The United Nations: Purposes, Principles and Membership

Article 1(3). To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.

Article 1(4). To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Two things to notice. The words "in conformity with the principles of justice and international law" appear in the second half of article 1(1), governing peaceful settlement, and not in the first half about collective measures, which was deliberate. And self-determination enters the Charter here, as a principle on which friendly relations are to be based.

The Principles: article 2

The Organization and its Members, in pursuit of the Purposes, shall act in accordance with these Principles.

Article 2(1). The Organization is based on the principle of the sovereign equality of all its Members.

Article 2(2). Members shall fulfil in good faith the obligations assumed under the Charter.

Article 2(3). Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

Article 2(4). Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Article 2(5). Members shall give the United Nations every assistance in any action it takes in accordance with the Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

Article 2(6). The Organization shall ensure that states which are not Members act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

Article 2(7), domestic jurisdiction. Nothing in the Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state, or require Members to submit such matters to settlement under the Charter, but this principle shall not prejudice the application of enforcement measures under Chapter VII.

Article 2(4) is the central prohibition of modern international law and is worked in [The Use of Force and Collective Security]. Article 2(6) is remarkable, because it purports to affect non-Members, which sits uneasily with article 34 of the Vienna Convention and is usually explained by saying that the rules concerned bind non-Members as custom, or that the Organization acts on them rather than binding them.

Article 2(7) is the article most often misquoted. It restrains the Organization, not States. Its reserved domain is what is essentially within domestic jurisdiction, which is a relative concept that shrinks as international regulation grows, so a matter once domestic may cease to be so. And Chapter VII enforcement is expressly outside it.

Membership: articles 3 to 6

Article 3, original Members. The states which, having participated in the San Francisco Conference or having previously signed the Declaration by United Nations of 1 January 1942, sign the Charter and ratify it in accordance with article 110. India was an original Member, having signed the Declaration and participated at San Francisco while still under British rule, which is why its membership predates independence.

Article 4, admission. Membership is open to all other peace-loving states which accept the obligations contained in the Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. Admission is effected by a decision of the General Assembly upon the recommendation of the Security Council.

The two-step structure matters. The Council recommends; the Assembly decides. Without a recommendation the Assembly cannot admit, and because the recommendation is a substantive decision, a permanent member's veto blocks admission. That is why membership stalled for years during the Cold War.

Article 5, suspension. A Member against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council, and the Security Council alone may restore them.

Article 6, expulsion. A Member which has persistently violated the Principles contained in the Charter may be expelled by the General Assembly upon the recommendation of the Security Council. No State has ever been expelled.

The organs: articles 7 and 8

Article 7(1). There are established as principal organs: a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice and a Secretariat.

Article 7(2). Such subsidiary organs as may be found necessary may be established in accordance with the Charter. That paragraph is the source of a great deal of the modern Organization, since the funds and programmes dealt with in [UNICEF] and [UNDP and UNEP] are subsidiary organs created under it, and the human rights machinery grew the same way.

Article 8. The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.

MU's syllabus takes the organs in the order A to G, and the next eight chapters follow it.

The legal personality of the Organization

The Charter does not say the Organization is an international person. Article 104 provides that the Organization shall enjoy in the territory of each Member such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes, which is capacity in municipal law. Article 105 gives it such privileges and immunities as are necessary for those purposes, and gives representatives of Members and officials of the Organization such privileges and immunities as are necessary for the independent exercise of their functions.

International personality had to be established by interpretation, and it was, in Reparation for Injuries Suffered in the Service of the United Nations.

The question. The General Assembly, by a resolution of 3 December 1948, asked the Court whether the United Nations had capacity to bring an international claim against a responsible de jure or de facto government for damage caused to the Organization and to the victim, where an agent suffered injury in the performance of his duties in circumstances involving a State's responsibility, and how such an action was to be reconciled with the rights of the victim's national State.

Held, unanimously on the first question and by eleven votes to four on the second, that the Organization has the capacity to bring an international claim, whether or not the responsible State is a Member.

The reasoning. The Charter is not explicit, so the Court asked what characteristics the Charter was intended to give the Organization. It conferred rights and obligations different from those of its Members and entrusted it with the maintenance of international peace and security. The Organization therefore has a large measure of international personality and the capacity to operate on the international plane, though it is certainly not a super-State. Its agents may be sent on important missions to disturbed parts of the world and must be assured of effective protection, and the powers necessary to that end must be regarded as a necessary implication arising from the Charter. The Organization accordingly has capacity to exercise functional protection of its agents, resting not on nationality, of which there is none between the Organization and its agents, but on the breach of an obligation owed to the Organization itself. On the third question, by ten votes to five, competition between functional and diplomatic protection is to be reconciled case by case and by agreement.

Why the words "not a super-State" matter. They mark the limit of the doctrine. The Organization has the powers its functions require, and no general competence.

