',

. ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW AND SOCIAL SCIENCES

DEPARTMENT OF LAW

.· MODULE LL 22

IlfTEilJliATIOIAL LAW I I

: Dr. F. Ng'andu
~ LLB (UNZA), LLM (New York), PhD (London)

First Edition 2007

©ZAOU
ISBN
 MO:l>"ULE LL 22 /11 312 ·

IJfTE:R.JfA.TIONAL LAW I I

Dr F Ng'andu
LLB (UNZA), LLM (New York), PhD (London)
First Edition 2007
©ZAOU
ISBN

- ..........................................,..,.,_,_,£0/7~
 List of Abbreviations

ACP African Caribbean and Pacific Countries

AU African Union
CIPEC Organisation of Copper Exporting Countries
COMESA Common Market for Easter and Southern African
EC European Community
ECOSOC Economic and Social Council
EU European Union
FAO Food and Agricultural Organisation
IAEA International Atomic Energy Agency
IBRD International Bank for Reconstruction and Developm~nt
i

ICAO International Civil Aviation Organisation

ICJ International Court of Justice
ILO International Labour Organisation
IMCO Intergovernmental Maritime Consultative Organisation
IMF International Monetary Fund
ITU International Telecommunication Union
OAU Organisation of African Unity
UN United Nations
UNESCO United Nations Educational and Scientific Organisation
UPU Universal Postal Union
WHO World Health Organisation I
WMO World Meteorological organisation

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 TABLE OF CONTENTS

PAGE

UNIT 1 Historic Development of International Institutions ............... 1

Introduction .................................................................................. 1
Objectives .................................................................................... 1
Topic 1 Historic Development of International Institutional ............... 1
Topic 2 General Legal Problems and classification of International
Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. . . . .. 6

UNIT2 Legal capacity of international institutions under

International Law ......................................................... 10

Topic 1 Legal Elements of International Institutions ....................... 10

Topic 2 Reparation for Injuries Suffered in the Service of the
UN case .................................................................... 13
Topic3 Legal Capacity of International Institutions ........................ 19

UNIT3 Composition and Structure of International Organisations .... 21

Topic 1 Membership ............................................................... 22

Topic2 Withdrawal from Membership ......................................... 25
Topic 3 Suspension and Expulsion ............................................ 27
Topic 4 Privileges and Immunities ............................................. 27

UNIT4 The United Nations ...................................................... 37

Topic 1 Origins ...................................................................... 37

Topic 2 Principles of the UN Charter .......................................... 38
Topic 3 Membership ............................................................... 40
Topic4 Organs of the UN ........... 0 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Topic 5 Voting Procedure ........................................................ 51
Topic6 The UN Specialised Agencies ........................................ 57

UNIT5 Use of Force by States ................................................. 63

Topic 1 Historical Background on the use of force by states ............ 63

Topic 2 Individual Self Defence ................................................. 69
Topic 3 Case Concerning Military and Para military Activities in
and Against Nicaragua . . . . . .. .. . .. . . . . .. .. .. .. .. .. . .. . .. . .. .. .. .. . . . .. 72
Topic 4 Collective Self-Defence .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 74

Bibliography ................................................................................. 78

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 1

UNIT ONE

HISTORICAL DEVELOPMENT OF
INTERNATIONAL INSTITUTIONS

INTRODUCTION
The aim of this unit is to introduce students to the study of inter-
governmental organisations or institutions by tracing their historical
developments. The unit will highlight the various stages of the
development of these organisations.

OBJECTIVES
At the end of this Unit, you should be able to:
• Appreciate the role of these institutions as instruments of
international cooperation by States;
• Explain the genesis of the law of international institutions; and
• Analyse the various stages of development of the law of international
institutions.

Topic 1
Historical Development of International Institutions

Introduction
International institutions as instruments of international cooperation by
States are comparatively a recent phenomenon, dating only to the second
half of the 19th century.
Traditional, international law was basically a law for the conduct of relations
between States, and it was a system in which States acted separately and
individually. There were no central institutions endowed with functions,
th
powers and legal personality of their own. The second half of the 19

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 2
century witnessed the beginning of a movement towards interdependence
and international cooperation between States.

The historical development of international institutions as we know them

today, may be traced to three main periods of evolution:-
(1) The period from the Congress of Vienna (1814-1815) down to the
outbreak of the First World War of 1914;
(2) The inter-war period which witnessed the creation of the League of
Nations and the International Labour Organisation in the Treaty of
Versailles, and which also provided for the establishment of the
Permanent Court of International Justice; and
(3) The period beginning with the establishment of the United Nations
(UN) in 1945.

(1) Period from Congress of Vienna

The Congress of Vienna is considered as a watershed of the development
of international institutions or organisations. The main purpose of the
Congress was to reshape Europe after the devastating effects of the
Napoleonic wars.

The quadruple alliance signed after the Congress provided a framework for
periodic political and diplomatic conferences for the consideration of major
political issues that arose from time to time. Another feature that emerged
during this period was the technical achievements of Europe, particularly in
the field of communications, where the rapid development of telegraph and
postal techniques made multilateral cooperation among States both
desirable and essential.

The decisive step forward in the development of international institutions

was the creation of the Telegraph and Postal Unions in 1865 and 1874
 3
respectively. The International Telegraph Union was created by the Paris
Telegraph Convention of 1865, and with the establishment in 1868 of the
International Bureau of Telegraph Administration, the Telegraph Union
became the first truly international organisation of States with a permanent
secretariat. The creation of a Postal Union soon followed in 1874.

This was followed by a host of other administrative unions, for example,

(i) The International Bureau of Industrial Property (1883);
(ii) The International Bureau of Literary Property (1886);
(iii) The International Convention on Railway Freight Traffic (1890);
and
(iv) The International Office of Public Health (1907).

These administrative unions contributed to the awareness of States of the

potentialities of international institutions as a means of furthering an interest
common to numerous States without detriment to one individual State.
One point to note, however, is that all these efforts remained limited to non-
political technical activities and it was not until the First World War that the
impetus for the establishment of a general political organisation began to
gain ground.

(2) The Inter-War Period (Period between the First and Second World
'
War)
The creation of the League of Nations is linked historically and juridically to
the Treaty of Versailles of 28th June 1919. This treaty contained, among
other things, the constituent 1nstruments of both the League of Nations and
the International Labour Organisation. It also provided in the Covenant of
the League, for the establishment of the judicial organ of the League.

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It is generally recognised that the experience of the League of Nations,
notwithstanding its failure in its primary task of maintaining international
peace, constituted an important phase in the development of international
institutions and provided a direct precedent for the United Nations.

(3) Development of International Institutions since 1945

The outbreak of the Second World War in 1939 signalled the failure of the
League of Nations in its primary task of maintenance of international peace
and security. However, despite this apparent failure, it was still generally
agreed that there was a need for a general organisation of States whose
main aim would still be the maintenance of international peace and
security.

In the Moscow declaration of 1st November, 1943, the four powers (the
United Kingdom, United States of America, the Soviet Union and China)
recognised "the necessity of establishing at the earliest practicable date, a
general international organisation .. . for the maintenance of international
peace and security" .1

Pursuant to this declaration of intent, representatives of the four powers

met at Dumbarton Oaks in August/September 1944 to discuss proposals
for a new general international organisation. These proposals together with
the voting formula agreed upon by them at the Yalta Conference in
February 1945 formed the basis of discussions at the san Francisco
Conference held from 25th April to 26th June, 1945 which resulted in the
adoption of the Charter for the United Nations and the Statute of the
International Court of Justice (ICJ).
Parallel to the movement for the establishment of the UN, there took place
a similar development in the direction of increased international

t_,3&'.AJIL, Suppl. 5, (1944)

·~·,
 5
cooperation over a wide variety of specialised fields. This period saw the
creation of a number of new international institutions such as:-
(i) The International Monetary Fund (IMF);
(ii) The International Bank for Reconstruction and Development (IBRD or
World Bank);
(iii) The International Civil Aviation Organisation (ICAO);
(iv) The United Nations Educational and Scientific Organisation
(UNESCO);
(v) The Food and Agricultural Organisation (FAO); and
(vi) The World Health Organisation (WHO).

In addition there has been an important growth of regional organisations

and arrangements. Prior to 1945 the only regional organisation of any
significance was the Pan American Union which had been established in
the late 19th century and continued to exercise regional functions through
the period of the two world wars. Shortly after the Second World War it
was renamed the Organisation of American States.

The experience of the American States has been borrowed in the Middle
East, Europe, Asia and Africa for example, the creation of the League of
Arab States in 1945, the Council of Europe in 1949 and the predecessor to
the African Union (AU) - the Organisation of African Unity (OAU) in 1963.

Besides these organisations, there has been a marked increase in the

number of regional organisations in the economic, social, cultural and
military spheres.

ACTIVITY

Discuss the development of international institutions as

instruments of international cooperation between States.

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 6

Topic 2
General Legal Problems and Classification of International
Institutions

The essential legal elements of International Institutions are:

1 They are associations of States as distinct from association of
individuals, professional organisations, or other groups. Although such
associations or federations of national groups have come to exercise
important international functions under the general denomination of non-
governmental organisation, they do not form part of what are properly
called international institutions.
2 Every. international institution has a conventional basis, that is, a
multilateral treaty which forms the Constitution of the organisation.
3 The constituent instrument establishes organs of the institutions which
assume corporate identity distinct from that of the individual member
States.
4 The organisation so created possesses a separate legal personality
distinct from that of the individual member states.

In accordance with these basic elements, therefore, we may define an

international institution as an association of States (or other entities
possessing international legal personality), established by treaty,
possessing a Constitution and common organs, and having a legal
personality distinct from that of the member States.
 7

International institutions as defined above can be classified according to

three principle criteria, namely, membership, functions and power.

(1) Membership - If we take membership as a criterion, international

institutions may be classified as universal on the one hand, and
regional or limited on the other. What is relevant from a legal point
of view is whether the institution is open for membership to all States
fulfilling certain elementary conditions, or whether it is open only to
States belonging to certain groups defined according to
geographical, ideological, economic or similar criteria.
There is yet no international institutional institution to which all the
nations of the world are members, although of course the UN and its
Specialised Agencies are potentially universal.

Despite the fact that the Charter of the UN contains a chapter

entitled, "Regional Arrangements", no definition of regional
organisation is to be found there. Indeed a proposal for such a
definition was rejected by the already referred to San Francisco
conference. However, from practice such organisations have
membership limited to States of a particular region or having
common ties of one kind or another.

(2) Functions of the institution - The general international institution, by

its very nature, embraces a whole range of activities of the
international community, be they political, economic, cultural or
technical.
One such organisation is the UN and certain regional organisations.
A specialised institution, on the other hand, is limited in purpose and
function to certain specific objectives. Specialised Agencies of the

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 8

UN, which will be discussed later, are an example of such type of

institutions. Other examples are regional groupings such as
Common Market for East and Southern Africa (COMESA).

