United Nations Organization

UNITED NATIONS ORGANIZATION (Organisation des Nations Unies, O.N.U., or United Nations Organisation, U.N.O.). - It is the international body created after the Second World War along the lines of the League of Nations (v.).

I. HISTORY

A first hint of the intention of the great powers to erect a collective organization came on 14 Aug. 1941, in the "Atlantic Charter." Initially a simple joint declaration of the United States and Great Britain, it became a program accepted by the Allied Nations in the war against Germany and Japan, with the declaration of 1 Jan. 1942, signed first by a group of 22 nations, later increased to 41 through the acceptance of 19 other states. A greater determination of this purpose, which had remained vague in the preceding documents, was reached with the declaration of 30 Oct. 1943, issued on the occasion of the Moscow Conference by the four great powers, the United States, the United Kingdom, the Soviet Union and China. In it, for the first time, express mention was made of a general international organization to be erected, for the maintenance of peace and security, which was to have as its foundation the principle of the sovereign equality of all states.

The period of its implementation begins with the meetings of the experts of the four powers named above, who in Oct. 1944 agreed on a draft of the Statute, which, from the place where it was drawn up, was called the "Dumbarton Oaks proposal." This in turn became the subject of discussion at the Yalta Conference, which concluded on 11 Feb. 1945, where the United States, England and Russia defined the voting procedure in the future Security Council and established that in the subsequent conference, which would meet at San Francisco, only the powers that had taken part in the war against Germany and Japan and those that by the month of Feb. had declared war on Germany could participate. Several states, which had until then remained neutral, issued the required declaration before the deadline expired (Turkey, Egypt, Chile, Colombia and other Latin American countries); some, however, maintained their neutrality. The criterion adopted had as its effect that the organization, at its first constitution, was nothing other than an organization of the victorious peoples. This would be reflected in several articles of the Statute, elaborated on the scheme already drawn up at Dumbarton Oaks, to which certain amendments proposed by the same four great powers, either jointly or individually, were made; it was approved by 49 states on 6 June 1945 and entered into force on 24 Oct. of the same year.

1. The U.N.O

The United Nations set as their aim the maintenance of peace, in the same way as the League of Nations, yet the emphasis is placed in a particular way on collective security, whence the prominence given in chap. 1 to effective measures for the removal of threats to peace and to the suppression of acts of aggression. Moreover, their attributions are much broader than those of the League of Nations, since they set themselves, beyond peace and security, the aim of providing for international cooperation for the solution of economic, social and cultural problems and of promoting respect for human rights and fundamental freedoms. The principle on which the O. is founded and which has remained merely formal in the subsequent provisions of the Statute is that of the sovereign equality of all member states, which bind themselves to settle their disputes by peaceful means, to refrain from threats and the use of force and to lend assistance to the O. in any action that it may undertake for the attainment of its purposes.

A not very clear provision is contained in no. 6 of art. 2, in which the O. is assigned the task of ensuring that states that are not members of the United Nations act in conformity with these principles, insofar as may be necessary for the maintenance of peace and general security. From it one could deduce that the obligations of the Statute are extended also to states that have not signed it, derogating from the principle that a treaty has binding force only for the contracting parties, and also that the O. has wished to extend its powers with regard to non-member states in questions concerning peace and security. On the basis of this norm it would come to assume the character of a superstate organism, to which the control of the whole of international life remains entrusted, nor would this power of its be limited by art. 7 (which excludes its intervention in questions that belong essentially to the internal competence of a state, and would seem to confirm the principle of non-intervention), since any internal situation prejudicial to peace and security would fall under its competence.

The members of the O. are original, if they took part in the San Francisco Conference and signed the declaration of the United Nations of 1 Jan. 1942 and ratified the Statute; non-original, if they were admitted afterwards. Their admission may take place if, in the judgment of the O., they are peace-loving states and such as to be able to maintain the obligations deriving from the acceptance of the Statute. The General Assembly will decide on the proposal of the Security Council: by the same procedure states deemed unworthy may be suspended or expelled. The internal order of the United Nations follows the scheme already adopted for the League of Nations, except for some new organ added for some particular function.

2. Specific organs of the U.N.O

The organs of the U.N.O. are: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the Permanent Court of International Justice, the Secretariat. The whole system, however, gravitates around the second, that is, around the Security Council, to whose power over all questions of international life there corresponds a total subjection of the members of the O. and of the General Assembly, to which only a consultative function has been attributed. In this subordination to the Council consists one of the major innovations of the Statute of the United Nations.

