Akmyr Ahmad Azwan

1. Objective(s) of UN

The United Nations was established following the conclusion of the Second World War
and in the light of Allied planning and intentions expressed during that Conflict. By virtue of
Article 1 of UN Charter, there are 4 primary purposes / objectives of UN.

Firstly, to maintain international peace and security (by taking effective collective
measures for the prevention and removal of threats to the peace), to suppress acts of aggression or
other breaches of the peace, and to bring about by peaceful means, adjustment or settlement of
international disputes.

Secondly, UN is also responsible 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.

Thirdly, it is also stated that UN intend to achieve international co-operation in solving

international problems of an economic, social, cultural or humanitarian character. Besides that UN
will also promote and encourage respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language, or religion.

The last objective of UN is to be a centre for harmonizing the actions of nations in the
attainment of these common ends.
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Explain the role played by the UN Secretary-General in the peaceful settlement of disputes

The first initiative that can be taken by Secretary General is provided by virtue of Article
99 of UN Charter, whereby he is entitled to bring to the attention of the Security Council any
matter which he thinks may threaten the maintenance of international peace and security.
This power is in addition to his function as the chief administrative officer of the United Nations
organization under Article 79.

Secondly, Secretary General will also play the good offices role of the Secretary-General.
In exercising such a role, Secretaries-General have sought to act independently of the Security
Council and General Assembly, in so far as they have not been constrained by binding resolutions
(as for example in the Kuwait situation of 1990-1.) The assumption of good offices and mediation
activity may arise either because of independent action by the Secretary-General as part of the
exercise of his inherent powers or as a consequence of a request made by the Security Council or
General Assembly. In some cases, the Secretary-General, has acted upon the invitation of the
parties themselves, and on other occasions, the Secretary-General has acted in concert with the
relevant regional organization.
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Principles of UN

By virtue of Article 2(1) of UN Charter, the organization is based upon the sovereign
equality of all its members. This is no more than a reflection of the fundamental proposition that
all states, irrespective of their relative power, are sovereign and independent. However, it should
be noted that this principle is subject to certain exceptions, most notably in the formation of the
UNSC and the ICJ, but is reflected in the fact that all states are members of the UNGA with equal
voting power. This is further supported by Article 2(7) whereby it provides that the UN may not
intervene in what are essentially domestic or internal state matters because the UN is concerned
essentially with the relations between its members rather than what they do within their own
territory. It is only when a situation within one state threatens the maintenance of international
peace and security that the UN become involve, in which case it may even do so without the
consent of the particular states.

The second principles of UN can be seen in Article 2(3) that is peaceful settlement of
disputes. This Article states that all members shall settle their international disputes by peaceful
means in such a manner that international peace and security, and justice, are not endangered.

Thirdly, the fundamental obligation to refrain from the threat or use of force against
the territorial integrity or political independence of any state pursuant to Article 2(4). This is,
however, problematic because they have always claimed to be resorting to force for some limited
legitimate purpose. For example, Iraq tried to justify its invasion of Kuwait by reference to its
territorial claims to that territory.
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Principle Organ(s) of UN

The UN has six principle organs, these being the (1) Security Council, (2) General
Assembly, (3) Economic and Social Council, (4) Trusteeship Council, (5) Secretariat and (6)
International Court of Justice.

As for Security Council, it was primarily intended to operate as an efficient executive

