The Evolving
United Nations
(Originally this article was
published in Feuilles Universitaires,
Revue publiee par La Ligue des
Professeurs de L’Universite Libanaise, No. 6/7 2eme Annee 1994)
The establishment of the United Nations in
the closing months of the Second World War represented an important effort by
states to meet the needs for maintaining international peace and security, and
to grasp the presented opportunity. The
year 1945 was an appropriate moment for charting a new design for world
order. The Charter of the United Nations
emerged from the San Francisco Conference.
It represented a series of compromises among states with diverse
interests and varying political, economic and cultural backgrounds. The founders of the Charter hoped that most
of the compromises would endure. They
anticipated, however, that some of the compromises might not last. This was why many powers and functions of the
United Nations were stated in general terms with the expectation that they
would be interpreted in the light of future specific situation. Accordingly, provisions were made in Articles
108 and 109 of the Charter for its amendment and review.
The founder of the United Nations did not
intend the Charter to be a rigid perfect instrument, but rather a “human”
instrument that “has within it ample flexibility for growth and development,
for dynamic adaptation to changing conditions”.[1] The Charter was designed to lay a broad base
for an institution that might develop to meet changing needs.
The dramatic changes that occurred
immediately after the establishment of the United Nations inspired a doubt as
whether this new organization had been endowed with sufficient powers to
maintain world peace and security. The
appearance of the atomic bomb was one change that created a new phase for
mankind. The split of the Second World
War’s victors into two camps, East and West, was another change that for almost
half a century played an essential and dangerous role on the international
stage. These changes have resulted in
further changes in the attitudes of nations and peoples. The United Nations has not been able to live
up to its promises and expectations, and to operate as effectively as its
founders had hoped. It has become
apparent that changes in the United Nations have been necessary in order to
cope with the situations and to adapt the functioning of the Organization in
the field of peace and security to constant threat of war.
Changes have been taken place within the
United Nations system. The Charter has
been subjected to changes in a variety of ways.
Certain articles have already fallen into disuse by not being
implemented or applied. Others have been
interpreted or applied by various organs and members of the United Nations in
ways that the founders of the United Nations did not contemplate. Special organs and agencies have been
created. Supplementary or supporting
treaties and agreements have been concluded.
Equally important, the organs and procedures of the United Nations have
undergone an evolutionary growth through the process of trail and error.
Although changes made to date have
affected the provisions of the Charter substantially, they have left its text
intact, except with regard to a few articles which were formally amended to
meet certain needs.[2] To some extent this has been due to the
difficulties inherent in the amending process, especially to the fact that any
one of the five permanent members of the Security Council could veto a proposed
amendment. This reality, however, has
not precluded numerous proposals for changes in the United Nations to be
introduced.
The following two sections deal with the
changes that have occurred on the international stage since the establishment
of the United Nations and their effects on the Organization, and with the
methods available for achieving changes in the United Nations which involve
informal ones used to date and formal ones provided in the Charter.
I. The United
Nations in a Changing World, 1945-2007
There is nothing similar in the whole
history of mankind. During only six
decades significant changes have taken place that have put the fate of man on a
crossroads, the crossroads of survival or total destruction.
Second World War was followed by
far-reaching scientific and human revolutions of a global nature. “The forces of science and technology were
unleashed in both negative and positive directions, creating in man both a new
sense of insecurity and terror and a renewed hope that a better life is within
his reach.”[3] Atomic energy and other advancement in
science, technology and medicine which have been brought to mankind with all of
their potential for good and evil have changed the relations of nations and
peoples.
The advancements have influenced persons’
and nations’ attitudes in a many ways.
There have been greater demands for self-determination, for democracy,
and for opportunities to improve the economic, educational and social status of
individuals, groups and nations. All
these have caused significant events to occur during the last sixty decades
since the establishment of the United Nations.
The most important events have been the liquidation of the colonial
system, and the rise and fall of the Soviet empire. These two events have affected the United
Nations. They have led to the expansion
in the membership of the United Nations, and to the shift of powers, functions
and influence within the United Nations.
A. Liquidation of
Colonial System
All the 45 percent of mankind that was
under the domination of the colonial powers in 1945 achieved independence by
1990.[4]
The prolonged and persisting struggles of national liberation movements and the
successful anticolonial campaign of the United Nations have brought an end to
the hundreds of years of western colonization of Asia, Africa, the Caribbean and the Pacific. The colonial powers, after several wars among
themselves, lost their strength and became unable to maintain their empires in
the face of the awakened oppressed people of their colonies.
Since the time of its creation the United
Nations has been involved in a global campaign of anticolonialism and
decolonization, which reached its peak in 1960 and has maintained its full
momentum in succeeding decades. The
United Nations has made a distinctive and effective contribution to overturning
of the colonial system. Its attack upon
colonialism has been extensive, as the
multitude of words and resolutions on the subject that its different branches
have adopted demonstrates.[5]
The concern of the United Nations with the
colonial problem has been varied and extensive.
The 1960 “Declaration on Granting of Independence to Colonial Countries
and People” marked the culmination of drastic change in the relationship of the
United Nations to colonialism.[6] This declaration adopted by the General
Assembly has been an outstanding landmark in the movement against colonialism
by making the war against this system a major enterprise of the United
Nations. In later resolutions by the
General Assembly, the war on colonialism was pushed several steps ahead. The legitimacy of colonial struggles for self-determination
and independence was recognized and all states were invited to provide material
and moral support to national liberation movements, i.e., the members of the
United Nations were overtly invited to enlist in armed struggles to overthrow
colonial and racially discriminatory regimes.
