Professional Documents
Culture Documents
The following will deal with only certain aspects of the United Nations:
the UN Charter and the problem of interpretation, membership and the
main organs of the UN. The functions of the UN with regard to the peaceful
settlement of disputes between states, the maintenance of peace and security
and the problems of UN enforcement action and peacekeeping will be
treated separately in Chapter 22 below.3 It is important to note, however,
that, while the prime task of the UN today is still in the field of international
peace and security, the UN has many other important roles,4 which are
addressed in other parts of this book, such as with regard to
decolonization,5 human rights,6 humanitarian assistance and assistance
to refugees,7 economic development and the relations between rich and
poor states,8 the protection of the environment,9 and the development of
international law.10
There are five official texts, each of which is equally authentic: English,
French, Spanish, Russian and Chinese.14 These are the authentic languages
relevant for the interpretation of the Charter. They must be distinguished
from the official languages and the working languages of the UN. Arabic
was designated as one of the official languages of the General Assembly in
1973, which has no effect on the interpretation of the Charter. Negotiations
at the San Francisco Conference were in English and French, and the other
three texts were later translations of the English and French texts; but, even
if one looks only at the English and French texts, there are differences between
the two. One of the objects of interpretation is to reconcile such differences,
but reconciliation is not always easy.15 It must also be remembered that
neither English nor French was the native language of the majority of the
delegates at San Francisco, so imprecise drafting was inevitable.
Various methods of interpretation are discussed below.16 But it must
not be imagined that such methods provide a simple answer to all
problems of interpretation. Interpretation is an art, not a science. In a
sense, there are no rules of interpretation, only presumptions; and the
presumptions very often conflict with one another. The choice between
conflicting presumptions is almost bound to be influenced by political
factors, however hard one tries to exclude them. And it is this intermixture
of political factors with legal factors which explains why states are
reluctant to refer disputes about the interpretation of the United Nations
Charter to the International Court of Justice.17
Literal interpretation
Literal interpretation may be described as a method of interpretation
which looks exclusively at the words of a document, and which applies
a number of different presumptions to determine the meaning of those
words.18 For instance, words are presumed to be used in their ordinary
meaning, unless it is clear from the context that a technical meaning is
intended, in which case the technical meaning is applied; the document
must be read as a whole, and it will be presumed that the same word
used in different parts of the document will have the same meaning; if
possible, a particular provision should not be interpreted so as to conflict
with another provision, or to make another provision redundant, or to
lead to a manifest absurdity.
This is the method of interpretation used most frequently, for example,
by English judges when interpreting Acts of Parliament and other
documents, and it is also used by international lawyers to interpret treaties. Butin international
law it does not always provide a clear answer, because
treaties are usually drafted in less precise and less technical language than
Acts of Parliament; this is particularly true of the United Nations Charter.
The Charter was drawn up mainly by politicians, and often recalls the
deliberate vagueness of an election manifesto. Different parts of the Charter
were drawn up by different committees at the San Francisco Conference in
1945,19 and several amendments were made at the last minute; as a result,
coordination between different provisions is sometimes poor.
Intention and travaux prparatoires
The intentions of the parties to a treaty may be discovered, not only by
reading the treaty itself, but also by looking at the historical context in
which the treaty was negotiated, and at the records of the negotiations
themselves. Such records are called the travaux prparatoires (preparatory
work), and are often used as a subsidiary means of interpretation in
international law.20
But travaux prparatoires are used less for interpreting treaties setting up
international organizations than for interpreting other kinds of treaty. Treaties
setting up international organizations are intended to last longer than most
other types of treaty, and recourse to travaux prparatoires would not always
be appropriate in such circumstances, because it would mean looking at the
(possibly distant) past, instead of looking at the present and the future; the
intentions which states had in the 1940s may provide little guidance for
solving the very different problems of the 1990s. Moreover, the fact that the
majority of the members of the United Nations joined the United Nations
after 1945 and were not represented at the San Francisco Conference makes
it politically awkward to rely on the travaux prparatoires of the Charter.
Practice
The way in which states perform their obligations under a treaty can be
evidence of what they originally intended when they drafted the treaty.21
This is particularly true of treaties setting up international organizations,22
because such treaties, by their very nature, are applied constantly over a
number of years. In fact, one of the reasons why the United Nations Charter
was loosely drafted was because the drafters wanted to leave room for
flexibility in subsequent practice;23 unfortunately, the lack of trust between
the member states has not resulted in flexibility, but in constant disputes
about interpretation.
