Critical Evaluation of the UN Charter and Role at International Level through Case Laws.

 

2          ABSTRACT 

The United Nations Charter is the Constitutive instrument of the United Nations. This significant international treaty has brought the countries of the world on one page, to deal with the international problems mutually. The basic aim of forming the United Nations is to ensure peace and security in the world and to work for the betterment of humanity. The six major organs set in the Charter act as a backbone of the organization. Yet, within the principles of the Charter and in the practical application of the goals there arises conflict.  In order to make United Nations immensely effective in its work, it is necessary to bring changes in the Charter as well as in its execution.

3          HISTORY

Despite the presence of the League of Nations, the horrific event of World War II took placed. The consequences of World War II were immensely devastating for the entire world, that it compelled the leaders of the world to introduce an alternative way to deal with international relations and work for the betterment of humanity. The idea to create the United Nations began to articulate in August 1941. In October 1943, the major Allied powers such as Great Britain, the Union of Socialist Soviet Region, and China organized a meeting in Moscow and stated the need for an international organization.  This led to the formation of the United Nations, with the agreement to the United Nation Charter, the member states conformed their obedience to the rights and obligations jotted down in the Charter.[1]

United Nations Charter is the Constitutive instrument of the United Nations, an intergovernmental organization. It laid down the rights and obligations of the Member States and established the principal organs and procedures of the United Nations. [2]

 On 26 June 1945, this significant Charter was signed and led to the formation of the United Nations formally. The United Nations Charter came into force on October 24, 1945, by the ratification of the five permanent members of the Security Council and the majority of other signatories. Pakistan officially Joined United Nations on 30 September 1947, three months after it appeared on the map of the world.[3]

Gradually, other nations became signatories to the United Nations Charter and made the United Nations most effective in its performances. However, still there are some loopholes in executing the United Nations Charter with its core purposes.

EVALUATING UNITED NATIONS CHARTER

The United Nations Charter consists of a preamble and 19 Chapters. The Chapters are further divided into 111 Articles. The Articles state the duties, responsibilities, functions of the organs and promote the member states to maintain international peace and security, promote social progress and strengthen international law, and promote the expansion of human rights.  Court of Justice, and the Trusteeship Council.[4] 

3.1         Nature of the Charter

The United Nation Charter is a short treaty consists of less than 9,000 words. The survival of the United Nations Charter is due to its concise character. Additionally, the formulation of the Charter has been made on general principles which are also responsible for its successful survival. The language used in the Charter has left space for new interpretation, according to the changing needs and new circumstances. [5]

The preamble of the Charter explains the reason behind forming the United Nations. This can be predicted through its introductory sentence; “to save a succeeding generation from the scourge of war.” The Charter further talks about ensuring fundamental human rights, equal rights, social progress, and better living standards. Further, it aims to promote peace and tolerance, avoid wars and resolve conflicts through mediation instead of using arms. 

3.2         Universal Membership

The Charter has opened the doors for all those states who want to be a part of this organization by accepting its obligations mentioned in the Charter. Chapter II, Article 4 states “membership of United Nations is open to all other peace-loving states.” This allowed the other countries, formed after 1945 to enter into this treaty and strengthens the objective of international peace and security. Thus, the number of the member of the states increased from 50 to 193 eventually. However, in Article 4 it is mentioned that “membership in the United Nations can be affected by the decision of General Assembly upon recommendation of Security Council.”[6] It has been observed that the veto power given to the five countries has always prioritized their interests and has affected the membership of other countries under this rule. The other countries have always been subordinate to the decision of the veto power countries. To hand over, the main power of a major organ like the Security Council, in the hands of some countries and to decide the membership with the recommendation of the Security Council, have failed the United Nations to meet the standards of justices and equality.

3.3         Concept of Peace

To create a peaceful environment in the world is the basic purpose and was the main motive behind the formation of the United Nations. From the preamble to the end of the Charter to ensure peace among the states and resolve the disputes without using the arms is the top preference of the Charter. United Nations, through the effective work of the Security Council, has done a lot to maintain peace in the world. However, after the incident of 9/11, the world witnessed that the United States of America went for an open war against Afghanistan. 

Case: Congo v. Uganda[7]

Background

 On 23 June 1999, the Democratic Republic of Congo, filed suit against Uganda for acts of armed aggression committed and breached of the United Nation Charter. . On 21 April 2001 Uganda filed its Counter-Memorial. It consists of three allegations against Congo; first concerned alleged acts of aggression against it by Congo, second related to attacks on Uganda diplomatic premises, and third dealt with alleged violation of Lusaka Agreement by Congo.

 

Decision

The Court founded that by extending the military, logistic, economic and financial support to irregular forces operating on the territory of the Congo, the Republic of Uganda had violated the laws of non force and non intervention. It also found that the troops of Uganda had committed violations of international humanitarian law and human rights law. Also, the allegation made by Congo against Uganda to be involved in looting and exploitation of natural resources found to be true. Against the counter-claims, on 29 November 2001 court found the first two counter-claims submitted by Uganda were admissible as such and formed part of the current proceedings. Further to ensure strict equality between the parties, the court reserved the rights of Congo to present its view in writing form against the Uganda claims.  The Court strictly told both the parties to reform from military wars. Plus, the court noted in its Judgment that the nature, form, and amount of compensation owed by each party had been reserved.