The United Nations' campaign against
colonialism has been successful. In
2007, 47 years after the adoption of the declaration on decolonization, all
territories formally under colonial rule have become independent.
B. Rise and Fall of the Soviet Empire
In 1945,
the victorious Red Army liberated Eastern European Countries from the Nazi
occupation. Three years after World War II all these countries had Communist
governments. Eastern European Countries became satellite states of the Soviet Union . The consolidation of power in Eastern
Europe by the Soviet Union and the emergence of the Soviet
Union as a nuclear power led to the polarization of the
world. The world split into two camps,
East and West, with conflicting ideologies and concerns. In May 1955, the Soviet
Union and its Eastern European Countries established the Warsaw
Pact as alliance for cooperation and defense among them. This was in response to the creation, in
April 1949, of the North Atlantic Treaty Organization (NATO) as organized defense
cooperation between the United
States of America United States of America and the Soviet Union during the
Second World War was replaced by distrust and competition. The “Cold War” between the East and the West
was embarked.
By using its military might and
intimidation, the Soviet Union was able for four and half decades, following
the Second World War, to maintain its control over East
Europe , and to influence world events. It formed friendships with a great number of
third world countries, particularly in Africa, Asia and the Middle
East .
In maintaining control over East Europe,
the Soviet Union and the Communist Governments
of these countries resorted to force to crash several revolts, e.g., the
Hungarian revolt of 1956, the Czechoslovakian revolts of 1967 and 1977, and the
Polish revolts of 1968, 1970 and 1981.
Although, the Soviet Union succeeded in
crashing these revolts, it failed to suppress the aspiration of East European
peoples for national independence and democracy.
With the rise of Mikhail Gorbachev to
power in 1985, a new kind of leadership was emerged in the Soviet
Union . President Gorbachev
was devoted to political and economic reforms in the Soviet
Union , and to improve relations with the West. This meant letting democracy take its course
in the Soviet Union and East Europe . Democracy
swept all over East Europe . In 1989, first
democratic non-communist government took over Poland Hungary Berlin
The Soviet Union ,
itself, was not immune from the spread of democracy and national independence.
In 1990, the three Baltic Republic , Estonia ,
Latvia and Lithuania were the first to declare independence
and seceded from the Soviet Union . In the
summer of 1991, the Russian people defeated the coup d'etat by the hard-line
communists who tried to recapture the power and put the Soviet
Union back on its past course. By the end of 1991, all the
Republics of the former Soviet Union achieved
national independence. The Soviet Union ceased to exist.
The fall of the Soviet Empire put an end
to the Cold War between the East and the West, with most of its consequences.
However, this fall resulted in the emergence of new problems. Ethnic wars
erupted in several Republics of the former Soviet Union, and in the former Yugoslavia
The above events have caused significant
changes in the United Nations. The changes have been reflected in the following
two areas: expansion in the membership of
the United Nations; and shifting powers, functions and influence within the
United Nations.
C. Expansion
in the Membership of the United Nations
The Most profound change, which
significantly affected the structure and the patterns of powers and influence
in the United Nations, is the increase in the number of members from 51 in 1945
to 191 in 2007. The majority of the states which
got together to lay the foundation for the United Nations were long-established
states with developed political, economic and social systems. They had substantial populations, and were
western in their general orientation.[7] The majority of members in 2007 represent
developing states which have not yet achieved stability in their political,
economic or social systems. In addition,
these states have various cultural backgrounds.
The priorities and concerns of the
majority in the early years of the United Nations were different from those of
the majority in the latter years. In the
early years, the majority took an anticommunist position on the Cold War
issues; relatively few states were uncommitted. In the latter years, the majority took a
neutral position concerning the East-West conflict. The problems of
decolonization and racial discrimination constituted a priority to this
majority since most of the states themselves were former colonies. States were
concerned about establishing their national identities, and developing their
political, economic and social systems.
At the present time the majority is devoted to cooperating in the field of
economic development and world peace and security. States are concern about their political,
economic and social development.
The expansion in the membership of the
United Nations has caused the rise of blocs and groupings of states around
common characteristics and interests of all kinds, as well as the emergence of
new issues, problems and priorities.
These blocs and groups which roughly approximate political parties have
played a significant role in the decision-making process of the United Nations. The largest of the blocs has been the Group
of 77 (or the developing Nations bloc), which has consisted of some 120 member
states. Next largest has been the
Non-Aligned Movement, which has consisted of some 90 members. Following has
been the 50-member African Group. Next
has been the Islamic Conference, which has consisted of 41 member states. Also, have been the 39-member Asian Group,
the 33-member Latin American Group, the 22-member Western European “and others”
Group, the 23-member Arab Group, and the 11 member Eastern European Group
(ceased in 1990). In addition, there
have been the smaller groups: the 5 Nordics, the 6-member Association of
Southeast Asian Countries; and the 10-member European Community.[8]
It is important to note that although
blocs have been extremely important in determining many outcomes in the organs
of the United Nations, they have not been invariably decisive. Many states have been belonging to more than
one bloc and have been subjected to various sorts of influences and interests,
which have affected their attitudes toward any issue. Blocs, except to some extent the Eastern
European Group before 1989, have not been concrete or cohesive in nature.[9] However, the tendency of states to get
together in the United Nations in voting blocs based on their special interests
has placed all the state members of the organization at the mercy of blocs
which command sufficient votes to initiate or prevent action of any kind.[10]
An important result of the expansion of
the membership of the United Nations has been the increase in the number of
non-permanent members of the Security Council from 6 to 10. These seats have been allocated as follows: 5
for Africa and Asia, 1 for Eastern Europe, 2 for Latin America, and 2 for Western Europe and “other states”.