When an organization is empowered to take decisions by majority vote,24
it is inevitable that the practice supported by the majority of the member
states will come to be regarded as the practice of the organization itself,
and will be used as a means of interpreting the treaty setting up the
organization, despite the fact that the practice in question is opposed by a
minority of the member states. (Naturally, states forming the majority in
an international organization tend to rely heavily on practice as a means of
interpreting the constituent treaty, while states in a minority favour a strict,
literal interpretation, with more reliance on travaux prparatoires.) Moreover, with the passage
of time, it becomes a fiction to regard
practice merely as evidence of the parties original intentions. Practice
acquires a force of its own, and may actually develop in the opposite
direction to the parties original intentions.25
Practice may even develop in such a way as to run counter to the
words of the treaty. Is such a practice illegal, or can it amend the treaty?
There is little authority on this point, because the supporters of a
particular practice usually defend it by saying that it is a mere
interpretation of the treaty, not an amendment; but, if practice can
terminate a treaty,26 there is no logical reason why practice should not
also be capable of amending a treaty. However, although the practice of
the majority of member states can be used to interpret a treaty setting
up an international organization, practice cannot be used to amend such
a treaty unless it is unanimously accepted; all the parties must agree
before a treaty can be amended.
The situation is different where the treaty itself provides for
amendment by majority vote. For instance, Article 108 of the United
Nations Charter provides that (express) amendments of the Charter
shall come into force for all Members of the United Nations when
they have been adopted by a vote of two thirds of the members
of the General Assembly and ratifiedby two thirds of the
Members of the United Nations, including all the permanent
members of the Security Council.27
If this provision is applied by analogy to amendments implied from
practice, it would seem that practice can amend the United Nations
Charter provided it is accepted by two-thirds of the members, including
all the permanent members of the Security Council.
Effectiveness and implied powers
There is a presumption of interpretation in international law that a treaty
should be interpreted so as to give full effect to its purposes. At first
sight this presumption might seem to conflict with another presumption,
that a treaty should be interpreted restrictively so as not to limit the
sovereignty of states. In fact, however, the two presumptions are usually
applied in different circumstances. The principle of restrictive
interpretation is used most often to interpret treaties conferring
jurisdiction on international tribunals, and treaties which place heavier
burdens on one party than on the other party or parties (in such cases,
restrictive interpretation seeks to minimize the inequality of the parties).
Conversely, the principle of effectiveness28 is used most often to interpret
treaties placing identical burdens on all partiessuch as treaties setting
up international organizations.
The principle of effectiveness received a striking application in the
Reparation for Injuries case, where the International Court of Justice
advised that the United Nations possessed not only powers expressly
conferred by the Charter, but also such implied powers as were necessary
to enable it to achieve the purposes for which it was set up.29
However, it would be dangerous to regard the doctrine of implied
powers as a solution to all problems of interpretation in international
organizations. Most of the disputes about the interpretation of the UnitedNations Charter have
concerned powers which were clearly conferred
expressly on the organization; the questions in dispute were: Which organ
should exercise the power? And in accordance with what procedure? The
doctrine of implied powers provides little help in answering such problems,
because it is concerned with the powers of the organization as a whole, not
with the internal distribution of powers within the organization.
The purposes of the United Nations
An international organization acts illegally if it acts for purposes other
than those for which it was created (it is then said to act ultra vires, making
the act in question legally void); and the purposes for which it was created
must always be borne in mind when the constituent treaty of the organization
is being interpreted. This makes it particularly important to ascertain the
purposes of the United Nations, which are stated in Article 1 of the Charter
as follows:
1 To maintain international peace and security, and to that end: to
take effective collective measures for the prevention and removal
of threats to the peace, and for the suppression of acts of aggression
or other breaches of the peace, and to bring about by
peaceful means, and in conformity with the principles of justice
and international law, adjustment or settlement of international
disputes or situations which might lead to a breach of the peace;
2 To develop friendly relations among nations based on respect for
the principle of equal rights and self-determination of peoples, and
to take other appropriate measures to strengthen universal peace;
3 To achieve international co-operation in solving international
problems of an economic, social, cultural or humanitarian character,
and in promoting and encouraging respect for human rights
and for fundamental freedoms for all without distinction as to
race, sex, language, or religion; and
4 To be a centre for harmonizing the actions of nations in the attainment
of these common ends.
