaged in operations in 1994. Euphoria was soon followed by disillusionment. The problems of complex operations such as UNOSOM and UNPROFOR led to a reluctance to establish new operations. But the risks of complex operations were not the only reasons for this reluctance. The permanent financial crisis of the UN, which caused constant delays in the reimbursement of costs to troop

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contributors, makes it also difficult to obtain the necessary troops. Furthermore, UNOSOM and UNPROFOR also showed the limits of PKOs. The mandates of both operations were not clearly defined. The continuous expansion of the mandate, in particular in the case of UNPROFOR, led to the phenomenon of "mission creep". A PKO, which was originally conceived as a humanitarian relief operation was in its late stages entrusted with an enforcement mandate without adequate preparation and means for offensive use of force. It became obvious that a PKO, which on the one hand had to use force against a party to the conflict, on the other hand needed the cooperation of the parties, could not be successful. The conclusion, which has to be drawn from this experience, must be that operations with enforcement character have to be conducted in a different manner and with different means as PKOs. Missions particularly in areas, which are not under the effective control of the Government, but are controlled by fighting factions, should not be conducted in the framework of a PKO. These enforcement missions should be conducted by troops especially recruited and adequately equipped for such operations. The inability of the UN to respond to the crisis in Rwanda and to prevent the genocide also demonstrated horribly the shortcomings of the Organization. The reports on Srebenica and Rwanda commissioned by UN-SG Kofi Annan further pointed out the reasons for these failures. In May 2000 the UN-SG convened a panel of experts on UN Peace Operations. This Panel should assess the UN's ability to conduct peace operations effectively and offer recommendations to enhance the capacity. The Panel delivered its report (Brahimi-Report - UN Doc. A/55/305-S/2000/ 809) in time to be discussed by the Millenniums GA. It focusses on the institutional and resource problems of the UN. It underlines the importance of prevention, which necessitates a capacity for information and data gathering, management and strategic analysis. It asks for realistic mandates for PKOs and the means to implement them if necessary with force. Improved mission guidance and leadership as well as more rapid would be essential for successful PKOs. The Panel recognizes further the lack of sufficient capacity to plan and support missions on the headquarters level. In its conclusions, the Panel makes a number of concrete recommendations (see Brahimi-Report: Conclusions and Recommendations infra Annex II). It states that more financial but also human resources are necessary for better planning and implementation. Among the Report's important recommendations is the advice that the SC should wait with a final decision on a PKO until the needed resources are readily deployable. To shorten the response time the Panel recommends to set up rosters of military, police and civilian experts which would be available at short notice. UN peace operations will have a successful future only if at least some of these recommendations will be supported by Member States and implemented by the UN-SG.

Peace-Building Activities of the United Nations Bert Theuermann

Literature: de Soto/del Castillo, Obstacles to Peacebuilding, Foreign Policy, 94 (Spring 1994), 69; Boutros-Ghali, An Agenda for Peace, 2nd ed, with the new supplement and related UN documents (1995); Report of the International Colloquium on Post-Conflict Reconstruction Strategies, held at the Austrian Study Centre for Peace and Conflict Resolution, Schlaining, 2324 June 1995, UN Doc. A/50/345 (10 August 1995); del Castillo, Post-conflict peace-building: a challenge for the United Nations, CEPAL Review 55 (April 1995), 27; Theuermann, Legitimizing Governments through International Verification: The Role of the United Nations, AJPIL 49 (1995), 129; Henkin (ed.), Honoring Human Rights and Keeping the Peace, Lessons from El Salvador, Cambodia, and Haiti, (1995); Ktihne, Winning the Peace, Concept and Lessons Learned of Post-conflict Peacebuilding, (1996); Kuhne, The Transition from Peacekeeping to Peacebuilding, Planning, Coordination and Funding in the Twilight Zone( 1997); Joint Inspection Unit, Coordination between United Nations agencies involved in peace-building, UN Doc. A/ 52/430 (2 October 1997); OECD/DAC, Conflict, Peace and Development Cooperation on the Threshold of the 21st Century, Policy Statement (May 1997); OECD/DAC, Guidelines on Conflict, Peace and Development Co-operation (1997); Henkin (ed.), Honoring Human Rights, From Peace to Justice (1998); Building Justice: A Conference on Establishing the Rule of Law in Post-Conflict Situations, Special Issue of the Aufienpolitische Dokumentation of the Federal Ministry for Foreign Affairs of Austria (1998); Coordination between United Nations agencies involved in peace-building, Note by the Secretary-General, UN Doc. A/52/430/Add. 1 (3 August 1998); United Nations, Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa, Report of the Secretary-General, UN Doc. S/1998/318 of 13 April 1998; The World Bank, Post-Conflict Reconstruction, The Role of the World Bank (1998); Stiefel, Rebuilding after war: lessons from the war-torn societies project, The War-torn Societies Project (WSP) (1999); UNDP, Governance Foundations for Post-Conflict Situations: UNDP's experience (November 1999); UNDP, Meeting the challenge: the role of UNDP in crisis, post-conflict and recovery situations, 2000-2003, UN Doc. DP/2000/18 (20 March 2000); UNDP, Sharing new ground in post-conflict situations, The role of UNDP in support of reintregration programmes, UN Doc. DP/2000/44 (21 March 2000); Forman/Patrick/Salomons, Recovering From Conflict: Strategy for an International Response, Center on International Cooperation (2000); UNIFEM, Women at the Peace Table, Making a Difference (2000).

1. Origins The concept of peace-building is relatively new, and was developed in the years since the end of the Cold War and is closely connected with the increasing involvement of the United Nations in internal conflicts. In the early 1990s, the UN became engaged in the resolution of several long-standing conflicts, facilitated by the easing of the East-West tensions and by broad support for peace among

Franz Cede and Lilly Sucharipa-Behrmann (eds.), The United Nations - Law and Practice, 105-125 ©2001 Kluwer Law International. Printed in the Netherlands.

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parties and people concerned. The UN was entrusted with a leading role in the elaboration and implementation of comprehensive peace agreements. Subsequently, the UN was confronted with even more daunting challenges in situations of complex conflicts and emergencies that often were characterized by a breakdown of political and economic structures and the dominance of warlords. The agenda of the UN Security Council is dominated by such conflicts. The change in the nature of conflicts has profound implications for the conflict management of the UN. Political, economic and social factors as well as bad governance are primary causes of conflict that often lead to marginalization or uprooting of populations, or gain a dangerous ethnic or nationalistic dimension exacerbated by "ethnic entrepreneurs". In addition to military measures these root causes of conflict must be addressed in order to find durable solutions. Thus, measures of peace-building can comprise,