The General Assembly is made up of all the members of the O. Its functions are limited to recommendations to the members or to the Security Council, which is not bound to follow them, since it depends on its absolute discretion to decide on questions of peace and security. According to no. 2 of art. 11, the Assembly cannot take any decision regarding questions for which action becomes necessary, which must be referred to the Security Council, and must further refrain, art. 12 adds, from making recommendations when the Council is dealing with any dispute or situation, unless it is requested to do so by the Council itself. Questions relating to the maintenance of peace with which the latter is dealing shall be notified to it by the Secretary-General, with the prior consent of the Council. Contrary to what was the case with the League of Nations, the Assembly decides by a qualified majority of two thirds of the members present and voting on questions concerning peace and security, the election of the non-permanent members of the Council, admission or expulsion for failures to fulfill the obligations assumed; by simple majority on questions of lesser importance. The replacement of the principle of unanimity with that of majority entails an internal change of great importance with respect to the previous international organization, in that it confers on the new one the character of an organic society superior to the individual States, which are bound to accept its decisions even if their will is contrary, which implies a partial renunciation of their sovereignty or at least the fall of its absoluteness. However, this particular and important innovation has not been extended to the great powers, which, in accordance with the Charter, retain sovereignty according to the old conception, that is, not limited by any norm. The Security Council consists of eleven members, five permanent (United States, Great Britain, Russia, France and China) and six elective, appointed by the Assembly for a period of two years, with particular regard to the contribution made to the maintenance of peace and security and to an equitable geographical distribution (art. 23). The Security Council has the broadest powers, which are in no way limited or subordinated to the control of other organs or of the Assembly. It decides with full discretion on all questions relating to peace and security, and its decisions automatically become binding on all the members of the O.

Moreover, by the fact that five members of the Council are not elective, the principle of the sovereign equality of the members, affirmed in chap. 1, is called into question, and within the O. a hierarchy is established which, if the Charter were operative, would be reduced to a true relation of subjection of the small powers to the great ones.

In fact, the members undertake to confer on the Security Council the primary responsibility for the maintenance of peace and to recognize that it acts on their behalf (art. 24), and to carry out its decisions (art. 25). The system of voting in turn detaches the five permanent members from the others, placing the entire life of the international community at the discretion of their wills. For questions of procedure a simple majority of seven suffices, but for those concerning any other matter the majority of seven must be accompanied by the unanimity of the votes of the permanent members, except that one of them is a party to the dispute, in which case it must abstain. The majority principle is therefore contaminated by the inclusion of that of unanimity in favor of the great powers, which by the so-called right of veto have the power to paralyze any initiative. In all else they possess, assuming unanimity, the broadest discretion of action, as can be seen by running through chaps. 6 and 7, where the attributions of the Security Council are listed. In substance it can be said that the Charter of the United Nations has claimed to erect a true world government, placed in the hands of the great powers and exercised by them with absolute autonomy. One then understands the resistance of the small powers manifested at San Francisco and on other occasions.

The Economic and Social Council is composed of 18 members elected by the Assembly every three years, and its function is the fulfillment of the obligations of the United Nations in economic and social matters, listed in art. 55.

The Trusteeship Council, otherwise called the "Council of Guardianship," is composed half of members that administer colonial territories placed under the trusteeship regime and half of members elected by the Assembly. Regarding the settlement of the complex colonial problem, the Charter contains a programmatic declaration concerning the so-called non-self-governing territories, in which are set forth the principles that must guide the policy of the powers with respect to them. The functions of the Trusteeship Council are to supervise the Trust Administrations and are carried out under the direction of the General Assembly.

The Secretary-General, finally, is appointed by the Assembly on the proposal of the Council. Art. 47 of the Charter further provides for the constitution of a Military Staff Committee, to advise and assist the Security Council concerning the maintenance of peace, the employment and command of the forces placed at its disposal, the regulation of armaments and the possibilities of disarmament. Only the chiefs of staff of the permanent members of the Security Council should be part of it. This Committee has never entered into operation.

