The United Nations and the Formation of International Law

The United Nations came into existence with the adoption of the U.N. Charter in 1945. Its membership is open to States and it has over 190 members. Its headquarters are in New York City, but it has important offices in several other cities, including Geneva, Vienna, and The Hague. The United Nations consists of six principal organs: The Security Council, the General Assembly, the Economic and Social Council, the International Court of Justice, the Secretariat, and the Trusteeship Council. Each of these has played an important function in the making, interpretation and implementation of international law.

A. The Security Council

The Security Council has primary responsibility, under the U.N. Charter, for the maintenance of international peace and security. Article 25 of the U.N. Charter requires the members of the organization to accept and carry out the decisions of the Security Council. While the other organs of the U.N. are authorized to make non-binding recommendations, the Security Council is unique in that its decisions (taken under Chapter VII of the Charter) automatically become international law.

The Security Council is comprised of 15 members: five permanent members (China, France, Russia, the United Kingdom, and the United States) and 10 rotating members that are elected for two-year terms by the General Assembly. Each member of the Council has one vote but decisions on substantive matters require a majority including the concurring votes of the permanent members, thus providing each permanent member a veto.

In recent years, the Security Council has taken a wide variety of measures under Chapter VII of the United Nations Charter. It has, for example, created "no-fly zones,"31 "safe areas,"32 and humanitarian corridors;33 it has established a commission to grant compensation to the victims of armed attack;34 it has created a commission to delimit disputed borders;35 it has instituted a commission to supervise the elimination of a particular State's weapons of mass destruction;36 it has created numerous investigative commissions;37 and it has established two international criminal tribunals, and three hybrid Tribunals.38

To impel cooperation and compliance, the Security Council has on a number of occasions adopted resolutions requiring the international community to impose economic and political sanctions on a State which is acting in contravention of a Security Council resolution. Such sanctions have included arms embargoes, trade embargoes, prohibitions on air flights, seizure of vessels and vehicles, freezing of assets, prohibition on team participation in sports events, and reduction of diplomatic ties. Security Council-imposed sanctions are currently in force against several states, including Iraq, Libya, Liberia, Somalia, Angola, and the former Yugoslavia.39 In the past, sanctions had been imposed against the military regime in Haiti and the apartheid regimes in Rhodesia and South Africa.40

The sanctions resolutions often contain numerous exceptions, for example, for the import of humanitarian items and informational materials. The sanctions resolutions are interpreted by a Security Council-created body known as the Sanctions Committee. The jurisprudence of the Sanctions Committee has a direct impact on the conduct of thousands of businesses around the world on a daily basis.41

B. The General Assembly

The General Assembly is composed of representatives of all Member States, each of which has one vote. Large countries such as the United States, Russia, and China, are counted the same as smaller countries such as the tiny island of Palau, which has less than 15,000 inhabitants. The General Assembly determines the budget of the United Nations, and elects the non-permanent members of the Security Council, the judges of the International Court of Justice, and the judges of the International Criminal Tribunals for the Former Yugoslavia and Rwanda. Through its seven Main Committees and numerous subsidiary bodies, the General Assembly studies and makes recommendations on specific issues, such as those involving disarmament, terrorism, outer space, human rights, the law of the sea, protection of the environment, and peace-keeping.

While the General Assembly is not empowered to render binding decisions like the Security Council, there are two important ways the General Assembly creates international law: (1) the General Assembly bodies regularly draft treaties and convene international conferences for their adoption; and (2) the non-binding resolutions and declarations of the General Assembly (especially those adopted without dissent) can constitute evidence of customary international law.

One of the General Assembly's most important subsidiary bodies is the International Law Commission, comprised of thirty-four jurists. The ILC has produced a number of successful draft multilateral treaties, such as the 1958 Convention on the Law of the Sea, the 1961 Vienna Convention on Diplomatic Relations, the 1969 Vienna Convention on the Law of Treaties, the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, the 1978 Convention on the Succession of States, and the Statute for a permanent international criminal court.42

C. The Economic and Social Council

The Economic and Social Council (ECOSOC) was established by the U.N. Charter as the principal organ to coordinate economic and social work of the United Nations. ECOSOC has 54 members who serve for three year terms. In addition, over 900 non-governmental organizations (NGOs) have consultative status and participate in the work of ECOSOC.

ECOSOC is responsible for coordinating the sixteen specialized agencies of the United Nations system. These include the Human Rights Commission (recently re-named the Human Rights Council), the World Trade Organization, the United Nations Conference on Trade and Development, the United Nations Development Programme, the International Monetary Fund, the World Bank, the World Health Organization, the International Labor Organization, and the World Intellectual Property Organization.

In addition to adopting numerous resolutions, ECOSOC and its specialized agencies have developed several quasi-legal instruments known as codes of conduct. These codes establish voluntary guidelines that are intended to influence the behavior of both governments and private enterprises. The most important thus far has been the ECOSOC-sponsored Code of Conduct on Transnational Corporations.

D. The International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It is the successor to the Permanent Court of International Justice, which was established under the League of Nations. Located in the Peace Palace in The Hague, the ICJ is composed of 15 judges, who are elected by the U.N. General Assembly to serve nine-year terms.

The ICJ is empowered to decide two types of cases. First, the ICJ can issue advisory opinions when requested to do so by the Security Council, the General Assembly or several other United Nations bodies authorized to request such opinions. Since its creation, the ICJ has issued twenty-one advisory opinions.

