UNITED NATIONS ORGANISATION

The failure of the League of Nations on the one hand and the horror and ruthless destruction caused by the Second World War on the other hand disturbed many minds especially in Allied countries. They expressed the desire to establish peace even when the War was in progress. In order to achieve it, frantic efforts to create an international organization had begun as early as in 1941. Deliberations became intense after the termination of the War which resulted in the creation of the United Nations Organization on October 24, 1945. The United Nations was therefore founded on the ashes of a war that brought untold sorrow to mankind. A brief account of the important events leading to the establishment of the United Nations are as follows.

Declaration of St. James Palace (1941):

On June 12, 1941, the representatives of a few States met at the ancient St. James Palace and singed a Declaration, commonly known as London Declaration, which inter alia stated: The only true basis of enduring peace is the willing cooperation of free people in a world in which, relieved of the menace of aggression, all may enjoy economic and social security. It is our intention to work together, and with other free peoples, both in war and peace, to this end. This was the first step towards the creation of a world organization.

Atlantic Charter (1941)

The meeting of the American President Roosevelt and the British Prime Minister Chruchill, in August 1941 resulted in the issue of a joint declaration destined to be known in history, as the Atlantic Charter of August 14, 1941. The Charter was neither a treaty between the two Powers nor was it a final and formal expression of peace aims. It was only an affirmation of certain common principles in the national policies of their respective countries on which they based their hopes for a better future for the world.

United Nations Declaration (1942):

The next important event took place on 1^st January, 1942 with the signing of a short document which later came to be known as the United Nations Declaration. The complete alliance was effected in the Declaration in the light of the principles of the Atlantic Charter.

Moscow Declaration (1943):

By 1943, all the principal Allied were committed to outright victory, and therefore, an attempt to creation a World in which “men in all lands may live out their lives in freedom from fear and want.” But the basis for a World organization had yet to be defined. Such a definition came at the meeting of the Foreign Ministers of Great Britain the United States and the Soviet Union. In the Moscow Declaration signed on October 30, 1943 the necessity of establishing at the earliest practicable date a general necessity of establishing, based on the principle of the sovereign equality of all peace-loving States and open to membership by all such States, large and small, for the maintenance of international peace and security was recognized.

Tehran Declaration (1943):

On December 1, 1943, Roosevelt, Stalin and Churchill met at Tehran (Iran) declared that we recognize fully the supreme responsibility resting upon us and all the United Nations to make a peace which will command the goodwill of the overwhelming masses of the peoples of the world and banish the scourage and terror of war for many generations. 

Dumbarton Oaks Conference (1944):

In order to prepare the blue print of the principle laid down in Atlantic Charter and the Moscow and Tehran Declarations, the representatives of Great Britain, USSR, China and the United States met in Washington D.C. A proposal for the structure of the World organization was submitted by the four Powers to all the Untied Nations governments, and to the people of all countries, for their study and discussion. According to the Dumbarton Oak proposals, the organization to be known as the United Nations shall have four principle bodies. They shall be General Assembly, Security Council, the International Court of Justice and a Secretariat. An Economic and Social Council, working under the authority of the General Assembly was also provided for. The essence of the plan was that responsibility for preventing future war should be conferred upon to the Security Council. However, the method of voting in the Security Council was left open for the future discussion.

Yalta Conference  

The question of voting procedure in the Security Council was taken up at the Yalta in the Crimea where Chruchill, Roosevelt and Stalin, together with their Foreign Ministers and Chiefs of Staffs, met in the Conference on February 11, 1945. The Conference announced that the question has been resolved. The agreement provided that all decisions on question of procedure should be taken by a majority of seven votes and that decisions on other questions should be taken by a like majority with the added requirements of unanimity of the permanent members. It was provided, however, that a party to a dispute should abstain from voting in certain matters.

            At the end of the Conference, it was announced that the three governments had agreed to call a conference of the United Nations to meet at San Francisco on April 25, 1945 to prepare the Charter of such an Organisation, along the lines proposed in the informal conversations at Dumberton Oaks. Later on, the Government of China also agreed to become a sponsor of the conference. The Provisional Government of France, however, declared to become one of the sponsoring governments.