(3) Powers - Finally, international institutions may be classified

according to heir powers as policy-making, regulatory, or
supranational:-
(i) A policy-making institution is one which operates through the
adoption of resolutions and recommendations addressed to its
members and is dependent wholly on the latter for the
implementation of those policies. This category would include
general international institutions both universal and regional or
limited in character.
(ii) A regulatory institution will, however, posses an operative
capacity, which is separate from that of its member states. This
is the case with many of the Specialised Agencies, whose
functions may be of the management types, such as the IBRD,
or the control types such as the ILO and the International
Atomic Energy Agency (IAEA).
(iii) The notion of a supranational organisation means not that the
organisation concerned is any the less an association of States
created by them, but that its organs possess direct legislative,
executive or judicial power over the peoples and territories of
the member States.

There are no truly supranational organisations in existence at the

present time, although the European Community (EC) presents some
essential elements of this type of organisation.
 9

Extreme caution should be exercised before attaching legal

significance to the above classification because international
institutions are just too complex in their functions and power to allow
for a neat classification.

ACTIVITY

International institutions can be classified according to

three principle criteria. Discuss these criteria in sufficient
detail.

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 10

UNIT TWO

LEGAL CAPACITY OF INTERNATIONAL INSTITUTIONS

UNDER INTERNATIONAL LAW

INTRODUCTION
The importance of international organisations in the field of international
relations is reflected in their international personality, in other words, their
ability to operate on the international plane in a manner distinct from their
member states. The possession of international personality means that an
entity is a subject of international law, and is "capable of possessing
international rights and duties, and has the capacity to maintain its rights by
bringing international claims."2

Topic 1
Legal Elements of International Institutions

The concept of intepational legal personality is dynamic and is not uniform

as was observed by the ICJ when it stated that,
"The subjects of law in any legal system are not necessarily identical
in their nature or in the extent of their rights, and their nature depends
upon the needs of the community. Throughout its history, the
development of international life... and the progressive increase in
the collective activities of States has already given rise to instances of
action upon the international plane by certain entities which are not
States."3

2
See "Reparation for Injuries Suffered in the Service of the United Nations", ICJ Rep. 1949 at p. 194
3
Ibid at p.179
 'i

11
Legal Personality of International Institutions
It is generally accepted that in the international community there is no
Constitutional authority that confers international legal personality on any
international institution. The lack of such an authority, however, does not
mean that such institutions automatically lack international legal
personality.

It is also generally accepted that a subject of international law is any entity

capable of possessing international rights and duties and having the
capacity to bring international claims. 4

Whether international institutions were subjects of international law was a

question of controversy for some time. From the classical definition of
international law, international institutions could not be considered as
possessing personality under that legal system. However, with the
development of international institutions there has been a discernable trend
in international law towards the attribution of some degree of international
personality to them.

Many of the constituent instruments of these institutions endow them with

rights and obligations, which suggests that the States which participated in
their creation intended to confer upon them at least a limited degree of
international personality. Some statutes of international organisations have
express statements on personality. For example, the Treaty of Rome
establishing the European Economic Community5 stated that, "the
community shall have legal personality". Similarly, the statute establishing
the World Tourism Organisation adopted in 1970 and which entered into
force in 1975, states that, "the organisation shall have legal personality."

4
Ibid at p. 179
5
Article 210 of the Rome Treaty
 12

The existence of an express provision on personality in a treaty is useful

because such provision obliges members to accept the organisation as a
separate international person, competent to perform acts which under
traditional international law could only be performed by States. In addition,
such Constitutional provisions clarify the status of the organisation for non-
members in the sense that if non-members were to doubt the
organisation's competence to perform international acts, a clear
Constitutional provision may be of some assistance.

Examination of case law and literature appear to confirm this view. For
example, Oppenheimer and McNair,6 have argued in their book that:
"The League of Nations appears to be a subject of international law
and an
international person side by side with the several States ... not being
a State and neither owning territory nor ruling over citizens, the
League does not possess
sovereignty in the sense of State sovereignty. However, being an
international
person sui generis, the League is the subjects of many rights which,
as a rule can only be exercised by sovereign States."

In the case of International Institute of Agriculture v Profili, 7 the Italian

Court of Cassation, after distinguishing between those kinds of international
institutions which were subject to the jurisdiction of municipal law and those
which were not, held that the Institute was an international person whose
relations with the host state were regulated by international law.

6
Oppenheimer and McNair, International Law. Volume 1, 4 th Edition, p. 361
7
AD 1929-30 Case No, 254
 13
The contemporary trend towards granting a limited degree of international
personality to international institutions was strengthened by the Reparation
for Injuries Suffered in the Service of the United Nations case. 8

Topic 2
Reparation for Injuries Suffered in the Service of the United Nations
Case, ICJ Rep. 1949, 174

Facts of the Case

In addition to the death of the UN•s Mediator in Palestine, UN agents from
various countries were being injured or killed while performing duties on
behalf of the organisation. Prior to the Court's decision in this case, only
the victim's State of citizenship had the undisputed right to seek reparaUons
for harm to that State - because of the death of its citizen.

In 1947, the UN thus asserted that there should be State responsibility to

an international organisation for injury to aliens (UN employees) caused by
Israel, Jordan and Egypt, where these individuals were working for the UN,
in three separate incidents. The UN claimed that the responsible States
failed to protect these individuals from private criminal acts. In the case of
Israel, for example, two UN employees in Palestine were shot while driving
though the Jewish portion of Jerusalem. The UN sought compensation
from Israel for the loss of their lives. Its claim was brought for Israel's
"failure to exercise due diligence and to take all reasonable measures for
the prevention of the assassination; liability of the government for actions
committed by irregular forces in territory under the control of the lsrael[i]
authorities; and failure to take all measures required by international law

8
1949 ICJ Rep. 174

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 14
and by the Security Council . . . to bring the culprits to justice." Israel
refused to pay any compensation, claiming that only the State of the
victim's nationality had the legal capacity to assert the State liability of
lsrael. 9
The Court analysed whether the alleged harm to the UN, in its legal
capacity as an international organisation, could be reconciled with or
supplant the right to seek reparations by the State of the victim's
nationality. Put another way, if a Norwegian citizen is killed while abroad,
only Norway could seek reparations from the responsible State prior to the
creation of the UN. Could the UN Charter be construed, however, as
furnishing the UN with the legal personality to sue in an international court
for wrongs done to the UN in its capacity as the employer of the deceased?

COURT'S OPINION. The questions asked of the Court relate to the

"capacity to bring an international claim"; accordingly, we must begin by
defining what is meant by that capacity, and consider the characteristics of
the Organisation, so as to determine whether, in general, these
characteristics do, or do not, include for the Organisation a right to present
an international claim [for injury to a UN agent].

Competence to bring an international claim is, for those possessing it, the
capacity to resort to the customary methods recognised by international law
for the establishment, the presentation and the settlement of claims.
Among these methods may be mentioned protest, request for an enquiry,
negotiation, and request for submission to an arbitral tribunal or to the
Court in so far as this may be authorised by the Statute [of the ICJ].

9
An account is available in 8 M. Whiteman, Digest of International Law 742 (Wash, DC; US Govt Print
Off, 1967)
 15
This capacity certainly belongs to the State; a State can bring an
international claim against another State. Such a claim takes the form of a
claim between two political entities [i.e. States] equal in law, similar in form,
and both the direct subjects of international law. It is dealt with by means
of negotiation, and cannot, in the present state of the law as to international
jurisdiction, be submitted to a tribunal, except with the consent of the States
concerned ...

But, in the international sphere, has the Organisation such a nature as

involves the capacity to bring an international claim? In order to answer
this question, the Court must first enquire whether the Charter has given
the Organisation such a position that is possesses, in regard to its
members, rights which it is entitled to ask them to respect. In other words,
does the Organisation possess international personality?

The Charter has not been content to make the Organisation created by it
merely a centre for "harmonising the actions of nations in the attainment of
these common ends." (Article 1, para. 4 ). It has equipped that centre with
organs and has given it special tasks. It has defined the position of the
members in relation to the Organisation by requiring them to give it every
assistance in any action undertaken by it (Article 2, para. 5) and to accept
and carry out the decisions of the Security Council; by authorising the
General Assembly to make recommendations to the members; by giving
the Organisation legal capacity and privileges and immunities in the
territory of each of its members: and by providing for the conclusion of
agreements between the Organisation and Its members. Practice - in
particular the conclusion of conventions to which the Organisation is a party
- has confirmed this character of the Organisation, which occupies a
position in certain respects in detachment from its members, and which is
under a duty to remind them, if need be, of certain obligations ... the

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16
"Convention on the Privileges and Immunities of the United Nations" of
1946 creates rights and duties between each of the signatories and the
Organisation {see, in particular, Section 35). It is difficult to see how such a
convention could operate except upon the international plane and as
between parties possessing international personality.

In the opinion of the Court, the Organisation was intended to exercise and
enjoy, and is in fact exercising and enjoying, functions and rights which can
only be explained on the basis of the possession of a large measure of
international personality and the capacity to operate upon an international
plane. It is at present the supreme type of international organisation, and it
could not carry out the intentions of its founders if it was devoid of
international personality. It must be acknowledged that its members, by
entrusting certain functions to it, with the attendant duties and
responsibilities, have clothed it with the competence required to enable
those functions to be effectively discharged.

Accordingly, the Court has come to the conclusion that the Organisation is
an international person. That is not the same thing as saying that it is a
State, which it certainly is not, or that its legal personality and rights and
duties are the same as those of a State. Still less it is ... the same thing as
saying that is a "super-State," whatever that expression may mean. It does
not even imply that all its rights and duties must be upon the international
plane, any more than all the rights and duties of a State must be upon that
plane. What it does mean is that it is a subject of international law and
capable of possessing international rights and duties, and that it has
capacity to maintain its rights by bringing international claims.

The next question is whether the sum of the international rights of the
Organisation comprises the right to bring the kind of international claim
 17
described in the Request for this Opinion. That is a [n international
organisation's] claim against a State to obtain reparations in respect of the
damage caused by the injury of an agent of the Organisation in the course
of the performance of his duties. Whereas a State possesses the totality of
international rights and duties recognised by international law, the rights
and duties of an entity such as the Organisation must depend upon its
purposes and functions as specified or implied in its constituent documents
and developed in practice. The functions of the Organisation are of such a
character that they could not be effectively discharged if they involved the
concurrent action, on the international plane, of fifty-eight or more Foreign
Offices, and the Court concludes that the members have endowed the
Organisation with capacity to bring international claims when necessitated
by the discharge of its function.

Having regard to its purposes and functions, already referred to, the
Organisation may find it necessary, and has in fact found it necessary, to
entrust its agents with important missions to be performed in disturbed
parts of the world. Many missions, from their very nature, involve the
agents in unusual dangers to which ordinary persons are not exposed. For
the same reason, the injuries suffered by its agents in these circumstances
will sometimes have occurred in such a manner that their national State
would not be justified in bring a claim for reparation on the ground of
diplomatic protection, or, at any rate, would not feel disposed to do so.
Both to ensure the efficient and independent performance of these
missions and to afford effective support to its agents, the Organisation must
provide them with adequate protection.

The obligations entered into by States to enable the agents of the

Organisation to perform their duties are undertaken not in the interest of the
agents, but in that of the Organisation. When it claims redress for a breach

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 18
of these obligations, the Organisation is invoking its own right, the right that
the obligations due to it should be respected,,, In claiming reparations
based on the injury suffered by its agent, the Organisation does not
represent the agent, but is asserting its own right, the right to secure
respect for undertakings entered into towards the Organisation ...

