An Introduction to the Law of the United Nations

Robert Kolb

• Publisher: Hart Publishing
• Year: 2010
• Print ISBN: 9781841139371
• eBook ISBN: 9781847317292
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho internacional

This work aims to fill a gap in the existing legal literature by presenting a compact, concise but nevertheless panoramic view of the law of the United Nations. Today the organisation is at the centre of all multilateral international relations and impossible to avoid. And of course the UN Charter is a foundational document without which modern international law cannot be properly understood. In spite of its importance, this pre-eminent world political organisation is poorly understood by the general public, and the extent and variety of its activities is not widely appreciated. Even lawyers generally possess insufficient knowledge of the way its legal institutions operate. Assessments of the organisation and judgements about its achievements are consequently frequently distorted. This work is aimed especially at remedying these deficiencies in public and legal understanding, but also at presenting the organisation as a coherent system of values and integrated action. Thus the book presents an overarching view of the significance of the UN organisation in general, the history of its origins in the League of Nations, the aims and principles of the Charter, governmental agencies, members of the Organisation, the non-use of violence and collective security, the peaceful settlement of disputes, and the question of amendments to the Charter. This work will be suitable for students of law and international relations, as well as scholars and those interested in the work and organisation of the United Nations.

1

Sketch of the Evolution of the Idea for a World Organisation

§ 1 Idea of a World Organisation before the Twentieth Century

Reflecting upon the historical development of the world organisation, we encounter one of the many paradoxes in history. When international organisations were first envisioned in the modern era they were intended to be strong and effective. Later, when they came into being they were found to be fraught with weaknesses and fault lines. The core reason for this lies in the sovereignty of the State. This concept was still emerging in the Middle Ages; it has become consolidated in modern times. Sovereignty is the counterpart of international organisation. The stronger the concept or perception of one, the weaker the concept or perception of the other.

Following the late Middle Ages and before modern times, the idea of organising Christian society in Europe was characterised by three notable features: the Utopian quality of such an organisation; the essentially political character of such an organisation and the quest for an organisation that had clear powers to sanction and coerce.

—Utopia. Following the Middle Ages and before modern times, Europe was experiencing the progressive dissolution of imperial unity, and at the same time a foundational consolidation of independent and sovereign States that possessed mutually exclusive powers over their own territories. The motto was rex imperator in regno suo, the king is emperor of his kingdom. The engine behind this historical evolution was both centrifugal and centripetal: dissolution at the universal level and consolidation at the State level. Europe was now hostile to the idea of unity, which had been so strong in the Middle Ages. Unity in the medieval world was centred on the unity of God: unus est enim Pater vester (but your Father is one); omnia naturalia unum reducuntur (all things flow from the one). From this the following political conclusion was drawn: unus princeps totius universi (one is the Prince of the whole Universe). The idea of ‘Roman peace’ meant that many associated the notion of ‘empire’ with peace. The maxim was: pax in universitate (peace in universal unity). The universal monarchy endowed with political authority could arbitrate disagreements among peoples and could thus be viewed as the creator of order. Defendants of this idea were Engelbert d’Admont, Henry VII,¹ and later, Dante. Conversely, dissolution of imperial unity entailed the impossibility, even theoretical, of bindingly arbitrating disputes between States that were now independent of one another. The modern world was anarchical in the strict sense of the term. Each sovereign State possessed its own and exclusive foreign policy; each possessed its own modern army which could be used as a powerful instrument of foreign policy. The idea of a universal organisation thus quickly became a Utopia. Dante, in his De Monarchia, lamented the imperial unity of ancient times: ‘Oh Humanity! How many storms and scourges, how many shipwrecks must befall you before you become a monster with many heads’.² The Tower of Babel had succeeded Noah’s Arc.

—Politics. Medieval world organisation was conceived as being a perpetual defensive alliance against any would-be aggressors. Such an organisation could also serve an offensive function in the recuperation of holy lands from infidels. The concept of a world organisation was thus, in modern words, literally ‘political’. There was no interest in creating an organisation that would perform technical, humanitarian or social functions. Rather, interest lay in creating an organisation that would go right to the heart of the most serious matter facing shared existence, namely the maintenance of peace. The first steps towards the creation of a world organisation were thus quite ambitious: they marched straight ahead, leaving practical and smaller issues aside.

—Sanction. Medieval ideas for a world organisation were all based on the idea of a strong confederation, endowed with incisive decision-making powers on the basis of a majority vote and capable of imposing sanctions (military, if need be) against any recalcitrant entity. Arbitration of disputes would be obligatory. The arbitral award would be binding. To the extent it would not be spontaneously complied with, the recalcitrant State could be summoned to implement the award; at the end of the process, sanction would be applied.

