International Organisations — UN System (UNGA, UNSC, ECOSOC, ICJ)

The United Nations is the institutional centre of the post-1945 international legal order. Its constitutive instrument — the Charter signed at San Francisco on 26 June 1945 and entered into force on 24 October 1945 — is at once a multilateral treaty creating the organisation and the constitution that distributes its powers. Article 7(1) of the Charter establishes the six principal organs: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the Secretariat and the International Court of Justice. The architecture rests on the recognition of the sovereign equality of member States in Article 2(1), the prohibition of intervention in matters essentially within domestic jurisdiction in Article 2(7), the obligation to settle disputes peacefully in Article 2(3) and the prohibition on the threat or use of force in Article 2(4). Together these provisions form the framework within which all the operative rules studied in the rest of these International Law for Judiciary notes apply.

The chapter that follows surveys each principal organ, the constitutional limits within which it acts, the leading practice that has shaped its working, and the Indian dimension — the cases in which the Supreme Court has read the Charter's purposes into the construction of domestic law.

Origins, purposes and the constitutional character of the Charter

The UN was the second attempt at universal collective security. The League of Nations, born of the Treaty of Versailles in 1919, failed to prevent the slide into the Second World War; its central design defects — unanimity in the Council, no automatic obligation of collective response, the absence of the United States — were addressed at the 1944 Dumbarton Oaks conference and the 1945 Yalta meeting that produced the veto formula for the great powers. The Charter that emerged at San Francisco preserved the League's idea of a parliamentary assembly of all members but combined it with an executive Council of limited membership and binding decision-making power. The League is examined more closely in the chapter on peaceful settlement of disputes; the deeper account of how a treaty becomes a constitution is the subject of the chapter on treaties — formation, validity and termination.

Article 1 of the Charter sets four purposes: to maintain international peace and security through effective collective measures; to develop friendly relations among nations on the basis of equal rights and self-determination of peoples; to achieve international co-operation in solving economic, social, cultural and humanitarian problems and in promoting respect for human rights; and to be a centre for harmonising the actions of nations in attaining these common ends. Article 2 then lays down the seven Principles by which the organisation and its members are to act — sovereign equality, good-faith performance of Charter obligations, peaceful settlement of disputes, prohibition of force, assistance to the UN in any action it takes, the obligation to ensure that non-member States act in accordance with these Principles so far as may be necessary for the maintenance of peace, and the celebrated domestic-jurisdiction reservation in Article 2(7).

Article 2(7) — the domestic jurisdiction reservation

Article 2(7) provides that nothing in the Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State, with the express exception that the principle does not prejudice the application of enforcement measures under Chapter VII. The provision has been read narrowly in practice. Colonial administration, large-scale violations of human rights and apartheid have all been treated as matters of legitimate UN concern despite domestic-jurisdiction objections. The conceptual reason, repeated in the jurisprudence of the International Court of Justice, is that the line between international and domestic spheres is itself a question of international law and is not for unilateral determination by the State invoking it. The chapter on State jurisdiction — territorial, personal and universal develops this point at length.

Membership — Articles 4 to 6

Article 4(1) opens membership of the UN to all peace-loving States that accept the obligations of the Charter and are, in the judgement of the organisation, able and willing to carry them out. Admission is effected by a decision of the General Assembly on the recommendation of the Security Council under Article 4(2). The current membership stands at 193 States. Article 5 permits suspension of a member that is the object of preventive or enforcement action by the Council, and Article 6 permits expulsion of a member that has persistently violated the Principles of the Charter; both require Assembly action on the recommendation of the Council. Statehood for the purpose of admission is governed by the criteria considered in the chapter on the subjects of international law and the practice considered in the chapter on State recognition and succession.

The General Assembly

The General Assembly is the parliamentary organ of the UN. It is the only principal organ in which every member State is represented; each member has one vote, irrespective of population, territory or resources. Voting is governed by Article 18: decisions on important questions — recommendations relating to the maintenance of international peace and security, election of non-permanent members of the Security Council and of members of ECOSOC, admission, suspension and expulsion of members, the budget — require a two-thirds majority of members present and voting; decisions on other questions require a simple majority. The Assembly cannot ordinarily bind member States. Its resolutions are recommendatory in character. Two qualifications matter. First, on certain internal matters — most importantly the budget under Article 17 — the Assembly's decisions are binding on members. Secondly, an Assembly resolution that records a settled rule of customary international law operates with the force of that rule, and a sequence of resolutions repeated by overwhelming majorities can supply evidence of opinio juris contributing to the formation of new custom — a topic developed in the chapter on customary international law and general principles.