Obviously the purposes are defined in very wide terms.30 Politicians in
Western countries have sometimes been too ready to assume that the main
or only purpose of the United Nations is to preserve international security;
but Third World countries attach equal importance, if not greater
importance, to solving international problems of an economic character31
and to securing respect of the principle of equal rights and self-determination
of peoples (or at least of peoples under colonial rule).32
Domestic jurisdiction
One provision of the Charter which is, or could have been, a serious limitation
on the powers of the United Nations is Article 2(7), which provides:
Nothing contained in the present Charter shall authorize the
United Nations to intervene in matters which are essentially within the domestic
jurisdiction of any state or shall require the
Members to submit such matters to settlement under the present
Charter; but this principle shall not prejudice the application of
enforcement measures under Chapter VII.
Article 2(7) has given rise to more controversy than any other provision
in the Charter, but in practice its interpretation is still as uncertain as
ever.33 States which consider that Article 2(7) prohibits (or does not
prohibit) the United Nations from taking a certain course of action in a
particular case use all sorts of arguments to support their point of view,
and the multiplicity of arguments used prevents the final decision from
constituting an intelligible precedent.
The corresponding provision (Article 15(8)) of the Covenant of the
League of Nations spoke of matters which by international law were
within a states domestic jurisdiction. Domestic jurisdiction has a clear
meaning in international law; it refers to those matters (for example,
treatment by a state of its own nationals, until recently)34 where a states
discretion is not limited by obligations imposed by international law. But
the San Francisco Conference deliberately rejected the idea that domestic
jurisdiction in the Charter should be defined by reference to international
law, on the grounds that international law was vague. There is some truth
in this criticism, since the Charter itself contains a number of references to
human rights,35 self-determination,36 and so on, which are so vague that it
is difficult to say what, if any, legal obligations they impose.
In the practice of the United Nations, a number of different tests are
applied in order to determine whether a matter falls within a states
domestic jurisdiction. Thus, a matter is unlikely to be regarded as within
a states domestic jurisdiction if it amounts to a breach of international
law, an infringement of the interests of other states, a threat to
international peace, or a gross violation of human rights,37 or if it concerns
progress towards self-determination in a colony.38 Political factors
influence the votes cast by states, which are not always consistent. But
in general the practice is to interpret domestic jurisdiction narrowly
the opposite of what was intended by the drafters of the Charter.
Article 2(7) states that the principle of non-intervention39 in matters
of domestic jurisdiction shall not prejudice the application of
enforcement measures under Chapter VII. Chapter VII is entitled: Action
with respect to threats to the peace, breaches of the peace, and acts of
aggression.40 According to the recent practice of the United Nations,
the proviso at the end of Article 2(7) is unnecessary, because a threat to
the peace, breach of the peace, or act of aggression is nowadays
automatically treated as not constituting a matter of domestic jurisdiction.
Membership
The founding members of the United Nations were the states which
were on the Allied side in the Second World War.41 The admission of
new members is governed by Article 4 of the Charter:
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 judgment of the Organization, 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 recommendation of the Security Council.42
At present (1996) there are 185 member states of the United Nations, of
which only fifty-one were founding members. The growth in numbers is
primarily attributable to decolonization in the 1960s43 and the break-up
of the Soviet Union and Yugoslavia.44 Almost all independent states in the
world are now members of the United Nations.45 There are at present
only a few non-member states, such as Kiribati, Nauru, Tonga, Tuvalu,
the Vatican State, Taiwan and Switzerland (which seats many important
UN bodies, but has never applied for UN membershipa referendum
held in 1994 was negative). The members of the UN include micro-states
with areas of less than 500 square miles and populations under 100,000,
such as Andorra, Antigua and Barbuda, Grenada, St Kitts and Nevis, the
Federated States of Micronesia and the Marshall Islands, Liechtenstein
(admitted on 18 September 1990), San Marino (admitted on 2 March
1992), Monaco and Palau, which was admitted in November 199446 and
constituted the last territory under the control of the UN trusteeship
system.47 Obviously, the equality in terms of membership of such microstates
with larger nations raises a number of problems which were reflected
in the discussions in the United Nations up until 1971 on whether they
could be admitted at all.48 In the end, the principle of universality of
membership of states, whether big or small, succeeded without solving
the underlying issue of voting rights and by circumventing the question
whether such states are actually, as required by Article 4 of the Charter,
able to carry out its obligations. With the end of the trusteeship
administration by the United States, Micronesia and the Marshall Islands
entered into a compact of association with the United States under which
the United States remains responsible for the defence of these two states.