The question of reconciling action [this right to sue that is claimed] by the
Organisation with the rights of a national State may arise in another way';
that is to say, when the agent bears the nationality of the defendant State ...

The action of the Organisation is in fact based not upon the nationality of
the victim but upon his status as agent of the Organisation. Therefore it
does not matter whether or not the State to which the claim is addressed
regards him as its own national, because the question of nationality is not
pertinent to the admissibility of the claim ...

It is quite often stated that the possession of personality by an actor on the

international plane does not imply that it automatically has all the rights and
is subject to all the duties inherent in the legal system.

"Personality" only means that an entity is endowed by international law with

legal capacity. But entity A may have the capacity to perform acts X and Y
but not Z. Entity B on the other hand may have capacity to perform acts Y
and Z but not X and entity C, to perform all three acts.

Possession of personality by international organisations may produce

certain common core features in the sense of rights; principally, privileges
and immunities; limited locus standi before international tribunals; capacity
to bring claims; and duties in the sense of the responsibility of an
 19
organisation for its illegal acts. However, the extent of the personality of a
particular organisation depends on its constituent document.

ACTIVITY

1. Article 104 of the UN Charter (see http://home.att.net/-

Somansonb/txtcsesite. html) provides the UN with the
"capacity as may be necessary" to execute its functions and
fulfil its purposes within the territory of each member State.
What Charter gap was filled by the Reparation Case?

2. In November 1997 gunmen stormed aboard a boat moored off

Somalia and kidnapped five aid workers from the UN and
European Union. Can the UN and European Union sue for
damages and why?

Topic 3

Legal Capacity of International Institutions

An international organisation of States has legal capacity under

international law if it satisfies three essential elements:-

'f!Fif''i"J'
 20
( 1) It must be a permanent association of state members with
established objectives and administrative organs - The League of
Nations and the UN satisfy this prerequisite because its member
states intended for them to function indefinitely.
(2) An international organisation must possess some power that is
distinct from the sovereign power of its state member e.g. organs of
the EU can order a member state to act, over the State's objection, in
matters defined by the Union's constitutive international treaties.
(3) The organisation's powers must be exercisable on an international
level rather than solely under the national legal system of its
members states.

Public international organisation possess a legal personality or capacity to

exercise certain "governmental" power in a manner similar to those of their
individual state member. When those states yield the requisite degree of
sovereignty to the organisation it has truly international power - the
capacity to engage in conduct otherwise reserved to States. For example,
ability to concluded treaties with other organisations or individual
states, and to require member states to act, or refrain from acting, in a
particular way.

Attribution of international legal capacity to international institutions means

that such organisation acquire legal capacity to:
(i.) Enter into contracts;
(ii.) Acquire and dispose of immovable and movable property;
(iii.) Institute legal proceedings in their own names;
(iv.) Enter into treaty relations with other entities possessing international
legal personality;
(v .) Espouse international claims; and
(vi.) Sail vessels under their flag.
 21

ACTIVITY

An international organisation of States has legal capacity under

international law if it satisfies three essential criteria. Discuss the
three criteria in sufficient detail.

UNIT THREE

COMPOSITION AND STRUCTURE OF INTERNATIONAL

ORGANISATIONS

INTRODUCTION
Although it can be argued that the structure and working of international
institutions are primarily the concern of the department of political science
known as international organisation, their activities do in more than one
way impinge upon the field of international law. The aim of this unit,

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 22
therefore, is to provide the student with a basic run through of the
institutional legal problems that are commonly encountered in the course of
these institution's operations. The legal problems that will be discussed
here include those pertaining to membership, composition, representation,
voting, withdrawal, suspension and expulsion.

Topic 1
Membership

Membership in international institutions can either be universal or limited

regionally, politically and functionally. Membership of the so-called
universal organisations has in practice not been open to all States and not
all eligible States become members.

The first attempt at the creation of a universal organisation was the League
of Nations formed in 1919. The Covenant of that organisation provided
that;
"the original members of the League of Nations shall be those of
the signatories which are named in the Annex as shall accede
without reservations to this Covenant." 10

In addition, the Covenant also opened membership to "any fully self-

governing state, Dominion or Colony not named in the Annex... if its
admission is agreed to by two-thirds of the Assembly, provided that it shall
give effective guarantees of its sincere intention to observe its international
obligations ... "

Despite these intentions, the League of Nations failed to achieve universal

status as a number of States did not become members. Notable among

10
Article 1 of the Covenant of the League of Nations
 23
states that failed to become members is the United States of America
which despite being the architect of the League failed to persuade
Congress to ratify the Covenant.

The world's second attempt at establishing a global international institution

was relatively more successful with the establishment of the United
Nations. The Charter of the UN provides that, the "original members of the
United Nations shall be the States which, having participated in {the San
Francisco Conference), or having previously signed the Declaration by
United Nations of 1 January 1942, sign the present Charter and ratify it in
accordance with Article 110."11

The Charter outlines the procedures to be followed in the admission of new

States as follows:
"1. Membership in the United Nations is open to all other peace-
loving
States which accept the obligations contained in the present
Charter and,
in the judgement of the Organisation, are able and willing to
carry out
these obligations.
2. The admission of any such State to membership in the United
Nations
will be effected by a decision of the General Assembly upon
the
12
recommendation of the Security Council."

11
Article 3 of the UN Charter
12
Article 4 of the UN Charter

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 24
Membership in international institutions can be divided into three
categories, namely original members, members subsequently admitted,
and associate members.

1 Original Members
The normal type of original members is that of States which attended
the conference called to draft the Constitution of the organisation and
which subsequently ratified the Constitution in accordance with its
provision. For example, Article 2 of the IMF Articles of Agreement
which describes original members as, "those countries represented
at the United Nations Monetary and Financial conference whose
governments accept membership before ... (specified date)."

2 Subsequent membership
International institutions in many cases do provide for admission at a
future date, of those States who were not present at the conference
which created the Organisation. Thus for example, Article 4 of the
UN Charter states that;
"Membership is open to all other peace loving States which
accept the
obligations contained in the present Charter and, in the
judgement of the
organisation are able and willing to carry out these obligations".
Similarly the constituent instrument for the Organisation of Copper
Exporting Countries (CIPEC) states that;
"Any producer country with a substantial net export of copper
produced
 25
from ore originating in the country and which has fundamentally
similar
interests to those of member countries, may become a full
member of the organisation if accepted unanimously by the full
members."13

3 Associate membership
Associate member status has been used in many international
organisations to enable some states to take advantage of the
organisation even though they do not qualify to be full members.
CIPEC for example, amended its constituent instrument in 1974 to
provide for this type of membership.

The United Nations Charter does not provide for this type of
membership but over the years the General Assembly has created a
form of such membership by granting observer status to those
entities that do not qualify to full membership.

Topic 2
Withdrawal from Membership

Constituent instruments of some organisations do provide members with a

right to withdraw. For example, the League of Nations Covenant provided
that;

13
Article 2 of the CIPEC Agreement

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 26
"Any member of the League, may after two years notice of its
intention to do so,
withdraw from the League, provided that all its international
obligations under this Covenant shall have been fulfilled at the time of
its withdrawal." 14
This provision was utilised by sixteen states between 1924 and 1940 which
withdrew from the League weakening the universality of that organisation
as well as its effectiveness. It is perhaps for this reason that the UN
Charter does not contain provision for withdrawal. However, the lack of a
withdrawal provision, did not prevent Indonesia from notifying the Secretary
General of the United Nations of its withdrawal from the organisation on 20
January 1965. Indonesia withdrew from the UN in protest at the election of
Malaysia to the Security Council. 15

On 19th September 1966, after almost two years of withdrawal, Indonesia

informed the Secretary General that it had decided "to resume full
cooperation with the UN and to resume participation in its activities starting
with the twenty-first session of the General Assembly." 16

In response the President of the General Assembly stated that "it would
appear that the Government of Indonesia considers that its recent absence
from the organisation was based not upon a withdrawal from the UN but
upon a cessation of cooperation. The action taken so far by the UN on this
matter would not appear to preclude this view. "17

Since no State objected to the statement by the President of the General

Assembly, it would appear that Indonesia's membership in the UN had

14
Article 1 (3) of the Covenant of the League of Nations
15
See Yearbook of the United Nations, (1964) 189-92
16
UN doc. A/6419 (1966)
17
GA 1420 plen. mtg, 21 UN GAOR (1966)
 .,I

27
continued despite its physical absence during the entire period it allegedly
withdrew.

Topic 3
Suspension and Expulsion

There is no consistent practice on this patter although the constituent

instruments of the majority of international institutions make no provision for
expulsion, but to allow suspension of a member's privileges, including
voting rights, for default in financial or other obligations, until these
obligations are met.

ACTIVITY

With the aid of suitable examples, discuss the various categories

of members in international organisations.

Topic 4
Privileges and Immunities

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 28
To operate effectively, international institutions require certain privileges
and immunities in each country where they may be located permanently or
temporarily. The agents and servants of such institutions also require such
privileges as a reasonably necessary for the performance of their duties.
Obviously this was a matter not to be left to separate solutions by the laws
and practice of the States participating in each international institution but is
dealt with in international conventions.

So far as the UN is concerned, the Charter provides in general terms, that

the organisation should enjoy in the territory of each member state such
privileges and immunities as were necessary for the fulfilment of its
purposes, that representative of member states and officials of the
organisation should similarly enjoy such privileges and immunities as were
necessary for the independent exercise of their functions in relation to the
UN_1a

Similar stipulations have been inserted in various Constitutions of the

"Specialised Agencies" and in treaties and agreements relating to general
and regional international institutions.
1 Immunity of UN property and assets from legal process except when
waived.
2 Inviolability of the organisation's premises and archives.
3 Freedom from direct taxes and customs duties for its property and
assets.
4 Equivalent treatment for its official communications to that accorded
by member states to any government.
5 Special privileges including immunity from arrest, inviolability of
documents.

18
Article 105 of the UN Charter
 29
6 Special privileges for certain UN officials of high rank, including the
status of diplomatic envoys for the Secretary General and Assistant
Secretaries - General e.g. from legal process for acts performed or
words spoken in their official capacity, from taxation and from
national service obligations.
7 A laissez-passer or special travel document for UN officials.

In November 1947, the General Assembly adopted a convention for the

coordination of the privileges and immunities of the Specialised Agencies
with those of the UN, but it also provided for separate draft annexes
relating to each specialised agency containing special provisions for
privileges and immunities which needed to be made having regard to the
particular nature of each specialised agency.

A related question is that of the status of the headquarters (premises and

territory) of the UN and Specialised Agencies. This has been governed
and regulated by special agreements such as the Agreement between the
UN and USA of 1947. These agreements reveal the following common
features.
1. Local laws are to apply within the HQ~, district, subject to the
·.~ -

application of staff administrative regulations relative to the

Secretariat.
2. Premises and property are to be immune from search, requisition,
confiscation etc and any other form of interference by local officials.
3. Local officials cannot enter except with consent of the organisation.
4. Local government must use diligence to protect the premises against
outside disturbance and unauthorised entry.
5. HQs are exempt from local taxes or imposition, except charges for
public utility service e.g. water, rates, and electricity.

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 30
6. Organisation enjoys freedom of communication, with immunity from
censorship.

