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Leseprobe

Inhaltsverzeichnis

The scope of the essay

The purposes of the UN

The principles of the UN

The assessment of the principal organs of the UN.

The GA
The maintenance of international peace and security
The other competence of the GA

The SC
Maintenance of the international peace and security

The ICJ
Contentious jurisdiction
Advisory opinion of the ICJ

The ECOSOC
The Secretariat
The Trusteeship Council

Conclusion

Bibliography

The scope of the essay

The aim of this essay is to outline and examine the purposes and the principles of the United Nations Organisation (hereinafter the UN) and assess the effectiveness of its principal organs. The idea of the UN as a successor of League of Nations (hereinafter LN) was presented during the Second World War. The failure of LN, presented by the outbreak of Second World War, was the main impulse to create the international organisation capable of ensuring international peace and cooperation between all states of the international community.

The purposes of the UN

Maintaining of the international peace and security[1] (Art.1 para1) evolves as first and main of the purposes of the UN. Developing friendly relations among nations (Art.1 para 2) and attaining international co-operation in solving international problems and promoting the respect for human rights and fundamental freedoms[2] (Art.1 para.3) appear as means of securing the international peace and security but as purposes on its own, too.

The UN organs exercise their competences through the provisions of the UN Charter in order to maintain the international peace and security, namely through the provisions necessary to prevent the occurrence of the situation which might lead to the threat to the peace or breach of the peace (the General Assembly’s [hereinafter the GA] competence to discuss and make an recommendation on any question within the UN Charter under Art.10 and Art.11), or if there is a situation endangering the peace, through the provisions of the peaceful settlement of the dispute (the GA and the Security Council [hereinafter the SC] act under Chapter VI ), or if there is threat to the peace or breach to the peace or act of aggression (the SC acts under Chapter VII). The provision of Art.1 para 4 stresses out the importance of the consensus of the member states as prerequisite in the achieving the purposes mentioned above.

The principles of the UN

The principles of the UN, as they are stated in Art. 2 set forth the obligations for the member states or the organisation itself and need to be put in context with purposes of the UN.

The principle of self-determination

The principle evolves from Art.1 para 2 and refers to a mean to ensure the international peace and security. The UN Charter nor gives the definition of the principle, neither determines the way of its realization. The realization of the principle can be seen in the process of de-colonisation which is undoubtly considered the success of the UN. The provision of the UN Charter (Art.73) imposed to the colonial empires the obligation to promote political, educational, social development of the non-self-governing territories without necessity to grant the independence. It was not until the GA adopted the Declaration on the granting of independence to colonial countries and peoples, that submission to the colonial empire was to be considered non conformed with the UN Charter.3 Declaration on principles of international law concerning friendly relations and co-operation among states in accordance with the UN Charter (hereinafter the Declaration on Friendly Relations) further restated the principle by endorsing the end of the colonialism.4 Apart from the de-colonisation, the application of the principle (external self-determination) can be seen in reaffirming the independence to the people under foreign occupation and also to racial groups without the representative government.5 The principle has become the part of customary international rule as consequence of the UN practice, however, its realization has to be restricted. As Cassese points out, the principle of self-determination cannot be applied without its limits, as such, it cannot be the foundation of demands of the ethnic groups, or religious, and cultural minorities.6 His view is the reflection of the correlation between the principle of self-determination and its application leading to secession on the one hand, and the principle of sovereignty, on the other one.7

The principle of sovereign equality of the states

Having said that the UN Charter is state centrilised document, the principle of sovereign equality of the states Art.2 para1 emerges as the first one. The principle covers two conceptions (sovereignty and equality). “The principle of sovereignty8 of the state includes the following elements:

a) juridical equality;
b) exercising the rights in full sovereignty;
c) duty to respect the personality of other states;
d) inviolability of the territorial integrity and political independence;
e) the right freely to choose political, social system ;
f) the duty to comply fully and in good faith with international obligations and to live in peace with other states .”9

The limitation of the sovereignty of the state deriving from its membership to the UN is based on the agreement and thus it doesn’t infringe the principle itself, which is furthermore stated in Art.2 para 7 non-intervention of the UN in domestic jurisdiction of the state. Furthermore Art. 2 para 4, the prohibition of use of force, is not considered the limitation of the sovereignty, but rather the requirement for its full application. The principle of equality, as second element of the principle, indicates the equality of the states before the law disregarding the size of the state.10

The principle of the duty of the member states to fulfill in good faith the obligations in accordance with the UN Charter.