But this was not seen as a reason for denying that they were eligible for
membership of the UN.
A member state against which enforcement action49 is being taken may
be suspended from exercising the rights of membership,50 and a member
state which has persistently violated the principles of the Charter may be
expelled;51 in each case the decision is taken by the General Assembly
upon the recommendation of the Security Council. These provisions have
never yet been applied, although many African and Asian states tried to
expel South Africa during the period of apartheid,52 and Arab states and
Iran used to take regular initiatives to delegitimize gradually the presence
of Israel in the United Nations by rejecting the credentials of the Israeli
delegation in the General Assembly.53 South Africa was only excluded
from participating in the work of the General Assembly from 1974
until 1993 on the basis of a decision of the Credentials Committee of
the General Assembly stating that the government of South Africa
did not represent all its people. The legality of this finding is doubtful,
considering that the legitimacy of the form of government, as such, is not acriterion for UN
membership.54 Expulsion, at any rate, is not necessarily
an effective sanction; some people might interpret it as a confession on
the part of the organization that it has failed to impose its will on the
expelled member.
The Charter says nothing about withdrawal by member states; the
omission is deliberate, because the insertion of a right of withdrawal in
the Covenant of the League of Nations had encouraged many member
states to withdraw, thereby seriously weakening the League.55 But the
San Francisco Conference in 1945 did recognize a right of withdrawal
in exceptional circumstances, for example, ifthe organization was
revealed to be unable to maintain peace or could do so only at the expense
of law and justice, or if a members
rights and obligations as such were changed by Charter
amendments in which it has not concurred and which it finds
itself unable to accept, or if an amendment duly accepted by the
necessary majority in the Assembly or in a general conference
fails to secure the ratifications necessary to bring such
amendment into effect.56
This statement of opinion forms part of the travaux prparatoires of the
Charter, and may therefore be used to interpret the Charter.
The question of withdrawal has arisen only once in practice. In January
1965 Indonesia purported to withdraw, in protest against the election of
Malaysia (part of whose territory was claimed by Indonesia) as a nonpermanent
member of the Security Council. Although the election of
Malaysia could hardly be regarded as an exceptional circumstance within
the meaning of the San Francisco statement, the Indonesian withdrawal
was apparently accepted as valid by the Secretariat at the time.57 But in
September 1966 Indonesia resumed participation in the United Nations.
If its withdrawal had really been effective, Indonesia would have had to
seek readmission under Article 4; instead, it simply resumed its seat, as if
nothing had happenedwhich suggests that its withdrawal had been void.
Logically, Indonesia should have had to pay all the arrears of its
contributions as a member in respect of the period between January 1965
and September 1966, but, since it had derived no benefits from membership
during that period, it was agreed that it should pay only 10 per cent of the
arrears of its contributions.
The representation of China
The communists seized power in China at the end of 1949, but until
1971 China was represented at the United Nations by the nationalist
government of Chiang Kai-shek based on Taiwan.58 During that period
one frequently heard people arguing that communist China should be
admitted to the United Nations; but, by treating the question as one of
admission, they were unwittingly siding with the United States, which
argued that communist China should not be admitted because it did
not fulfil the requirements of Article 4it was not peace-loving, it was
not willing to carry out the obligations of the Charter, and so on.
The correct analysis is that states, not governments,59 are members of
the United Nations; the state of China is and always has been a member ofthe United Nations;
the question is, which government should represent it
at the United Nations? Although Article 4 could perhaps be applied by
analogy to questions of representation, it seems more logical to hold that a
member state has a right to be represented by its effective government until
that member state is suspended or expelled; any other solution would be
out of keeping with the general principles governing the relationship between
states and governments in international law. Although many states did not
recognize the communist government of China until the 1970s, it is
undeniable that that government had been the effective government of China
since the end of 1949.