Issue of Transit To and From HQ of an Organisation

Taking the example of the UN~USA HQ agreement, 19 Art IV Section 11

deals with communications and transit. "The federal state or local
authorities of the USA shall not impose any impediments to transit to or
from the HQs district of:
1. Representatives of members or officials of UN Specialised Agencies
or their families.
2. Experts performing missions for the UN or Specialised Agencies.
3. Representatives of the press, or of radio, film or other information
agencies who have been accredited by UN or Specialised Agencies.
4. Representatives of non-governmental organisations recognised by
the UN for the purpose of consultation under Art. 71 of the Charter.
5. Other persons invited to the HQs district by the UN or by such
Specialised Agencies on official business. The appropriate
American authorities shall afford any necessary protection to such
persons while in transit to or from the HQs district.

Section 12 of Art. IV
"The provisions of Section 11 shall be applicable irrespective of
the
relations existing between the government of the persons
referred to in that section and the government of the USA."

19
See II UN Treaty Series, pp. 11-36
 31
Consider Section 11 in relation to the recent USA refusal to grant a
visa to Vasser Arafat of PLO to attend a General Assembly debate on
the Palestinian issue. The PLO enjoys observe status at the UN.

Relations with Member States

( 1) The basis in law of the relations between an international institution
and its
member states is the constituent instrument.
Provision is made for specific obligation, which member states are
bound to observe as contracting parties to the constituent instrument
e.g. under the IMF Articles of Agreement. The main purpose of the
Fund is stated as to promote exchange stability, to maintain orderly
exchange arrangements among members and to avoid competitive
exchange depreciation.

To that end member states have accepted far reaching limitations of

their traditional monetary sovereignty.
- The par value of the currency of each member is fixed in terms
of a common denomination e.g. US Dollar or SOR.
- Changes in the per value and consequently of the rate of
exchange with other currencies are subject to specific
conditions - one of which is that no change shall be made
except to correct a fundamental disequilibrium.
- The procedures to be followed in this regard, permit a certain
supervision by the Fund.
- The Executive Board must be consulted in advance, and it may
object if the change exceeds ten percent, and the Board is not
satisfied of its necessity.

Decision Making

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 32
(2) The constituent instrument attributes to the institutions powers,
acting through its principal agents to make decisions which in various
ways impose new obligations on member states or accord them
certain rights.
- On specific issues some international institutions may be
empowered to make decisions legally binding on the parties
concerned e.g. the power which the Security Council may
exercise under Chapter VII of the Charter in cases of a threat to
international peace, breach of peace, or an act of aggression.
- Other international institutions, however, have only a power of
recommendation. Although a recommendation is not legally
binding, it is not correct to deny it any legal efficacy.
- Whether general or specific, such a recommendation places
any State to which it is addressed under an obligation to take it
into account when making national decisions.
- This is of course, an imperfect obligation which generally
speaking cannot be enforced - and hence too many
international recommendations have remained dead letters.
- The practical effect of recommendation varies with
circumstances according to the particular measures of
international supervision which may be applied.
(a)One group of supervisory measures have as an
essential element an obligation to report what national
actions have been taken to give effect to an international
decision or recommendation. Such reports may then be
scrutinised by the. institution and subject to public
debate. This is an essential element of the ILO system.
(b)ln some instances investigations are set in motion on
complaint or petition, either by another contracting state
or by an individual or a group of individuals whose
 33
interest are protected by the international instrument.
This is the case in the UN Trusteeship System, in
international institutions dealing with human rights and
also under the ILO system.
(c) In yet other instances, provision may be made for an
international inspection. Such an operation is in
operation albeit to a small scale in the International
Atomic Energy Agency (IAEA). Under its statute the
Agency has as one of its tasks the responsibility to act
as an intermediary for service or the supply of atomic
materials and equipment by one member state to
another.

When it acts as an intermediary, the statute gives it

powers of control e.g. it may prescribe health and safety
measures to be applied, as well as procedures to be
followed to prevent diversion of materials for military
purposes.

In this regard the Agency may send its own inspectors

to the recipient state which is under the duty to give
them access to all places and data on any person, to the
extent necessary to control that prescribed conditions
are complied with.

In case of non-compliance, the inspectors shall report

through the Director General to the Board of Governors,
which in turn shall report to the Security Council and the
General Assembly.

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 34
Whatever the legal nature of the powers attributed to an
international institution, they are specific in the sense
that they may be exercised only with respect to certain
subject maters prescribed by the constituent instrument.
This is quite clearly so in Specialised Agencies and
many regional institutions.

The specificity of these powers is subject to the doctrine

of implied powers.
As the ICJ stated in relation to the UN
"Under international law the organisation must be
deemed to
have those powers which, though not expressly
provided in the Charter are conferred upon it by
necessary implication as being essential to the
performance of the duties."20

The court referred to one application of the same doctrine by the PCIJ in an
advisory opinion of 1926 in which it stated that the ILO, although
established for the protection of workers only, was competent to draw up
and propose legislation, which in order to protect certain classes of
workers, also regulated incidentally the same work when performed by the
employer himself. 21

Relations with Non-Member States

The constituent instrument of an international institution is as a general
principle, res alias acta (a transaction between others does not prejudice
one who was not a party to it) as far as concerns non-member states.

20
Reparation for Injuries Case, 1949 ICJ Rep. 182
21
PCIJ Series B No 13
 35

Non-member states will neither acquire rights nor will they be subject to
duties under its provision, and whatever powers may have been vested in
the organs cannot be exercised in relation to non-members.

This is true of the Charter of the UN although the law of the Charter may in
certain respects be considered as expressing principles which all states are
obliged to respect (customary rules of international law). It is however
beyond doubt that decisions made by a UN organ will never be binding in
relation to a non-member state.

This is not to say that an international institution is a legal nonentity in

relation to non-member states because its international legal personality is
generally "objective" in the sense that it does not depend upon recognition
by non-member states. Whatever organs are competent to act on behalf of
the organisation, for example, the purpose of concluding international
agreements, have that authority in relation to non-member states as well as
member states, unless the constituent instrument provides to the contrary.

Through the exercise of their treaty making capacity most international

institutions have established legal relationships of varying scope and
intensity with non-member states e.g. UN and Switzerland.

In the EU it is provided that agreements may be concluded with third states

associating them with the community in a legal relationship of mutual rights
and obligations. 22 Most important treaty concluded in this respect is the
Cotonou Convention bringing a number of ACP countries into relations with
the EU.

22
Art. 238 of Rome Treaty

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 36
The constituent instrument may also provide that non-member states shall
be entitled to participate in the activities of the organisation under certain
conditions. For example, Art. 35 (2) of the UN Charter allows a non-
member state to bring a dispute in which it is involved before the Security
Council or the General Assembly, if it accepts in advance, for the purpose
of the dispute, the obligations of pacific settlement provided in the Charter.

Likewise, a State which is not a party to the statute of the ICJ has access to
the court under conditions laid down by the Security Council under the
provisions of Article 35 (2) and (3) of the statute which states:

Art. 35 (2) "The conditions under which the court shall be open to
other States
shall be subject to the special provisions contained in
treaties in
force to be laid down by the Security Council, but in no
case shall such conditions place the parties in a position
of inequality before the court.
Art. 35(3) "When a state which is not a member of the United
Nations is a party to a case, the Court shall fix the amount which that party
is to contribute towards the expenses of the court. This provision shall not
apply if such state is bearing a share of the expenses of the Court."

ACTIVITY

Most international organisations derive their immunity from

various analogies under the internal law of member states.
Discuss the nature of privileges and immunities granted to the
United Nations and its agents by member states.

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 37

UNIT FOUR

THE UNITED NATIONS

Introduction

The United Nations is the most important of all international institutions. It

is an organisation of independent states which have accepted the
obligation contained in the UN Charter.

TOPIC 1
Origins
Many of the principles stated in the Charter were derived from plans
conceived by the allies and which found expression in three documents.
1. The Atlantic Charter subscribed to by the USA President and UK
Prime Minister in August 1941.
2. UN declaration signed by 26 nations in January 1942 after Japan
had opened hostilities in the Pacific.
3. The Moscow declarations of October 1943 issued by governments of
USA, Britain, Soviet Union and China recognised the need for
establishing a general international organisation based on principles
of the sovereign equality of States and open to all peace loving
States large or small in order to maintain international peace and
security.
 38

In 1944 draft proposals for such an organisation were worked out at

Dumbarton Oaks by representatives of these four powers. Then, at ~he
Yalta Conference of _1945, leaders of USA, Britain and Soviet Union
decided to call a conference of about 50 nations to consider a Constitution
based on the Dumbarton Oak proposal. At Yalta, agreement was also
reached on voting procedures and arrangements for the proposed Security
Council of the new organisation.

Two months later, a Committee of Jurists representing 44 countries met in

and drafted a statute for the proposed ICJ which was to be an integral
part of the proposed organisation. The conference to consider the
Dumbarton Oaks proposals met in San Francisco from 25 April to 26 June
1945 and succeeded in drawing up the present UN Charter and Statute of
the ICJ.

TOPIC 2

The Principles of the UN Charter

Article 2
The principles contained in Article 2 are the only ones which impose
obligations on members of the organisation

Article 2 (1) Emphasises principle of sov_~reign equality of states .

...,.

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 39
2 (2) Is a statement of the rule of "pacta sunt servanda" in respect
of the Charter - (fulfil in good faith obligation assumed by them in
accordance with the
Charter)
2 (3) and 2 (4) are two principles the observance of which are basic
to the
Charter as a whole and may be said to constitute the cardinal
principles of
the Charter. According to these provisions, members of the
organisation
are under an obligation to settle their international disputes by
peaceful
means and refrain in their international relations from the threat
or use of
force against the territorial integrity or political independence of
any state.
2 (5) Imposes an obligation on members to assist the organisation in
any action
it may take in accordance with the Charter.
2 (6) Extends the obligation to non-members in so far as may be
necessary for
the maintenance of international peace and security.
2 (7) Provides for non-interference by UN in matters within domestic
jurisdiction
of member states - although this is not to prejudice
enforcement measures
under Chapter 7.

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40

TOPIC 3

Membership

Membership of the UN consists of original members and those members

admitted in accordance with Article 4 of the Charter. The first category
raises no problems because this covers those members who participated at
the San Francisco conference of 1945 who have signed and ratified the
Charter.

As to members other than original members, Article 4 provides that

membership is open to "all other peace loving states which accept the
obligations contained in the present Charter and, in the judgment of the
organisation, are able and willing to carry out these obligations" and that
such admission will be effected by a decision of the General Assembly
upon the recommendation of the Security Council.

The interpretation of Article 4 caused considerable difficulties in the early

years of the organisation. Two advisory opinions of the ICJ have now
clarified certain points with regard to the interpretation of Article 4.

23
In the conditions of membership, in the United Nations case by a
majority, the ICJ held that the conditions laid down in Article 4, namely that
an applicant must,
(a) be a State;
(b) be peace-loving;
(c) accept the obligations of the Charter;
(d) be able to carry out these obligations; and
(e) be willing to do so,

23
1948 ICJ Rep. 57
 41
were an exhaustive enumeration and not merely illustrative. The Court
also ruled that a state m~mber voting on the admission of a new State is
not entitled to make its consent to the admission of an applicant dependent
on the fulfilment of conditions other than those prescribed in Article 4, and
in particular is not entitled to make such consent dependent on admission
of other applicants.

