The United Nations and the

Formation of International Law

The United Nations came into existence with the adoption of the U.N. Charter in 1945. Its
membership is open to States and it has over 190 members. Its headquarters are in New
York City, but it has important offices in several other cities, including Geneva, Vienna, and
The Hague. The United Nations consists of six principal organs: The Security Council, the
General Assembly, the Economic and Social Council, the International Court of Justice, the
Secretariat, and the Trusteeship Council. Each of these has played an important function in
the making, interpretation and implementation of international law.

A. The Security Council

The Security Council has primary responsibility, under the U.N. Charter, for the
maintenance of international peace and security. Article 25 of the U.N. Charter requires the
members of the organization to accept and carry out the decisions of the Security Council.
While the other organs of the U.N. are authorized to make non-binding recommendations,
the Security Council is unique in that its decisions (taken under Chapter VII of the Charter)
automatically become international law.
The Security Council is comprised of 15 members: five permanent members (China,
France, Russia, the United Kingdom, and the United States) and 10 rotating members that
are elected for two-year terms by the General Assembly. Each member of the Council has
one vote but decisions on substantive matters require a majority including the concurring
votes of the permanent members, thus providing each permanent member a veto.
In recent years, the Security Council has taken a wide variety of measures under Chapter
VII of the United Nations Charter. It has, for example, created "no-fly zones,"31 "safe
areas,"32 and humanitarian corridors;33 it has established a commission to grant
compensation to the victims of armed attack;34 it has created a commission to delimit
disputed borders;35 it has instituted a commission to supervise the elimination of a
particular State's weapons of mass destruction;36 it has created numerous investigative
commissions;37 and it has established two international criminal tribunals, and three hybrid
Tribunals.38
To impel cooperation and compliance, the Security Council has on a number of occasions
adopted resolutions requiring the international community to impose economic and political
sanctions on a State which is acting in contravention of a Security Council resolution. Such
sanctions have included arms embargoes, trade embargoes, prohibitions on air flights,
seizure of vessels and vehicles, freezing of assets, prohibition on team participation in
sports events, and reduction of diplomatic ties. Security Council-imposed sanctions are
currently in force against several states, including Iraq, Libya, Liberia, Somalia, Angola, and

the former Yugoslavia.39 In the past, sanctions had been imposed against the military
regime in Haiti and the apartheid regimes in Rhodesia and South Africa.40
The sanctions resolutions often contain numerous exceptions, for example, for the import of
humanitarian items and informational materials. The sanctions resolutions are interpreted
by a Security Council-created body known as the Sanctions Committee. The jurisprudence
of the Sanctions Committee has a direct impact on the conduct of thousands of businesses
around the world on a daily basis.41

B. The General Assembly

The General Assembly is composed of representatives of all Member States, each of which
has one vote. Large countries such as the United States, Russia, and China, are counted
the same as smaller countries such as the tiny island of Palau, which has less than 15,000
inhabitants. The General Assembly determines the budget of the United Nations, and elects
the non-permanent members of the Security Council, the judges of the International Court
of Justice, and the judges of the International Criminal Tribunals for the Former Yugoslavia
and Rwanda. Through its seven Main Committees and numerous subsidiary bodies, the
General Assembly studies and makes recommendations on specific issues, such as those
involving disarmament, terrorism, outer space, human rights, the law of the sea, protection
of the environment, and peace-keeping.
While the General Assembly is not empowered to render binding decisions like the Security
Council, there are two important ways the General Assembly creates international law: (1)
the General Assembly bodies regularly draft treaties and convene international conferences
for their adoption; and (2) the non-binding resolutions and declarations of the General
Assembly (especially those adopted without dissent) can constitute evidence of customary
international law.
One of the General Assembly's most important subsidiary bodies is the International Law
Commission, comprised of thirty-four jurists. The ILC has produced a number of successful
draft multilateral treaties, such as the 1958 Convention on the Law of the Sea, the 1961
Vienna Convention on Diplomatic Relations, the 1969 Vienna Convention on the Law of
Treaties, the 1973 Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, the 1978 Convention on the Succession of States, and
the Statute for a permanent international criminal court.42

C. The Economic and Social Council

The Economic and Social Council (ECOSOC) was established by the U.N. Charter as the
principal organ to coordinate economic and social work of the United Nations. ECOSOC
has 54 members who serve for three year terms. In addition, over 900 non-governmental
organizations (NGOs) have consultative status and participate in the work of ECOSOC.

ECOSOC is responsible for coordinating the sixteen specialized agencies of the United
Nations system. These include the Human Rights Commission (recently re-named the
Human Rights Council), the World Trade Organization, the United Nations Conference on
Trade and Development, the United Nations Development Programme, the International
Monetary Fund, the World Bank, the World Health Organization, the International Labor
Organization, and the World Intellectual Property Organization.
In addition to adopting numerous resolutions, ECOSOC and its specialized agencies have
developed several quasi-legal instruments known as codes of conduct. These codes
establish voluntary guidelines that are intended to influence the behavior of both
governments and private enterprises. The most important thus far has been the ECOSOCsponsored Code of Conduct on Transnational Corporations.

