ORGANIZATION OF THE UNITED NATIONS (Organisation des Nations Unies, O.N.U., or United Nations Organisation, U.N.O.). — It is the international organization created after the Second World War in League of Nations (v.).
I. HISTORY
A first indication of the intention of the great powers to establish a collective organization appeared on 14 Aug. 1941, in the “Atlantic Charter.” Initially merely a joint declaration by the United States and Great Britain, it became a program accepted by the Nations allied in the war against Germany and Japan, with the declaration of 1 Jan. 1942, initially signed by a group of 22 nations, later increased to 41 through the acceptance of 19 other states. A more precise definition 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, express mention was made for the first time of an international general organization to be established for the maintenance of peace and security, founded on the principle of the sovereign equality of all States.The period of its implementation began with the meetings of the experts of the four powers named above, who in Oct. 1944 agreed upon a draft Statute which, from the place where it was drawn up, was called the “Dumbarton Oaks draft.” This in turn became the subject of discussion at the Yalta Conference, which concluded on 11 Feb. 1945. There, the United States, England, and Russia defined the voting procedure in the future Security Council and established that, at the subsequent conference, which would meet in S. 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, would be permitted to participate. Several States that had until then remained neutral issued the required declaration before the deadline expired (Turkey, Egypt, Chile, Colombia, and other countries of Latin America); others, however, maintained their neutrality. The criterion adopted had the effect that, at its initial establishment, the organization was nothing other than an organization of the victorious peoples. This would be reflected in several articles of the Statute, elaborated on the basis of the scheme already drafted at Dumbarton Oaks, to which certain amendments were introduced, proposed by the same four great powers either jointly or individually; it was approved by 49 States on 6 June 1945 and entered into force on 24 Oct. of the same year.
1. O. of the U. N. — The United Nations set themselves the goal of maintaining peace, just as the League of Nations did; nevertheless, particular emphasis is placed on collective security, hence the importance given in chap. 1 to effective measures for removing threats to peace and suppressing acts of aggression. Moreover, their powers are much broader than those of the League of Nations, since, in addition to peace and security, they aim to provide for international cooperation in solving economic, social, and cultural problems and to promote 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 undertake to settle their disputes by peaceful means, to refrain from threats or the use of force, and to provide assistance to the O. in any action it undertakes to achieve its purposes.
A not entirely clear provision is contained in no. 6 of art. 2, which assigns to the O. the task of ensuring that States which are not members of the United Nations act in conformity with these principles insofar as this may be necessary for the maintenance of peace and general security. From this it could be inferred 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. intended to extend its powers over non-member States in matters concerning peace and security. On the basis of this rule, it would assume the character of a suprastate organism entrusted with control over the whole of international life; nor would this power be limited by art. 7 (which excludes its intervention in matters essentially within the domestic jurisdiction of a State and would seem to confirm the principle of non-intervention), since any internal situation prejudicial to peace and security would fall within its jurisdiction.
The members of the O. are original members if they took part in the S. Francisco Conference, signed the declaration of the United Nations of 1 Jan. 1942, and ratified the Statute; they are non-original members if they were admitted subsequently. Admission may take place if, in the judgment of the O., they are peace-loving States capable of fulfilling the obligations arising from acceptance of the Statute. The General Assembly shall decide upon the recommendation of the Security Council; by the same procedure, States deemed unworthy may be suspended or expelled. The internal organization of the United Nations follows the scheme already adopted for the League of Nations, except for certain new organs added for particular functions.
2. Specific organs of the O.N.U. — The organs of the O.N.U. are: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the Permanent Court of International Justice, and the Secretariat. The entire system, however, revolves around the second, namely, the Security Council, whose power over all questions concerning international life corresponds to the total subjection of the members of the O. and of the General Assembly, to which only a consultative function has been assigned. This subordination to the Council constitutes one of the major innovations of the Statute of the United Nations.