Another aspect of the expansion of the
United Nations' membership in the sixties and the seventies was represented by
the shift of influence in the General Assembly, from the United States of America and its allies to the Soviet Union . The Soviet Union , which was in a minority position in the
early years, emerged as an influential power in the United Nations. Before 1989, the Soviet Union was able to
make common cause with the emerging majority in the United Nations, the nations
of Asia and Africa . Colonialism, national liberation,
self-determination, economic development and social justice were issues which
the Soviet Union not only was able to gain from, but they also gave it an
advantage over the Western Camp, the United States of America Soviet Union ,
with the new majority in the United Nations, was able during the years 1960 and
1989 to influence the outcomes of the General Assembly, other organs and
agencies of the United Nations. However,
as the result of the fall of the Soviet Empire in 1991, the United States
D. Shifting
Powers, Functions and Influence
The mechanism envisaged in the 1945 United
Nations Charter which vested upon the Security Council the primary
responsibility for the maintenance of international peace and security proved
during the early years of the life of the Organization its defects. The Council, because of the veto, failed to
meet its responsibilities under chapters VI and VII
The success of the United Nations depends
primarily on the cooperation of the permanent members of the Security
Council. At the time the Charter was
written, its authors assumed that the major allied victors would find it in
their interests to cooperate to make the United Nations effective in order to
prevent the recurrence of another world war.[12] It soon became apparent, however, that the
silence of guns after the end of the Second World War put an end to their
cooperation. The Major victors split
into two camps with conflicting ideologies, views and concerns regarding the
necessary conditions of peace and security, and regarding the role which the
United Nations should play.
In the early years of the United Nations,
the Western powers, the US Soviet
Union as direct threats to its security, and therefore to be
prevented by the use of the veto in the Council. In this line, it looked upon the United
Nations more as means to be used to prevent action inimical to its own
interests than as means of cooperation for common purposes.[13]
The
characteristics of the Cold War, such as fear, distrust and lack of confidence
in the other side, were behind the failure of the United Nations to implement
the enforcement provisions of the Charter by the conclusion of Article 43
agreements making available to the Council the forces and facilities necessary to the full
discharge of its responsibilities.[14] This failure was the first major blow to the
United Nations system. The experience of the early years which was influenced
by the Cold War demonstrated that the veto power exercised by the Soviet Union made the Council an unreliable instrument
for providing collective security and maintaining international peace and
order. Responding to this reality, the
Western powers sought alternative means for providing collective security. The first means was the establishment of the
North Atlantic Treaty Organization (NATO) on April 4, 19 49.
The inherent right of individual or collective self-defense recognized
by Article 51 was the basis on which NATO was founded. NATO became the basis
for organized defense cooperation among West European powers, United States and Canada
The second means sought by the Western
powers to deal with threats to international peace and security was the use of
the General Assembly as an alternative to the Security Council, in case the
latter was prevented from taking an action because of the veto. The General Assembly on November 3, 1950,
adopted the “Uniting for Peace” Resolution. [16]
In essence the “Uniting for Peace”
Resolution grants the General Assembly the power to act in place of the
Security Council only if the Council fails to discharge its primary
responsibility. Under it, the Assembly
may do by recommendations anything that the Council can do by decisions under
chapter VII VII
It is obvious from its provisions that the
Resolution provides a system quite different from the one the drafters of the
United Nations Charter intended. Instead
of “decisions” by the Council which members are obligated to carry out,
collective action is to be based upon “recommendations” by the Assembly which
are not legally binding upon members.[18] Also,
instead of “special agreement’ referred to in article 43 to be the basis for
making available to the Council armed forces, the armed forces under the
Resolution are to be made available to the Assembly by members on a voluntary
basis.
On the Eastern side, the Warsaw Pact was
concluded in May 1955 as an alternative means for collective cooperation and defense
for the Soviet Union and its Socialist allies,
in response to the creation of NATO and the adoption of the “Uniting for Peace”
Resolution.
The Cold War between the East and the West
had a negative affect on the United Nations system for maintaining peace and
security. The system weakened and became
distorted. The shift of powers and
functions with this regard from the United Nations to NATO and the Warsaw Pact
represented a very serious blow to the expectations, which the founders of the
international organization hoped to further.
The expectation to establish one world organization for the purpose of
taking effective collective measures to prevent and remove threats to the
peace, and to suppress acts of aggression or other breaches of the peace, was
demolished. NATO and the Warsaw Pact
were two gigantic systems that function independently of the United
Nations. Their rivalry and mutual fears resulted in arms race, polarization of the world
states, a weakened United Nations as an organization of collective security,
and the threat of nuclear war.[19]
The period of “détente”[20]
which followed the Cold War in the early seventies was unable to remove the
negative impact of the Cold War on the workability and effectiveness of the
United Nations. The world politics
during the years of “détente”, as it was during the years of the Cold War, was
mainly preoccupied with conflict between super powers, and arm race and
competition. The United States and the Soviet
Union continued behaving in the same manner they behaved during
the years of the Cold War. However, a
significant change relating to the center of influence in the United Nations
occurred. The influence upon the United
Nations which the US Soviet Union , who was able to mobilize the majority in
the Assembly, and even to some extent in the Council, to support its
position. The United
States found itself in the same shoes the Soviet Union had found itself in the past. US US
With the collapse of the Soviet
Union in 1991, the picture of the world changed. All the consequences of the Cold War ended. The United States
II.
