THE PROBLEMS OF MEMBERSHIP AND REPRESENTATION IN THE UNITED NATION

The Charter of the United Nations divides members into two categories-original members and elected members. Art'. 3 clearly states that those states who participated in the UN conference at San Francisco or had previously signed the UN Declaration of January 1, 1942, could, after signing and ratifying the UN Charter, become the original members of the world body. Despite Art. 3, however, there was a controversy regarding the inclusion of some Soviet Republics, India and the Philippines as original members. At the Dumbarton Oaks Conference, the United States and England had called for the inclusion, as ”associate members” of countries which had been invited to the United Nations economic conferences and were assisting the Axis Powers in World War II. In retaliation, the Soviet Union pleaded for the inclusion as original members of all the 16 autonomous Soviet Republics. As a result of vehement US opposition to such a proposal, the Soviet Union conceded to the admission of two Republics as independent members of the UN, viz. Belorussia and the Ukraine

India and the Philippines were the two territorial communities admitted as original members of the United Nations even though they did not meet the traditional legal criteria of statehood. At the time of formulating the Charter, it was suggested that all self-governing states and dominions, accepting the obligations of membership, could become members of the UN.

India and the Philippines were apparently thought to be covered by this provision. Though India did not become a self-governing dominion within the British Commonwealth until August 15, 1947, there was no serious opposition to its inclusion as an original member of the UN, since it was already public knowledge that India '5 right to independence had been conceded by the British. 

The UN Charter lays down the procedure for admission of new members to the organisation. States could be admitted to the UN by a decision reached by a two-thirds majority of the Assembly on the recommendation of the Security Council, where a majority of seven members, including the concurring votes of the permanent members was required. A state which is admitted to the UN acquires automatic membership of the General Assembly, secures periodic representation in other organs and automatically becomes a party to the Statute of the International Court of Justice. Though the membership of the UN is voluntary, it is not automatic on application by any state. There is also a Charter stipulation that new applicants must be ”peace-loving states” which accept the obligations of the Charter and which, in the judgement of the organisation, are able and willing to carry out these obligations. 

Though it could have reasonably been expected that the members of the General Assembly and the Security Council would exercise their judgement with a certain degree of impartiality, the history of the growing membership of the UN shows that this has hardly been the case. In compliance with a request contained in a General Assembly Resolution (113H) of November 17, 1947, the International Court of Justice stated in its advisory opinion of May 28, 1948, that ”while the conditions enumerated in Art. 4 of the Charter were essential they were by no means exhaustive and that members were entitled to take into account such political considerations. as they considered relevant.” The most important of these political considerations taken into account subsequently were the nature of regime in existence of the state in consideration and the degree of external sovereignty (independence) from the influence of other external powers. Moreover, the condition that the new members must be ”peace-loving” has also subsequently proved to be a vague qualification. It may further be stated that the admission of a new member may be prevented not only by the right of ”veto” by any of the permanent members but also by a one-sided and partisan interpretation of what constitutes ”peace-loving". In the early days of the UN, there are many examples of both of these being used to deny admission to new members. 

The applications of both the Mongolian People’s Republic and Albania were turned down by the UN in the early fifties on the plea of some members that the information regarding these states was not sufficient to show whether they were capable of fuliilling the obligations of the Charter. Albania was finally admitted to the UN in 1955 and Mongolia in 1961. 

THE MAIN REQUIREMENTS OF UN

The loyalty required of an international civil servant does not derogate his nationalism, but is a necessary fulfilment of it. The Executive Committee of the Preparatory Commission of the United Nations held the same View: ”Loyalty to the organisation is in no way incompatible with an official’s attachment to his own ‘country, whose higher interest he is serving in serving the United Nations. It clearly involves, however, a broad international outlook and a detachment from national prejudices and narrow national interests.” The ICSAB in its report on standards of conduct in the international civil service took a similar stand. Maheu, former Director-General of UNESCO, speaking to his staff on this subject said: ”It is a grave error to believe that the international service required you to forget, or worse, to repudiate, your respective countries. If we are international, it is not because of the effects of a particular nature, but it is because of our work, our function, our approach to problems in our field. Our work, our function, our point of View are far from being incompatible with what we are by our nationality, and it is our privilege to proclaim here all that is universal in our different cultures and our national histories. Far from being without a country, we belong on the contrary, to all countries."