San Francisco Conference (1945):

San Francisco conference, officially known as the United Nations Conference on International Organisations (UNCIO) consisting of delegates of fifty nations met on April 25, 1945 to discuss the proposals made by the States on the Dumbarton Oaks Conference, the Yalta Conference and the amendments proposed by various governments. The delegates, at San Francisco met for two months in full session and in small committees, drew up the 111 Articles of the Charter.

            The right of each of the ‘big five’ to exercise a veto on an action taken by the Securing Council prescribed long and heated debate. However, this and other vital issues were resolved only because every nation was determined to set up, if not the perfect international organization, at least the best that could possibly be made. The last session on the Conference was held on June 25, 1945 where the Charter was passed unanimously and was signed by all the fifty representatives on June 26, 1945. Poland, a signatory of the United Nations Declaration, whose Government was announced on June 26, 1945 signed the Charter on October 15, 1945. Thus, the Charter was signed by fifty-one States.

            The United Nations came into existence on October 24, 1945 upon ratification of the Charter by twenty-nine of the signatories including the five permanent members of the Security Council. It is to be noted that the name of the Organization ‘United Nations’ was taken from the Declaration of the United Nations and adopted to the memory of Roosvelt who suggested it.

Preamble of the United Nations:

The Preamble of the United Nations is preceded by the words ‘Charter of the United Nations. It indicated the title of that legal instrument and the name of the Organisation constituted by it. The Charter is a multilateral treaty, albeit a treaty having certain special characteristics.

The Preamble of the U.N. charter has set forth the basic aims of the United Nations which are: (a) to save succeeding generations from the scourage of war; (b) to re-affirm faith in fundamental human rights; (c) to establish justice and respect for international obligations; and (d) to promote social progress and better standard of life. The Preamble also affirms that in order to achieve these ends, the peoples of the United Nations are determined to practice tolerance, to live in peace as good neighbours, to unite to maintain peace and security, to ensure that armed forces shall not be used except in the common interest, and to employ international machinery for the social and economic betterment of all peoples.

Purposes of the United Nations

The purposes for which the United Nations was established are laid down in Article I of the Charter. They are as follows: - 

(1)        To Maintain International Peace and Security:

The urgent and fundamental need at the time of the creation of the United Nations was the freedom from war and from fear of war, and therefore, Article I, Para 1 of the Charter provided that the primary purpose of the United Nations shall be ‘to maintain international peace and security’, and to take effective measures….. for the suppression of….. breaches of the peace. In order to achieve the above purpose, the Organisation shall prevent or remove threat to the peace, breach of the peace or acts of aggression by taking effective collective measures. This very purpose of the Untied Nations has been characterized by Kelsen as ‘World Peace’, because the action taken by it is not confined to the relations among the member States only.     

(2)        To Develop Friendly Relations among Nations:

In order to prevent clashes between nations, it was thought essential to develop friendship among nations, i.e., friendship based on respect for the principles of the equal eights and the equal rights of self-determination of peoples. 

Self-Determination: At the end of the World War II, most one quarter of the world’s population – more than 750 million people lived in dependent territories. In order to liberate them, it was thought necessary that on the one hand new rules and principles capable of facilitating the liberation of the oppressed people should be framed, and on the other hand, reactionary and colonist rules of International Law should be abolished. When the United Nations was established, the principle of self-determination was invoked within it to end colonialism. The charter under Article 1, Para 2 laid down that to develop friendly relations among nations based on the principle of equal rights and self-determination of peoples….. shall be one of its purposes. Article 55 of the Charter reiterated the same principle. The notion of self-determination has also been incorporated in Chapter XI of the U.N. Charter which deals with Declaration regarding Non-self-governing Territories and in Chapter XII which deals with International Trusteeship System. The principle was later on reaffirmed in a number of resolutions adopted by the General Assembly. The most important amongst them is the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted on December 14, 1960. The International Court of Justice in the Case Concerning East Timor (Portugal v. Australia) has also observed that the principle of self-determination of people has been recognized by the United Nations Charter and in the jurisprudence of the Court; It is one of the essential principles of contemporary international law.