The Assembly meets in regular annual session beginning in September. Special sessions may be convened by the Secretary-General at the request of the Security Council or of a majority of UN members. Emergency special sessions may be called under the Uniting for Peace machinery established by resolution 377(V) of 1950, which permits the Assembly to consider a matter immediately and to recommend collective measures, including the use of armed force, where the Council is paralysed by the veto in the face of a threat to or breach of the peace. The constitutionality of this expedient was effectively endorsed by the International Court in the Certain Expenses Advisory Opinion (1962) ICJ Reports 151, where the Court held that the term "action" in Article 11(2) referred to enforcement action and did not preclude the Assembly from authorising peacekeeping forces of the kind deployed in the Suez crisis (UNEF) or in the Congo (ONUC).

Six main committees handle the bulk of the Assembly's substantive work, each composed of all members: the First Committee (disarmament and international security), the Second (economic and financial), the Third (social, humanitarian and cultural), the Fourth (special political and decolonisation), the Fifth (administrative and budgetary) and the Sixth (legal). The Sixth Committee is the political arm through which the work of the International Law Commission — established by Assembly resolution 174(II) of 1947 under Article 13(1)(a) of the Charter — is debated and forwarded for codification.

The Security Council — composition, voting and the veto

The Council is the executive organ of the UN. Article 24(1) confers on it primary responsibility for the maintenance of international peace and security; Article 25 obliges members to accept and carry out its decisions. The Council has fifteen members. Five are permanent — China, France, the Russian Federation (continuator of the USSR), the United Kingdom and the United States. Ten are elected by the General Assembly for two-year terms, with five replaced each year, on a pattern of equitable geographic distribution. Each member has one representative and one vote.

Voting is governed by Article 27. Decisions on procedural matters require an affirmative vote of any nine members. Decisions on all other matters require an affirmative vote of nine members, including the concurring votes of the permanent members — the rule that contains the veto. A negative vote by any one of the five is sufficient to defeat a substantive resolution. The classification of a question as procedural or substantive is itself a substantive question: this is the so-called double-veto. Long-standing practice, accepted as authoritative since the Council's earliest years, treats abstention or non-participation by a permanent member as not amounting to a veto — a reading the International Court endorsed in the Advisory Opinion on Namibia (1971) ICJ Reports 16. The veto was the price of great-power participation in the system; it was insisted on by the Soviet Union as a guarantee against the Western majority then visible in the Council and the Assembly. Reform proposals — additional permanent seats, an extended category of long-term seats, restrictions on use of the veto where mass atrocities are alleged — have circulated for decades, but Charter amendment under Article 108 requires ratification by all five permanent members and a two-thirds vote of the Assembly, a combination of conditions that has prevented structural change.

Chapter VI — pacific settlement of disputes

Chapter VI sets out the Council's jurisdiction over disputes whose continuance is likely to endanger international peace and security. Article 33(1) directs the parties to such a dispute first to seek a solution by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. Article 34 gives the Council the power to investigate. Article 36(1) permits it to recommend appropriate procedures or methods of adjustment, with the rider in Article 36(3) that legal disputes should as a general rule be referred to the International Court of Justice. Recommendations under Chapter VI are not binding. The wider analytic frame for the Council's pacific role — the menu of techniques and the Indian-relevant practice — is examined in the chapter on the judicial and political dispute-resolution methods.