The principle, arising from Art.2 para 2, is nothing more than the declaration of the customary rule pacta sunt servanda.11

The principle of settling the international dispute by peaceful means

The principle, arising, from Art.2 para.3, obligates member states to settle international disputes by peaceful means. The application of the principle, specified furthermore by the Chapter VI of the UN Charter, despite the broad power of the GA and the SC, depends thus on will of the states concerned.12

The principle of non- intervention

Art. 2 para 7 of the UN Charter prohibits the UN to intervene in matters which are essentially within the domestic jurisdiction of any state or to require from the member state to submit such matter to settlement. The only exception of non-intervention is the application of enforcement measures under Chapter VII. The scope of the conception of the matters essentially within domestic jurisdiction applies to all matters that are not regulated by international rules in principle, despite the fact that there might be some international treaty which such matter covers.13 In the practice of the GA, there are numerous resolutions referring to the member states generally or particularly that would be considered the intervention to the domestic jurisdiction. The existence of customary rules which limited the scope of domestic jurisdiction can be then “justified” by the practice of the GA, but also by the reactions of member states to that practice. Thus, gross violations of human rights, or the process of de-colonisation are to be considered the matters where the UN acts or has acted without accusation of intervening in the domestic affairs.14

The principle of prohibition of threat or use of force

The principle has become fundamental, evolving its importance from the main purpose of the UN to maintain international peace and security, aiming not just against the use of force but the threat as well.15 The statement of Dinstein “Nowdays, the prohibition of the use of inter-state force, as articulated in Ar. 2 para 4 of the Charter, has become an integral part of customary international law.” stresses out the subjects protected by the principles who are not just members but non members as well.16 Between the scholars the permissive and restrictive views of the prohibition of the force have developed. The restrictive view can be characterized by statement that ”The use of force according to the Charter is permissible in two cases only: in the case of enforcement measures of the SC and of the implementation of the right of the individual or collective self-defence“.17 The practice of the states shows the tendency to justify unlawful actions of states not by invoking the mentioned exceptions of the principle but by the modification of the scope of the general rule of the prohibition. Such practice of states appears to be conformed with the permissive view of some scholars such as Amerasinghe who states “…the force, or the threat of it, by any individual or collectivity of states against the territorial integrity and political independence of any state which is consistent with the purposes of the UN is permitted.18 However, such application appears to be controversial.19

[...]


[1] The UN organs, particularly the GA, refers to the principles and purposes of the UN in the decisions, e.g. The UNGA Res. 377 (V) (3 November 1950).

[2] The UNGA Res. 820 9IX (14 December 1954) invoked the Art.1para 3 “protection of human rights” in the context of the question of racial conflict in South Africa deriving from the policy of apartheid.

[3] The UNGA Res. 1514 (14 December 1960) in the process of de-colonisation the GA played the significant role which certainly can be even more supported by the binding character of the decisions covering the measures to ensure the independence of non-self-governing territories.

[4] The UNGA Res. 2625 (XXV) (24 October 1970).

[5] The UNGA Res. 39/13 (15 November 1984) reaffirming the right of self-determination to the Afghanistan people under the occupation of Soviet Union.

[6] Antonio Cassese, International Law, (second edition, Oxford University Press, Oxford, 2005) 60-68.