Available Methods for Achieving Changes in
the United Nations
Many changes have taken place within the
United Nations system since the drafting of the Charter of the Organization in
1945. The Charter in 2007, as it has
been profoundly influenced during the past six decades by customs and usages,
interpretation, resolutions of various United Nations organs, supplementary or
supporting treaties, and the changing conditions in the international stage, is
hardly the Charter that was drafted in 1945.
The text of the Charter, except of
articles 23, 27, 61
and 109, is the same today as it was on June 26, 19 45, the day when the delegates of the
50 nations assembled at San Francisco
The founders of the United Nations meant
it to be a living organism that would grow with the changing world. This expectation of growth and change is
expressed, near the end of the Charter, in a short chapter entitled
"Amendments".[22] Changes in the United Nations system,
however, have come about in a variety of ways other than by amending the
Charter.
The following examines the methods by which
changes can be made in the United Nations. First, the methods employed since
1945 are surveyed. Then, the provisions
of the Charter relating to formal amending process are examined.
A. Informal Methods Used to Date
Because the formal amending procedures of
the United Nations Charter are too rigid to allow necessary changes, and
because the political circumstances are not conducive to their use, other means
have been found to achieve desired ends.
The Charter has been subjected to changes in a variety of ways and to greater
effect than is generally believed. It
has been changed: (1) by the failure to implement or apply certain provisions;
(2) through the interpretation by various organs and members of the United Nations;
(3) through the conclusion of supplementary or supporting treaties or
agreements; and (4) through the creation of special organs and agencies.
(1) Failure
to Implement or Apply Certain Provisions
Several articles, which those who
participated in the San Francisco Conference believed were highly important in
making the United Nations an effective instrument for maintaining world peace,
have been already fallen into disuse.
This has been because organs and members of the organization have
disregarded or have failed to implement or apply them. Perhaps the best examples are those articles
relating to the military preparation of the United Nations. Article 43, which was meant to be the heart
of the collective security system provided for in the Charter and the teeth
which were put into collective security action under the United Nations, has
been disregarded. Under it members of
the United Nations are required to make available to the Security Council, in
accordance with special agreements, the armed forces, assistance and facilities
necessary for maintaining international peace and security. Unfortunately,
these agreements have never come into existence; and article 43 remains a dead
letter.
Equally dead are Articles 44, 45, 46, 47
and 48, which are related to the use of armed forces by the Security Council
and which are largely dependent on the entry into force of Article 43. Article 44 gives a say to individual member
states in all decisions of the Council concerning the employment of that member's
armed forces. Article 45 provides for immediately available air forces for
combined international enforcement action.
Articles 46 and 47 entrust the Security Council and the Military Staff
Committee with the task of planning for the application of armed forces and
employing and commanding such forces.
And Article 48 requires all members of the United Nations to carry out
the Council's actions concerning the maintenance of international peace and
security. Taken together, all these
Articles with Article 43 are the cores of the collective security system of the
United Nations, as it was envisaged at the San Francisco Conference by the
drafters of the Charter.
The same fate had fated Articles 106 of
the Charter. Under the heading “Transitional Security Arrangement”, there is
Article 106 that was meant to cover the short transitional period anticipated
before the making of the “special agreements”, which would give the United
Nations the forces necessary for its collective actions. Article 106 provides
that prior to the time
the Council is ready to begin exercising its responsibilities concerning
collective enforcement actions, the five permanent members of the Council
should consult with each other with a view to such joint action on behalf of
the Organization as might be necessary to maintain international peace and
security. In short words, this Article
gives the super powers the joint responsibility for maintaining peace and
security on a transitional basis. The
super powers, however, because of the division among them, have failed to give
effect to this transitional arrangement.
(2) Liberal
Interpretations
The Charter of the United Nations, as any
constitutional instrument, grows and takes on new meanings as the Organization
accepts challenges and meets demands and needs. The only provision in the Charter relating to its
interpretation is the one implied in Article 96. Under this Article the General
Assembly or the Security Council may request the International Court of Justice
to give an advisory opinion “on any legal question”; such opinions, however,
have no binding legal effect. This
flexibility in the Charter has led to a number of significant developments in
the United Nations.
In practice and in line with the general
understanding reached at the San Francisco Conference, the organs and member
states of the United Nations have felt free to interpret the various articles
of the Charter as they have been fit.[23] Consequently, any interpretation of any
provision of the Charter which a majority of the members may believe to be
reasonable one can prevail in any particular instance. This explains why the Charter has its
liberal, as well as its strict, constructionists. The liberal interpretation, however, has been
in ascendance much of the time. It has
been very helpful in strengthening the General Assembly, giving more of a
policy-making role to the Secretary General and its staff, and overcoming the
deadlock in admitting new members to the United Nations.[24]
The most significant development, which
was due to a liberal interpretation of the Charter, relates to the
all-important question of voting in the Security Council. Article 27, Paragraph 3, provides
specifically that for other than procedural matters, decisions of the Council
are to be made “by an affirmative vote of nine members including the concurring
votes of the permanent members”. In its
early history, the Security Council took the position that an
abstention or an absence of a permanent member did not constitute a negative
vote. This liberal interpretation of Article 27, Paragraph 3, has been the
prevailing one since then. It was this
interpretation, together with the absence of the Soviet Union from the Security
Council, that made it possible for the Council to take action with respect to
the North Korean attack against South Korea in 1950. The difference between this liberal
interpretation of Article 27, Paragraph 3 and the strict one is substantial. Under the strict interpretation, when a
permanent member abstains or is absent at the time of the vote is taken no
decisions can be reached by the Council. This is a clear illustration of how
differently the Charter may be interpreted, and how an interpretation may make
a difference. Another illustration of
how differently the Charter may be interpreted is found in Paragraph 2 of
Article 27, which provides that decisions of the Council on procedural matters
should be made by an affirmative vote of nine members. This article does not spell out the
distinctions between the procedural and substantial matters.