These three features of medieval ideas for a world organisation proved to be late attempts of clinging to the crumbling ruins of the ancient idea of an empire that was already in the process of disintegration. Once the empire had collapsed, one searched for an Ersatz. However, these attempts were doomed to failure because they were out of touch with the important historical shift at the time. The world was marching towards new principles under the banner of pluralism, sovereignty, empiricism, the State and later, nationalism. The universalists had had their time. They would only be reborn in the nineteenth century.

§ 2 Examples of Drafts

Among the doctrinal ideas for a world organisation that emerged during this period, mention may be made to those of Pierre Dubois (fourteenth century), Georges de Podiebrad (fifteenth century), Emeric Crucé (seventeenth century), Sully (‘Gran Dessein d’une Republique Chrétienne’, seventeenth century), William Penn (seventeenth century) Jeremy Bentham (eighteenth century) and the Abby of St Pierre (eighteenth century).³

Special mention must be made of Immanuel Kant and his work entitled ‘Toward Perpetual Peace’ of 1795. Kant situates his reflections in the context of the classical divide between the state of nature and the civil state, between the reign of force and that of law. War is a sign of the state of nature. It evinces the fact that there are no legal sanctions among nations; that law can be twisted to the will of each sovereign State without any legal authority restricting the State’s actions; and finally that there is thus a false semblance of law. War is dominating international relations. Thus, the civil state, namely the state of peace, does not exist between nations; it must first be instituted. While reason dictates that the institutional solution is a world State, this is not what peoples want or accept. Consequently, in the absence of a better solution, it is necessary to advocate for a federation of free States—a ‘society of nations’—as an alliance for perpetual peace. Peace treaties must be avoided at all costs because while they can bring an end to a current war, they do not end all wars. Thus, their provisions lay the groundwork for the next conflict. The closer this federation of sovereign States approaches universality, the closer it comes to attaining perpetual peace. Kant does not address the precise powers of such a society. However, in light of his general theory of law and his specific criticism of Grotius’ conception of international law, it appears that according to Kant such a society would have coercive powers. It thus transpires that Kant is a direct precursor to the League of Nations, established in 1919.

§ 3 Modern World Organisations

In the nineteenth century, when the first world organisations were created, there was a complete reversal of the three features of the medieval conception of such an entity. The world organisation was created, its functions covered the domain of functional cooperation (non-political activities) and it was imbued with the idea of cooperation among free sovereign States without the power of coercion. The modern ‘cooperation-organisation’ thus succeeded the older ‘sanction-organisation’, which had, however, remained a paper project. The solidarity among peoples and States in the nineteenth century in the administrative and technical domains could no longer be reasonably shirked. It called for practical solutions. The postal system, the telegraph system, the weights and measures system, the management of literary works, the administration of rivers that traversed the territories of many States, all demanded regulation and administration at the international level. How could one send and receive letters abroad but on the international level? How could one send a telegraph to the ends of the earth? How could a shared river system be rationally managed? The result was the budding of administrative unions (universal postal union, international telegraph union, union of weights and measures, union of literary and artistic works, etc) and international river commissions (for the Rhine, Danube, Oder, Escaut, etc).

Cooperation in political matters—like the maintenance of peace—had not yet found fertile soil in which to grow. It struck at the entrenched idea of each nation having its own, inalienable, vital interests.⁴ Only a catastrophe could stimulate the necessary changes in old habits and narrow minds. The First World War can thus be said to have shaken the world to its core. Modern war was no longer the limited war of the past, fought between two professional armies. It was total war, fought with tenacity and fanaticism, with highly powerful, destructive weapons and impacting on all civil society. The situation was aptly described by Maurice Bourquin: ‘[War has become a cataclysm] that leaves only ruin behind in its wake, where the victorious and the vanquished, belligerents and those who are neutral, struggle in the same failure, in the same anguish’.⁵ The maintenance of peace, therefore, suddenly appeared in a new light: it began to be perceived as a collective interest of primary importance. Once war had become a blight, it was necessary to attempt to erect barriers surrounding it so that it might be avoided, or at least occur less often. At best, war was seen as nothing more than a way of ending war: the war to end all wars, as was claimed for the First World War. Thus, the wind had changed. It was not the diplomats and members of the armed forces, but rather the people and the elite, such as the American president Woodrow Wilson, who would draw back the curtains on this new era. The United States of America in particular, through their president, had the honour of being the catalysing force behind the creation of the first great political world organisation, the League of Nations. The Utopia of yesterday had become a reality. Through the League of Nations the old medieval thread of a world organisation that was centred on political matters and had some power to coerce and sanction, was again taken up. Was it the first step towards a process of political integration, as some thought at the time? Or was it a hybrid entity, imbued with sovereignty and orientated more toward the soothing beaches of voluntary cooperation, rather than the embryo of a world government? History provides the answer: it was the latter rather than the former.