Although self-determination has been recognized as an established principle of International Law, meaning of the term has not been made clear neither in the Charter nor in the resolution adopted by the General Assembly.

The principle of self-determination applies to the colonial peoples. These are the peoples of trust territories and non-self-governing territories. While the trust territories are those which are administered by other States under the supervision of the United Nations, non-self-governing territories are those which were of colonial type at the time of the adoption of the Charter. The principle of self-determination is regarded to be fulfilled for the trust territories either by self-government or independence, and for non-self governing territories, either by emerging as a sovereign and independent State, or free association with an independent State or integration with another State. Thus, the existence of a sovereign and independent State is presumed to satisfy the principle of equal rights and self-determination. It may be noted that the application of the principle of self-determination in no way extends to sovereign States. Thus, the people of an integral part of a State do not possess the right primarily because it results in secession. 

(3)        To Achieve International Co-operation:

Article 1, Para 3 of the Charter lays down purposes of the United Nations which are closely related to each other. Firstly, to achieve ‘international co-operation in solving international problems of an economic, social, cultural or humanitarian character and secondly, ‘international co-operation’ in promoting and encouraging respect for human rights, and for fundamental freedoms for all without distinction as to race, sex, language or religion

(4)        To Make the United Nations an International Forum for Harmonisation:

The fourth purpose of the United Nations was laid down under Article 1 Para 4 of the Charter which states that the United Nations, being the principal World Organization shall serve as a ‘centre for harmonizing the actions of nations in order to achieve these common ends. Thus, the United Nations is an international forum where World problems – bilateral, regional or global are discussed and it often evolves global policies for States to implement. The greatest advantage of this forum is that it represents the entire international community.

Principles of the United Nations

Having set forth the agreed purposes, the Charter laid down the basic principles under Article 2 on which the Organisation is founded. These principles are the general obligations which bind each member State and the Organisation as a whole. They are as follows: -

(1)        The Principle of Sovereign Equality - Article 2, Para 1 of the Charter lays down that the United Nations is based on the ‘sovereign equality of all its members’. It implies that all the members of the United Nations are equal irrespective of their size and resources. It may be noted that the principle of sovereign equality is a principle of International Law which the Charter has simply reaffirmed.

(2)        The Principle of the Fulfillment of Obligations - Article 2, Para 2 of the Charter lays down that all members of the United Nations shall fulfill in good faith the obligations assumed by them in accordance with the Charter. This is also a basic principle of International Law which is known as pacta sunt servanda.

(3)        The Principle of Peaceful Settlement of International Disputes – Article 2, Para 3 of the Charter provides that ‘all Members shall settle their international disputes by peaceful means and in such a manner that International peace and security, and justice, are not endangered.’

(4)        The Principle of Non-Use of Force – The Charter under Article 2, Para 4 stipulates that all members shall refrain in their international relations from the use of force of threat of force against the territorial integrity or political independence of any State, or in any other manner not consistent with the purposes of the United Nations. It is to be noted that the expression ‘use of armed force’. The former prohibits the use of force of all types, i.e., the armed force as well as other coercive, economic and political measure. The principle therefore lays down that the use of force of all types is unlawful, as it constitutes the breach of the principles of the United Nations of ‘political independence’ and ‘territorial integrity’.

(5)        The Principle of Assistance to the United Nations – Article 2, Para 5, of the Charter lays down two ways by which a State may assist the United Nations. Firstly, no member shall assist any State against which the United Nations is taking ‘preventive and enforcement action’, and secondly, all the members shall support the Organisation ‘in any action’ that it takes in accordance with the Charter.

(6)        The Principle for the Non-Member States – Article 2, Para 6 of the Charter lays down that the obligations which are to be carried on by the non-members of the United Nations by stating that ‘the Organisation shall ensure that States which are not Members of the United Nations act in accordance with these Principles so far as may be necessary to maintain international peace and security. Thus, the purpose of the United Nations to maintain peace and security is not restricted to the relations among members States only. Non members are also required to act in such a manner so that international peace and security is not endangered.