Chapter VII — collective security and enforcement

Chapter VII is the operative seat of the Council's enforcement jurisdiction. The threshold determination under Article 39 — that there exists a threat to the peace, breach of the peace or act of aggression — is the gateway to binding measures. Article 40 permits provisional measures. Article 41 authorises non-forcible measures: complete or partial interruption of economic relations, of communications, of diplomatic relations, sanctions targeted at States or at named persons and entities. Article 42 authorises the use of armed force where Article 41 measures would be or have proved inadequate; under Articles 43 to 47 member States were to make armed forces available to the Council on the basis of special agreements supervised by a Military Staff Committee, but the agreements envisaged were never concluded and the Council instead proceeds by authorising coalitions of willing members to act on its behalf, as in the Korean operation of 1950 and the Kuwait operation of 1990–91. The post-Cold-War period has seen a substantial expansion in Chapter VII practice — the establishment of the international criminal tribunals for the Former Yugoslavia (resolution 827 of 1993) and for Rwanda (resolution 955 of 1994), the imposition of targeted sanctions regimes, and standing legislative resolutions such as 1373 (2001) on counter-terrorism and 1540 (2004) on weapons of mass destruction.

Peacekeeping — the practice between Chapter VI and Chapter VII

Peacekeeping has no explicit Charter basis. It evolved in response to the deadlock of the Council during the Cold War and the absence of the standing armed forces contemplated by Article 43. The first armed peacekeeping operation was the United Nations Emergency Force established by the Assembly in 1956 to supervise the Suez ceasefire; a second was the United Nations Operation in the Congo (ONUC) authorised by the Security Council in 1960. Peacekeeping is now classically described as deployed with the consent of the parties, neutral as between them and using force only in self-defence — though robust mandates, particularly under Chapter VII, have qualified each of these elements. Because peacekeeping rests on hybrid constitutional foundations, drawing on the Council's powers under Article 29 and on the Assembly's powers under Articles 10, 11, 14 and 22 with delegation to the Secretary-General under Article 98, it is sometimes called "Chapter Six and a Half" — a phrase coined by Dag Hammarskjöld.

Economic and Social Council (ECOSOC)

ECOSOC is the principal organ for economic, social, cultural, educational and health co-operation. It consists of fifty-four members elected by the General Assembly for three-year staggered terms, with eighteen replaced each year, and each member having one vote. Decisions are taken by a majority of members present and voting under Article 67. ECOSOC initiates studies, makes recommendations to the Assembly, member States and specialised agencies, prepares draft conventions for submission to the Assembly and convenes international conferences (Articles 62 and 63). It is the constitutional hub for co-ordinating the work of the specialised UN agencies — WHO, ILO, UNESCO, UNICEF, UNHCR and the rest — through the relationship agreements concluded under Article 57. ECOSOC's functional commissions cover human rights (whose work was largely succeeded by the Human Rights Council established by Assembly resolution 60/251 of 2006), the status of women, narcotic drugs, population, social development, statistics, science and technology for development, and crime prevention; its five regional commissions cover Africa, Europe, Latin America and the Caribbean, Asia and the Pacific, and Western Asia.

The Trusteeship Council

Chapter XII of the Charter created the international trusteeship system to administer mandated and other dependent territories whose peoples had not yet attained self-government. The Trusteeship Council under Chapter XIII supervised eleven territories. The system fulfilled its purpose: with the independence of Palau on 1 October 1994 the last trust territory passed out of trusteeship, and the Council suspended its operation on 1 November 1994. It remains a principal organ of the UN under the Charter but meets only as occasion may require.

The Secretariat and the Secretary-General

The Secretariat is the international civil service of the UN. The staff are appointed under Article 101 on the basis of efficiency, competence and integrity, with due regard to recruiting on as wide a geographic basis as possible. Article 100 obliges every staff member to act independently of any government and obliges every member State to respect that independence. The Secretary-General — the chief administrative officer of the UN under Article 97 — is appointed by the General Assembly on the recommendation of the Security Council. In practice, the recommendation is made by the Council without dissent among the permanent members. The Secretary-General serves a five-year term; second terms are common but not required by the Charter. Article 99 confers a remarkable political power: the Secretary-General may bring to the attention of the Security Council any matter that, in their opinion, may threaten the maintenance of international peace and security. The good-offices and quiet-diplomacy roles built around this provision have grown into a significant strand of UN practice — from the Congo crisis of 1960 onwards, through the Iran hostage and Iran–Iraq conflicts of the 1980s, to the contemporary mediation portfolios in West Asia and Africa.

