Transcript Document

UN CHARTER &
STRUCTURAL
ASPECTS
Prof David K. Linnan
USC LAW # 783
Unit Nine
BACKGROUND I
POLITICAL VS LEGAL BACKGROUND
1.Atlantic Charter August 1941 pre-US
entry into WW II US-UK discussions of
future post-war order & Allies’ views of
why fighting, including
a.
b.
c.
d.
e.
f.
g.
h.
No US or UK territorial gains
Territorial adjustment conform to people
People have right to choose own government
Trade barriers lowered
Disarmament
Freedom from fear & want
Freedom of the seas
New association of nations
BACKGROUND II
POLITICAL VS LEGAL BACKGROUND
2. UN’s chief responsibilities re
UN Charter following Atlantic
Charter are preserving peace &
securing economic development,
but there are strategic differences
between large and small vs
developing and industrialized
states even predating UN
BACKGROUND III
POLITICAL VS LEGAL BACKGROUND (CONT’D)
3.
Internationally & domestically, basic
differences about whether int’l law system
should work on traditional state to state basis
vs some picture of “int’l society” (although
differences of opinion what that really means;
e.g., domestically unilateralists vs
multilateralists)
4.
Many of the legal issues represent rather
formalistic arguments in which the real
substance is differing pictures as under 1 & 2
above, so separate exercise what people
argue from why people argue
POLITICS & LAW I
POLITICAL VS LEGAL POSITIONS, GENERALLY
SPEAKING
1.
Small states prefer collective legalization
approaches because they lack individual
leverage or resources for political
approaches to int’l problems
2.
Small, poor states prefer international
organizations with a “one state-one vote”
system (like UN General Assembly or GA) as
opposed to weighted voting by financial
contribution (as with int’l financial institutions
such as World Bank or IMF), plus you see
efforts to move matters between the two such
as UNCTAD (UN Conference on Trade &
Development) or UNDP (UN Development
Programme)
POLITICS & LAW II
POLITICAL VS LEGAL POSITIONS, GENERALLY
SPEAKING (CONT’D)
3.
Developing states have tradition
reaching back to New Int’l Economic Order
(NIEO) of late 1960s-early 1970s distributive
justice claims plus anti-colonial (antiimperialist) rhetoric of self-determination as
political view of law
4.
Small and large state perspectives differ on
whether the role of an int’l organization like
the UN is to be a coordinating body for
meetings among states, or rather a
supranational body to restrain economic &
broader power of predominant states
LEGAL INTERPRETATION I
LEGAL EXPRESSION OF POLITICAL ARGUMENTS
1.
Argumentation about the character of UN in
constituent treaty quasi-constitutional terms
as independent actor versus subordinate
creature of states that created it, is a legal
expression of the political arguments.
2.
Visible in practice too in terms of Kofi Annan
as UN Sec Gen facing off against coalition in
Iraq and saying going in without Security
Council approval was illegal (regardless
whether it is true in substantive terms, a very
undiplomatic thing to put in the mouth of the
head administrator of a subordinate creature
of the states that created it).
LEGAL INTERPRETATION II
LEGAL EXPRESSION OF POLITICAL ARGUMENTS
(CONT’D)
3.
Beyond argumentation about UN Charter as
organic constitution of independent entity, fit
within field of int’l organization law
developing concept close to administrative
law for all int’l organizations (but UN & its
subsidiary organs still primary example).
4.
If you look at different approaches to int’l law
going back to first unit, note the
underpinnings of differing views (int’l law as
law between trad sovereign states vs view of
UN as supranational organization as part of
int’l society of co-equal but somewhat less
independent state)
LEGAL INTERPRETATION III
LEGAL EXPRESSION OF POLITICAL ARGUMENTS
(CONT’D)
5.
Within the UN structure you still have
expressly political bodies (General Assembly
& Security Council), plus ICJ as judicial organ
so that now conflicts too on legal level
concerning whether political activities like
efforts to maintain peace via Security Council
(on-going hostilities) may be interfered with
by ICJ as in hearing proceedings on legality
under int’l law of use of armed force in ongoing hostilities (analogous tensions to
justice vs reconciliation in post-conflict
situations)
UN PURPOSES
UN CHARTER PREAMBLE & ART I
1.