(7)        Principle of Non-intervention in Domestic Matters of a State – Article 2, Para 7 of the Charter lays down that the United Nations shall not intervene in matters which are essentially within the domestic jurisdiction of any State, or compel any member to submit such matters to settlement by the United Nations. However, this general principle shall not prejudice the application of enforcement measures as provided under Chapter VII of the Charter.

Supremacy of the Obligations:

It is to be noted that all members are under an obligation to act in accordance with the purposes and principles of the Charter. The obligation may be regarded as supreme obligations in the sense that they override all other obligations which are contradictory to them whether accepted by the members either before or after the establishment of the Organisation. The principles laid down in the Charter thus acquire the status of jus cogens. The Charter makes a specific mention of the supremacy of the obligations the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Members of the United Nations:

Chapter II of the Charter deals with Membership. The Charter has classified the members into two categories : ‘Original Members’ and the ‘Subsequent Members’. According to Article 3 of the Charter Original Members are the States which signed the United Nations Declaration of January 1, 1942 and signed and ratified the Charter in accordance with Article 110. Fifty States participated in the San Francisco Conference, either from the beginning or following admission by vote of the Conference. Poland, a signatory to the United Nation Declaration did not participate in the San Francisco Conference because at that time it did not have a government recognized by all the sponsoring powers. However, a space was left in the Charter for the signature which its representative affixed on October 15, 1945. Thus these fifty-one States became the Original Members.

Admission of a Member:

According to Article 4 of the Charter subsequent members are those States which are admitted to Membership by a decision of the General Assembly adopted on the recommendation of the Security Council. The International Court of Justice in its advisory opinion on the Competence of the General Assembly Regarding Admission of a State to the United Nations was of the opinion that the General Assembly may decided on the admission of new members only on a positive recommendation of the Security Council. Thus a State may be admitted in the United Nations on two-thirds majority of the General Assembly of the Security Council including the concurring votes of the permanent members.

            Article 4, Para 1 of the Charter lays down the conditions which a State is required to fulfill in order to become a member of the United Nations. They are : firstly, membership is open to ‘peace-loving State’, and secondly, to those States which ‘accept the obligations’ contained in the Charter, and thirdly, to those which are ‘able and, willing to carry out the obligations contained in the Charter. The International Court of Justice in its advisory opinion on Conditions of Admission of State to Membership in the United Nations delivered in 1948 laid down five conditions which a new applicant must fulfill for becoming a member of the United Nations. They are (a) it must be a State; (b) it must be peace-loving; (c) it must accept the obligations of the Charter, (d) it must be able to carry out these obligations; and (e) it must be willing to do so. Although the conditions for the admission of a member have been clearly laid down, it is difficult to determine whether an applicant State is a ‘peace loving’ or whether it is able and willing to carry out its international obligations. Political considerations are sometimes involved therein. The delayed admission of Bangladesh and Vietnam is an ample proof of it.

Chinese Representation in the United Nations:

Chinese representation in the United Nations remained for a long time in a confusing state. The Republic of China was an Original member of the United Nations and was a permanent member of the Security Council. At that time, Chiang Kai Shek was the head of the State. In 1949, his government was overthrown by the Communist over the main land of China. Chiang Kai Shek fled to Farmosa, which is popularly known as Taiwan, and established his Nationalist government over there. However, it continued to represent the Republic of Chine in the United Nations. Since 1950, the matter relating to Chinese representation in the United Nations has been discussed in the General Assembly from time to time, because communist regime in the main land of China has been claiming representation in the United Nations. Chiang Kai Shek continued the representation because of the pressure of the United States and other Western countries. In 1971, when the relations between the United States and the Republic of China became cordial, the United States advocated for its representation in the United Nations. The General Assembly in 1971 adopted a resolution whereas it was evolved that the representatives of the Government of Peoples Republic of China are the only lawful representatives of China in the United Nations. Accordingly, on October 25, 1971, the People’s Republic of China was admitted in the United Nations and the representatives of Chaing Kai Shek were expelled from the United Nations. Since then, People’s Republic of China was occupied one of the permanent seats of the Security Council.

            The total number of the members of the United Nations has gone upto 1962. Thus, the organization is presented by the overwhelming majority of the States of the World. It is indeed an important step towards the goal of universality of membership – a goal that it has embraced since its inception.