The distinction between admission and representation is important in other
respects, too. If communist China had been admitted as a new member state,
nationalist China (Taiwan) could have remained a member of the United Nations
(and a permanent member of the Security Council) even after the admission of
communist China. If, however, the question is treated as one of representation,
the arrival of communist representatives must inevitably be accompanied by
the departure of nationalist representatives from all the organs of the United
Nations, because a state cannot be represented simultaneously by two rival
governments in an international organization; and this is, in fact, what happened
in 1971 when the General Assembly decided to restore all its rights to the
Peoples Republic of China and to recognize the representatives of its government
as the only legitimate representatives of China in the UN.60 In 1994, several
UN member states made an attempt to restore the UN membership of Taiwan
by instituting a committee on the question, which, however, failed.61
Moreover, questions concerning the admission of new members or the
suspension or expulsion of existing members are treated as non-procedural
questions, which means that the veto applies in the Security Council;
questions concerning representation are treated as procedural questions,
which means that the veto does not apply.62
The case of Yugoslavia
An indirect form of expulsion has been applied in the case of former
Yugoslavia after 1991, following the independence of Bosnia-Herzegovina,
Croatia, Macedonia and Slovenia.63 With the exception of rump Yugoslavia
(Serbia and Montenegro) all the new states seceding from the former
federation applied for UN membership. They were admitted even though
the armed conflict in Yugoslavia was continuing and the border issues were
still unsettled. The early admission of Bosnia and Herzegovina on 20 May
1992 had the purpose of strengthening the position of a weak state against
aggression. On the other hand, the admission of the former Yugoslav
Republic of Macedonia met with difficulties because of Greek objections
to the unqualified name Macedonia adopted by the new state, which Greece
viewed as a possible claim to its northern province with the same name.
Greece also opposed the claim of the new state to use on its flag the star of
Vergina (the emblem of the old Macedonian dynasty). Under a
compromise the new state was admitted on 8 April 1993 under the
condition that it would provisionally be called The Former Yugoslav
Republic of Macedonia until the differences with Greece were settled. The UN refused to allow
the Federal Republic of Yugoslavia, represented
by Serbia and Montenegro, to take the seat of the former Socialist Federal
Republic of Yugoslavia, arguing that it was not the same legal entity
because the former state of Yugoslavia had ceased to exist and there was
no general recognition of the claim to continuity.65 The Security Council
and the General Assembly decided that the Federal Republic of
Yugoslavia should apply for new membership and meanwhile refrain
from taking part in the work of the Assembly,66 although the state was
allowed to continue to participate in some UN bodies.
The organs of the United Nations
There are six principal organs of the United Nations: the General Assembly,
consisting of all the member states; the three Councils, which have more
specialized functions and consist of a limited number of member states
the Security Council, the Economic and Social Council and the Trusteeship
Council;67 and two organs composed not of member states but of
individualsthe Secretariat and the International Court of Justice.68 There
is also a vast number of subsidiary organs created by the principal organs.69
The Security Council is the most important political organ.
The Security Council
The Security Council consists of fifteen member states.70 Five are permanent
members: China, France, the United Kingdom, the United States and
Russia, which had informed the UN in 1991 that, with the support of the
eleven members of the Commonwealth of Independent States arising from
the remains of the former Soviet empire, it would continue the membership
of the USSR in all UN organs.71 This step taken by the Russian Federation
is remarkable because it did not meet with any protest by a UN member
state, although, strictly speaking, one could argue that in this matter an
amendment of the Charter was necessary to change the composition of
the Security Council.72 The other ten members of the Security Council are
non-permanent, elected for two years by the General Assembly. The number
of non-permanent members was increased from six to ten on 1 January
1966, as a result of an amendment to the Charter; as the membership of
the United Nations increased, it was considered that the membership of
the Security Council should also be increased, in order to give more states
an opportunity of sitting on the Security Council. The current practice is
that five of the non-permanent places are filled by African and Asian
states, two by Latin American states, one by an Eastern European state
and two by Western European and other states (the other states being
principally the white members of the Commonwealth Canada,
Australia and New Zealand).