The question presented to the ICJ for its advisory opinion was;
"Is a member of the UN which is called upon, in virtue of Article 4 of
the Charter, to pronounce itself by its vote, either in the Security
Council or in the General Assembly, on the admission of a State to
membership in the UN, juridically entitled to make its consent to the
admission dependent on conditions not expressly provided by para 1
of the said Article? In particular can such a member, while it
recognises the conditions set forth in that provision to be fulfilled by
the State concerned, subject its affirmative vote to the additional
condition that other States be admitted to membership in the UN
together with that State?24

In the Advisory Opinion on the competence of the General Assembly

for the Admission of a State to the UN, 25 the General Assembly on
November 22, 1949 passed a resolution requesting the ICJ to give an
advisory opinion on the following question:

"Can the admission of a state to membership in the UN, pursuant to

Article 4 (2),

24
For more reading on this point see Louis John, Cases on UN Law. p. 57-84
25
1950 !CJ Rep. 4

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 42
be effected by a decision of the General Assembly when the Security
Council has made no recommendation for admission by reason of the
candidate failing to obtain the requisite majority or of the negative
vote of a permanent member upon a resolution so to recommend ... ?"

In short the Court was called upon to determine whether the General
Assembly can make a decision to admit a State when the Security Council
has transmitted no recommendations to it.

The Court was of the opinion that Article 4 (2) requires two things to effect
admission:
(a)a "recommendation" of the Security Council
(b )a "decision" of the General Assembly

In its opinion the Court felt that "it is in the nature of things that the
recommendation should come before the decision." To hold that the GA
has power to admit a State to membership in the absence of a
recommendation of the SC would be to deprive the SC of an important
power which has been entrusted to it by the Charter.

It would mean that the SC would have merely to study the case, present a
report, give advice and express an opinion. This is not what Article 4
paragraph 2 says.

The Court by 12 votes to 2 was of the opinion that admission of a State to

membership in the UN pursuant to Article 4 (2) cannot be effected by a
decision of the General Assembly when the Security Council has made no
recommendations for admission by reason of the candidate failing to obtain
 43
the requisite majority or the negative vote of a permanent member upon a
resolution so to recommend. 26

Suspension or Expulsion from Membership

Article 5 provides for the suspension from membership of any member

state against which preventive or enforcement action has been taken by
the Security Council.

The procedure of suspension follows that employed for admission but the
restoration of a suspended member may be effected through a decision of
the Security Council only.

Article 6 provides for the expulsion of a member state which persistently

violates the principles of the Charter - the expulsion is to be effected by the
General Assembly upon the recommendation of the Security Council.

This provision does not specify the procedure for reinstatement of an

expelled member.

Withdrawal
Unlike the covenant of the League of Nations, the Charter contains no
provision for withdrawal. The Covenant allowed a member to withdraw
"after two years" notice of the intention so to do provided that it has fulfilled
at the time of its withdrawal "all its international obligations and all its
obligations under the Covenant"27

26
Competence of the General Assembly for the Admission of a State to the United Nations - ICJ Rep
(1950) p. 4 - 34
27
Article 1 (3) of Covenant

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 44
More than one quarter of the members actually withdrew from the League
in accordance with this procedure. 28

An explanation for this emission of a provision for withdrawal from UN is

contained in the report for Committee ½ of the San Francisco Conference
which was approved by the Conference itself.
(1) that it would be contrary to the conception of universality upon which
the organisation was to be passed.
(2) that withdrawal would give recalcitrant members the possibility of
securing concessions from the organisation by threatening to leave.
(3) that withdrawal would be a means of escape from fulfilling
obligations by leaving the organisation.

Despite this lack of provision, one country, Indonesia did withdraw in 1965
- in objection to Malaysia being elected to a seat in the Security Council.
On September 19, 1966 Indonesia notified the Secretary General that it will
resume participation in the UN.

The government of Indonesia was of the opinion that its absence from the
UN "was based not upon withdrawal from the UN but upon a cessation of
cooperation". 29

TOPIC 4
Organs of the UN
Although the UN is an organisation of States, it operates like all other
international institutions through organs composed of individuals which in
most cases are representatives of members States.

28
See John -World Law pp 250-1
29
For further reading on the issue of withdrawal see, N Feinberg "Unilateral withdrawal from an
International Organisationn 39 BYBIL (1965) pp 189- 219
 45

The Charter apart from establishing the organisation itself, also creates a
number of organs for purposes of carrying out the aims of the organisation,
establishes the composition of these organs, their functions and powers
and their voting procedures.

There are six organs of the UN

1 The General Assembly
2 The Security Council
3 The Economic and Social Council
4 The Trusteeship Council
5 The International Court of Justice
6 The Secretariat

Each organ has sharply defined spheres of action and although in a sense
the residing of authority is vested in the General Assembly, the latter's
powers are mainly supervisory and recommendatory so that possibly no
particular field of international action may be outside the operational
competence of the UN.

Article 7 (2) provides for the establishment of such subsidiary organs as

may be found necessary, but without defining the term "subsidiary organ"
or listing any such organs.

Composition of the Principal Organs of the UN

{1) The only principal organ composed of all the members of the UN is
the General Assembly. 30 Each member shall have not more than
five representatives in the General Assembly31 but only one can vote.

30
Article 9 ( i}
31
Article 9 (2)

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 46
The General Assembly is thus a plenary organ of the UN in which all
members are equally represented.

(2) Security Council - Originally the Security Council consisted of 5

permanent members (China, France, the Soviet Union, the United
Kingdom and United States), and six non-permanent to be elected
for a term of two years. 32

By an amendment adopted in 1963 and in force since 1965 the

number of non-permanent members of the Security Council has
increased to 10. Each member of the Security Council has one
representative. Ten non-permanent members are elected by the
General Assembly for a period of two years and in their election due
regard is to be specifically paid in the first instance to the contribution
of member state to the maintenance of peace and security and other
purposes of UN and equitable geographical distribution.33

When the General Assembly adopted the amendment to the Charter

increasing
the number of non-permanent of the Security Council to ten, it also
agreed that these members "shall be elected according to the
following pattern:
(a) Five from African and Asian states
(b) One from Eastern European states
(c) Two from Latin American states
(d) Two from West-European and other states"34

(3) ECOSOC

32
Article 23
33
Article 23
34 th
See Resol. 1991 (XVIII) 17 December 1963
 47
Under Article 61 of the Charter so adopted, the ECOSOC consisted
of 18 members elected by the General Assembly for a period of 3
years. Under a 1963 amendment the ECOSOC was enlarged to 27
members.

(4) Trusteeship Council

Differs from the other principal organs in as much as its total
membership is not fixed at some specific figure, but is dependant
upon the number of member states who are administering trust
territories.

Article 86 provides that the Trusteeship Council shall be composed

of those members administering trust territories, those members of
the Security Council who are not among the administering members
and as many other members elected by the General Assembly for a
3-year term as may be necessary to ensure that the total number of
administering members is matched by non-administering members.

(5) ICJ
Whereas the other organs consist of representatives of member
states, the State being elected to the particular organ, the Court is
composed of 15 independent judges elected regardless of their
nationality from among persons of high moral character, who possess
the qualification required. 35 The only limitation is that no two
members of the Court may have the same nationality.

35
See Article 2 of the Statute of ICJ

-----------'*""'"""
 48
Also the Court's membership is meant "as a whole (to be) a
representation of the main forms of civilisation and of the principal
legal systems of the world. 36

(6) Secretariat
Article 7 (1) describes the Secretariat as the 6th organ of the UN. But
designation of the Secretariat as a principal organ is somewhat
misleading since the Secretariat is not organised in such a manner
as to be capable of acting as a collegiate body.

The organ referred to in Article 7 (1) is really the Secretary General.

Article 97 provides that "Secretariat shall comprise a Secretary
General and such staff as the organisation may require."

The Secretary General is elected by the General Assembly upon

recommendation of the Security Council. Since the Secretary
General cannot perform all his functions personally he has under his
control a staff of assistants - the Secretariat

Article 101 provides for appointment by Secretary General of his staff

under regulations established by the General Assembly. Paragraph
3 of the article states the paramount consideration in the
employment of staff and determination of conditions of service as
being "the necessity of securing the highest standards of efficiency
competence and integrity."

Reference is also made "to the importance of recruiting staff on as

wide a geographical basis as possible."

36
Article 9 of the Statute
 49
Functions and Powers of Various Organs of the UN

( 1) The General Assembly

This is a deliberate body or plenary organ and is endowed with virtually all
embracing functions by Article 10-14 in Chapter IV of the Charter.
Generally speaking its powers are limited to making recommendations and
not binding decisions, although it is empowered to take certain final
decisions e.g. as to the budget or as to admission, suspension or expulsion
of members.

Its powers and functions consist of the following:-

1. Powers of discussion and ...
2. Supervision of international economic and social
cooperation.
3. Supervision of the international trusteeship system.
4. Considering information on non self-governing territories.
5. Consideration of finances of the UN.
6. Admitting, suspending and expelling States.
7. Election of members of other organs.
8. Adoption of international conventions.
9. Adoption of amendments to Charter.
10. Consideration of reports on work of the UN.

The one limitation on the scope of the General Assembly's function which
appears in Chapter IV contained in Article 12 (1)
"While the Security Council is excising in respect of any
dispute or situation the functions assigned to it in the
present Charter, the General Assembly shall not make
any recommendations with regard to that dispute or
situation unless the Security Council so requests."
 ,''V'<i+Yiilii:ffi§·m_ _ _ _ _ _ _ _ _ _llllllillllli-

50

(2) Security Council

Functions of the Security Council which are set out in Article 24 and 26
may be summarised as:
"The maintenance of international peace and security"

The Security Council differs with the General Assembly in that within this
sphere, it has powers of decision binding on all members of the
organisation. 37 The distinction which the Charter ought to make between
the functions of the General Assembly and the Security Council in matters
relating to the maintenance of international peace and security has not
been fully maintained in practice.

(3) ECOSOC
Functions of ECOSOC are described in Articles 62-66 and comprise in the
main - initiation of studies and reports with respect to international -
economic, social, cultural, educational, health and related matters,
recommendations for the purpose of promoting respect for and observance
of human rights and fundamental freedom for all.

It may also prepare draft conventions for submission to General Assembly.

It may call international conferences on matters within its competence.

(4) Trusteeship Council

Functions and powers of the Trusteeship Council are set out in Articles 87
and 88. Its competence is limited to discussion and report and it is placed
in the overall authority of the General Assembly.

(5) ICJ

37
Article 25
 51
Functions consist of delivery of judgement in contentious cases and of
advisory opinions. Judgements in contentious cases are binding on the
parties while advisory opinions have no legally binding force.

Jurisdiction of the Court rests on the consent of the parties which may be
made expressly for the purpose of a particular case or through the "optional
clause" contained in Article 36 or the Statute.

Though the Court is an integral part of the UN institutional system, its

function is concerned primarily to that of deciding legal disputes between
States.