organ of limited membership, functioning continuously that is responsible for the maintenance of
international peace and security. The SC consists of 15 members, 5 of them being permanent
members (USA, UK, Russia, China and France). According to Article 27 of UN Charter, on all
but procedural matters, decisions of the Council must be made by affirmative vote of nine
members, including the concurring votes of the permanent members. However, a single negative
vote by any of the permanent members is sufficient to veto any resolution of the Council.
Moreover, it should be noted that although these 5 veto powers will not hold the rank in eternity,
the complicated mechanisms for amendment of the charter, coupled with the existence of the veto,
make any change unlikely. Furthermore, it is a trite law that out of the ten non-permanent seats,
five should be allocated to Afro-Asian states, one to Eastern Europe, two to Latin America, and
two to Western European and other powers. The Council has currently two permanent committees,
being a Committee of Experts on Rules of Procedure and a Committee on Admission of New
Members. Apart from that, the Council may also establish ad hoc committees, such as (1) the
Governing Council of the United Nations Compensation Commission established by Security
Council resolution 692 (1991), and (2) the Counter-Terrorism Committee. The Security
Council acts on behalf of the members of the organization as a whole in performing its functions,
and its decisions (but not its recommendation) are binding upon all member states. This is because
its powers are concentrated in two particular categories, the peaceful settlement of disputes and
the adoption of enforcement measures. However, the Council also has a variety of other functions.
In the case of trusteeship territories, for example, designated strategic areas fall within the authority
of the Security Council rather than the General Assembly. In addition, it is also safe to contend
that initiatives taken by the Council are fairly highly regarded since they inevitably reflect a
consensus of opinion amongst its members, and more particularly amongst its permanent
members. For example, in Security Council Resolution 242 (1967), the Council laid down the
basis for negotiations for a Middle East peace settlement and this in turn, is regarded as the most
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authoritative expression of the principles to be taken into account. However, the fact that US and
UK commenced military operations against Iraq in late March 2003 without express Security
Council authorization was indeed in breach of its obligation to obey Security Council. The failure
of the Council in its primary responsibility to preserve world peace stimulated a number of other
developments. It encouraged the General Assembly to assume a residual responsibility for
maintaining international peace and security. It also encouraged in some measure the establishment
of the military alliances, such as NATO and the Warsaw Pact, which arose as a consequence of
the onset of the Cold War.

As for General Assembly, this entity is the parliamentary body of the UN organization
and consists of representatives of all the member states, of which there are currently 193.
Membership, as provided by Article 4 of UN Charter, is open to all other peace-loving states
which accept the obligations and able/willing to carry out these obligations. However, in practice,
despite an Advisory Opinion by the International Court of Justice that only the conditions
enumerated in Article 4 were to be taken into account in considering a request for membership, a
package deal was still concluded and a group of sixteen new members was admitted in violation
of Article 4 of UN Charter. Besides that, General Assembly also recognizes changes involving its
state members. For example in 1991, Byelorussia informed UN that it had changed its name to
Belarus, while the Czech and Slovak Federal Republic were replaced by two new states (the
Czech Republic and Slovakia). Moreover, it should be noted that membership of the UN may be
suspended under Article 5 of UN Charter by the General Assembly, upon the recommendation
of the Security Council, where the member state concerned is the object of preventive or
enforcement action by the Security Council. Similar, according to Article 6, it allows for expulsion
of a member by the General Assembly, upon the recommendation of the Security Council, where
the member state has persistently violated the Principles contained in the Charter. In regards to
voting in the Assembly, Article 18 stipulates that each member has one vote only and that
decisions on 'important questions', including the admission of new members and recommendations
relating to international peace and security, are to be made by a two-thirds majority of members
present and voting, whereas other decisions may be taken by a simple majority. This is indeed the
most effective way in which the developing nations of the Third World can assert their views. In
addition, it is also the trite practice that, except for certain internal matters such as the budget, the
Assembly cannot bind its members, unless if it reflect rules of customary international law. The
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Assembly is essentially a debating chamber, a forum for the exchange of ideas and the discussion
of a wide-ranging category of problems. It meets in annual sessions, but special sessions may be
called by the Secretary-General at the request of the Security Council or a majority of UN
members. Such special sessions have been held, for example, to discuss the issues of Palestine in
1947-8, Namibia (South West Africa) in 1967, 1978 and 1986, and to debate the world
economic order in 1974, 1975 and 1990. To aid it in its work, the Assembly has established a
variety of organs covering a wide range of topics and activities. It has six main committees that
cover respectively (1) disarmament and international security, (2) economic and financial, (3)
social, humanitarian, and cultural, (4) special political and decolonization, (5) administrative and
budgetary, and (6) legal matters.