At the San Francisco Conference, the five
major powers agreed on the strict interpretation of “procedural’ questions.
They agreed that procedural questions, for the most part, were those involved
with the organizational matters referred to in Articles 28 to 32 of the
Charter: the adoption of the rules of procedure of the Council; the selection
of the president of the Council; the time and place of the Council's meetings;
the establishment of subsidiary organs; the adoption of conditions for the
participation of a state that is not a member of the United Nations in the
Council's discussion; etc. Beyond this
point, these powers agreed in their Statement of June 7, 19 45, that decisions of the Council
which might have “major political consequences” should be made by the unanimous
vote of the permanent members.[25]
This narrow interpretation has not followed by the General Assembly, which has
been attempting to narrow the area within which the veto should apply. The Assembly has been inclined to define
procedural questions very broadly. In
its resolution of April
14, 19 49, the Assembly recommended to the Council that some
thirty-one decisions should be considered procedural, and that the Council
should conduct its business accordingly.[26]
Included in the list were a number of decisions that previously had been
considered substantive, such as those relating to the pacific settlement of
disputes and the admission of new members to the United Nations. Obviously, there is a substantial difference
between the strict interpretation agreed on by the major powers at the San
Francisco Conference and the liberal one urged on the Council by the Assembly. Either of these two methods of interpretation could be
applied; however, this is dependent on the members of the United Nations.
Another significant development, which was
due to the liberal interpretation of the Charter, relates to the expanding
nature of the political activities of the Secretary General. The articles of
Chapter XV relating to the role of the Secretary General leave the impression
that his political functions are to be quite limited in scope. In practice, however, both the Security
Council and the General Assembly have taken a broad view of his function. He has exercised an influential role in
various fields. He has made statements
before the Council and the Assembly on a variety of questions. He has undisputed authority to place any item
he considers necessary on the provisional agenda of both organs. He has played an effective and influential
role with respect to peaceful settlement of disputes and peace-keeping
operations; a role which those who participated in the San Francisco Conference
did not foresee.
Still another demonstration of what
interpretation can do is reflected in the sharp shift in the roles of the
Security Council and the General Assembly.
In the Charter of the United Nations, much emphasis is placed on the
primary responsibility of the Council in the field of international peace and security. The Council is designed to be the most
powerful and influential organ of the United Nations. It is organized to be able to function
continuously, designed to have armed forces at its disposal, and empowered to
make decisions binding on all members of the international organization. The General Assembly, on the other hand, is designed for much less
important roles. It is scheduled to
convene in regular annual sessions. It
was not designed to have armed forces at its disposal. It is only empowered to make recommendations,
not decisions binding on members of the United Nations. Its main weapons are discussion and
debate. In practice, however, the
Assembly has undergone evolutionary growth.
As the Security Council has fallen into
disuse, because of the division among its permanent members, the Assembly has
become a stronger and more important organ.
The Assembly has gradually played a much different role than was
foreseen by those drafted the United Nations Charter. Various devices, ways and means have been
employed to expand the Assembly's activities and influence in about every
field. The creation of the Interim
Committee in 1947 (and its recreation in 1949) was meant to keep the Assembly
in virtually continuous session if necessary.[27]
The adoption of the “Uniting
for Peace” Resolution in 1950 aimed to empower the Assembly to take action
against an aggressor if the Council fails to exercise its responsibility for
maintaining international peace and Security.[28]
Moreover, this resolution aimed to make available at the disposal of the
Assembly armed forces. It asks member
states of the United Nations to maintain within their national forces elements
so trained, organized and equipped that they could promptly be available for
service as United Nations units.
Today, the General Assembly can convene in
an emergency session within 24 hours. It
can make appropriate recommendations to members of the United Nations for
collective measures, including the use of armed forces. All this was made possible
only by the liberal interpretations of the Charter's provisions relating to the
functions and powers of the General Assembly.
3. Conclusion of Supplementary
or Supporting Agreements
The Charter has been subjected to changes as a result of numerous
treaties and agreements that have been concluded by various states. Treaties and agreements have been used as
devices to define in detail the general provisions of the Charter, to specify
the rights and obligations of member states, to specify the powers and
functions of the United Nations organs, and to lay down obligations and
commitments that go beyond those contained in the Charter.
The most
important example of such developments is the establishment of regional and
security arrangements or organizations.
Article 52, Paragraph 1 of the Charter provides that nothing in it shall
preclude “the existence of regional arrangements or agencies” for dealing with
“matters relating to the maintenance of international peace and security,”
provided that they are “consistent with the Purposes and Principles of the
United Nations”. Paragraph 2 of this Article requires members to seek pacific
settlement of local disputes through regional arrangements or agencies. Paragraph 3 requires the Council to encourage
such behavior. Under Article 53, the Council is required, where appropriate, to
utilize such regional arrangements or agencies for enforcement action under
its authority.