Primacy of the Charter: article 103

In the event of a conflict between the obligations of the Members under the Charter and their obligations under any other international agreement, their obligations under the Charter shall prevail.

Article 30(1) of the Vienna Convention is expressly subject to it. Note what article 103 does and does not do. It gives priority; it does not invalidate the other agreement. And it covers obligations under the Charter, which is generally taken to include obligations arising from binding decisions of the Security Council under article 25, since those obligations are assumed under the Charter.

Amending the Charter: articles 108 and 109

Article 108. Amendments come into force for all Members when adopted by a vote of two thirds of the members of the General Assembly and ratified by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.

So the permanent members hold a veto over amendment, which is the practical answer to every examination question about reforming the Security Council. Article 109 provides for a General Conference to review the Charter, subject to the same requirement of ratification by all permanent members for any alteration to take effect.

The final articles: 106, 110 and 111

Article 106, the transitional security arrangement. Pending the coming into force of such special agreements under article 43 as in the opinion of the Security Council enable it to begin exercising its responsibilities under article 42, the parties to the Four-Nation Declaration signed at Moscow on 30 October 1943, and France, shall consult with one another and as occasion requires with other Members with a view to such joint action on behalf of the Organization as may be necessary for maintaining international peace and security.

Article 106 is a live provision that has never operated, because the article 43 agreements were never concluded, as [The Use of Force and Collective Security] explains. Its interest is what it shows about the design: the five Powers were to act jointly on behalf of the Organization until the Organization had forces of its own, and neither half of that arrangement came about.

Article 110 required the Charter to be ratified by the signatory states in accordance with their respective constitutional processes, ratifications being deposited with the Government of the United States of America, which notifies the signatory states of each deposit and the Secretary-General once appointed.

Article 111. The Charter, of which the Chinese, French, Russian, English, and Spanish texts are equally authentic, remains deposited in the archives of the Government of the United States of America, duly certified copies being transmitted to the other signatory states. It was done at the city of San Francisco the twenty-sixth day of June, one thousand nine hundred and forty-five.

Two things follow from article 111. The depositary of the Charter is a State, not the Organization, which is the ordinary arrangement for an instrument that creates the Organization it is deposited with. And because five texts are equally authentic, article 33 of the Vienna Convention governs any divergence between them, which is the point made in [Interpretation of Treaties].

A worked example

State AA applies for membership. The Security Council votes 10 in favour, with one permanent member against. State BB, already a Member, is subjected to Chapter VII enforcement measures. State CC, not a Member at all, is told by the Organization to observe a ceasefire. State BB argues that its treatment of its own nationals is domestic and that article 2(7) bars the Organization from acting.

State AA's application. Article 4(2) requires a decision of the General Assembly upon the recommendation of the Security Council. A negative vote by a permanent member on a substantive question prevents a recommendation, so the Assembly cannot admit State AA however large its majority.

Suspending State BB. Article 5 permits it, since preventive or enforcement action has been taken by the Council, but only by the General Assembly upon the recommendation of the Security Council, and only the Council may restore the rights.

Instructing State CC. Article 2(6) says the Organization shall ensure that non-Member states act in accordance with the Principles so far as necessary for the maintenance of international peace and security. Whether that binds State CC as a treaty is doubtful under article 34 of the Vienna Convention, and the better answer is that the substance, the prohibition of force and the duty of peaceful settlement, binds State CC as custom.

State BB's article 2(7) argument. Article 2(7) restrains the Organization from intervening in matters essentially within domestic jurisdiction, and it expressly does not prejudice the application of enforcement measures under Chapter VII. Since the Council is acting under Chapter VII, the argument fails on the face of the article. It would also face the objection that matters governed by international obligations the State has accepted are no longer essentially domestic.

Change one fact: State BB relies on a bilateral treaty that forbids exactly what the Council has ordered. Article 103 gives its Charter obligations priority, and the bilateral treaty remains valid but yields.

Distinctions table

What it does NOT mean

The United Nations is not a world government. Reparation says it is certainly not a super-State; its powers are those its functions require.

Article 2(7) does not restrain States. It restrains the Organization, and it yields to Chapter VII enforcement.

Article 2(4) is not confined to war. It forbids the threat or use of force against territorial integrity or political independence or in any other manner inconsistent with the Purposes.

The Assembly cannot admit a State on its own. Article 4(2) requires a Council recommendation.

Article 103 does not invalidate the conflicting treaty. It makes the Charter obligation prevail.

Membership is not open to everybody. Article 4(1) sets conditions, however loosely they have been applied in practice.

Limits and criticism

Article 4's conditions have never seriously restrained admission. Peace-loving, able and willing are political judgments made by political organs, and the real gate has always been the Council's composition rather than the applicant's qualities.