The second characteristic of the international civil servant is independence. To safeguard this independence, the United Nations Charter provides that ”In the performance of their duties, the Secretary-General and the staff shall not seek or receive instructions from any Government, or from any other country external to the organisation. They will refrain from any action which might reflect on their position as international officials responsible only to the organisation. ” To facilitate the adoption of such an independent attitude, the Charter also expects the respective member states to pledge ”to respect the exclusively international character of the responsibilities of the Secretary~ General and the Staff, and not to seek to influence them in the discharge of their responsibilities.” A further injunction to UN officials is the prohibition on the acceptance of any honour, decoration, favour, gift or remuneration from any government, except for war service, or from any source external to the organisation without first obtaining the approval of the SecretaryGeneral. 

The third important requirement of UN officials is political neutrality. The only concession given in this matter is that they are not deprived of the right to vote in national elections. The United Nations Staff Regulations provide that "staff members may exercise the right to vote but shall not engage in any political activity which is inconsistent with, or might reflect upon, the independence and impartiality required by their status as international civil servants.” The regulations debar the international civil servants from indulging in any political activity, including public pronouncements or open expression of their opinions, on issues of a political nature. The argument put forward for this bar on political activity was that since there were great differences in the political systems of the member states, political activities and propagandising on the part of officials may result in an international organisation being mired in national politics.

    UN officials can perform to the optimum level only if they abstain from bringing issues of national politics. into international bodies. 

A corollary to his special status as an international official is the presence of safeguards to ensure his independent functioning and are generally known as legal immunity. These are: 

1.  Inviolability of his person, domicile, private property and his private correspondence;
2. Immunity from all legal proceedings; 
3.  Immunity from measures of attachment and requisition of residence, goods in the residence and means of transport; 
4.  Repatriation facilities in time of international crises equivalent to those accorded to diplomatic agents. 

Reforms 

In the Iast few years, the UN has enacted major reforms to enhance its efficiency and effectiveness. These have included appointing an Under-Secretary-General for Internal Oversight Services, reducing operating expenses, cutting high-level posts and eliminating some 1,000 positions. The 1998-1999 budget of $2.53 billion reflects a reduction of $76 million, or about 3 per cent, over 1996-1997-the first-ever reduction in absolute terms. 

The pace of reforms accelerated dramatically with the appointment of Mr. Kofi Annan as Secretary-General. Mr. Arman has put in motion the most far-reaching set of reforms ever proposed to the General Assembly. Among the measures enacted or under way: 

• reducing administrative costs, and using the savings for development activities; 
• organising the UN’s work'programme into four core areas peace and security, development, economic and social . affairs and humanitarian affairs -with human rights as a cross-cutting issue; 
• appointing a Deputy Secretary-General to oversee the day-to-day work of the UN and coordinate its reform efforts; '
• establishing a cabinet comprising the UN senior managers to speed up decision-making and enhance coordination; ° 5)establishing a UN Development Group comprising the heads of the UN development programmes and funds, to facilitate joint decision-making on development activities; 
• consolidating into a single department the work of the UN Secretariat in economic and social affairs; 
• combining the programmes on human rights into a Single Office; 
• combining the programmes on fighting crime, drug trafficking, money laundering and terrorism mto a single Office; 
• placing the country operations of the different UN funds and programmes under a single UN office (”UN House”) under a Resident Coordinator, thus establishing common premises for all operations, increasing coordination and reducing costs; 
• undertaking a major reform of personnel aimed at improving management of staff at all levels. 

Differences between National and International Civil Service

 Though national and international administrations may appear to be similar from a specifically functional vieWpoint, the two differ considerably in terms of source, nature and application of authority The government of a country is representative of its citizens (at least nationally) whereas an international organisation is composed of sovereign, independent states which have voluntarily agreed to come together to pursue certain common objectives.

Secondly, national civil servants deal only with the citizens of their respective states, while international civil servants deal with nation states.