Suspension of a Member:

Article 5 of the Charter provides that a member may be suspended from exercising its rights and privileges of Membership if the Security Council has been taking preventive or enforcement action against the suspension may be effected by the General Assembly on the recommendation of the Security Council. Suspension of a member being a non-procedural matter requires the affirmative votes of nine members including concurring votes of five permanent members of the Council. The above provision implies that when a member is suspended, it is deprived by all the rights which a member enjoys. For instance, it ceases from representing in the General Assembly and the three Councils, it ceases from electing as a member of these councils, and it cannot be invited to participate in the discussions of the Security Council under Articles 31, 32 and 34 to bring to the attention of the Security Council, or of the General Assembly and other situations under Article 35, Para 1 of the Charter. Suspension from the exercise of the membership does not mean that it has become a non-member.

            No member has been so far suspended from the Membership of the United Nations. In 1974, the Assembly suspended South-Africa for its Apartheid policy from participation in the work of its Twenty-ninth session. South Africa lost its voting rights in the Assembly but it retained the UN Membership.

Expulsion of a Member:

Article 6 of the Charter lays down provisions regarding expulsion of a member from the United Nations by stating that if a member persistently violates the principles of the charter, it may be expelled from the Organisation by the General Assembly on the recommendation of the Security Council. It being a non-procedural matter, requires the affirmative votes of nine members including the concurring votes of the permanent members of the Security Council. The decision of the General Assembly requires, in conformity with Article 18, Para 2, a two-third majority of the members present and voting. No member has been so far expelled from the Organisation. Once a member is expelled from the Organisation, it acquires the same position as to that of a non-member.

            On October 30, 1974, the Security Council discussed and voted upon a resolution recommending the immediate expulsion of South Africa from the membership of the United Nations. But the resolution could not be adopted because of the veto exercised by the three permanent members of the Council.

Withdrawal From the Organisation:

Membership of the United Nations may be terminated against the will of the member by expulsion in conformity with Article 6 of the Charter. But the Charter does not contain any provision for those contingencies where a members wishes to withdrew itself from the Organisation voluntarily.

            Although a member has not been given, under the provision of the Charter, a right to withdraw from the Organisations, withdrawal from the Organisation is a sovereign right of a State, and as such, it may be exercised by its members as and when they desire. However, if the Security Council considers that the withdrawal of a member would constitute threat to the international peace and security, it may according to Article 39 recommend to the member to forbear from withdrawing, and in case of non-compliance with the recommendation, it may take enforcement measures against that State. Thus, the Security Council may compel the State to remain a member of the Organisation.

Indonesia:

In the past, on one occasion the question of withdrawal from the membership arose. On January 20, 1965, Indonesia informed the Secretary-General that it had decided to withdraw from the United Nations as from January 1, 1965 “at this stage and under the present circumstances”. It look the decision because Malaysia was elected as a member of the Security Council. However, on September 19, 1996, Indonesia announced its decision to resume full cooperation with the United Nations and to resume participation in its activities starting with the United Nations and to resume participation in its activities starting with the Twenty-first Session of the General Assembly. The President of the General Assembly at the 1420^th Plenary Session Stated that : It would therefore appear that the Government of Indonesia considers that its recent absence from the Organization was based not upon a withdrawal from the United Nations but upon a cessation of cooperation. Thus, Indonesia, resumed its seat.

Observer and Permanent Observer Status:

Those States which are not members of the United Nations may participate in the deliberations of the General Assembly without vote when they are granted ‘Observer Status’. When a State having observer status is given a right to participate in all the future meeting of the General Assembly, the status is preferred to as ‘permanent observer’. At present, Vatican (since 1954) and Palestine Liberation Organisation (PLO) (since 1974) have their missions of permanent observers at the United Nations. The International Committee of the Red Cross (ICRC) in 1990 and the Commonwealth of Independent Status (CIS) in 1994 were given the observer status.