3.4         Human Security with State Security

Along with the security to the states, United Nations also emerges for the security of individuals and to secure the dignity of human beings, by ensuring fundamental human rights. Chapter I, Article 1(2) states “promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” So far, United Nations has made wonderful efforts to enhance the scope of human rights. The Universal Declaration of Human Rights is a model work United Nations; it’s a landmark in history. United Nations has created several programs through which it is promoting the implementation of Human Rights. Both the General Assembly and Economic and Social Council are responsible to make recommendations to promote Human Rights, included in Articles 13 and 62.  Human Rights have been figured prominently in the activities of the United Nations since its creations. In every session, they have occupied one of the major committees of the General Assembly over human rights. Moreover, every year the Economic and Social Council struggle with the subject of human right. However, most of the politically strong countries in the world have shown, their discriminating behavior against their citizens based on their religion and are involved in genocides also ethnic cleansing but the United Nations is unable to refrain those powerful states from practices such illegal activities. An example of this is the people of Kashmir and people of Syria, Palestine, and many other countries which government is threatening human dignity but the United Nations is failed to prevent these activities.[8] Additionally, in the case mentioned below the International Court of Justice has simply dismissed both the cases, alleged genocide, a major crime, with the ruling that shreds of evidence are not enough to name the act as a genocide.

Case: Croatia v. Serbia (February 03, 2015)[9]

Background

On 2 July 1999, Croatia filed an Application against the Federal Republic of Yugoslavia for the violation of the Convention on the prevention and punishment of the Crime of Genocide. The Republic of Serbia counter filed a suit charge against Croatia with genocide in 2010. The application claimed missing people, refugees, expelled people, and military actions. Both applications have a financial aspect seeking compensation of damages

Decision

 The Court recalled that under the terms of the 1948 Convention, the crime of genocide contains two elements; first, is the physical element that includes killing members of the group, and causing serious bodily or mental harm to the members of the group.  The Court dismissed both claims entirely. The court found that neither genocide nor other violations of the convention had been proved.

3.5          Regional Agreements

Chapter VIII of the Charter encourages the involvement of regional organizations to contribute to the maintenance of international peace and security for which the Security Council is primarily responsible. The Articles in this respective Chapter, allows the regional agreements or agencies to take major steps to the peaceful settlements of the disputes. The arrangements can take enforcement action, only with the explicit authorization by the Security Council. Plus, it has also created a mechanism to utilize the regional agreements. With this, the Charter has sketched the obligation for the agreements that the agencies have to inform the activities for the maintenance of peace and security. [10]

The encouragement of regional agreements in the Charter has added a block to the wall of building security and peace internationally. It has paved a way for the countries to independently, with their mutual interest solve their conflicts. However, as stated, “every medicine has a side effect” like that the regional agreements made and then violated arises new disputes between the countries. So far, most of the countries have gone to war and conflict due to the violation of agreements. An example is a conflict between Pakistan and India due to a violation of the Simla Agreement. 

However, in some other cases the decisions made by the International Court of Justices on grounds of obedience to regional treats has shown fruitful results; as has done by interpreting the regional treats correctly to the parties and solving the disputes between the party in the case below;

Case: Argentina v. Uruguay[11]

Background

Argentina on 4 May 2006, initiated proceedings against Uruguay. Claiming that Uruguay has breached the obligations binding upon it under the 1975 statute of the River Uruguay, which purpose was to establish the joint machinery required for the optimum and rational utilization of the river, located in their joint boundary. Argentina maintains that the mill constructed by Uruguay is a threat to the river and its environment. Also, cause transboundary damage to Argentina.

Decision

The Court held that Uruguay has violated the Statute by not informing Argentina about the planned works before issuing the initial environmental authorization for each of the mills. By failing to notify the plans of Argentina, Uruguay has violated the 1975 Statute. Yet, the claims made by Argentina about the environmental and transboundary damage weren’t proved through conclusive shreds of evidence. The Court concluded that Uruguay had not breached the substantive obligations under the Statute. The Court also found that according to the Statue the states were allowed to continue their cooperation and to enable the necessary means to promote the equitable utilization of the river while protecting its environment.