Legal questions which may arise of out activities of the political or executive
organs of the UN are not within its jurisdiction because the statute allows
states only to be parties before the Court. 38

Advisory opinions can only be requested by these organs which are

authorised to do so under Article 96 of the Charter.

TOPIC 5
Voting Procedure
In the organs of the UN each member has one vote and with the exception
of the case of permanent members of the Security Council every vote is of
equal weight. Voting in the UN is based on the principle of the majority
vote.

38
Article 34

/,'"-¼>,, ,i%4'tp!f///,f:Y,7.
0 ~·°'
 ,';;)'_.-)pi),fdi3X"'''"$l

52
The majority voting system may take many forms and the Charter contains
a mixture of procedures which vary according to the organ in question and
the functions being exercised by that organ.

In its simplest form, the majority required is a simple majority of members

present and voting. This is the case with decisions taken by the General
Assembly on questions which fall within the scope of Article 18 (3) the so-
called non-important matters - Decisions of ECOSOC39 and Trusteeship
Council. 40

In another form, the majority required may be qualified either by reference

to a specified proportion (half, two-thirds or three-quarters) or a specified
number of affirmative members.

Decisions of the General Assembly on "important questions are governed

by the first of these procedures. According to Article 18 (2) such decisions
"shall be made by a two-thirds majority of members present and voting".

Questions which fall within this category are enumerated but the list is not
intended to be exhaustive and Article 18 (3) subjects to a simple majority
vote the determination by the General Assembly of additional categories of
important questions.

The procedure of decision by a specified number of affirmative members is

employed by the Security Council, which in a certain category of questions,
employs an additional qualification, that of the 'concurring votes' of the
permanent members.

39
Article 67 (2)
40
Article 89 (2)
 53
With regard to procedural matters decisions of the Security Council are
made by the affirmative vote of nine members including the concurring
votes of the permanent members. 41 This double qualification gives in
effect, a right of veto to each permanent member in any non-procedural
matter.

A customary practise has developed, resulting in an important modification

de facto of Article 27 (3). A permanent member which abstains from voting
is not considered as casting a negative vote, and provided that the requisite
number of affirmative votes is cast, the Security Council is deemed to have
taken a decision notwithstanding the abstention.

This practice upheld by the I CJ in Legal Consequences for States of the

continued presence of South African in Namibia the Court rules that the
Security Council resolution of 1970 declaring illegal the continued presence
of South Africa in Namibia was not invalid by reason of abstention from
voting of two permanent members42

It is controversial whether the customary practice practise also covers the

situation in which the representative of a permanent member is absent from
the Council altogether.

This question last arose when the Security Council took important
decisions on the Korean question during June and July 1950 in the
absence of the Soviet representative.

Voting 8n the Security Council

41
Article 27 (3} as amended
42
1971 ICJ 16

;c, ,frtkC&:<c.t»<
 54
The voting procedure in the Security Council depends on whether the issue
to be put before a vote is a procedural matter or a substantive matter.

On all procedural matters, decisions are made by an affirmative vote of any

nine members. 43 On all other matters, decisions are made by the
affirmative vote of nine members including the concurring votes of the
permanent members.44 Provided that in decisions under chapter VI of the
Charter (pacific settlement of disputes) and under Article 52 (3) (pacific
settlement under regional arrangements) a party to a dispute shall abstain
from voting. The requirement of affirmative votes of nine members plus
concurring votes of the permanent members, in effect gives a right of
"Veto" to each permanent member in any non-procedural matters.

Before the amendment which raised the number of non-permanent

members from six to ten, and the required affirmative vote from seven to
nine, the five permanent members could in effect produce a "block veto" by
all abstaining from voting.

Although a Security Council resolution may be vetoed, even though there is

a majority in favour, there are those who believe that a member state may
rely on the majority view as justifying unilateral domestic action. 45

Abstention from voting

A customary practice has developed resulting in an important modification
de facto of Article 27 (3) of the UN Charter. A permanent member which
abstains from voting is not considered as casting a negative vote, and
provided that the requisite number of affirmative votes is cast, the Security
Council is deemed to have taken a decision notwithstanding the abstention.
·.•
43
Article 27 (2) of the UN Charter as amended
44
Article 27 (3) or the UN charter as amended
45
See for example W M Reisman, •The Legal Effect of Vetoed Resolutions·, 74 AJI L ( 1980) 904 at 907
 55

It is controversial whether this customary practice also covers the situation

in which the representative of a permanent member is absent from the
Council altogether. The question last arose then the Security Council took
important decisions on the Korean question during June and July 1950 in
the absence of the Soviet representative.

The Korean Conflict

At the time of the crossing by North Korean troops into South Korean
territory in June 1950, the Soviet Union was absent from the Security
Council, and the nationalist Chinese government, to whose credentials the
Soviet Union objected, was represented in the Security Council. Hence the
subsequent Security Council resolution, finding that a "breach of the peace"
had been committed, recommending assistance to the South Korean
authorities, and providing for a unified United Nations Command under the
United States direction, were taken without the Soviet Union's concurrence.

The Soviet Union challenged the validity of the resolutions on the grounds
that any such vote thereon required her positive concurrence under the
voting provisions of the Charter, and also the concurrence of the
government of the Peoples Republic of China, which was in its view the
true legal government.

In reply to the Soviet Union's contention, it was maintained that for

purposes of determining whether the Soviet Union had or had not
concurred, an absence had necessarily to be regarded as the same way
as, in practice, an abstention from voting and that the Chinese nationalist
government rightly represented China.

Voting on procedural matters and the so-called Double Veto .

,,_,_..........................,,_,."1$1&/_"'MD
 56
During consideration by the Security Council of the Spanish question, a
special sub-committee was appointed by ten votes to none, with one
abstention, the USSR. The committee was "to examine statements made
before the Security Council concerning Spain." The sub-committee made
certain recommendations including a recommendation requesting the
General Assembly to pass a resolution recommending that diplomatic
relations with the Franco regime be terminated forthwith by each member
of the UN.

A draft resolution approving these recommendations was not adopted by

the Security Council as a permanent member (the USSR) voted against it.
At this point the Polish representative proposed another draft resolution.
After a short discussion the President of the Council submitted the text to a
vote of the Council. Ten votes were in favour of the resolution while Poland
and the USSR voted against. The President then made a remark that the
draft resolution is carried.

The representative of the USSR (Mr Gromyko) was of the view that the
resolution was not carried or failed to be carried because one of the
permanent members has voted against it. The President then explained
that the question before the Council was procedural. Mr Gromyko objected
and thought that the resolution was not on a procedural matter. The
President put to a vote the question whether this was a question of
procedure. Eight members voted in favour, two (France and USSR) voted
against and one member abstained. The President then announced that
the resolution was not carried and made the following statement: "If it is to
be decided whether a question is· one of procedure or substance, it is
necessary to accept one or another alternative by seven votes but with all
permanent members concurring."
 57
The distinction between procedural and substantive issues in effect gives
permanent members of the Security Council a "double veto", one in
determining whether a matter is procedural or not and another on the
substantive issue. 46
TOPIC 6
The United Nations Specialised Agencies
As pointed out earlier on, there was a rapid development of international
institutions or organisation in the first half of the 19th century along
functional lines. The UN Charter took this development into account by
providing for the establishment of relationship between these institutions
and the UN.

Article 57 (1) of the Charter provides that;

"The various Specialised Agencies, established by intergovernmental
agreement
and having wide international responsibilities, as defined in their basic
instruments ... shall be brought into relationship with the UN."

The Charter also gave the UN powers to initiate the creation of new
organisations. 47 In practice the term "Specialised Agencies" is used to
denote those institutions which have entered into relationship with the UN
in accordance with the terms of Article 63 of the Charter. Chapter IX of the
Charter is the key to the system of Specialised Agencies. At the centre of
this system is the UN which exercises through the General Assembly and
the ECOSOC, an overall supervisory function, including coordination.

Each specialised agency is created by an intergovernmental agreement

conferring upon it a distinct international personality and responsibilities in
46
For further reading on the issue of double veto see Leo Gross, "The Double Veto and the Four Power
Statement on Voting in the Security Council," 67 Harvard Law Review (1953) 251-80 and
AW Rudzinski, "The so-called double veto,• 45 AJIL (1951) 443 - 61
47
Article 59 of the UN Charter

, . _................................,.,,,,.,JlJff!hW'ZB.:;
 58
a particular field. Among those Specialised Agencies that have concluded
agreements with the UN48 are:
International Labour Organisation (ILO)
International Monetary Fund (IMF)
International Bank for Reconstruction and Development (IBRD)
World Health Organisation (WHO)
Food and Agriculture Organisation (FAO)
United Nations Educational Scientific Organisation (UNESCO}
International Atomic Energy Agency (IAEA)
Universal Postal Union (UPU}
International Civil Aviation Organisation (ICAO)
International Telecommunication Union (ITU)
Intergovernmental Maritime Consultative Organisation (IMCO) .
World Meteorological Organisation (WMO)

Membership to Specialised Agencies

As the case of the UN a general distinction may be made between orig in al
and admitted members. Original members being those who were already
members at the time the organisation acquired the status of a specialised
agency or in the case of new institutions, those members who participated
in the conference which established it.

Admitted members may be admitted as of right by virtue of membership in

the UN or may be required to seek admission through a vote of approval of
the plenary organ of the agency. The distinction between original and
admitted members is of no significance when it comes to rights and
obligations of members. Generally speaking membership in Specialised
Agencies is limited to States although there are exceptions to this rule. For
example, membership of the Universal Postal Union consists of both states

48
Article 63 of the Charter
 59
and their dependent territories as long as such dependent territories
possess an independent postal administration.

A number of Specialised Agencies provide for "associate membership" thus

enabling participation by countries which enjoy internal self-government but
have not yet achieved full independence. In all cases Associate Members
do not enjoy voting rights.

Expulsion from membership is not generally specifically provided for,

although in some cases expulsion from the UN will entail expulsion from
the Specialised Agencies. 49

In this respect, the financial institutions differ from other Specialised

Agencies. Under the IBRD Articles of Agreement, failure by a member to
fulfil its obligations may result in suspension, followed by expulsion. 50

Further, Article VI (3) of the IBRD Articles of Agreement provides that any
member of the IMF ceasing to be a member of the UN shall automatically
cease to be a member of the Bank, unless the Bank by three-quarters of
the total voting power agrees otherwise.
The IMF on the other hand, provides for what is called "compulsory
withdrawal" in the case of members who fail to fulfil their obligations. 51

With the exception of WHO, all constituent elements of the Specialised

Agencies contain provisions for withdrawal. In general, the period of notice
required is one or two years. Other conditions may also be required, for
example, fulfilment of all financial obligations or continued adherence to

49 th
See the amendments to the !LO Constitution adopted at the 48 Session of the iLO conference - 19
International Organisation (1965) 133.
so Article VI (2) of the IBRD Articles of Agreement
51
Article XV (2) of the IMF Articles of Agreement

,'d!i''ii' ' '.:J.UK@V:Il:f?,l'.;_;F'.''/"'";

 60
any conventions promoted by the agency and ratified by the withdrawing
member.

Organs in Specialised Agencies and Voting Procedures

The organic structure of Specialised Agencies comprises of;
(i) A plenary body which is the chief depository of power in the
organisation. An example of such a body is the UNESCO General
Conference;
(ii) An Executive Board such as the Executive Board of the WHO which
is an organ of more restricted participation; and
(iii) Secretariat which is composed of a corps of full-time staff responsible
for the day-to-day administration of the organisation.