Despite its provision for regional
arrangements, the Charter of the United Nations was primarily designed to
approach matters of collective security on a world-wide basis. Consequently,
the primary responsibility for international peace and security was vested in
the Security Council. However, because
of the failure of the Council in assuming its responsibility, members of the United Nations, in
search of an alternative, concluded numerous treaties and agreements
establishing regional arrangements or organizations, such as the North Atlantic
Treaty Organization, the Warsaw Pact (ceased to exist in 1990), the
Inter-America Treaty of Reciprocal Assistance, the Southeast Asia Treaty
Organization, Organization of African Unity (became the African Union), the
Arab League, etc. By these treaties and
arrangements, the member states shifted the emphasis from universal collective
security to regional security arrangements based on the principle of
self-defense as expressed in article 51. Regional security arrangements
constitute different techniques for joint action than the one that exists under
the Charter of the United Nations.
Another important supplementary device to
the Charter is the declarations accepting the compulsory jurisdiction of the
International Court of Justice (ICJ) under Article 36 of the Statute of the
ICJ.[29]
Although the Charter obliges members of the United Nations to settle their
disputes by peaceful means referred to in Article 33 of the Charter, it does
not impose any particular means on the disputants. By acceding to the so-called
optional clause of Article 36 of the ICJ Statute, the states agree in advance
to accept the jurisdiction of the Court with respect to legal disputes in which
they may become involved. The
declarations enlarge the competence of the ICJ by imposing on the states
obligations over and above those already embodies in the Charter.
Still there are numerous resolutions and
declarations adopted by various organs of the United Nations, and covenants and
conventions concluded by states under the auspices of the United Nations,
covering about every field which are meant to supplement or support the
Charter. These supplementary devices dealt, for example, with: status; rights
and obligations of states and other international legal persons; authority over
land, sea and space; trade and development cooperation; human rights; peaceful
settlement of international disputes; the use of force; etc. Each of these devices has played a role in
the development of provisions of the Charter.
4. Creation of Subsidiary
Organs
Articles 22 and 29 of the United Nations
Charter respectively authorize the General Assembly and the Security Council to
establish such subsidiary organs as are deemed necessary for the performance of
their respective functions. During the sixty years of the United Nations’ history hundreds of committees, commissions,
panels, special representatives, boards and agencies have been established.
These subsidiary organs have been assigned a wide variety of functions covering
all areas of the Assembly's or the Council's responsibilities.
The General Assembly has established many organs to assist
it in carrying out its responsibilities in the administrative and financial
field. Some have permanent status such as the Interim Committee, the Advisory
Committee on Administrative and Budgetary Questions, the Committee on
Contributions, and the Board of Auditors. Some important subsidiary organs
created by the Assembly, e.g., the Collective Measures Committee and the
International Law Commission, have been assigned to undertake studies of a
general character. Many operating agencies, e.g., the Relief and Works Agency
for Palestine Refugees in the Near East (UNRWA), the High Commission for Human
Rights, the Office for the Coordination of Humanitarian affairs (OCHA), and the
Development Programme (UNDP), have been established to administer a variety of
relief, rehabilitation, and assistance programs in the field.
In the field of peace and security, the
General Assembly has created many organs entrusted with a wide variety of
functions. Some of a permanent nature,
e.g., the Peace Observation Commission, and the Panel for Inquiry and
Conciliation, have been created to serve where they might be needed. Many ad hoc organs have been created, from
time to time, to deal with particular situations. Many have been entrusted with
investigatory functions. Others have been assigned to observe particular
situations. A number of subsidiary organs have been assigned with functions of
mediation, conciliation and good offices. In addition, there have been military
forces created by the Assembly as its subsidiary organs for peace-keeping
purposes.
To assist it in performing its
responsibilities, the Security Council has established its own subsidiary
organs. It has created standing
commissions or committees of a permanent nature, e.g., the Committee on the
Admission of New Members, to assist it in particular aspects of its work or to
deal with certain recurring matters. It has established organs to deal with
particular questions or situations for the task of investigation, observation,
mediation, and assisting in the implementation of its resolutions or
peace-keeping operations.
The importance of the subsidiary organs
created by the Assembly and the Council rests in the fact that without the
assistance provided by them main organs of the United Nations could not
effectively discharge their responsibilities under the Charter. The establishment of such organs does not
amend the Charter in any substantive way, but it does constitute an important
feature of the developing United Nations system under the Charter.
B. Formal Methods Available Under the
Charter
Two different methods of amending the
Charter of the United Nations were agreed upon at the San Francisco Conference
of 1945. The first is the ordinary procedure of amendment set forth in Article
108. The second is the comprehensive
review by a general conference provided in Article 109.
1. Ordinary Amending Process
Article 108 of the Charter outlines a
two-step process that is to be followed for the ordinary amending process of
the United Nations Charter: (a) an adoption of the proposal by a two-thirds
vote of the General Assembly; and (b) a ratification by two-thirds of the
members of the United Nations, including all the permanent members of the
Security Council. In connection with these two steps, three points should be
noted. First, a proposed amendment may
be adopted by the Assembly without any concurring action by the Council. The will of the majority of two-thirds of the
members prevails. No single state,
whether small or super, can prevent an amendment from being adopted. Second, Article 108 reiterates the principle
of permanent members' unanimity. It
requires that amendments must be ratified by all the five permanent members of
the Council. This means that no
amendment can become effective if it is opposed by any permanent member. Any one of the permanent members can prevent
the entry into force of any amendment even if it is ratified by all other
members of the United Nations. Third,
after being ratified by the two-thirds of the members of the United Nations,
including all the five permanent members on the Council, an amendment would
become effective with respect to all members, even those that voted against it
in the Assembly or failed to ratify it.