The General Assembly is composed 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 deciding questions of peace and security depends entirely upon its discretion. According to no. 2 of art. 11, the Assembly may not take any decision concerning questions for which action is necessary; such action must be referred to the Security Council. Moreover, art. 12 adds, it must refrain from making recommendations when the Council is dealing with any dispute or situation, unless the Council itself requests it to do so. The questions relating to the maintenance of peace with which the Council is occupied are to be notified to the Assembly by the Secretary-General, with the Council’s prior consent. In contrast to what occurred in the League of Nations, the Assembly decides by a qualified two-thirds majority of the members present and voting on questions concerning peace and security, the election of the non-permanent members of the Council, and the admission or expulsion of members for failure to fulfill their obligations; it decides by a simple majority on questions of lesser importance. The replacement of the principle of unanimity by that of majority rule entails an internal change of great importance in comparison with the preceding international organism, since it gives the new one the character of an organic society superior to the individual States, which are required to accept its decisions even when their will is opposed to them; this implies a partial renunciation of their sovereignty, or at least the loss of its absolute character. Nevertheless, this particular and important innovation was not extended to the great powers, which, in conformity with the Statute, retain sovereignty according to the old conception, that is, unrestricted by any norm. The Security Council consists of eleven members, five permanent (the United States, Great Britain, Russia, France, and China) and six elected members, 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 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 complete discretion on all questions relating to peace and security, and its decisions automatically become binding on all the members of the O.
Moreover, because five members of the Council are not elected, the principle of the sovereign equality of the members, affirmed in chap. 1, is placed in abeyance, and a hierarchy is established within the O.; if the Statute were operative, this would amount to a genuine relationship of subjection of the small powers to the great ones.
Indeed, the members undertake to confer upon the Security Council 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 voting system, in turn, separates the five permanent members from the others, placing the whole of international life at the discretion of their wills. For procedural questions, a simple majority of seven is sufficient; but for questions concerning any other matter, the majority of seven must include the unanimity of the votes of the permanent members, unless one of them is a party to the dispute, in which case it must abstain. The majority principle is thus contaminated by the inclusion of unanimity in favor of the great powers, which, through the so-called right of veto, have the power to paralyze any initiative. In all other respects, assuming unanimity, they possess the broadest discretion of action, as may be seen by examining chaps. 6 and 7, where the powers of the Security Council are enumerated. In substance, it may be said that the Charter of the United Nations sought to erect a genuine world government, placed in the hands of the great powers and exercised by them with absolute autonomy. The resistance of the small powers manifested at S. Francisco and on other occasions can thus be understood.
The Economic and Social Council consists of 18 members elected by the Assembly every three years, and its function is to fulfill the obligations of the United Nations in economic and social matters, enumerated in art. 55.
The Trusteeship Council, otherwise called the «Council of Trusteeship», consists half of members administering colonial territories placed under the trusteeship system and half of members elected by the Assembly. With regard to the settlement of the complex colonial problem, the Statute contains a programmatic declaration concerning the territories called non-self-governing, in which the principles that must guide the policy of the powers with respect to them are set forth. The functions of the Trusteeship Council are to supervise the trust administrations, and they are carried out under the direction of the General Assembly.
Finally, the Secretary-General is appointed by the Assembly on the Council’s recommendation. Article 47 of the Statute also provides for the establishment 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. It should consist solely of the Chiefs of Staff of the permanent members of the Security Council. This Committee has never entered into operation.
From the foregoing, it appears that the Charter of the O.N.U. arose under the influence of two dominant ideas: on the one hand, to remedy the inefficiency demonstrated by the League of Nations and its inability to safeguard peace and security; and consequently, to establish an organism of world dominion by concentrating all powers in the hands of the powers most responsible and capable of intervening rapidly and with the full weight of their strength in the settlement of international disputes. The intention, however, was to be frustrated by the premise upon which the O. was thereby founded. This consists in the concordant will of the permanent members of the Security Council; without it, the entire system remains disjointed and paralyzed in its operation. The Security Council, in which two opposing blocs confront each other, has become, through the right of veto, a paralyzing organ, failing to perform the tasks assigned to II. The great policy of the nations is now carried on outside the framework of the United Nations, through those regional arrangements provided for by the Statute (chap. 8), which act autonomously, such as, for example, the Atlantic Pact. The O.N.U. is also responsible for coordinating the various specialized agencies established by intergovernmental agreements and entrusted with extensive international tasks in the economic, social, cultural, educational, health, and related fields, such as the FAO (Food and Agriculture Organization), the ILO (International Labour Office), the PICAO, UNESCO, and UNRRA (v. MONETA; ORGANIZZAZIONE METEOROLOGICA; ORGANIZZAZIONE INTERNAZIONALE PER L'AGRICOLTURA; ISTRUZIONE; UNESCO).