1 Plenary Session
In the plenary sessions, each member state has one vote and the voting
rule is generally a simple majority except where a two-thirds majority is
required, for example, on issues of admission of members, approval of
the budget and submission of conventions to member states. In this
regard, financial institutions may be contrasted as a ground from other
Specialised Agencies. In these organisations the final authority is the
Board of Governors who are appointed to serve for a five-year period
with a possibility of re-appointment. Voting in these financial institutions
is by way of a weighted system which is measured in terms of the actual
subscriptions.

Thus in the IMF, each member has 250 votes plus one additional vote
for each part of its quota equivalent to $100,000 and in the IBRD each
member has 250 votes plus an additional vote for each share held. 52

52
See McIntyre, "Weighted Voting in International Organisation", 8 lntemational Organisations•, 484
(1954)
 61

2 Executive Council or Board

In addition to plenary organs, a common feature of all Specialised
Agencies is an Executive Council, elected by the plenary organ.
Election to this body is based not only on the general principle of
equitable geographical distribution, but also on functional criteria. For
example, in the Council of ICAO on which adequate representation must
be assured of the States, of chief importance is air transport, and the
States which make the largest contribution to the provisions of facilities
for international air navigation.

Another . example is the Council of IMCO which comprises of 18

members elected by the Assembly using the following criteria:
(i) Six members to be governments of States with the largest interest
in providing international shipping services;
(ii) Six members with the largest interest in international seaborne
trade; and
(iii) Six from other governments which have special interests in
maritime transport or navigation and whose election to the Council
will ensure the representation of all major geographical areas of
the world.

In ILO, 10 of the 24 governments represented in the Governing Body

represent the most important industrial countries. Similarly, in the IAEA,
the 25 members of the Board of Governors are elected according to a
complicated formula conceived so as to assure adequate representation of
those States which are the most advanced in the technology of atomic
energy, including the production of source materials, as well as the various
geographical areas.

ill@il:/kd/.':;/;,•t
 62
In the various organs of Specialised Agencies, member states are
generally represented by persons belonging to the appropriate branch of
national administration, and in some cases this is expressly provided for.
For example, the WHO Constitution requires that delegates be persons
having special qualifications in the filed of health and preferably should be
drawn from the national health administrations of member states.

In the WMO, the principal delegate of each member state is the Director of
its meteorological services.

Finally, it is worth mentioning that non-governmental organisation are

associated with most Specialised Agencies. For example in ILO, in
addition to government delegates, representative of employers and workers
are members of the two main organs. Each delegate has one vote but the
two non--governmental delegates are not bound by instructions of their
governments. 53

ACTIVITY
1) Explain and comment upon the relationship between the Security
Council and the General Assembly in the matter of admission of new
members to the United Nations.
2) Explain how the so called double veto operates in the UN Security
Council.

53
For further discussion of ILO tripartite system and how employers and workers representatives from
socialist countries have been challenged on grounds that they were in effect government spokesmen
who could not act and vote independently, see Jacobson, "The USSR and ILO", 14 International
Organisation, 402 (1960)
 63

UNIT FIVE

USE OF FORCE BY STATES

INTRODUCTION
To what extent is a State entitled to use force in the conduct of its
international relations? This question always raises a number of political
and legal questions which in many cases can hardly be solved. It is for this
reason that this area of international law has been used by critics of this
legal system in reaching the conclusion that this system of law does not
work.

However, such an assertion merely discloses a fundamental

misunderstanding of the role of international law because international law
principles are only allowed to be sole determinants within a limited area,
mainly within the jurisdictional competence of the ICJ. In many other
matters, only political compromise can work and legal rules play a
correspondingly limited role. In these matters, when political compromise
cannot be obtained, States do resort to use of force. In such
circumstances the role of legal principles may well vanish altogether, even
though the States concerned will often advance reasons which purport to
establish the legality of their actions within existing or supposed legal order.

Topic 1
Historical Background on the Use of Force by States

Early writers such as Grotius made a distinction between "just" and "unjust"
wars. They argued that States had a right to wage war for a "just' cause.

''7' '_,,,¼ ~ ~0!,W:n;;y/;:.::; ,''

 64
Later writers, however, treated the right to wage war as inherent in the
concept of sovereignty. The attitude of the 18th and 19th century scholars
was to treat any use of force as war, and that such wars were within the
right of every State. In other words, they considered war as a condition in
which States prosecute their right through the use of force.

The Concept of the League of Nations

It was believed at the time the First World War broke up, that if States had
a forum in which to discuss their problems, misunderstandings could have
been cleared and war could have been avoided. The Covenant of the
League of Nations was therefore believed to provide such a forum. It was
further believed that since a forum had been provided, the Covenant had to
restrict the right to resort to the use of force.

Under Article 12 (1) of the Covenant, members states agreed to refer any
dispute between them to either arbitration or judicial settlement or to inquiry
by the Council of the League. They further agreed not to resort to war until
three months after the award by the arbitrator, or judicial decision or the
report by the Council. This three month "cooling period", it was believed,
would prevent the "accidental" outbreak of hostilities.

The Covenant, however, in no sense abolished war. The nearest it came

to such a proscription was in Article 10 whereby members of the League
undertook,
"to respect and preserve as against external aggression the territorial
integrity and existing political independence of all members of the
League."

Kellogg - Briand Pact of 1928 (Pact of Paris)

 65
Article 10 of the Covenant of the League was subsequently reinforced by
the Kellogg - Briand Pact of 1928. In Article 1 of the Pact, sixty-three
States solemnly declared in the names of their respective peoples that they
condemned, "recourse to war for the solution of international controversies"
and renounced it "as an instrument of national policy in their relations with
one another."

In Article 2 of the Pact, parties agreed that settlement of disputes should,

"never be sought except by pacific means". In this sense, the Pact
prohibited all wars of aggression, and this general prohibition was its main
advance compared to the Covenant of the League which prohibited
recourse to war until the lapse of three months cooling period.

The Kellogg - Briand Pact, however, maintained or preserved the right to

go to war in self-defence or against a violator of the treaty (the Pact). It
also preserved the right of the League, and now the UN, to take
enforcement action by force of arms.

Initially, the Pact did not apply to relations between parties and non-parties,
but this restriction vanished with the course of time, as it transformed itself
into a rule of customary international law.

While the Pact represented a step forward when compared to the

Covenant, it also had some defects of its own. For example, it did not
address itself to the question of the use of force that did not amount to war.
However, the pact remains binding today, although its importance has
diminished due to the developments of the law on the use of force which
have taken place through the UN Charter.

The UN Charter and the Use of Force

}ff!f!ZJ;r/;· .
 66
The UN Charter deals with the issue of the use of force in several
provisions. The basic rule is laid down in Article 2 (4) which provides that,
"All members shall refrain in their international relations from the
threat or
use of force against the territorial integrity or political independence of
any
State, or in any other manner inconsistent with the purposes of the
UN."

The use of the term "threat or use of force" instead of "war" avoids the
technical problems which arose under the previous instruments in relation
to the meaning of the term "war". It is clear from the wording of Article 2 (4)
that the Charter also encompasses use of armed force short of war.

The principle in Article 2 (4) has now crystallised into a customary rule of
international law binding on all Sates and not only members of the UN.
However, one fundamental question which constantly arises in State
practice is whether Article 2 (4) embodies a general prohibition for States
not to take any initiative in the use of force. This question arises because
the Charter does not speak of any use of force but such use of force as is
made "against the territorial integrity or political independence of any state
or in any manner inconsistent with the purposes of the Charter." In other
words, can States resort to force if they do not aim at anybody's territorial
integrity or political independence and do not otherwise violate the
purposes of the UN?

Some States tend to adopt an interpretation which allows for some initiative
in the use of force by governments and their views find support in a number
of writers. However, a more logical interpretation would be that Article 2 (4)
is all embracing. This is because modifications in the law after 1919

'" :w;z'{;'X';'';§,
 67
definitely aimed at elimination of war and other manifestations of force in
international law. It would run counter to the progressive development of
international law to read into the Charter authorisation to employ force in
situations which the Charter itself has not unequivocally excepted from the
principles in Article 2 (4).

There are specific exceptions to the principles contained in Article 2 (4 ).

These are:
( 1) Employment of force by the UN itself; 54
(2) Use of force by regional organisations and other regional
arrangements; 55
(3) A state acting in self defence; 56 and
(4) Use of force under the exceptional and now obsolete rule in Article 107
of the
Charter.

However, even in these rare cases where the charter does not deprive
individual States of power to resort to force, it remains subject to the control
of the UN and occasionally regional agencies.

What constitutes Use of Force in International Law?

It is generally agreed that there is use of armed force when a State acts
against another State through military forces under its command especially
by use of weapons or entering the territory of another State without
authorisation of its sovereignty.

54
Articles 24, 39-50 and 106 of the UN Charter
55
Article 53 of the UN Charter
56
Article 51 of the UN Charter
 68
There is also use of armed force when one State's military, attacks another
State's troops, vessels, or aircraft based in a third State where they may be
by virtue of consent by that third State's sovereign.

Further there is use of force on a State if one attacks its vessels on the high
seas, or aircraft on airspace above the high seas.

A State is also using force if it sends or permits to be sent irregular forces

or armed groups across the frontiers to operate in another territory. A good
example of this kind of use of force was the military support given by North
Vietnamese government to Viet Cong forces operating in South Vietnam.

Today States use force against each other through mmtary support for
rebels, insurgents or subversive elements in another State, a situation
which is sometimes referred to as "indirect aggression". In this last case,
facts are often difficult to ascertain, but once ascertained, such an indirect
involvement of a government is an armed venture outside its territory and
constitutes use of force and is governed by the same law as is applicable to
open hostilities directed against another State.

Domestic conflicts and prohibition of Use of Force.

Article 2 (4) of the UN Charter does not ban the use of force by a State
within its frontiers against its own citizens, or insurgents in a civil war, civil
strife or other internal disorders.

Also a State does not violate the ban on employment of force in

international law, 57 when it uses force against foreign nationals resident on
its territory. However, depending on circumstances, the State may be
guilty of contravening other rules of international law, including the

57
Article 2 (4) of the UN Charter

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 69
prov1s1ons on the respect and protection of human and fundamental
freedoms - which is a mater that falls outside the law governing the use of
force between States.

From what has been said above, it is clear that States are free to quell
rebellion and domestic trouble by force of arms. But the question that often
arises is to what extent is a State free to request for foreign assistance to
quell domestic unrest? Or put another way, to what extent are foreign
States entitled to come to the help of a government that is fighting a civil
war or strife?

International law is unclear on the issue whether it prohibits an established

government from inviting the assistance of foreign troops or indeed on the
issue of whether a foreign government can provide such assistance when
requested. Although the law is unclear, practice shows many examples of
States torn by civil strife who request for outside help and get it.

TOPIC 2
Individual Self-Defence
Self defence under customary international law
Although many municipal systems can lay down precisely rules for the
application of the doctrine of self-defence, there can be no precise
formulation of the concept under international law, nor is there much
likelihood of judicial determination on the issue of whether a plea of self-
defence has rightfully been raised. However, what appears to have been
established is the responsibility of the international community as a whole
to ensure that the plea of self-defence is not advanced as an excuse for the
illegal use of force.