The dissatisfied member has only one remedy, that is, to withdraw from
the Organization.
Until 1963, none of the profound changes
in the United Nations system which took place were brought about through the
formal amendment process of the Charter. Formal amendments, however, were
proposed on various occasion. During the
first few sessions of the Assembly, a few proposals were made to amend the
Charter. One of these was a proposal introduced in 1946, to amend Article 27,
Paragraph 3, in order to curtail the use of the veto, but it was withdrawn for
lack of support.[30] In 1956, following the great influx of new
members, further proposals to amend the Charter were brought up in the
Assembly. The most significant were the
proposals: to amend Article 61 in order to enlarge the Economic and Social
Council; and to amend Article 23 in order to increase the number of the
nonpermanent members on the Security
Council, and correspondingly to amend Article 27 in order to increase the
number of affirmative votes needed for a decision by the Council to be adopted.[31] The Cold War atmosphere prevented amendments
to the Charter from getting the support of all the five permanent members; of
course, no amendment could come into effect without ratification by all of
them.
The
pressure to pass amendments to the Charter continued over the years until 1963
when an agreement was reached for this end.
At its eighteenth session, the Assembly adopted amendments to raise the
number of the members of the Economic and Social Council to 27, and to expand
the size of the Security Council to 15, with a corresponding amendment to
Article 27 to require 9 affirmative votes for the adoption of the Security
Council's decisions.[32] These amendments entered into force on August
1965 when the members of the United Nations, including the 5 permanent members
on the Council, ratified them in accordance with their constitutional processes.
When
Articles 23 and 27 were amended, the requirement of seven votes for calling a
conference to review the Charter in Article 109, Paragraph 1, was not
changed. The Assembly in 1965 adopted an
amendment of this Paragraph to conform to the new requirement of Article 27.
2. General Conference for the Charter's Review
Article 109
outlines a three-step process to be followed in case of review of the Charter
by a general conference of the members of the United Nations: (a) a call for
holding a conference by a two-thirds vote of the members of the General
Assembly and a concurring vote of nine members of the Security Council; (b) an
adoption of the alteration to the Charter by a two-thirds vote of the
conference; and (c) a ratification of such alteration by two thirds of the
members of the United Nations, including all five permanent members of the
Security Council, in accordance with their constitutional process. In connection with these steps, four points
should be noted. First, the review of
the Charter as a whole is not the business of the General Assembly, but of a
“General Conference” of all members of the United Nations. It is a kind of constituent assembly which
may be called to continue the work of the San Francisco Conference.[33] Second, a reviewing conference could be
called for at any time. Third, none of the
permanent members of the Council, or all of them together, by their negative
vote can prevent the calling of a
general conference. Fourth, each of the
permanent members, however, can prevent the entry into force of any alteration
to the Charter by failing to ratify it.
It seems
that, as far as amendments of the Charter are concerned, there is no difference
between Articles 108 and 109. Any
amendment must be approved by a two-thirds vote of either the General Assembly
or the General Conference. Moreover,
even if “alterations” (under Article 109) or “amendments” (under Article 108)
to the Charter are approved, they would come into force only if ratified by
two-thirds of the members of the United Nations, including all five of the
permanent members of the Security Council.
Paragraph 3
of Article 109 outlines an additional specific one-time procedure for reviewing
the Charter. It provides that if a
conference has not been held before the tenth session of the Assembly, “the
proposal to call for such a conference shall be placed on the agenda of that
session” and “the conference shall be held if so decided by a majority vote of
the members of the General Assembly and by a vote of any seven members of the
Security Council.” This provision is no
longer applicable since the tenth session of the Assembly has passed and the
only decision possible under it has been taken.[34]
The
decision to include a specific provision for a general conference to review the
Charter was a product of a compromise between the position of the major powers
and that of those who were dissatisfied with certain provisions of the Charter,
especially, those of Articles 27 and 108.
Its objective was to assure the dissatisfied states that there would be
an opportunity for reviewing the Charter at some future time.
During the
first three sessions of the General Assembly, proposals for the calling of a
general conference to review the Charter were introduced.[35] None, however, was adopted because of the
opposition of many members who argued that the time had not yet come to convene
such a conference, and that because of the division among the major powers it
was unwise to discuss amendments of the Charter.
Because no
conference to review the Charter was held prior to the tenth session of the
General Assembly, the proposal to call such a conference was automatically
placed on the agenda of the tenth session as required by Paragraph 3 of Article
109. The debate at that session revealed
little enthusiasm and much reluctance by many members of the United Nations for
calling such a conference.[36] The General Assembly adopted a resolution
expressing the view that it would be “desirable to review the Charter in the
light of experience gained in its operations”, but that such a review “should
be conducted under auspicious international circumstances.”[37]
In this resolution, the Assembly did not fix the time or the place for the
conference. However, a committee was
established to consider the matters in consultation with the Secretary General. To this resolution, the Security Council gave
its concurrence.[38]
At its tenth session, the General Assembly
did not call for holding a conference to review the Charter as required by
Paragraph 3 of Article 109. This could be understandable since this Paragraph
did not guarantee that a conference would be held. The Assembly was under no obligation to call
a conference, but merely to place the matter on the agenda of its tenth
session.[39]
Both Articles 108 and 109 provide far too
rigid procedure for amendment of the United Nations’ Charter. The process is just as long and just as
difficult under any of these two Articles.
This explains why during the sixty-year history of the United Nations no
substantial changes in the Organization have taken place through the formal
amending processes provided in the Charter.