The headquarters of the O.N.U., after some temporary moves, has been, since 16 Aug. 1945, though provisionally, at Lake Success on Long Island, near Nuova York. The permanent headquarters is being prepared, fixed in the Greenwich-Stamford area, on the border between the States of Nuova York and Connecticut.
Dalla Società delle Nazioni alle Nazioni Unite, in Stato moderno, 1945, fasc. XII, XIII, XIV; R. Monaco, Lo Statuto delle N. U., Torino 1946; H. Kelsen, Limitations on the functions of the United Nations, in Yale Law Review, 1946, p. 997 seg.; R. Ago, L'O. internazionale dalla Società delle Nazioni alle Nazioni Unite, in Comunità internazionale, 1 (1946), pp. 8-23; G. Balladore Pallieri, Gli emendamenti allo Statuto dell'O. N. U., ibid., pp. 193-201; P. Guggenheim, Realità e ideologia nell'O. internazionale, ibid., 2 (1947), pp. 163-73; R. Quadri, Diritto intern. pubblico, Palermo 1949, pp. 243-54, 351-55; G. Vedovato, Nazioni Unite, in Enc. Ital., Appendice 1938-48, II, 301-94; T. Perassi, Lo Statuto delle Nazioni Unite, Padova 1950; R. Socini, L'appartenenza all'O. N. U., Firenze 1951; F. Tagliamonte, La tutela internazionale dei diritti dell'uomo, in Civitas, 2 (1951), pp. 36-44.
Antonio Messineo
II. THE INTERNATIONAL COURT OF JUSTICE
The Court of Justice, which is the principal judicial organ of the United Nations, merits separate mention. Following 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) provided precisely for the establishment of such an organ. Its constitution was rapidly drafted and adopted by protocol on 16 Dec. 1920, which entered into force in Jan. 1922. The Court fell with the League of Nations, but, after the emergence of the U.N., it was reconstituted, again at The Hague, under the name International Court of Justice, the qualification “permanent” being omitted in order to distinguish it from its predecessor. The constitutional instruments of the new Court appear to be an updating of the earlier ones, harmonized with those of the U.N. The U.N. Charter (art. 92) expressly declared that the Statute of the International Court of Justice “is based” on that of the Permanent Court. It began to function on 24 Oct. 1945 and thus combines its experience with that of its predecessor.The International Court of Justice has neither an exclusive nor an 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 Charter).
The sources of the Court’s constitutional order are: a) the U.N. Charter (arts. 92–96), which establishes certain fundamental principles, referring to the Statute of the Court, which is declared (art. 92) to be an integral part of the Charter; b) the Statute of the Court of Justice; c) the rules of procedure provided for by the Statute (art. 30); d) the resolutions of the U.N. General Assembly (the treatment of judges, pensions, etc.); e) the provisions of the bilateral or collective agreements, extremely numerous, which refer disputes to the decision of the Court of Justice.
Although connected with the U.N. Charter, the Statute possesses its own autonomy. It may 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, account must be taken of the fact—and this makes the intervention of the organs of the U.N. necessary—that States which are not members of the U.N. may also accede to the Court.
Ensuring international justice is in fact a function which the U.N. pursues as one of its purposes, independently of its members, all the more so since divergences may also arise between member and non-member States or between non-member States, and there would be no reason to disregard them in these circumstances. For member States, accession takes place automatically (ipso facto) as a consequence of participation in the U.N., whereas a non-member State may accede to the Statute of the Court under the conditions determined, in each case, by the Assembly upon the proposal of the Security Council (art. 93, Charter).
Relations necessarily exist between the U.N. and the Court, 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, enjoys complete independence of action, and special care is taken to ensure that the judges are absolutely independent.