[7] Bearing in mind the character of the UN Charter as state centrilised document, the realization of the right of self-determination cannot override the principle of sovereignty in such way that it could lead to the fragmentation of international community. In this view, the self-determination is rather need for the protection of human rights than the right of the groups of people for the separation from the state that they belong to. The UNGA Res. 2625 (24 October 1970), the Declaration on Friendly Relations, in defence of the previous statement proclaims that by exercising the right of self-determination nothing will authorise or encourage any action which will intervene the territorial integrity of sovereign state or secession providing that government observes the principle of self-determination and it represents the whole population of the territory regardless of race, religion, or colour.

[8] In its judgment from Corfu Channel Case the ICJ has determined the violation of the principle of sovereignty of Albania by the UK, Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4.

[9] The UNGA Res. 2625 (XXV) (24 October 1970), the Declaration on Friendly Relations .

[10] In reality it covers a different set of rights and obligations as it can be seen from the position of permanent members of the SC and their power of veto.

[11] Customary rule “pacta sunt servanda” restated by Art. 26 of the Vienna Convention on the Law of Treaties (1969),1155 UNTS 331 (22 May 1969).

[12] The scope of the principle covers bona fide effort of states to resort to one of the peaceful means (mediation, conciliation, negotiation, arbitration, submitting the dispute before the ICJ e.g.), the obligation to continue to seek peaceful settlement in a case of failure of one of the peaceful means and the obligation to abstain from mala fide actions which aggravate the situation already endangering the international peace or security. The UNGA Res 2625( XXV) (24 October 1970), the Declaration of Friendly Relations, restates the principle of peaceful settlement in para 3 and para 4 of Principle II.

[13] By international customary rules, the treatment of citizens, organization of government and use of state’s territory are matters falling within the domestic jurisdiction of particular state.

[14] The UNGA Res. 53/164 (25 February 1999) condemned gross violation of human rights in Kosovo.

15 From the context of the UN Charter, a content of the term force as armed force has evolved. Measures short of armed force, like economic boycott, cannot be then considered the threat or use of the force. ICJ in its Advisory Opinion from 8.July 1996 on Legality of the threat or use of nuclear weapons in paragraph 47 states “The notions of “threat” or “use of force” under Article 2 para 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal, for whatever reason, the threat to use such force will likewise be illegal.”, Legality of the threat or use of nuclear weapons (Advisory Opinion) [1996] ICJ >http://www.icj-cij.org/icjwww/icases/iunan/iunanframe.htm accessed on 2 November 2006.

[16] Yoram Dinstein, War, aggression and self-defence (fourth edition, Cambridge University Press, London 2005) 92.

[17] J.Mrazek, “Prohibition of the use and threat of force; Self-Defence and Self-Help in International Law” (1989) 27 CYIL 81-112.

[18] C.F.Amerasinghe, Principles of the international law of international organizations (second edition, Cambridge University Press, London 2005) 507-510.

[19] By applying such rule, the right of pre-emptive self-defence and the right to humanitarian intervention are covered by the international customary rule. But Art. 51 justifies the use of force in self-defence only when armed attack occurs. Thus, the argument of Amerasinghe that when the use of force is resorted in absence of an armed attack, the SC must use Art.39 and Art. 24, seems controversial. Under the mentioned provisions the member states confer to the SC the primary responsibility for the maintenance of the international peace and security and oblige themselves to abstain from the resorting to force in case when there is no armed attack (no legal justification for self-defence) and where is then under the determination of the SC to decide whether there are the prerequisites to resort to use force (existence of threat to the peace or breach of peace).If there are by the decision of the SC such prerequisites to use the force, the action has to be done under the supervision of the SC and with its control from the beginning as to limitate the ill-use of the force by member states.

Details

Seiten
16
Jahr
2009
ISBN (eBook)
9783668706613
ISBN (Buch)
9783668706620
Dateigröße
501 KB
Sprache
Deutsch
Katalognummer
v129351
Note
Schlagworte
purposes principles

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Titel: Purposes and Principles of the UN