Anthony Aust. Handbook of International Law

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10. See J. Klabbers, An Introduction to International Institutional Law, Cambridge, 2002, pp. 121–6.

11. See Aust, pp. 233–4, especially n. 46.

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to have regarded the first announcement as amounting to withdrawal,

and so Indonesia was not

required to re-apply for membership.

A Member which has ‘persistently violated the Principles’ of the Charter can be expelled if the

Security Council so recommends and the General Assembly agrees by a two-thirds majority

(Articles 6 and 18). In practice, it is considered preferable for the Member to stay so that it can be

more effectively subjected to criticism from the other Members. Also, expelling a Member would

set an awkward precedent for some Members: who might be next? Thus it is more likely that a

Member would at most be suspended from the exercise of certain rights, such as voting. Under

Article, 5, the Security Council can recommend to the General Assembly that a Member against

which enforcement action

has been taken should be suspended. This has not happened, although a

similar effect was obtained by the (legally suspect) rejection of the credentials of South Africa’s

delegation to the General Assembly during the later years of the apartheid regime. Article 19

provides for a Member’s right to vote in the General Assembly to be suspended if it is in arrears in

paying its contributions by an amount equal to that due from it for the preceding two years. This

happens occasionally, and, for reasons unrelated to ability to pay, the United States got close to

losing its vote during the 1990s.

Regional groups

The fifty-one original members could be roughly divided up as: three African, two Asian, six Middle

Eastern, seven Communist, twenty Latin American and thirteen Western states. The present 191

Members include some 130 developing countries. The membership is now divided into five

(informal) groupings that are important for the purpose of co-ordinating policy and nominating

candidates for election to UN organs and subsidiary bodies: African (fifty-three), Asian (including

the Middle East) (fifty-four), Eastern European (twenty-one), Latin American and Caribbean (thirty-

three) and Western European and others (WEOG) (thirty).

The UN’s principal organs

The United Nations has six ‘principal organs’: the General Assembly, the Security Council, the

International Court of Justice, the Economic and

12. See (1966) UN Juridical YB 222–3.

13. Meaning a measure under Chapter , often sanctions.

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Social Council (ECOSOC), the Trusteeship Council (now defunct) and the Secretariat. The

workings of the General Assembly and the Security Council will be discussed most, with the

emphasis on their contribution to international law and peace and security. (The International Court

of Justice is dealt with at p. 448 below.) Of the principal organs, only the Court and the Security

Council have the power to make decisions that are legally binding. The General Assembly’s power

to take such decisions is limited to internal matters, such as elections to UN organs and bodies, and

budgetary and staff issues.

Before criticising ‘the UN’, one should therefore think what one means by that term. Although the

United Nations has international legal personality,

it is a complex body, and criticism should be

directed at that part of it that is really responsible for the particular matter. That might be the

Secretariat, one of the UN’s own agencies, the General Assembly or the Security Council. In the

case of the latter two organs, one should also try to understand why they – or rather the states that

are members of them – acted as they did, or failed to act. The UN Secretariat is limited to what the

General Assembly or the Security Council ask it to do and the means they give it; it does not have

the extensive initiating powers of the European Commission.

The UN’s specialised agencies

The UN specialised agencies are not part of the United Nations, and in fact some, such as the

Universal Postal Union and the International Telecommunications Union, were first established in

the 1860s. But they all have ‘relationship agreements’ with the United Nations and are regarded as

part of the ‘UN family’. On important political matters, such as recognition of statehood, they

generally follow the lead given by the United Nations. Agencies such as UNEP, the UNHCR and

UNICEF are not specialised agencies, but bodies set up by the UN General Assembly and without

separate international legal personality.

The General Assembly

The General Assembly consists of all Members of the United Nations, each having one vote.

Decisions on ‘important’ questions (e.g. the budget

14. On international legal personality, see p. 198 above.

15. See p. 471 below.

16. On which, see n. 14 above.

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and most elections) are taken by a two-thirds majority of those members present and voting

(abstentions not being taken into account). All other matters, including whether a question is

important, are decided by a simple majority of those voting. In practice, the Assembly can discuss

any matter, although it should not discuss a matter of international peace and security while the

Security Council is actively seised of it (Article 12). In general, it does not do this, although the

International Court of Justice has recognised an increasing tendency for the General Assembly and

the Security Council to deal in parallel with certain matters, and that this is accepted practice

consistent with Article 12.

The General Assembly is essentially a debating chamber, and only in

this sense can it be equated to a legislature. Unlike the European Parliament, it has no powers to

challenge an executive body, and does not play a role in making ‘legislation’ as such (but see below

on international law-making). Except for decisions on internal issues, its resolutions are no more

than recommendations, although over time the substance of certain resolutions may become

accepted as reflecting customary international law.

In certain cases, they can also have effect

legally.