The latter number fifteen and are 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 who are jurists of recognized competence in the field of international law (art. 2). To achieve this selection, the Statute determines: a) the procedure for electing the judges, which is carried out through the joint participation of the Assembly and the Security Council, selecting them from a list of candidates prepared by the Secretary-General of the U.N.; b) the incompatibilities, as a safeguard of the requirement of judicial independence (arts. 16 and 17 of the Statute); c) their security of tenure; they may in fact be removed only by the unanimous vote of the members of the Court, and only when they have ceased to fulfill the required conditions (art. 18 of the Statute); d) the privileges and immunities guaranteed to them in the performance of their functions (art. 19).
The Court elects a president and a vice-president (eligible for re-election) for three years and appoints its registrar (art. 21 of the Statute). It has its seat at The Hague, although it may sit elsewhere, and remains permanently in session (arts. 22 and 23 of the Statute). It must have a minimum quorum of nine judges (art. 25).
In addition to sitting in plenary session, it may function in chambers for particular categories of disputes (e.g., labor, transit, and communications), or for matters to be decided by summary procedure, through a special chamber of five members. It may also include assessors without voting rights (arts. 25–30 of the Statute and rules of procedure).
In accordance with tradition, judges of the nationality of the contending parties retain the right to participate in the hearing of the dispute; and, where only one of the parties has a judge, the other may participate in the examination of the dispute through a judge designated by it (art. 31 of the Statute).
The Court exercises judicial and advisory functions. The latter are not exhaustively delimited; the former, by contrast, are specified, although in a very flexible manner.
The jurisdiction of the Court extends to all disputes submitted to it by the parties (voluntarily accepted jurisdiction) and to all cases specifically provided for by the U.N. Statute or by treaties and conventions in force (art. 36, 1, of the Statute).
Furthermore, the power has been retained whereby every State adhering to the Statute of the Court may recognize as compulsory ipso facto and without special convention, in relation to any State assuming 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, might constitute a breach of an international obligation, and the nature or extent of the reparation due for the breach of an international obligation. Such declarations may be unconditional or subject to reciprocity by several States or by specified States, or limited to a specified period (art. 36, 3 and 4, of the Statute). In the event of a dispute concerning the jurisdiction of the Court, the Court itself decides the matter (art. 36, final paragraph, of the Statute).
Where the parties agree, the Court decides ex aequo et bono (art. 38, 2); but as a general rule it decides according to the rules of international law, which are: a) international conventions (general or particular) establishing rules expressly recognized by the States in dispute; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; d) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law, while maintaining (art. 59 of the Statute) the principle that the decision is binding only upon the parties and in respect of the particular dispute decided.
An advisory opinion may be requested from the Court “on any legal question” by the Assembly or by the Security Council, and 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). In regulating this function, the Statute takes up the rules already included in the regulations of the Permanent Court of Arbitration (art. 65–68; cf. arts. 71–74 reg. P. C.). This is a procedure of considerable scope, since the Court does not decide on the request alone. The request must be documented, and the interested parties are summoned to appear before the Court in order to provide information and make statements; the opinion is delivered in open court. In other words, by express provision (art. 68 of the Statute), the rules established 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 Rules. Only States may be parties to proceedings, but this does not prevent them from acting in the interests of private persons (art. 34, Statute), nor does it alter the fact that the judgments of the Court bind the parties only with regard to the particular question decided (art. 60, Statute), that they are final and without appeal (art. 61, Statute), and that the only remedy that may be attempted against them is 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 when the judgment of the Court was delivered both to the Court and to the party requesting revision, provided that its ignorance did not result from negligence.
Although the acceding 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 to secure execution of the judgment.
BIBLI: An imposing documentation of the activity of the Court of Justice is contained in the collections published by it concerning: the decisions, the opinions; the acts and documents relating to the decisions and opinions; the acts and documents relating to its organization; the annual report. The latter contains a complete account of the bibliography published during the year (cf. also the catalogue of the Library of Peace at The Hague), while the former contains a complete collection of the conventional sources, collective or bilateral, that confer jurisdiction upon the Court. Amedeo Giannini