The International Court of Justice

The ICJ is the principal judicial organ of the UN under Article 92 of the Charter. It is the successor to the Permanent Court of International Justice that operated under the League of Nations. The Court's Statute, annexed to the Charter, forms an integral part of it. All members of the UN are ipso facto parties to the Statute under Article 93(1); a non-member may become a party on conditions to be determined by the Assembly on the recommendation of the Council under Article 93(2). The Court sits at the Peace Palace in The Hague.

The bench consists of fifteen judges of different nationalities elected for nine-year renewable terms. Election is by absolute majority in both the General Assembly and the Security Council voting independently and concurrently — a procedure designed to give weight both to numerical equality of members and to great-power influence. Article 9 of the Statute requires that the bench as a whole represent the main forms of civilisation and the principal legal systems of the world. A party to a case before the Court that has no judge of its nationality on the bench may, under Article 31, designate an ad hoc judge for that case. The Court's contentious jurisdiction extends only to cases that the parties refer to it — by special agreement (compromis), by treaty containing a compromissory clause, by acceptance of the optional clause under Article 36(2) of the Statute, or by the doctrine of forum prorogatum. The Court also exercises an advisory jurisdiction under Article 96 of the Charter at the request of the General Assembly, the Security Council and other authorised UN organs and specialised agencies. The detailed treatment of jurisdiction, advisory opinions and the role of the Court in dispute settlement is in the chapters on settlement of international disputes and on landmark ICJ decisions, where the leading India-related cases — Right of Passage over Indian Territory (1960), Aerial Incident of 10 August 1999 (Pakistan v. India) and Jadhav (India v. Pakistan, 2019) — are surveyed in detail.

The sources the Court applies are listed in Article 38(1) of its Statute: international conventions, international custom, general principles of law recognised by civilised nations, and — as subsidiary means for the determination of rules of law — judicial decisions and the teachings of the most highly qualified publicists, with the rider in Article 38(2) that the Court's power to decide a case ex aequo et bono if the parties agree is not impaired. The architecture of these sources is the subject of the chapter on sources of international law.

The UN Charter and Indian constitutional practice

India was a founding member of the UN, having signed the Charter on 26 June 1945 — six weeks before independence. Article 51 of the Constitution directs the State to endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another. Article 253 empowers Parliament to make any law for the whole or any part of India for implementing any treaty, agreement or convention with another country. India's relationship with international law is dualist: a treaty does not, of its own force, bind individuals; an enabling statute is required. The deeper account of this relationship is taken up in the chapters on the Indian Constitution and international law and on implementation of international treaties in Indian courts.

The Indian Supreme Court has on several occasions read the Charter's purposes into its construction of municipal law. In Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, the Court accepted that, in light of Article 51, constitutional language must where reasonably possible be read in the light of the UN Charter and the solemn declaration subscribed to by India. In Gramophone Co. of India v. Birendra Bahadur Pandey (1984) 2 SCC 534, Chinnappa Reddy J accepted that comity of nations requires rules of international law to be accommodated in municipal law even without express legislative sanction, the qualification being that, where direct conflict is unavoidable, the supremacy of the constituted legislatures and the integrity of the Republic must prevail. In Vishaka v. State of Rajasthan (1997) 6 SCC 241, the Court drew on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), an instrument concluded under the auspices of the General Assembly, to lay down judicially-fashioned guidelines for sexual harassment at the workplace pending parliamentary action. The course of these decisions confirms that the Charter and the broader UN normative output are not extraneous to Indian constitutional discourse but a recognised aid to construction.

Reform, financing and the future of the system

The UN system has been under continuous reform pressure since its first decade. The principal items have remained constant: composition of the Security Council, restraint on the use of the veto particularly where mass atrocities are at stake, financing reform, strengthening of the office of the Secretary-General, and reorganisation of the Secretariat. India's claim to a permanent seat is supported by the G4 (India, Brazil, Germany, Japan), opposed by the Uniting for Consensus group (Italy, Pakistan, Mexico, the Republic of Korea, others) and complicated by the requirement under Article 108 that any Charter amendment carry the affirmative vote of all five existing permanent members. Financing has its own constitutional framework: under Article 17, the General Assembly considers and approves the budget, and the expenses are borne by the members as apportioned by the Assembly. The Certain Expenses Advisory Opinion confirmed that peacekeeping outlays were "expenses of the Organisation" within Article 17(2) and were therefore obligatory on members.