Main Committees of the General Assembly

The General Assembly meets in plenary session for general debates, to discuss particular topics, and

to adopt resolutions. Most of its work is done in six Main Committees, which prepare

recommendations for the General Assembly. All UN Members are entitled to take part in the plenary

sessions of the General Assembly and meetings of the Committees. The Committees are: First

(Disarmament and International Security), Second (Economic and Financial), Third (Social,

Humanitarian and Cultural), Fourth (Special Political and Decolonisation), Fifth (Administrative and

Budgetary) and Sixth (Legal). Each Committee reports to the plenary, where their recommendations

are normally adopted without change and with a minimum of (or no) debate.

The General Assembly has been instrumental in developing international law by (1) establishing

the International Law Commission (ILC) (see below), (2) adopting multilateral treaties (usually

called

17. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory

Opinion, ICJ Reports (2004), 6 paras. 24–8; ILM (2004) 1009.

18. See p. 6 above.

19. See Namibia Advisory Opinion, ICJ Reports (1971), p. 6, paras. 87–116; 59 ILR 2.

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‘conventions’) drafted mainly by the ILC or the Third or Sixth Committees, and (3) convening

diplomatic conferences to negotiate conventions, such as the UN Convention on the Law of the Sea

1982 and the Rome Statute of the International Criminal Court.

Sixth Committee

This Committee, like others, meets during the annual autumn session of the General Assembly, and

intersessionally in sub-committees and working groups. Although originally intended as an expert

committee that the General Assembly could ask for legal advice or for scrutinising draft legal

instruments produced by the other Committees, the Sixth Committee’s chief role has been to

elaborate conventions for adoption by the plenary, such as recent counter-terrorism conventions.

also oversees the work of the ILC by debating its annual report, commenting on its drafts and

proposals for new topics, and deciding what form drafts for international instruments should take

(convention, guidelines, model legislation, etc.), and whether the final drafting and negotiations

should be done by a diplomatic conference or by the Committee itself.

International Law Commission

Established by the General Assembly in 1949, its (now) thirty-four members, elected by the General

Assembly for five-year terms, are mostly professors of international law with some current or former

foreign ministry legal advisers. It meets for two, five-week sessions each summer in Geneva. For

each new topic it decides to study it appoints one of its members as ‘Special Rapporteur’. Each year,

he will present the Commission with a report on his research, with proposals and draft Articles for a

possible convention or other instrument, such as guidelines. Each year the Commission reports to

the General Assembly (in practice, the Sixth Committee) on its work, with the drafts and

commentaries on them. The ILC has been successful with the adoption at diplomatic conferences or

by the General Assembly of conventions originally drafted by it on, for example, the law of treaties

and diplomatic relations, but less so on some other subjects.

20. See www.un.org/law.

21. See p. 288 (Bombings and Financing) below.

22. See www.un.org/law/ilc. For a short introduction to the work of the ILC, a bibliography, ILC draft

conventions and their commentaries, and the resulting final texts, see A. Watts, The International Law

Commission 1949–1998, Oxford, 1999.

23. See A. Aust, ‘Limping Treaties: Lessons from Multilateral Treaty-Making’ (2003) NILR 243–66.

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The Security Council

Membership

The Security Council has fifteen members,

five being permanent: China, France, Russia, the

United Kingdom and the United States (the ‘P5’). The ten non-permanent members serve for two

years, five being elected each year by the General Assembly, and cannot serve consecutive terms. In

practice, the composition of the non-permanent membership is informally distributed on regional

lines, the ten seats being allocated as follows: Africa (three), Asia (two), Eastern European (one),

Latin America and the Caribbean (two) and WEOG (two).

In practice, each regional group

nominates a clean slate of candidates for election, although there are sometimes contested elections

for WEOG seats. So that there is always an Arab state on the Council, things are so arranged that

each year an Arab state is elected to fill, alternately, an Asian or an African seat (unless a North

African state is elected). Each month, the presidency of the Council rotates in alphabetical order.

Working methods

Most Council resolutions are adopted by unanimity or without a vote. A glance at the verbatim

records of Council meetings in at least the last fifteen years shows that most meetings at which

resolutions were adopted lasted only a few minutes, unless members made formal explanations of

vote (EOVs). Unlike the early days of the United Nations, and for most of the Cold War, there is

now little or no discussion of draft resolutions or procedural debates at meetings of the Council.

Indeed, even before the end of the Cold War members of the Council increasingly discussed Council

business informally, often, as diplomats tend to do, in the corridors. Some time in the 1970s a small

room was constructed near to the Council Chamber in which the members of the Council could meet

together informally, but with simultaneous interpretation into all six UN languages, and (albeit very

limited) seating. Apart from the Secretary-General, some of his officials and the interpreters, no-one

else is allowed

24. A Charter amendment in 1963, coming into force in 1965, increased the membership from eleven

from fifteen.

25. See p. 207 above.

26. See A. Aust, ‘The Procedure and Practice of the Security Council Today’, in R.-J. Dupuy (ed.), The

Development of the Role of the Security Council Workshop, Hague Academy of International Law

Publications, 1992, pp. 365–74; and M. Wood, ‘Security Council Working Methods and Procedure: Recent

Developments’ (1996) ICLQ 150–61.