Second, the Court can exercise jurisdiction in a contentious case between two or more States with the consent of the parties. The ICJ does not have jurisdiction over individuals, except to the extent that a State espouses their claims. Since its creation, the ICJ has issued judgments in thirty-nine contentious cases. That amounts to the Court hearing an average of less than two cases each year. During the 1990s, however, the Court became increasingly active, and it currently has eight contentious cases, and two requests for advisory opinions on its docket.

Consent to jurisdiction over contentious cases can be given in three ways. First, States can agree to have their disputes decided by the ICJ on an ad hoc basis. Second, many treaties contain provisions giving the ICJ jurisdiction over any dispute between parties to the treaty as to its interpretation or application. Third, States may make a declaration under Article 36(2) of the ICJ statute, agreeing to the compulsory jurisdiction of the Court in relation to other States that have made a like declaration. As of 1997, fifty-nine States had accepted the compulsory jurisdiction of the ICJ.

Declarations made under Article 36(2) may specifically exclude certain categories of disputes from the ICJ's compulsory jurisdiction. Such declarations are subject to reciprocity, and a defendant state against which a proceeding is brought may invoke an exclusion not stipulated in its own declaration but included in the declaration of the plaintiff state.

The United States had agreed in 1946 to the compulsory jurisdiction of the ICJ with two principal exceptions. The first, known as the "Connelly reservation," provided that the United States does not accept the jurisdiction of the ICJ over disputes with regard to matters which are essentially within the domestic jurisdiction of the United States as determined by the United States. The second, known as the "Vandenberg reservation" exempted the United States from the ICJ's compulsory jurisdiction with respect to any disputes arising under a multilateral treaty unless all parties to the treaty affected by the decision are also parties to the case before the Court. After the ICJ ruled that it had jurisdiction over Nicaragua's suit against the United States concerning U.S. support of the Contras and mining of Nicaragua harbors, the United States terminated its acceptance of the compulsory jurisdiction of the ICJ.

The termination of the United States' acceptance of the ICJ's compulsory jurisdiction has not completely immunized the United States from the ICJ. The United States has subsequently been hailed before the ICJ on several occasions pursuant to clauses contained in multilateral treaties to which the United States is a party. It has become the recent practice of the United States to make a reservation opting out of the ICJ jurisdiction clause of multilateral treaties at the time of ratification, but the United States continues to be party to over one hundred treaties containing an ICJ jurisdiction clause.

Judgments of the ICJ are binding between the parties. Under Article 94(1) of the U.N. Charter, all members of the United Nations have undertaken to comply with a judgment of the ICJ in any case to which they are parties. If a party fails to comply with the judgment of the ICJ, any other party may call on the Security Council to enforce the judgment. ICJ decisions are widely recognized as important statements of existing international law, and they are often cited as authority to support fundamental principles of international legal development.

Contentious cases usually involve three phases. First, the parties often request that the ICJ "indicate" provisional measures in order to preserve their respective rights while a case is pending. Decisions on provisional measures are usually issued within a few weeks from the initial request. While provisional measures are somewhat analogous to a preliminary injunction or a temporary restraining order under U.S. domestic law, the court has never ruled whether an order indicating provisional measures is mandatory on the parties. The second phase involves challenges to the Court's jurisdiction. The Court will entertain briefs and oral arguments on the matter before making a decision. Finally, the Court will entertain briefs and oral arguments on the merits of the case. From start to finish, the ICJ may take several years to rule on a dispute. The final decision of the ICJ is not subject to appeal.

E. International Criminal Tribunals

The UN Security Council acting under its Chapter VII authority established the International Criminal Tribunal for the Former Yugoslavia (in The Hague) in 1993, the International Criminal Tribunal for Rwanda (in Arusha, Tanzania) in 1994, and the Special Tribunal for Lebanon (in The Hague) in 2009. Through agreements between the UN and domestic authorities, the Special Court for Sierra Leone (in Freetown and the Hague) was established in 2002, and the Extraordinary Chambers in the Courts of Cambodia was established (in Phnom Penh) in 2006. In 2002, the permanent International Criminal Court was established (at The Hague) through a treaty negotiated at the Rome Diplomatic Conference; the ICC currently has 122 State parties. These six international tribunals have prosecuted over 200 defendants and have produced extensive case law that constitutes persuasive (though not binding) authority for other tribunals and domestic courts.

F. The Secretariat

The Secretariat is the international bureaucracy which services the other organs of the United Nations and administers the programs and policies laid down by them. It consists of more than 50,000 men and women from more than 150 countries.

The Secretariat is headed by the Secretary-General who is appointed for a term of five years by the General Assembly on the recommendation of the Security Council. The Secretary-General and other Secretariat personnel are often called upon to serve as fact finders and mediators, and have played an important role in ending recent conflicts in Afghanistan, Cyprus, Namibia, the Falkland Islands, Lebanon, Cambodia, and the former Yugoslavia.

The Secretariat serves as an officially designated world depository for international agreements. More than 45,000 treaties are registered with the U.N. The Secretariat publishes the United Nations Treaty Series, which is an authoritative registry of international agreements.

The Secretariat includes the U.N. Office of Legal Affairs, headed by the Under-Secretary General for Legal Affairs (the U.N. Legal Counsel), which plays a critical role in the interpretation of the Charter of the United Nations and the resolutions of the Security Council, General Assembly, ECOSOC, and other U.N. bodies. The opinions of the U.N. Legal Counsel are published annually by the United Nations.