From what has been set forth, it appears how the Charter of the O.N.U. arose from the influence of two dominant ideas: to remedy on the one hand the inefficiency demonstrated by the League of Nations and its incapacity to safeguard peace and security, and consequently to constitute an organism of world dominion, concentrating all powers in the hands of the powers most responsible and capable of intervening rapidly and with the full weight of their force in the resolution of international disputes. The intent, however, was to be frustrated by the premise on which the O. thus came to be hinged. This consists in the concordant will of the permanent members of the Security Council, lacking which the whole system remains disjointed and paralyzed in its functioning. The Security Council, in which two opposing blocs confront each other, has become, by means of the right of veto, a paralyzing organ, failing in the tasks assigned to it. The great policy of nations now unfolds outside the framework of the United Nations, in those regional understandings provided for by the Charter (chap. 8), which act autonomously, as, for example, the Atlantic Pact. To the O.N.U. also belongs the coordination of the various specialized agencies constituted by intergovernmental agreements and having vast international tasks in the economic, social, cultural, educational, health and similar fields, such as the FAO (Food and Agriculture Organization), the ILO (International Labour Office), the PICAO, UNESCO, the UNRRA (v. MONETA; ORGANIZZAZIONE INTERNAZIONALE DEL LAVORO; ORGANIZZAZIONE INTERNAZIONALE PER L'AGRICOLTURA; RICOSTRUZIONE; UNESCO).

The seat of the O.N.U., after some wandering, has been, since 16 Aug. 1945, but provisionally, at Lake Success on Long Island, near New York. The definitive seat is in preparation, fixed in the Greenwich-Stamford area, on the border between the States of New York and Connecticut.

Antonio Messineo

II. THE INTERNATIONAL COURT OF JUSTICE

The Court of Justice, which is the principal judicial organ of the United Nations, deserves separate mention. After the experience of the Permanent Courts of Arbitration, established at The Hague (Conventions of 1899 and 1907), the creation of a supreme permanent International Court of Justice with general jurisdiction continued to be hoped for. This aspiration was realized within the framework of the League of Nations, whose covenant (art. 14) indeed provided for the constitution of such an organ. Its organization was rapidly elaborated and adopted by protocol of Dec. 16, 1920, which entered into force in Jan. 1922. The Court fell with the League of Nations, but, once the U.N. was established, it was reconstituted, again at The Hague, under the name International Court of Justice, suppressing the qualification "permanent" in order to distinguish it from the previous one. The organization of the new Court appears as an updating of the previous one, harmonized with that of the U.N. The Charter of the U.N. (art. 92) has expressly declared that the Statute of the International Court of Justice is "based" on that of the Permanent Court. It entered into operation on Oct. 24, 1945, and thus combines its experience with that of the previous one.

The International Court of Justice does not have an exclusive or absolute function, because the members of the U.N. are always free to entrust their disputes to other tribunals, whether by virtue of existing agreements or of future agreements (art. 95 of the Charter).

The sources of the Court's organization are constituted by: a) the Charter of the U.N. (arts. 92-96), which establishes certain fundamental principles, referring to the Statute of the Court, which is declared (art. 92) an integral part of the Charter; b) the Statute of the Court of Justice; c) the rules, provided for by the Statute (art. 30); d) the resolutions of the U.N. Assembly (treatment of judges, pensions, etc.); e) the provisions of bilateral or collective agreements, exceedingly numerous, which refer disputes to the decision of the Court of Justice.

Although connected with the Charter of the U.N., the Statute has its own autonomy. It can in fact be amended on the initiative of the Court itself or of the U.N. (arts. 69 and 70 of the Statute) and according to the procedure established for the revision of the Charter. Nevertheless, it must be borne in mind (and this makes the intervention of the U.N. organs necessary) that States not members of the U.N. may also adhere to the Court.

To ensure international justice is in fact a function that the U.N. pursues as its purpose, independently of its members, all the more so since divergences may also arise between member and non-member States or between non-member States, nor would there be any reason to take no interest in these cases. For member States, adherence occurs automatically (ipso facto) as a consequence of participation in the U.N., while a non-member State may adhere to the Statute of the Court under the conditions that, case by case, the Assembly determines on the proposal of the Security Council (art. 93, Charter).

Between the U.N. and the Court there necessarily exist relations deriving from the very nature of the Court, which is an organ of the former, but this implies neither dependence nor interference in the functioning of the judicial organ, which, as such, has full independence of action, and particular care is taken that the judges be absolutely independent.