Save future from scourge of war (twice in own lifetime),
collective measures to preserve peace
2.
Affirming fundamental human rights & equal rights
men & women, nations large & small, selfdetermination
3.
Establish conditions of respect for int’l law,
cooperation on int’l problems of economic, social,
cultural or humanitarian nature
4.
Promote social progress & better standards of life in
larger freedom
UN PRINCIPLES ART 2
UN CHARTER ART 2
2(1) Sovereign equality of member states
2(2) Members to fulfill Charter obligations
2(3) Peaceful settlement of int’l disputes
2(4) “Members refrain in their international
relations from the threat or use of
forceagainst the territorial integrity or
political independence of any state, or in
any other manner inconsistent with the
purposes of the United Nations.”
UN PRINCIPLES ART 2
UN CHARTER ART II (CONT’D)
2(5)
Members to give UN assistance in action taken in
accordance with Charter, and refrain from assisting
any state subject of UN preventive or enforcement
action
2(6)
UN to ensure that non-,member states act in
accordance with these principles as necessary for
maintenance of int’l peace & security
2(7)
No authorization of UN to intervene in domestic
jurisdiction of any state or to submit such matters to
settlement under the present Charter; but this
principle shall not prejudice application of
enforcement measures under Chapter VII
UN MEMBERSHIP I
HIDDEN MEMBERSHIP CRITERIA CH. II
1. Membership originally excluded defeated
WW II Axis Powers just defeated
(Germany & Japan)
2. Decolonization outside South America
largely took place in 1950s-1960s, so
original UN membership was largely
traditional “civilized world” states
(meaning largely Europe & North
America), so Charter has lots of
transitional management mechanisms for
mandates & territories largely dead by
1970s
UN MEMBERSHIP II
HIDDEN MEMBERSHIP CRITERIA CH. II
(CONT’D)
3. Arts 4 & 5 provides for general
membership criterion &
suspension of membership of
states subject to enforcement
actions, with Security Council
acting together with GA (model of
Security Council acting with
something that looks like advice &
consent with SC as active partner)
UN ORGANS CH III
CHIEF UN ORGANS ART 7
1.
General Assembly
2.
Security Council
3.
Economic & Social Council
4.
Trusteeship Council
5.
Int’l Court of Justice
6.
Secretariat
PLUS SUCH SUBSIDIARY ORGANS AS MAY BE FOUND
NECESSARY . . . [ESTABLISHED UNDER CHARTER]
UN GENERAL ASSEMBLY I
UN GA FUNCTIONS & POWERS, CH IV
1. General tendency is to give GA
authority to discuss all matters, but to
reserve powers to act on int’l peace in
particular to SC
2. Specific reservation of Art 12 of
authority in SC, Sec Gen to inform GA
of developments with permission of SC
UN GENERAL ASSEMBLY II
UN GA FUNCTIONS & POWERS (CONT’D)
3. GA voting on “important questions” by 2/3 majority
present & voting
a.
b.
c.
d.
e.
int’l peace & security
election non-permanent SC members
Trusteeship Council matters
admission, suspension & expulsion of
members
budgetary matters
4.
Tendency for int’l peace matters to go through SC, all
else through GA except counter pressure on one-stateone-vote (e.g., Palestinians-Israeli conflict)
5.
No vote in GA if membership contribution in arrears
UN SECURITY COUNCIL I
UN SC CH V, VI & VII
1.
SC composition currently 15 members, 5
permanent & rest non-permanent
2.
Permanent members are WW II Allies, US, UK,
France, Russia & China
3.
Re voting, permanent members have veto
individually, require affirmative vote of 9
members ( so permanent members can stop
SC action, but still require some nonpermanent members agmt to take measures)
UN SECURITY COUNCIL II
UN SC CH VI & VII SUBSTANTIVE POWERS
FOR INT’L PEACE
1. Ch VI peaceful settlement of disputes,
“likely to endanger the maintenance of
int’l peace & security”
2. Ch VI, SC having mediating &
investigatory role, particularly if party
negotiation fails, & at party request can
recommend settlement terms
UN SECURITY COUNCIL III
UN SC CH VI & VII SUBSTANTIVE POWERS FOR INT’L PEACE
(CONT’D)
3.