As for the Economic and Social Council, it can be said that much of the work of the
United Nations in the economic and social spheres of activity is performed by this body. It has the
capacity to discuss a wide range of matters, but its powers are restricted and its recommendations
are not binding upon UN member states. This body consists of fifty-four members elected by the
Assembly for three-year terms with staggered elections, and each member has one vote. The
Council may, by virtue of Article 62, initiate or make studies upon a range of issues and make
recommendations to the General Assembly, the members of the UN and to the relevant specialized
agencies, apart from preparing draft conventions for submission to the Assembly and call for
international conferences. The Council has created a variety of subsidiary organs ranging from
nine functional commissions (e.g.: including the Statistical Commission & the Commission on
Human Rights) to five regional commissions (e.g.: on Africa, Asia, & Europe) and a number of
standing committees and expert bodies (e.g.: The Commission on Transnational Corporations
& the Committee on Natural Resources). The Council also runs a variety of programmes
including the Environment Programme and the Drug Control Programme, and has established
a number of other bodies such as the Office of the UN High Commissioner for Refugees and the
UN Conference on Trade and Development. Hence, it is safe to conclude that its most prominent
function has been in establishing a wide range of economic, social and human rights bodies.

As for The Trusteeship Council, it was primarily established to supervise the trust
territories created after the end of the second world. Such territories were to consist of mandated
territories, areas detached from enemy states as a result of the Second World War and other
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territories voluntarily placed under the trusteeship system by the administering authority (of which
there have been none). The only former mandated territory which was not placed under the new
system or granted independence was South West Africa. With the independence of Palau, the
last remaining trust territory, on 1 October 1994, the Council suspended operation on 1 November
that year.

As for the Secretariat, it shall consists of the Secretary-General and his staffs, and
constitutes virtually an international civil service. The staff are appointed by Article 101 upon the
basis of efficiency, competence and integrity. All member states have undertaken, under Article
100, to respect the exclusively international character of the responsibilities of the Secretary-
General and his staff, who are neither to seek nor receive instructions from any other authority but
the UN organization itself. Moreover, under Article 97, it states that the Secretary-General is
appointed by the General Assembly upon the unanimous recommendation of the Security Council
and constitutes the chief administrative officer of the UN. The current holder of the office is Ban
Ki-moon from South Korea. Apart from various administrative functions, the essence of the
Secretary-General's authority is contained in Article 99 of the Charter, which empowers him to
bring to the attention of the Security Council any matter which he feels may strengthen the
maintenance of international peace and security, although this power has not often been used. In
many disputes, the functions assigned to the Secretary-General by the other organs of the United
Nations have enabled him to increase the influence of the organization. One remarkable example
of this occurred in the Congo crisis of 1960 and the subsequent Council resolution authorizing
the Secretary-General in very wide-ranging terms to take actions.

As for the International Court of Justice, it was established 1946 as the successor to the
Permanent Court of International Justice. According to Article 92 of UN Charter, this ICJ shall
be regarded as the ‘principal judicial organ’. It was essentially intended as a way to prevent
outbreaks of violence by enabling easily accessible methods of dispute settlement in the context
of a legal and organizational framework to be made available. In essence, it is a continuation of
the Permanent Court, with virtually the same statute and jurisdiction, and with a continuing line of
cases, no distinction being made between those decided by the PCIJ and those by the ICJ. The ICJ
is composed of fifteen members: elected regardless of their nationality, from among persons of
high moral character, who possess the qualifications required in their respective countries for
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appointment to the highest judicial offices, or are juris consults of recognized competence in
international law. The procedure for the appointment of judges is interesting in that it combines
both legal and political elements. The system established by the Root - Phillimore plan in 1920
is in essence followed. This plan proposed that the members of the Court shall be elected by the
General Assembly and Security Council (voting separately) from a list of qualified persons drawn
up by the national groups of the Permanent Court of Arbitration, or by specially appointed national
groups in the case of UN members that are not represented in the PCA. Moreover, it is the common
practice of ICJ that its members are elected for nine years and may be re-elected. They enjoy
diplomatic privileges and immunities when on official business and a judge cannot be dismissed
unless it is the unanimous opinion of the other members of the Court that he has ceased to fulfil
the required conditions (e.g.: exercise any political/administrative function, engage in any
other professional occupation, or act as an agent/advocate/counsel in any case). The Court
elects a president and vice-president for a three-year term which can be renewed, and it is situated
at The Hague.
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Security Council vs International Court of Justice

The issue of the relationship between binding decisions of the Council and international
law generally has arisen with particular force in recent years in view of the rapidly increased range
and nature of activity by the Security Council. The issue has involved particular consideration of
the role of the International Court.

The Security Council is, of course, constrained by the provisions of the Charter itself. It
must follow the procedures laid down and act within the confines of its constitutional authority as
detailed particularly in Chapters V to VII.