Some examination of the history of the League of Nations as a precursor to the United Nations is necessary to fully understand this second entity. The Charter of the latter refers on all points to the Covenant of the former, either to reproduce some parts unaltered, or to develop other parts in order to improve their weaknesses, or finally to completely repel certain parts as not having stood the test of experience. To have studied the United Nations without having studied the League of Nations is not to have studied in depth. All answers to the ‘why’ in the Charter are found in the Covenant.

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¹ Universi homines distincti regnis et provinciis sub uno principe moderata, in pacis ac unitatis augmenta susciperet (Humanity scattered in different kingdoms and provinces arbitrated by one prince, in order to realise peace and unity).

² Dante, De Monarchia (1313) book I, ch XVI.

³ For more details, see L Ledermann, Les précurseurs de l’organisation internationale (Neuchâtel, 1945). See also, in this vein, B Boutros-Ghali, ‘Un précurseur de l’Organisation internationale: Al Kawakibi’ (1960) 16 Revue égyptienne de droit international 15ff.

⁴ As C de Visscher wrote in Théories et réalités en droit international public 4th edn (Paris, 1970) 112: ‘In the State, it is the vital interests, the most highly political, that produce the most supreme solidarities. The inverse is true for the international community. There are minor solidarities in relation to economic or technical matters, for example; but the closer one approaches vital questions, such as the maintenance of peace or war, the less the community exercises action over its members; the solidarities weaken in proportion to the size of the perils that threaten; those that do exist in this area concern the traditional domain, the nation. Men do not contest, with reason, the existence of supranational values; in the order of action, they obey only national imperatives’ (unofficial translation).

⁵ M Bourquin, ‘Le problème de la sécurité internationale’ (1934) 49(3) RCADI (Collected Courses of the Hague Academy of International Law) 475 (unofficial translation).

2

From the League of Nations to the United Nations

§ 4 Historical Importance of the League of Nations

The League of Nations marked a decisive step in history. It signalled the beginnings of the political world organisation, the rising of the curtains, with the excitement of a premiere. The organisation had become indispensable in 1919 due to the level of technical and political interdependence that the world had reached at the time. A world without such an organisation would have been unimaginable in the twentieth century.¹ The experience of the League was rich and varied; it had successes as well as failures. The role of a ‘first attempt’ in a great human adventure is its most profound essence. In any event, it is too short-sighted to view the League as merely a ‘failure’ because it did not succeed in maintaining peace, its principal aim. This failure was due to the bad will of its most important members and its inability to act at a difficult period in time. Rich and decisive lessons may nevertheless be learned even from this disappointing page in League history. Thus, it was not a wasted experience. It allowed the United Nations (UN) to get off to a running start by avoiding the errors of its novice predecessor.

§ 5 Genetic Code of the League of Nations: the Transformation of War

The League of Nations is the fruit of the profound transformation of war. It was a child of the total war of the twentieth century that replaced the limited war of the eighteenth century. More specifically, the League was devoted to the effort to fight this new form of warfare and to maintain peace. In what ways was modern warfare different from ancient warfare? Herewith the four most salient aspects:²

—Nationalism. In the old days, war was fought between two professional armies led by their kings and composed of professional soldiers. It was played out on battlefields between professional armies of limited size in order to resolve a dispute or to conquer territory. It ordinarily posed no direct threat to the lives of people. Civilians were largely strangers to these ‘princely duels’; they were spared because they did not identify with the cause of their prince, nor did they participate in hostilities. War was thus limited overall and violence circumscribed; it could nevertheless cause injury to civilians in the form of famine and illness, siege warfare or blockade. Furthermore, wars were of short duration. The emergence of the principle of nationality changed this state of affairs. The nation took up arms to fight for a collective cause, for vital interests, for survival; people fought to carve out a place for themselves in the world. Huge armies were assembled by conscription and individuals were indoctrinated through propaganda int...

Table of contents

• Cover Page
• Title Page
• Copyright
• Contents
• Preface
• 1 Sketch of the Evolution of the Idea for a World Organisation
• 2 From the League of Nations to the United Nations
• 3 The Establishment of the United Nations Organisation
• 4 Phases in the History of the United Nations
• 5 General Layout of the Charter
• 6 Ideological Manifesto of the Charter: Peace, Cooperation, Rights of the Human Person
• 7 Fundamental Principles of the Charter
• 8 Membership of the United Nations (Chapter II, Articles 3–6)
• 9 Organs of the United Nations: Functions and Powers
• 10 United Nations ‘Family’: Specialised Affiliated Organisations
• 11 Article 103 of the Charter
• 12 Amendment and Revision of the Charter
• 13 Effectiveness of the United Nations
• Annex
• Charter of the United Nations
• Bibliography