The latter are fifteen, elected for nine years, without regard to their nationality, from among persons of high moral standing, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurists of recognized competence in the field of international law (art. 2). To achieve this selection the Statute determines: a) how the election of the judges is carried out, which is effected with the dual participation of the Assembly and the Security Council, choosing them from a list of candidates prepared by the Secretary-General of the U.N.; b) the incompatibilities, as a guarantee of the requirement of the independence of the magistrates (arts. 16 and 17 of the Statute); c) irremovability; in fact they cannot be removed except by the unanimous vote of the members of the Court, and only when they have ceased to meet the required conditions (art. 18 of the Statute); d) the privileges and immunities assured to them in the performance of their functions (art. 19).

The Court elects (for three years) a president and a vice-president (re-eligible) and appoints its own registrar (art. 21 of the Statute). It has its seat at The Hague, although it may sit elsewhere, and remains in session permanently (arts. 22 and 23 of the Statute). It must have a minimum quorum of nine judges (art. 25).

Besides sitting in plenary session, it may function in chambers for particular categories of disputes (e.g., labor, transit and communications), or for questions to be decided by summary procedure, through a special chamber of five members. It may furthermore have assessors participate without the right to vote (arts. 25-30 of the Statute and rules).

In accordance with tradition, judges of the nationality of the contending parties retain the right to participate in the hearing of the dispute, and, should only one of the parties have a judge, the other may participate in the examination of the dispute with a judge designated by it (art. 31 of the Statute).

The Court exercises judicial and advisory functions. The latter are not strictly delimited; but the former, on the other hand, are specified, even if very elastically.

The jurisdiction of the Court extends to all disputes that the parties submit to it (jurisdiction voluntarily accepted) and to all cases that are specifically provided for by the Statute of the U.N. or by treaties and conventions in force (art. 36, 1, of the Statute).

Furthermore, the faculty allowed to every State adhering to the Statute of the Court has been maintained, to recognize as compulsory ipso facto and without special convention, in relation to any State that assumes the same obligation, the jurisdiction of the Court itself over legal questions concerning the interpretation of a treaty, any question of international law, the existence of any fact which, if established, could constitute a violation of an international obligation, as well as the nature or the extent of the reparation due for the violation of an international obligation. Such declarations may be unconditional or on condition of reciprocity on the part of several States or of determined States or for a determined period (art. 36, 3 and 4, of the Statute). In case of dispute over the jurisdiction of the Court, it itself decides the question (art. 36, last paragraph of the Statute).

Should the parties be in agreement, the Court decides ex aequo et bono (art. 38, 2), but in general it decides according to the norms of international law, which are: a) international conventions (general or particular) that establish norms expressly recognized by the litigating States; b) international custom, as evidence of a general practice accepted as law; c) the principles of law recognized by civilized nations; d) judicial decisions and the doctrine of the most highly qualified authors of the various nations, as subsidiary means for the determination of norms of law, while holding firm (art. 59 of the Statute) the principle that the decision is binding only on the parties and for the dispute decided.

An advisory opinion may be requested from the Court "on any legal question" either by the Assembly or by the Security Council, as also, within the scope of their activities and with the authorization of the Assembly, by the organs and specialized agencies of the U.N. (art. 96,

Charter). To regulate this function, the Statute takes up again the rules already included in the regulations of the Permanent Court of Arbitration (arts. 65-68; cf. arts. 71-74 of the regulations of the P.C.). This is a procedure of broad scope, in that the Court does not rule on the mere request. The request must be documented, and the interested parties are called to appear before the Court to provide information and make statements, and the opinion is delivered in public session. In other words, by express provision (art. 68 of the Statute), the rules laid down for contentious proceedings are followed very closely, insofar as they are applicable.

The procedure is extensively regulated both in the Statute (arts. 39-64) and in the regulations. Only States may be parties in cases, but this does not prevent them from acting in the interest of private individuals (art. 34 of the Statute), nor does it prevent the judgments of the Court from binding the parties only as regards the question decided (art. 60 of the Statute), from being final and without appeal (art. 61 of the Statute), and from being subject only to revision, and only when it is based on the discovery of a fact of such a nature as to constitute a decisive element, unknown at the time of the delivery of the judgment both to the Court and to the party requesting the revision, provided that its ignorance does not arise from negligence.

Although the adhering States are bound (art. 94, 1) to comply with the decisions of the Court, these are not enforceable by coercive means. Their non-observance therefore falls within the political sphere and becomes a matter for the Security Council of the U.N. (art. 94, 2), which, when it deems it necessary, may make recommendations or decide what measures should be taken so that the judgment is executed.

Amedeo Giannini