D. The International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations.
It is the successor to the Permanent Court of International Justice, which was established
under the League of Nations. Located in the Peace Palace in The Hague, the ICJ is
composed of 15 judges, who are elected by the U.N. General Assembly to serve nine-year
terms.
The ICJ is empowered to decide two types of cases. First, the ICJ can issue advisory
opinions when requested to do so by the Security Council, the General Assembly or several
other United Nations bodies authorized to request such opinions. Since its creation, the ICJ
has issued twenty-one advisory opinions.
Second, the Court can exercise jurisdiction in a contentious case between two or more
States with the consent of the parties. The ICJ does not have jurisdiction over individuals,
except to the extent that a State espouses their claims. Since its creation, the ICJ has
issued judgments in thirty-nine contentious cases. That amounts to the Court hearing an
average of less than two cases each year. During the 1990s, however, the Court became
increasingly active, and it currently has eight contentious cases, and two requests for
advisory opinions on its docket.
Consent to jurisdiction over contentious cases can be given in three ways. First, States can
agree to have their disputes decided by the ICJ on an ad hoc basis. Second, many treaties
contain provisions giving the ICJ jurisdiction over any dispute between parties to the treaty
as to its interpretation or application. Third, States may make a declaration under Article
36(2) of the ICJ statute, agreeing to the compulsory jurisdiction of the Court in relation to
other States that have made a like declaration. As of 1997, fifty-nine States had accepted
the compulsory jurisdiction of the ICJ.
Declarations made under Article 36(2) may specifically exclude certain categories of
disputes from the ICJ's compulsory jurisdiction. Such declarations are subject to reciprocity,
and a defendant state against which a proceeding is brought may invoke an exclusion not
stipulated in its own declaration but included in the declaration of the plaintiff state.

The United States had agreed in 1946 to the compulsory jurisdiction of the ICJ with two
principal exceptions. The first, known as the "Connelly reservation," provided that the
United States does not accept the jurisdiction of the ICJ over disputes with regard to
matters which are essentially within the domestic jurisdiction of the United States as
determined by the United States. The second, known as the "Vandenberg reservation"
exempted the United States from the ICJ's compulsory jurisdiction with respect to any
disputes arising under a multilateral treaty unless all parties to the treaty affected by the
decision are also parties to the case before the Court. After the ICJ ruled that it had
jurisdiction over Nicaragua's suit against the United States concerning U.S. support of the
Contras and mining of Nicaragua harbors, the United States terminated its acceptance of
the compulsory jurisdiction of the ICJ.
The termination of the United States' acceptance of the ICJ's compulsory jurisdiction has
not completely immunized the United States from the ICJ. The United States has
subsequently been hailed before the ICJ on several occasions pursuant to clauses
contained in multilateral treaties to which the United States is a party. It has become the
recent practice of the United States to make a reservation opting out of the ICJ jurisdiction
clause of multilateral treaties at the time of ratification, but the United States continues to be
party to over one hundred treaties containing an ICJ jurisdiction clause.
Judgments of the ICJ are binding between the parties. Under Article 94(1) of the U.N.
Charter, all members of the United Nations have undertaken to comply with a judgment of
the ICJ in any case to which they are parties. If a party fails to comply with the judgment of
the ICJ, any other party may call on the Security Council to enforce the judgment. ICJ
decisions are widely recognized as important statements of existing international law, and
they are often cited as authority to support fundamental principles of international legal
development.
Contentious cases usually involve three phases. First, the parties often request that the ICJ
"indicate" provisional measures in order to preserve their respective rights while a case is
pending. Decisions on provisional measures are usually issued within a few weeks from the
initial request. While provisional measures are somewhat analogous to a preliminary
injunction or a temporary restraining order under U.S. domestic law, the court has never
ruled whether an order indicating provisional measures is mandatory on the parties. The
second phase involves challenges to the Court's jurisdiction. The Court will entertain briefs
and oral arguments on the matter before making a decision. Finally, the Court will entertain
briefs and oral arguments on the merits of the case. From start to finish, the ICJ may take
several years to rule on a dispute. The final decision of the ICJ is not subject to appeal.

E. International Criminal Tribunals

The UN Security Council acting under its Chapter VII authority established the International
Criminal Tribunal for the Former Yugoslavia (in The Hague) in 1993, the International
Criminal Tribunal for Rwanda (in Arusha, Tanzania) in 1994, and the Special Tribunal for
Lebanon (in The Hague) in 2009. Through agreements between the UN and domestic
authorities, the Special Court for Sierra Leone (in Freetown and the Hague) was

established in 2002, and the Extraordinary Chambers in the Courts of Cambodia was
established (in Phnom Penh) in 2006. In 2002, the permanent International Criminal Court
was established (at The Hague) through a treaty negotiated at the Rome Diplomatic
Conference; the ICC currently has 122 State parties. These six international tribunals have
prosecuted over 200 defendants and have produced extensive case law that constitutes
persuasive (though not binding) authority for other tribunals and domestic courts.

F. The Secretariat
The Secretariat is the international bureaucracy which services the other organs of the
United Nations and administers the programs and policies laid down by them. It consists of
more than 50,000 men and women from more than 150 countries.
The Secretariat is headed by the Secretary-General who is appointed for a term of five
years by the General Assembly on the recommendation of the Security Council. The
Secretary-General and other Secretariat personnel are often called upon to serve as fact
finders and mediators, and have played an important role in ending recent conflicts in
Afghanistan, Cyprus, Namibia, the Falkland Islands, Lebanon, Cambodia, and the former
Yugoslavia.
The Secretariat serves as an officially designated world depository for international
agreements. More than 45,000 treaties are registered with the U.N. The Secretariat
publishes the United Nations Treaty Series, which is an authoritative registry of international
agreements.
The Secretariat includes the U.N. Office of Legal Affairs, headed by the Under-Secretary
General for Legal Affairs (the U.N. Legal Counsel), which plays a critical role in the
interpretation of the Charter of the United Nations and the resolutions of the Security
Council, General Assembly, ECOSOC, and other U.N. bodies. The opinions of the U.N.
Legal Counsel are published annually by the United Nations.