Conclusion

The United Nations is built around three insights drawn from the failure of the inter-war system: that universal collective security needs an executive organ with binding authority; that great-power participation requires a structural privilege visible enough to be politically defensible; and that an inclusive parliamentary forum is necessary even if its decisions are not in themselves binding. Whether the system has lived up to its purposes is a recurring debate, but its constitutional design — the six organs, the architecture of Articles 1, 2, 24, 25, 27, 39 to 42 and 92 — is the indispensable starting point for the study of contemporary international law and the necessary background to every later chapter on international human rights law, the WTO and international trade law and international environmental law.

Frequently asked questions

What is the difference between Chapter VI and Chapter VII of the UN Charter?

Chapter VI (Articles 33 to 38) deals with the pacific settlement of disputes whose continuance is likely to endanger international peace and security. The Council may investigate, recommend procedures of adjustment, and, where the parties cannot resolve the dispute, recommend terms of settlement. Recommendations under Chapter VI are not binding. Chapter VII (Articles 39 to 51) deals with action with respect to threats to the peace, breaches of the peace and acts of aggression. Once the Council determines under Article 39 that one of these conditions exists, it may impose binding non-forcible measures under Article 41 and authorise the use of armed force under Article 42.

Does an abstention by a permanent member of the Security Council count as a veto?

No. The text of Article 27(3) requires the concurring votes of the permanent members on substantive matters, and a literal reading would suggest that an abstention is a veto. But the consistent practice of the Council from its earliest sessions has been to treat abstention or absence by a permanent member as not blocking adoption of a resolution. The International Court endorsed this construction in the Advisory Opinion on Namibia (1971) ICJ Reports 16, holding that the practice was generally accepted by members of the United Nations and constituted evidence of general agreement on its lawfulness.

Are General Assembly resolutions binding on member States?

Ordinarily, no. The Assembly is a recommendatory body. Two qualifications matter. First, certain internal decisions of the Assembly are binding under the Charter — most importantly the budget under Article 17 and the elections to organs such as ECOSOC and the non-permanent seats of the Council. Secondly, an Assembly resolution can carry legal weight by stating settled customary international law, by contributing to the formation of new custom as evidence of opinio juris, or by interpreting Charter provisions in a manner that the membership generally accepts.

What is the Uniting for Peace resolution, and is it constitutional?

Uniting for Peace, Assembly resolution 377(V) of 1950, was adopted in response to deadlock in the Security Council during the Korean War. It permits the Assembly, when the Council fails because of a permanent-member veto to exercise its primary responsibility for international peace and security in the face of a threat to or breach of the peace, to consider the matter immediately and recommend collective measures, including the use of armed force. The International Court in Certain Expenses (1962) ICJ Reports 151 effectively upheld the device by holding that the term action in Article 11(2) referred only to enforcement action, leaving room for Assembly-recommended peacekeeping forces of the kind deployed in Suez (UNEF) and the Congo (ONUC).

How are judges of the International Court of Justice elected?

Under Articles 4 to 12 of the Statute, the fifteen judges are elected for nine-year renewable terms by the General Assembly and the Security Council voting separately and concurrently. A candidate must obtain an absolute majority in both organs. No two judges may be of the same nationality. Article 9 requires that the bench as a whole represent the main forms of civilisation and the principal legal systems of the world. Five seats fall vacant every three years. A party to a case before the Court that has no judge of its nationality on the bench may, under Article 31 of the Statute, designate a judge ad hoc for that case.

Why does the Trusteeship Council still exist if it has no trust territories?

The Trusteeship Council is one of the six principal organs created by Article 7(1) of the Charter and supervised the international trusteeship system established by Chapters XII and XIII to administer dependent territories. The system fulfilled its purpose: with the independence of Palau on 1 October 1994 the last trust territory ceased to be one, and the Council suspended its operation on 1 November 1994. Removing the Council formally would require an amendment of the Charter under Article 108, which carries the affirmative vote of all five permanent members of the Security Council and a two-thirds vote of the General Assembly. The Council therefore continues to exist but meets only as occasion may require.