Article 24(1) of the Charter provides:
In order to ensure prompt and effective action by the United
Nations, its Members confer on the Security Council primary
responsibility for the maintenance of international peace and
security, and agree that in carrying out its duties under this
responsibility the Security Council acts on their behalf. The Security Councils principal
functions consist of making
recommendations for the peaceful settlement of disputes74 and taking
enforcement action to deal with threats to the peace, breaches of the peace
and acts of aggression.75 The Council also played an important role in the
development of UN peacekeeping operations, an institution that was not
foreseen in the Charter.76
Article 25 of the Charter provides:
The members of the United Nations agree to accept and carry out
the decisions of the Security Council in accordance with the
present Charter.
The Security Council thus has a power to take binding decisions, which
member states are under a legal obligation to obey.77
Voting procedure in the Security Council is regulated by Article 27 of
the Charter:
1 Each member of the Security Council shall have one vote.
2 Decisions of the Security Council on procedural matters shall
be made by an affirmative vote of nine members.
3 Decisions of the Security Council on all other matters shall be made
by an affirmative vote of nine members including the concurring
votes of the permanent members; provided that, in decisions under
Chapter VIa party to a dispute shall abstain from voting.78
The effect of Article 27(3) is that each permanent member of the Security
Council has a veto79 on non-procedural questions. The veto does not apply
to procedural questions. How does one decide whether or not a question is
procedural? At the San Francisco Conference, the four powers which had
convened the Conference (USA, USSR, UK and China) listed certain
questions which would be regarded as procedural (for example, decisions
under Articles 2832 of the Charter, and questions relating to the agenda)
and certain other questions which would be regarded as non-procedural
(for example, recommendations for the peaceful settlement of disputes, and
decisions to take enforcement action); in cases of doubt, which were expected
to be rare, the preliminary question (that is, the question whether or not a
particular question was procedural) would itself be a non-procedural
question.80 This led to the double veto; a permanent member of the Security
Council could veto any attempt to treat a question as procedural, and then
proceed to veto any draft resolution dealing with that question. By means
of the double veto, the Soviet Union sometimes tried to convert a number
of questions, which were clearly listed as procedural in the four-power
statement, into non-procedural questions. But the device of the presidential
ruling can be used to prevent such abuse of the double veto. The post of
president of the Security Council is held in turn by each member of the
Security Council for a period of one month; if the president reacts to an
attempted abuse of the double veto by ruling that the preliminary question
is itself procedural, his ruling is final unless it is reversed by a (procedural)
vote of the Security Council.
Each of the permanent members has used its veto on occasions, although
the Soviet Union used it more frequently than the other permanent members of the Security
Council. From 1945 to 1992 the actual use of
the veto was as follows: Soviet Union 114; USA sixty-nine; United
Kingdom thirty; France eighteen; China three.81 While in the period from
1945 to 1990 there were a total of 279 vetos, since then the veto has
been hardly used. This development is remarkable, considering that since
the founding of the UN until 1990 there were only some 650 Security
Council decisions, an average of less than eleven per annum, while
between 1990 and 1993 there were about 250 resolutions, an average
of more than sixty per year.82 On 31 May 1990 the United States vetoed
a resolution on the territories occupied by Israel and on 11 May 1993
Russia vetoed a resolution concerning the financing of the peacekeeping
force in Cyprus. The significance of veto statistics, however, is limited
because they do not include the hidden veto (in the case of a sufficiently
large number of abstentions), nor the unofficial veto (preventing a
motion from being put to a vote).83
The veto has often been criticized as a crippling limitation on the powers
of the Security Council. It has in fact undermined the role of the Security
Council in armed conflicts in which the permanent members were directly
involved (e.g. Suez 1956, Hungary 1956, Vietnam 194675, and the war
between China and Vietnam 1979) and prevented it from acting in many
of the armed conflcits in which the permanent members were indirectly
involved or had an interest. But the existence of the veto recognizes the
realities of power politics; it is the price which must be paid for the unusually
large powers conferred on the Security Council. Again, it must be stressed
that it so happens that all the permanent members of the Security Council
are nuclear powers; abolition of the veto would add little to the power of
the United Nations, because it would still be virtually impossible for the
United Nations to take enforcement action against a nuclear power.