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 70
58
This responsibility is implicit in the requirement of the UN Charter that
measures taken by members in the exercise of self-defence shall
immediately be reported to the UN Security Council.

The notion that self-defence could not be arbitrarily employed by States as

an excuse for recourse to war had already been accepted prior to 1945.
Before both the Nuremberg and Tokyo Tribunals, it was argued on behalf
of the accused that under the Kellogg - Briand Pact, States were entitled to
determine conclusively whether their actions had been in self-defence.
This contention was emphatically rejected by the two tribunals. The Tokyo
tribunal stated that, under "the most liberal interpretation of the Kellogg -
Briand Pact, the right of self-defence does not confer upon the State
resorting to war, the authority to make a final determination upon the
justification for its action. Any other interpretation would nullify the Pact;
and this Tribunal does not believe that the powers concluding the Pact
intended to make an empty gesture".

In order for the world community to be able to classify a particular act as

being one taken in self-defence it is obviously necessary to have some
objective standard of what constitutes a legitimate exercise of the right of
self-defence. In this regard, it should be mentioned that customary
international law grants States a variety of rights and obligations, for
example, that treaty obligations should be honoured and that nationals and
their property must be protected. However it is clear that a State is not free
to use force to safeguard each and every right to which it is entitled under
,,
international law.

From the practice, States appear to have the right to resort to use of force
to protect the following rights:

58
See Article 51 of the UN Charter
 71
(i) Territorial integrity - infringement of its territory has always been
considered as justification for a State to act in self-defence.
(ii) Political independence - a State is entitled to use force to protect its
political independence. Thus for example, another State encourages
or promotes political agitation in another State, such agitation may
endanger the political independence of that State and entitle it to use
force in self-defence.
(iii) Freedom of navigation - All States are entitled to freedom of
navigation on the high seas for ships flying its flag. States are
entitled to protect this freedom to the extent of using force.
(iv) Protection of a State's economic welfare - States are under no duty
to trade with any other state. If they refuse to trade or impose
restrictions upon trade with it, it is doubtful it the "injured" state has
legal ground for complaint. Thus a plea of self-defence cannot
excuse the use of force in such circumstances.
(v) Protection of nationals and humanitarian intervention - There have
been many cases where States have asserted the right to protect
lives and property of their nations in foreign countries to the extent of
using force. Such an assertion can only be reconcilable with the
theory of self-defence if only one is prepared to extend the underlying
concept of diplomatic protection that a state by taking up a claim on
behalf of its national, is in fact asserting its own rights.

In such circumstances imminent danger to the nationals of a State

may by this fiction be considered as an imminent danger to the State
concerned. For example, at the time of the Anglo-French operations
against Egypt in 1956. the British view was that intervention was
"designed to protect the lives of British nationals and to safeguard the
Suez Canal". But the Suez Canal issue was regarded with such

'w,'¢}/.>J!i.'.f.iiJ'Z.N; ;:,t'iJ:.f,J;':Y' ,,
 72
hostility by the international community that its legality is difficult to
justify.

There is a second aspect here, where a State claims to intervene by

force not to protect its own nationals but those of another including
nationals of the territorial state. This situation is commonly referred to
as humanitarian intervention. This is obviously not a case of self-
defence because the right which it is claimed is being protected is not
that of the intervening State. The concept of humanitarian
intervention has little support in State practice. Thus when the United
States of America intervened in the Dominican Republic in 1965 to
preserve law and order and to enable the inhabitants to exercise
democratic rights freely, many States were suspicious that the action
was designed to protect American political interests in securing a
right-wing take-over in that country.

CASE CONCERNING MILITARY AND PARAMILITARY

ACTIVITIES IN AND AGAINST NICARAGUA (ICJ Reports 1986, p.
14)

This case illustrates the views of the ICJ on the law governing the use
of armed force ante bellum and intervention by states by giving
assistance to rebels seeking to overthrow the government of a state.
The facts of the case were that in 1979, the right-wing Government in
Nicaragua was overthrown by revolution by the left-wing Sandinista
Government. In 1981, President Reagan terminated economic aid to
Nicaragua on the ground that it had aided guerrillas fighting against
the El Salvador Government, which enjoyed good relations with the
United States, by allowing USSR arms to pass through its ports and
territory en route for El Salvador. Nicaragua claimed, inter alia, that
 73
the United States had, contrary to customary international law, (i)
used direct armed force against it by laying mines in Nicaraguan
internal and territorial waters, causing damage to Nicaraguan and
foreign merchant ships, and attacking and damaging Nicaraguan
ports, oil installations and a naval base and (ii) given assistance to
the contras, Nicaraguan guerrillas fighting to overthrow the Sandinista
Government. Nicaragua also claimed that the United States had
acted in breach of the bilateral 1956 US-Nicaraguan Treaty of
Friendship, Commerce and Navigation.

The Court decided among other things ;

1) by twelve votes to three to reject the justification of collective self
defence maintained by the United States of America in connection
with the military and paramilitary activities in and against
Nicaragua;
2) by twelve votes to three that the United States of America, by
training, arming, equipping, financing and supplying the contra
forces or otherwise encouraging, supporting and aiding military
and paramilitary ACTIVITIES IN AND AGAINST Nicaragua, has
acted, against the Republic of Nicaragua, in breach of its
obligation under customary international law not to intervene in the
affairs of another state;
3) by twelve votes to three that the United States of America, by
certain attacks in Nicaraguan territory in 1983-1984 ... and further
by those acts of intervention referred to in subparagraph (3) hereof
which involves the use of force, has acted, against the Republic of
Nicaragua, in breach of its obligation under customary
international law not to use force against another state;

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 74

This case confirms that the giving of assistance to rebels may be an

indirect use of force contrary to customary international law.

TOPIC 4
Collective Self-Defence

The Plan in the UN Charter

As seen earlier, the UN Charter forbids the use of force by States, 59 save in
the limited area of self-defence. 60 However, a monopoly of the use of force
was placed on the Security Council under Chapter VII of the Charter.

Under this Chapter, the Security Council was empowered to respond to

"any threat to the peace, breach of the peace, or act of aggression"61 by
resort to powerful measures contained in Articles 41, 42, 43 and 45 of the
Charter.

Article 41 deals with measures short of armed force which the Security
Council can employ to give effect to its decisions. These include partial
interruption of economic relations and severance of diplomatic relations.

Article 42 deals with such action by air, sea or land forces as may be
necessary to maintain or restore international peace and security.

Under Article 43, all UN members undertake to make available to the

Security Council, on its call in accordance with a special agreement or
agreements armed forces, assistance and facilities, including rights of
passage. Such agreement or agreements would govern the numbers and

59
Article 2 (4) of the UN Charter
60
Article 51 of the UN Charter
61
See Article 39 of the UN Charter
 75
types of forces, their degree of readiness and general location and the
nature of the facilities and assistance to be provided.

The agreements were to be negotiated as soon as possible on the initiative

of the Security Council and members or between the Security Council and
groups of members and subject to ratification by the signatory states.

Article 45 called for members to hold immediately available national air-

force contingents for combined international enforcement action.

What went wrong?

The Charter was grounded in a belief that only with the cooperation of the
great powers could the UN succeed, and it was hoped that because they
had cooperated in the Second World War, they would continue to
cooperate in peace. This explains why the Charter gives the so-called
great powers veto power. However, it was soon discovered that this
cooperation was not forthcoming.

This lack of cooperation among the permanent members of the Security

Council has until now prevented the UN from concluding any agreements
as envisaged under Article 43 thereby depriving the UN of the possibility of
applying military sanctions as provided in Articles 42-47 of the Charter.

In the military staff committee, a subsidiary organ of the Security Council,

the task of which was to advise and assist it on all military problems62 ,
basic disagreement soon arose mainly though not exclusively, between the
Soviet Union and the United States of America on the size of the UN armed

62
See Article 4 7 ( 1)

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 76
63
forces, their location, bases, logistical support and other matters. These
divergences which made the conclusions of any agreements under Article
43 impossible were political in origin and they continue today.

Collective measures of the UN Security Council: The Practice

Lack of cooperation among the permanent members of the Security
Council and resulting paralysis of a large part of the security mechanism
devised by the Charter do not release the UN from its responsibility and
competence in the maintenance of peace.

Now and again developments in international relations impose on the

organisation the necessity of action, in particular the necessity to use force
for varying purposes and in different degrees.

The organisation would not fulfil its principal task of maintaining

international peace and security, if it did not undertake, whenever need
arose, actions of peace-keeping or/and peace-restoring nature.

The Security Council, confronted with the duty of discharging its

responsibility under Article 24 (1) and being left without any means of
action under Articles 42-47 had to find solutions which were not merely
consistent with the law of the Charter but developed it and even
established precedents not necessarily envisaged by the framer of the
Charter. Hence it is not surprising that there were cases where the Council
attempted or improvised military action along lines outside Articles 42 - 47.
Hence the concept of peace-keeping and/or peace-restoring operation
evolved.

63 nd
See Security Council Reports, 2 Year, Special Supplement, No 1, Report of the Military Staff
Committee of 30 April, (1947)
 77
Apart from the general basis of the Charter, there is no express provision
for this type of operation in the Charter, and the term is not to be found
anywhere in the Charter. In cases of peace-keeping, the Council relies on
ad hoc voluntary cooperation and help on the part of members

While the pattern adopted by the Security Council in the war in Korea
stands rather isolated in UN practice and has not been repeated in
subsequent cases, this is indeed the only case in which the Security
Council has acted in anything like the classic case envisioned by the
founders of the UN. The Council was able to act only because the Soviet
Union was not present to prevent its activity.

The functioning of the UN Emergency Force in the Suez conflict, though a

creation of the General Assembly, inspired by the Secretary General, and
through him the Security Council, to follow it as a similar model for action in
the Congo crisis. In turn the experience in the Congo operations helped
shape the role and tasks of the Organisation in the Cyprus question.

Although from practice a UN force can be created outside Articles 42-47 of

the Charter, there is a basic limitation that members cannot be compelled
to participate in such a force, in particular to supply national contingents
and to agree to the presence of the force on their territories. But such a
force can be used against any State if it has committed an armed attack.

ACTIVITY

1) Article 2(4) of the United Nations Charter prohibits threat or use of

force in international relations. With the use of suitable examples,
examine circumstances in which certain states have challenged this
general prohibition and justified taking initiative in the use of force.

~02/Y'.>',
 78
2) The right of self defence is said to be vested in a state once it has
been subjected to an armed attack. There is however, no legal
definition of "armed attack" and the absence of such a definition
makes It too easy for states to make spurious claims to the right.
Briefly comment in the light of the provisions of the Charter.

BIBLIOGRAPHY

1. Harris, D. J. , Cases and Materials on International Law, Fifth

Edition, Sweet & Maxwell, London, 1989.
2. Shearer, I. A. , Starke's International Law, Eleventh Edition,
Butterworths,London, 1994.
3. Wallace, Rebecca M. M., International Law, Fourth Edition,
Sweet & Maxwell, London, 2002.
4. White, N. D. , The Law of International Organisations,
Manchester University Press, 1996.