Thirdly, in a nation-state the owers of different branches of government are clearly defined 1n a constitu on, the provisions of which are binding on individual citizens. An international organisation, on the on the other hand, depends for the functioning of its laws virtually on the moral binding of member states to respect its policies as stated 1n the Charter. The executive, legislature and the judiciary in an international organisation are not equivalent in their powers to their national counterparts. There is no executive in the strict sense in an international organisation; certain organisations are allocated Specific duties to carry out in Specific situations by superior policy making organisations, like the General Assembly or the 

Security Council. Most jurists agree that the resolutions and recommendations of the General Assembly (which is the rough equivalent of a national legislature) do not generally impose legal obligations upon member states; similarly, the jurisdiction of the International Court of Justice is narrowly limited and its opinions are not binding, while the judiciary at the national level has a far more extensive and effective jurisdiction and its opinions have a binding force. .
      The primary concern of an international civil service is with the putting into effect of the deliberations and recommendations of international organisations with respect to the promotion of the stated purposes of the respective organisations. The national civil service administers national laws undertaking direct administrative responsibility. 

       A national civil servant administers a single political community, while an international civil servant administers international organisations which represent a series of contracts between many diverse states.

       Finally, the service conditions of an international civil service are based on contractual relations, rather than on an obligatory basis, as in the case of a national civil service. The legal relationship between national civil servants and their employer, the state, stands on an entirely different footing, that is, it is subject to the sovereignty of the state as compared to the contracting parties in international employment. The international civil service lacks many features of its national counterpart, such as a ”Central administrative authority, Central recruitment ”control, Verified service conditions, Central appeals machinery,” in spite of the efforts of the ICSAB (International Civil Service Advisory Board) and ICSC (International Civil Service Commission) established to ensure common service conditions for the various UN bodies. 

m

Salient Features of the Organisation of the Secretariat

The Secretariat is headed by the Secretary-General who is the Chief Administrative Officer of the United Nations. In the economic and social fields. he is assisted in carrying out his responsibilities as Chief Administrative Officer by a Director General for Development and International Economic Cooperation. The Secretariat is divided into several major units each of which is headed by an Under-Secretary-General, an Assistant Secretary-General or an official of equivalent level. They direct and manage the functions of the major units under the guidance of the Secretary-General and, wherever called for, of the Director-General. The major units are variously denominated as ”department", “office”, "secretariat" or "centre" (henceforth referred to as departments / office's). The Secretariat in the Political Process: Policy through Administration

Administration is the process of implementing the mandate of policy=malcin; bodies. However, a1 po roles eaVe room for administrative discretion in the application of rules to particular cases. ’

Administration also becomes involved with policy decisions in direct ways Researc studies and reports prepared by secretariat official add to the information base for ; overnment policy: Nearly every international organisation can point to report drafted by expert secretariat personnel that were the basis for subsequent action by policy-making bodies. 

Successful performance of assigned duties by secretariat personnel can lead to requests for more of the same. The first UN peacekeeping force in Palestine had to be built almost from scratch when the Suez crisis arose; but that precedent made a peacekeeping force a logical necessity wherever UN intervened in times of conflicts. On the other hand, ineffective administrative performance may lead to modification or abandonment of programmes. 

SECRETARIAT PARTICIPATION IN DECISION-MAKING

International officials also participate directly in the decisionmaking processes of their governing bodies. Among existing international organisations, the greatest influence is probably exercised by the staff of the World Bank, who not only frame the programme for discussion by its Executive Directors and Governing Board, but generally secure their approval for What the Bank President and his staff recommend. Governments are of course _ closely consulted in the preparation of the recommendations. The UNESCO Secretariat also fixes the agenda and prepares a programme of action for its governing body. Although the UNESCO General Conference is sometimes disposed to modify the programme, the Director-General is undoubtedly the most important decision-maker in the organisation. 

The situation is however quite different in the UN General Assembly, where most agenda items are proposed by member states, or mandated by previous resolutions, and simply compiled by the Secretariat in a preliminary agenda. Although the Secretary-General may suggest additional items, he does not submit a legislative programme, as is done in some other international agencies. However, when legislation involves programmes administered by the Secretariat, the views of the Secretariat may carry weight, especially since the positions of member states are likely to have been solicited in formulating the Secretariat views.