In any case, some of the worst features of the veto have been softened in
practice. A literal interpretation of Article 27(3) would produce the result
that all permanent members would have to vote for a draft resolution in
order for it to be passed; an abstention would constitute a veto.84 But, since
the first years of the United Nations, there has been a consistent practice of
not treating abstentions as vetoes, and this practice was recognized as lawful
by the International Court of Justice in the Namibia case.85
The effect of absence by a permanent member is less certain, because
the problem has really arisen only once. In 1950 the Soviet Union
boycotted the Security Council in protest against the Councils refusal
to seat the communist representatives of China. In June 1950, when
North Korea invaded South Korea, the absence of the Soviet Union
enabled the Security Council to pass a resolution recommending
member states to send forces to help South Korea.86 The Soviet Union
challenged the legality of the resolution on the grounds that it had
been passed in the absence of the Soviet Union. It is debatable whether
the practice which has developed in relation to abstentions by a
permanent member can be applied by analogy to the absence of a
permanent member; but the Soviet boycott was itself probably a
violation of the Soviet Unions obligations under Article 28(1) of
the Charter, which provides: The Security Council shall be so
organized as to be able to function continuously. Each member of theSecurity Council shall for
this purpose be represented at all times at the seat
of the Organization.87 On this reasoning, the absence of a permanent
member ought not to prevent the Security Council from taking a decision;
otherwise the illegal act of one state would bring the whole work of the
Security Council to a halt. At any rate, the action taken by the Security
Council in June 1950 has had one salutary effect: since then no permanent
member has attempted to boycott the Security Council.
Article 27(3) of the Charter provides that in decisions under Chapter VI
a party to a dispute shall abstain from voting. Chapter VI deals with the
peaceful settlement of disputesand also with the peaceful settlement of
situations which might give rise to a dispute, and the distinction between
disputes and situations is singularly imprecise. Moreover, it is often difficult
to tell who is a party to a particular dispute; there are comparatively few
states in the world, and many of them are linked together by alliances or
other close ties, so that a dispute can affect the interests of many states to
varying degrees. In the first few years of the United Nations, there were
arguments about the difference between disputes and situations, about the
definition of parties to a dispute and about the precise scope of Chapter VI.
Since about 1950 such legalistic arguments have become rarer, and in many
cases the obligation to abstain from voting has been simply ignored; states
have frequently taken part in votes about disputes to which they were parties,
and objections have seldom been made by other states. One recent example
is the sanctions adopted by the Council against Libya for its alleged
responsibility in the Lockerbie case, in which the United States, the UK and
France took part in the voting.88
Recently, the composition of the Security Council, as well as its voting
procedure, has come more fiercely under attack because the system does
not reflect the changes in the international system since 1945.89 The question
of equitable representation and increase in the membership of the Security
Council had already been raised by the non-aligned and developing countries
in 1979.90 But nothing came out of this initiative until after the end of the
Cold War when Germany and Japan, followed by a number of other
countries, expressed their interest in permanent membership. At the end of
1993, the General Assembly decided to establish an Open-ended Working
Group on the Question of Equitable Representation on and Increase in the
Membership of the Security Council91 to commence negotiations which, at
the time of writing, are still continuing.92 In view of the vested interests of
the current permanent members which are not keen to renounce their
privileges (and can veto any amendment or revision of the Charter they feel
uncomfortable with) the process of reform is likely to be difficult. There is
also no agreement on which state should represent which region, for
example, in Africa or Latin America. Finally, there is the problem that, in
the interest of the efficiency of the Council, there are political limits to
making it too large, on the one hand, and to reducing the privileged position
of the nuclear powers too much, on the other.
In part, this discussion is fomented by the perception that the enhanced
role of the Security Council and its activism in the post-Cold War era raises
broader consitutional issues relating to the use of the powers of the
Council and the limits of these powers.93 This concerns not only the lack of transparency of the
decision-making by the P5 (the five permanent
members) or P3 (the Western powers) which often hold meetings in secret,
following which only the formal votes become part of the public record.94
It also concerns the claim that the Security Council has now come under
the effective control of the Western states, particularly with regard to
action undertaken under the leadership of the United States.95
The General Assembly
The General Assembly96 consists of all the member states of the United
Nations. Some idea of the wide scope of the questions which it is
competent to discuss may be obtained from examining the following
provisions of the Charter:
The General Assembly may discuss any questions or any matters
within the scope of the present Charter or relating to the powers
and functions of any organs provided for in the present Charter,
andmay make recommendations to the Members of the United
Nations or to the Security Council or to both on any such
questions or matters.[97 ]