4          EFFECTIVENESS OF THE PRINCIPAL ORGANS

4.1         General Assembly

Chapter IV of the Charter discusses the General Assembly, one of the major organs of the United Nation. The Charter mentions that the General Assembly consists of all the member states. This organ according to the Charter has the power to exercise deliberative, supervisory, financial, and elective functions related to any matters within the scope of the Charter. The primary role of the General Assembly is to discuss issues and make a recommendation, yet it has no power to enforce the states to take action. Hence, even the majority of the votes cannot guarantee the effectiveness of the decision. Moreover, it must add new member states and also holds general debates.[12]

So far, the General Assembly has debated over issues such as AIDS, terrorism, and other international problems. Each year the General Assembly passes more than 350 resolutions. The General Assembly has drawn significant public attention towards major problems such as climate change. However, on other several issues, such as issues on the agreement to Human Rights, Arab-Israeli Conflict and many others. It cannot be denied that due to politics and polarization between the developed and developing countries the continuous disagreement on decisions and topics creates hurdles to find out the solution for major problems. Plus, merely discussion is not enough which is the basic role of the General Assembly but to solve these problems the General Assembly has to work in a neutralizing way.[13]

Yet, the voting system in General Assembly is usually affected due to the politics between the states. It is observed that major of controversial resolution has tended to reflect simple East-West and Asian-African division of opinion. The Western view under the leadership of the United States easily attained comfortable majorities on most issues. On most occasions, the group unity of the General Assembly is split by the divided interests. Most of this division is due to political issues of big powers. Thus, voting results in most of the time reflect political interest rather than understanding the scope of the issue. [14]

4.2         Security Council

According to the United Nations Charter, the Security Council shall contain fifteen members. China, the United States of America, the Union of Soviet Socialist Republics, Great Britain, and Northern Ireland are the permanent members of the Security Council. Ten other members are elected for a term of two years by the General Assembly and these are the non-permanent members. According to the Charter, it is the Security Council that is primarily responsible for the maintenance of international peace and security. The Charter has laid down an ideal system of rules for the Security Council to maintain peace and security in the world. On contrary, the particle approach of the Security Council is not an ideal one. Practically, Security Council reflects the great power politics. Giving permanent membership and veto power to the five powerful countries never led any decision to be made contrary to their interest. Under such a hierarchy of power, it is almost impossible for Security Council to work for the maintenance of peace and security, with a neutralized system. These veto powers countries are turning out to be the great agents of the United Nations Organization in international affairs. Thus United Nations has become dependent on these permanent agents.[15]

These structural and unequal power divisions in the Security Council have led to the Syria crises due to the vetoes from Russia and China at the Security Council in July of 2012. The powerful states are also observed to prefer their security over concern to the collective security. The current disagreement between Iran and the United State of America also reflects this. The United States of America always forbids Iran to possess nuclear weapons and see the actions of Iran as an offense but the United States is interested to keep their nuclear weapons and is unwilling to lose them. This shows the discriminating behavior of the Security Council and the United Nations. [16] Further, United States carried air attacks in Iraq that recently violated the basic principles of the Charter but United Nations didn’t take any action against America.

4.3         Economic and Social Council

As stated by Article 61 “the Economic and Social Council shall consist of fifty-four member of United Nations, elected by the General Assembly.” “Eighteen members of the Economic and Social Council shall elect each year for a term of three years.” The basic purpose besides forming the Economic and Social Council is “to promote higher standards of living, full employment and economical and social progress and development. The department of Economic and Social Council has developed major effective departments such as Development Cooperation, Youth Forum, Humanitarian Affairs Segment, and various others that are working for economical development and the betterment of Social life. Under these organizations, the United Nations has done effective work in preserving the culture of different societies. So far, the world cultural heritage has preserved historical sites in Pakistan; for instance Baltit Fort, Badishahi Mosque, and many other cultural sites in the world too. Yet, to ensure better living standards all over the world it has to carry more activities because almost half of the population of the world is dying out of malnutrition and unemployment.

4.4         International Court of Justice

 

 ICJ is one of the organ of UN. Even a non-member state can also seek the services according to the Charter. The duties laid by the Charter for the Court are to solve the disputes and to interpret the law or to give a piece of legal advice on any legal question if asked by the other departments.[17] From the Second World to this date the international Court of Justices has played it effective role in building a peaceful society around the world. Despite the wonderful servicing render by the judges, the world is not satisfied with the Court. The reason is some of the principles set by the Charter for the court. One of these is that the Charter makes the decisions made by the International Court of Justice to be accepted in any case. Due to this rule, major cases are avoided to bring in front of the Court and the countries keep violating the peace rules. Just because of the fear of losing the case, both India and Pakistan don’t bring the case of Kashmir in the Court; yet, still fighting with each other. Another problem is that the court cannot hear criminal cases, such as prosecution for the war. The countries that suffer under war can’t be heard. This creates loopholes in achieving peace for the world because unless the punishment for the war won’t be set, peace is a very far desire to achieve.

5           CONCLUSION

The United Nations Charter aims to create peace and harmony in the world. This precise treaty gave birth to United Nations and is successfully surveying for decays.  However, in executing peace, the veto power given to the five nations has become a hindrance.  Similarly, in ensuring Human Rights and binding the regional agreements, the United Nations not seems to be successful in its mission. The principal organs of the United Nation have the effective side as well as the ineffective side that create a blockage in executing the main goals of the Charter.