Its composition and voting procedures are laid down, as are the conditions under which it
may adopt binding enforcement measures. As the International Court has emphasized, ’the
political character of an organ cannot release it from the observance of the treaty provisions
established by the Charter when they constitute limitations on its powers or criteria for its
judgment’. In particular, the Council must under Article 24(2) act in accordance with the Purposes
and Principles of the Charter, Article l (1) of which declares that one of the aims of the organization
is to bring about a resolution of international disputes by peaceful means 'and in conformity with
the principles of justice and international law’.

The Council has recently not only made determinations as to the existence of a threat to or
breach of international peace and security under Article 39, but also under Chapter VII binding
determinations as to the location of boundaries, supervision of destruction of weaponry, liability
under international law for loss or damage, methods of compensation, asserted repudiation of
foreign debt, the establishment of tribunals to try individual war criminals, and assertions as to the
use of force against those responsible for attacks against UN personnel, including their arrest,
prosecution and punishment. In addition, the Council has asserted that particular acts were null
and void, demanding non-recognition.

In view of this increased activity and the impact this has upon member states, the issue has
arisen as to whether there is a body capable of ensuring that the Council does act in conformity
with the Charter and international law. Hence, since the International Court is the 'principal
judicial organ' of the UN pursuant to Article 92 of UN Charter, it would seem to be the natural
candidate, and indeed the problem has been posed in two recent cases.
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In the Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))

it was claimed by Bosnia that the Security Council-imposed arms embargo upon the former
Yugoslavia had to be construed in a manner that did not deprive Bosnia of its inherent right of
self-defence under Article 51 of the Charter and under customary international law. Similarly, in
the Lockerbie case, Libya claimed that the UK and US were seeking to compel it to surrender
alleged bombers contrary to the Montreal Convention, 1971 (which required that a state either
prosecute or extradite alleged offenders) and that the Council's actions in resolutions 731 (1992)
and 748 ( 1992 ) were contrary to international law.

While the question of the compatibility of Security Council resolutions with international
law was not discussed by the Court in the Bosnia case, the issue assumed central position in the
Lockerbie case. The Court here affirmed that all member states were obliged to accept and carry
out the decisions of the Security Council in accordance with Article 25 of the Charter and that
prima facie this obligation extended to resolution 748 (1992) which imposed sanctions upon Libya
for failing to extradite the suspects.

Thus, in accordance with Article 103 of the Charter, under which obligations under the
Charter prevail over obligations contained in other international agreements, the resolution
prevailed over the Montreal Convention.

Judge Shahabuddeen in his Separate Opinion underlined that the issue in the case was
whether a decision of the Council could override the legal rights of states and, if so, whether there
were any limitations upon its power to characterize a situation as one justifying the making of the
decision importing such consequence.

The issue was raised in the request for provisional measures phase of the Congo v. Uganda
case. Uganda argued that the request by the Congo for interim measures would directly conflict
with the Lusaka Agreement, and with the Security Council resolutions - including resolution 1304.
The Court noted that resolution 1304 was adopted under Chapter VII, but concluded after quoting
the text of the resolution that the Security Council had taken no decision which would prima facie
preclude the rights claimed by the Congo from being regarded as appropriate for protection by the
indication of provisional measures.
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While there is no doubt that under the Charter system the Council's discretion to determine
the existence of threats to or breaches of international peace and security is virtually absolute,
limited only by inherent notions of good faith and non-abuse of rights. Besides, its discretion to
impose measures consequent upon that determination in order to maintain or restore international
peace and security is undoubtedly extensive, the determination of the legality or illegality of
particular situations is essentially the Council's view as to the matching of particular facts with
existing rules of international law.

That view, when adopted under Chapter VII, will bind member states, but where it is
clearly wrong in law and remains unrectified by the Council subsequently, a challenge to the
system is indubitably posed. While the Court can, and has, examined and analyzed UN resolutions
in the course of deciding a case or rendering an Advisory Opinion, for it to assert a right of judicial
review in the fullest sense enabling it to declare invalid a binding Security Council resolution
would equally challenge the system as it operates.

Between the striking down of Chapter VII decisions and the acceptance of resolutions
clearly embodying propositions contrary to international law, an ambiguous and indeterminate
area lies.