Article 2(6) cannot be squared with the law of treaties, and the honest explanation is that its content binds non-Members as custom rather than that the Charter binds them.

Article 2(7) has been eroded by the growth of international regulation and by an expansive reading of what threatens international peace and security, so the reserved domain is now whatever the Council does not choose to treat as its business.

Articles 108 and 109 make the Charter close to unamendable in any respect a permanent member opposes, which is why every proposal to reform the Security Council founders before it begins.

Quick revision

Charter signed 26 June 1945, in force 24 October 1945. Preamble: WE THE PEOPLES, to save succeeding generations from the scourge of war.

Article 1, Purposes: maintain international peace and security; develop friendly relations based on equal rights and self-determination of peoples; achieve international cooperation and promote human rights and fundamental freedoms without distinction as to race, sex, language or religion; be a centre for harmonizing actions.

Article 2, Principles: sovereign equality; good faith; peaceful settlement; no threat or use of force against territorial integrity or political independence; assistance to the Organization and none to a target of enforcement; non-Members to act accordingly so far as necessary for peace; no intervention in essentially domestic matters, except Chapter VII enforcement.

Membership: article 3 original Members, India among them; article 4 admission of peace-loving states, Assembly decides on Council recommendation; article 5 suspension, restored by the Council; article 6 expulsion, never used.

Article 7: six principal organs, General Assembly, Security Council, Economic and Social Council, Trusteeship Council, International Court of Justice, Secretariat, plus subsidiary organs.

Personality: article 104 municipal legal capacity, article 105 privileges and immunities; Reparation for Injuries gives a large measure of international personality, not a super-State, with implied powers and functional protection.

Article 103: Charter obligations prevail. Article 108: amendment needs two thirds of the Assembly and ratification by two thirds of Members including all permanent members.

Test yourself

1. State the Purposes of the United Nations.

Article 1 states four. To maintain international peace and security, and to that end to take effective collective measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. And to be a centre for harmonizing the actions of nations in the attainment of these common ends.

2. Explain article 2(7) and its limits.

Article 2(7) provides that nothing in the Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state, or require Members to submit such matters to settlement under the Charter, but that this principle shall not prejudice the application of enforcement measures under Chapter VII. Three limits follow. It restrains the Organization and not States. It protects only what is essentially domestic, which is a relative test that narrows as a matter becomes the subject of international obligation. And it is expressly subject to Chapter VII, so once the Security Council determines that a situation threatens international peace and security, enforcement measures are outside the reservation altogether.

3. How is a State admitted to membership, and why has admission been contentious?

Article 4(1) opens membership to all peace-loving states which accept the obligations of the Charter and, in the judgment of the Organization, are able and willing to carry them out. Article 4(2) provides that admission is effected by a decision of the General Assembly upon the recommendation of the Security Council. The two steps are cumulative, so the Assembly cannot admit without a recommendation, and because a recommendation is a substantive decision it is subject to the veto of a permanent member. Admission has therefore turned on the politics of the Council rather than on the applicant's qualities, which is why applications were blocked for years during the Cold War.

4. Does the United Nations have international legal personality? How was it established?

Yes, by interpretation rather than by express provision. Article 104 gives only such legal capacity in the territory of each Member as is necessary for the exercise of its functions, which is municipal capacity. In Reparation for Injuries Suffered in the Service of the United Nations the Court held that the Charter conferred on the Organization rights and obligations different from those of its Members and entrusted it with the maintenance of international peace and security, so that it has a large measure of international personality and the capacity to operate on the international plane, though it is certainly not a super-State. It accordingly had capacity to bring an international claim, whether or not the responsible State was a Member, and to exercise functional protection of its agents, resting not on nationality but on the breach of an obligation owed to the Organization itself.

5. What does article 103 achieve?

It provides that in the event of a conflict between the obligations of Members under the Charter and their obligations under any other international agreement, their obligations under the Charter shall prevail. It creates priority rather than invalidity, so the conflicting agreement remains a valid treaty and simply yields to the extent of the conflict. Article 30(1) of the Vienna Convention on the Law of Treaties is expressly made subject to it. The provision is generally understood to extend to obligations arising from binding decisions of the Security Council under article 25, on the footing that those obligations are assumed under the Charter, and that reading is what gives Council decisions their practical force against competing treaty commitments.

6. Why is the Security Council so difficult to reform?

Because reform requires amendment of the Charter, and article 108 provides that amendments come into force when adopted by a vote of two thirds of the members of the General Assembly and ratified, in accordance with their respective constitutional processes, by two thirds of the Members of the United Nations including all the permanent members of the Security Council. Any one permanent member can therefore block an amendment that reduces its own position, and article 109, which provides for a General Conference to review the Charter, imposes the same requirement for alterations to take effect. The veto thus protects itself.