Profound changes in the United Nations system have been accomplished
only through informal methods.
[1] Statement
by former US Secretary of State Cordell Hull on the Occasion of the Signing of
the Charter, June 26, 1945, 13 Dept. of State Bulletin, 13, Washington DC
(1945).
[2] See
UN Charter arts. 23, 27, 61 & 109.
[3] 2
Commission to Study the Organization of Peace, Building Peace, 693
(1973).
[4] More
than 80 nations whose peoples were under colonial rule have joined the United
Nations as sovereign independent states since the UN was founded in 1945.
[5] For a detailed discussion, see R.
Emerson, The United Nations and
Colonialism, in The Evolving United
Nations: A Prospect for Peace, 83-99, K. Twitchett (ed.), London
[6]See G.A. Res. 1514 (XV), 15 GAOR Supp.
(No. 16) at 66, U.N. Doc. A/4684 (1960). For a discussion of this resolution and
the uses made of it, see Kay, The Politics of Decolonialization: The New
Nations and the United Nations Political Process, 21 Int'1 Org., 786 (Autumn 1967);
and Emerson, pp. 2, 90-92.
[7] See L.M.
Goodrich, The United Nations in a Changing World, 48, Oxford
[8] See
T.M. Frank, Nations Against Nations, 247, Oxford
[9] Id. p. 247.
[10] See
M. Moskowitz, The Roots and Reaches of
the United Actions and Decisions, 18, The Netherlands (1980).
[11] See id. p. 26.
[12] See Goodrich, The United Nations in a Changing World,
pp. 112-113.
[13] Id.
[14] Article
43 stipulates:
1. All
members of the United Nations, in order to contribute to the maintenance of
international peace and security, undertake to make available to the Security
Council, on its call and in accordance with a special agreement or agreements,
armed forces, assistance, and facilities, including rights of passage,
necessary for the purpose of maintaining international peace and security.
2. Such agreement or agreements shall govern the numbers and types of
forces, their degree of readiness and general location; and the nature of the
facilities and assistance to be provided.
3. The
agreement and agreements shall be negotiated as soon as possible on the
initiative of the Security Council. They shall be concluded between the
security Council. and Members or between the Security Council and groups of
Members and shall be subject to ratification by signatory states in accordance
with their respective constitutional processes
[15] See Goodrich, The United Nations in a Changing World, pp. 114-115.
[17] It should be noted that
this right granted to the Assembly was not intended to be substitute for the
Council's responsibility for the maintenance of international peace and
security, but rather a supplement. This is why the preamble to the resolution
reaffirms “the importance of the exercise the Security Council of its primary
responsibility” and “the duty of the permanent members to seek unanimity and to
exercise restraint in the use of the veto”. Also, this is why the resolution in Section A of
the Resolution requires the Assembly to exercise its primary responsibility and
only in cases where there appears to be a threat to the peace, breach of peace,
or act of aggression.
[18] See L. Goodrich, E. Hambro & A. Simons, Charter of the United Nations,
124-25, 3rd & rev. edn., New York
[19] See
1 Commission to Study the Organization of Peace, p. 266.
[20] “Détente” is a French word, literally means a relaxation of
tension. It has been used as a short-hand for a complex process of adjustment
between the East and the West since the early seventies. The policy of detente
encompassed a continuing dialogue between the United
States of America and the Soviet
Union in the. areas of arms control, trade, scientific and
technical exchange and crisis management. The essence of the policy was the
coexistence relationship between the two powers. See generally, U.S. Dep't of State, The Meaning of Détente,
Washington D.C (1974).
[21]
Goodrich, The United Nations in a Changing
World, p. 117.
[22] UN
Charter chapter XVIII (arts. 108 & 109).
[23] See F.
Wilcox & C. Marcy, Proposals for Changes in the United Nations, 12,
Westport (1955)
[24] See 1 Commission to Study the Organization of Peace, 266 (1973).
[25] Doc. 852, III
[26] See
G.A. Res. 267 (III), U.N. Doc. A/900, at 7 (1949).
[27] See G.A. Res. 111 (II), U.N.
Doe. A/519, at 15
(1947); and G.A. Res. 295 (IV), U.N. Doc. A/1251, at 17 (1949). .
[29]
Paragraph 2 of Article 36 of the Statute of the ICJ stipulates: “The States
parties to the present Statute may at any time declare that they recognize on
compulsory ipso facto and without special agreement, in relation to any
other state accepting the same obligation, the jurisdiction of the Court in all
disputes…”
[31] See 11 U.N. GAOR Annex (Agenda Items 56, 57
& 58) at 1-5 & U.N. Docs. A/3138, A/3140, A/3446, A/3468/Rev. l
& A/L.217/Rev.l (1956).
[34] See
G.A. Res. 992 (X), 10 U.N. GAOR Supp. (NO. 19) at 49, U.N. Doc. A/3116 (1955).
[35] See 1 U.N. GAOR C.1 2nd Pt. Annex 7b at 324
& 326, U.N. Doc. A/C.1/49/Rev. l (1946); and 3 U.N. GAOR Ad. Hoc. Pol. C.
Annex
(Agenda Item 17) at 13-14, U.N. Doc. A/A.C.24/31 (1948).
[36] For the
debate, see 10 U.N. GAOR (542nd – 547th plen.
mtgs.) at 296-370, U.N. Docs A/P.V.542-547 (1955).
[37] G.A.
Res. 992 (X0, at 49.
[39] See
Goodrich, Hambro & Simon, pp. 644-456.