Self Defence

The term self-preservation was used by the proponents of the Natural School was the right of a State to prevent the imminent danger. The essential characteristic of the right of self-preservation was the unrestricted freedom it gave to a State to act contrary to any norm of International Law and thus to violate any right of another State, if such action was deemed necessary for its own preservation. Practically, there was no limit on the action which a State could take in serf-preservation. Instances of such actions were the rupture of diplomatic relations, retortion, reprisals, intervention, embargo, boycott, blockade and the use of force. States themselves were the arbitrators in taking actions. The Covenant of the League of Nations reserved to the members of the right of self-preservation in all cased in which the League was proved unable to settle the dispute.

            The Charter of the United Nations has drastically curtailed the freedom of the States to exercise the right of self-preservation. The Charter uses the expression ‘self-defence’ under Article 51 instead of self-preservation. The Charter recognizes self-defence as an ‘inherent’ right of the States. However, the right has to be exercised strictly in accordance with the provisions of the Charter.

            A State has a right to take action in self-defence, if it has been attacked by the armed forces. Article 51 inter alia says : “if an armed attack occurs against a member of the United Nations. It implies that the attack through armed forces is a pre-condition for exercising the right of self-defence. Armed attack may take place either by the regular armed forces or by armed bands, groups, irregulars or mercenaries. However, in latter case, right of self-defence would be deemed to have been exercised only if it is of such gravity as may amount to armed attack.

            If a State has been attacked by the above means, it can take measures in self-defence to thwart the attack. Some writers assert that Article 51 allows participatory self-defence, that is pre-emptive strike, once a State is certain that another States is about to attack it militarily. In other words, military preparation by neighbouring States or threat of imminent attack allows another State to take action in self-defence. But the above arguments do not appear to be convincing. The text and drafting history of Article 51 makes it clear that the provision did not allow a State to exercise the right of self-defence in the case of anticipatory attack.

            Article 51 states that armed attack should occur ‘against a member of the United Nations’ which may be understood to mean member States of the United Nations. A State which is a member of the United Nations, has a right to take action in self-defence if armed attack occurs on it. But a State being a juristic person cannot be attacked. Attack may take place in the territory of the State, which is one of the attributes of the statehood. Thus, attack in the territory of a State is regarded as the attack on the State. But the territory of a State is not the only essential attribute of statehood. People of the state is equally important Characteristic of the statehood, and therefore, if the people of a State, whether residing within the State or outside the State, are attacked with armed forces, the attack should be deemed to as an attack on the State and the right of self-defence can be justifiably exercised. Although armed attack on the people of a State gives a State a right of self-defence, it can be exercised only when the necessity of self-defence is instant, overwhelming and ‘no choice of means and moment of deliberation has been left. Further, action taken in self-defence should be proportionate, i.e., it should not be unreasonable or excessive.

            The conditions of proportionately and necessity apply to Article 51 of the United Nations Charter and they therefore do not permit a State to use the nuclear weapons in self-defence if armed attack has occurs against it. The right of self-defence warrants only those measures which are proportionate to the armed attack and necessary to respond to it. Further, the use of nuclear weapons which itself in unlawful does not become lawful on the ground that it is being used in self-defence. The International Court nuclear weapons in the advisory opinion given to the General Assembly on the legality of the Threat or Use of Nuclear Weapons but it failed to respond to this question by stating that the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstances of self-defence, in which the very survival of the State would be at stake.

            Measures taken by the States in self-defence are required to be ‘immediately reported to the Security Council’. This is an obligation imposed by Article 51 for a State exercises the right of self-defence. The above Article also further stipulates that the right of self-defence may be exercised by a member until the Security Council has taken the measures to maintain international peace and security. If the Security Council fails to take any action, self-defence must cease as soon as its purpose, that is, to repel the armed attack, has been achieved.

Regional Arrangements:

Regional arrangements may be created for the maintenance of international peace and security or for the promotion of human rights or for performing economic, social cultural and educational activities. Chapter VIII of the Charter, is devoted exclusively to regional arrangements, through its does not define the term regional arrangements. Regional arrangement could be made by the States for dealing with matters ‘relating to the maintenance of international peace and security’ as per Article 52(1) of the Charter. Moreover, the ‘activities’ of such arrangements are required to be consistent with the purposes and principles of the United Nations. Regional arrangements, being treaties, are required to be registered with the Secretariat of the United Nations in accordance with Article 102 of the Charter and published by it.