Ch VII as enforcement action core of SC powers in use
of force setting
4.
Art 39 jurisdiction “SC shall determine the existence
of any threat to the peace, breach of the peace, or act
of aggression nad shall make recommendations, or
decide what measures shall be taken in accordance
with articles 41 & 42, to maintain or restore int’l peace
& security”
a.
Trad view of threat to peace is war between two
countries
b.
Newer view is ethnic civil too encompassed
(e.g., spillover in former Yugoslavia), but what
of Charter art 2(7))
UN SECURITY COUNCIL IV
UN SC CH VI & VII SUBSTANTIVE POWERS FOR
INT’L PEACE (CONT’D)
5.
Art 43 view of UN forces dead letter, Cold War
killed it; since then SC authorizes, members
provide forces to carry out resolution
6.
Art 41 measures not involving the use
of armed force vs Art 42 measures
involving the use of armed force
WHENEVER YOU READ ABOUT SECURITY
COUNCIL AUTHORIZING MEASURES, CH VII &
EITHER ART 41 OR 42 WITH INTERLOCK ON
STATES ENFORCING UNDER SC AUTHORITY,
EXCLUSION OF GA IN “REMAINING SEIZED”
UN SECURITY COUNCIL V
UN SC CH VI & VII SUBSTANTIVE POWERS
FOR INT’L PEACE (CONT’D)
7. Subsidiary rights as Art 44 right of
non-SC members contributing troops
to participate in decisions regarding its
troops
8. Consultation rights for member states
with special economic problems by
virtue of SC measures (e.g., Jordan as
affected by Iraq embargoes) & general
mutual assistance in carrying out SC
measures
UN SECURITY COUNCIL VI
UN SC CH VI & VII SUBSTANTIVE POWERS FOR
INT’L PEACE (CONT’D)
9.
Self-defense under art 51 where most use of
force law developed once SC froze during
Cold War
Art 51 – “Nothing in the present Charter shall
impair the inherent right of individual or
collective self-defense if an armed attack
occurs against a Member of the UN, until the
SC has taken measures necessary to
maintain int’l peace & security.” [plus duty to
report self-defense measures to SC, not
affecting SC authority]
REGIONAL & ECOSOC
UN CH VIII-X
1. Ch VIII is preservation clause on
regional arrangements (OAS, etc.)
2. Ch IX articulates essential human
rights & social conditions jurisdiction
(full employment, etc.)
3. Ch X sets ECOSOC mid-level
framework for human rights, etc. at
committee level internally with periodic
exam & reports
DECOLONIZATION
CH XI, XII & XIII TRUSTEESHIP/MANDATES
1. Structure established for
decolonization, now 60 years later
largely dead letter
2. Self-determination now largely viewed
as substantive rather than
“procedural” or institutional
problem
CH XIV INT’L COURT
JUDICIAL ARM W/ HIDDEN QUES
1.
Ch XIV essentially incorporates old League PICJ
at Hague aka “World Court”
2.
Hidden issues of conflicting judicial &
Political
or executive roles not unlike US constitutional
law’s “political question” problems
3.
Provision for GA, SC or subsidiary UN organs to
ask for advisory opinions (e.g., GA request on
Israeli security fence, Israeli view;
opposing Palestinian view)
ULTIMATE ARGUMENT RE “JUSTICIABILITY” ON USE
OF FORCE-TYPE QUESTIONS
UN CHARTER CH XVI
MISC
1.
Art 103 analogous to supremacy clause?
Art 103 – “In event of a conflict between the
obligations of the members of the UN under the
present Charter and their obligations under any
other int’l agmt, their obligations under the present
charter shall prevail”
2.
Art 104 on UN legal capacity & later ICJ opinion on
state responsibility & protection of UN employees
(privileges & immunities)
3.
Art 108 on amendment of charter by 2/3 majority
vote including approval by all SC permanent
members