The Secretary-General is also responsible for preparing the bienning UN budget . His estimates are, for the most part, based on 

the amounts required to carry out programmes already authorised by the policy-making bodies, but the final choice of budget figures involves his discretion. 

Whether or not the secretariat of an international agency has a large role in initiating programme proposals, other avenues of participation in the policy process also exist. Executive heads are usually authorised to take part in formal discussions and debates of agenda items. All UN policy-making organs have provision for hearing the Secretary-General. Other UN officials conduct their own lobbying operations with varying degrees of success. Individual civil servants are often consulted by national officials becauseoftheirexpertiseina subjechand theSecretary-Generalis often consulted if members are seriously considering proposals for new functions or responsibilities for the Secretariat. Secretariat officials also provide their services as storehouses of information on such policy-relevant matters as the conduct of meetings and drafting of resolutions. 

The Limitations of the International Court

 The record of the International Court at first sight will perhaps not seem impressive. There is only a limited category of cases that are brought before it. Jurisdiction is entirely voluntary: either a nation accepts it for the particular case concerning it, or it enters into a treaty providing for a settlement of disputes by the Court, or it gives a general undertaking to accept the Court’s jurisdiction for a particular category of cases in relation to other nations which have likewise accepted it. In practice, both the number and importance of cases taken to the Court have diminished rapidly so that now less than one case a year is heard which is often not of major importance. In a number of cases the Court has had to find that it has no jurisdiction. Over one of the most important case (the Corfu Channel) the party found responsible for the dispute refused to comply with the Court’s judgement. In another important case (the South-West Africa case) the Court originally refused to pass judgement in the form in which it had been presented. None of the kind of cases that have most frequently led to the use of force among nations have been taken to the Court at all. On issues where international law can be most uncertain or most contested, and which most often give rise to war the limits of permissible external intervention in civil war situations, political support for revolutionary movements, the right of nationalisation of international waterways or other resources the rulings of the International Court have not been brought into play at all. 

A still more contentious issue concerns the lack of enforcement power available to the Court to secure compliance when it does make judgements. The Security Council can, under Article 94, decide upon measures to be taken to give effect to ”the judgements" of the Court, but it has never done so. This leads to a situation where many doubt the utility of bringing disputes to the Court, wondering (with some reason) whether the other disputants involved will accept its jurisdiction, and comply with its judgements. 

There is no evidence that even if jurisdiction was guaranteed, governments would be any more willing to move to the Court. The failure to use the Court is not so much the result of inadequate prior commitment as it is due to a lack of agreement among states regarding what the Court can achieve, and to a belief that political remedies may be a better way to pursue political causes. 

All this leads some to doubt if the Court has any worthwhile role to play in international relations. It is true that the international Court has not yet provided the means to establish a wholly new world order based on law and justice. But it would have been foolish to expect this. Although the judgements of the Court, and the conventions drawn up by the Commission, have been mainly on relatively non-controversial subjects, this does not mean that they have been of no significance. The slow accumulation of international judgements and law can eventually contribute to the establishment of a more lawful world community in which mutual obligations are recognised. 

But for this to happen certain conditions have to be fulfilled. The first condition concerns the substance of the law applied. At present, a great deal of international law appears to many governments of the world to be a code made in the first world primarily for itself. The peoples and governments of other areas have played little part in building it. It can be represented as ideological legitimacy for the status quo, designed to uphold the existing distribution of power among states.

 Some effort has been made to counteract such attitudes. But ultimately the only way in which confidence in the judgements of the Court and in the drafting of new conventions can be increased is to make efforts to convince those from developing countries that the law applied provides for change as well as stability, reflects a sense of justice felt in the world as a whole, and does not necessarily work against the interests of the have-nots. Like any other law, international law must take account of the changing needs of developing societies if it is to retain the confidence of the world community. Secondly, this means that the Court in its judgements may be required more often explicitly, to take account of considerations of equity, as well as of prescriptive rights. At present the court, under Article 38(2) of its statute, cannot take account of equity as against the established law. If the Court is to play an important role in an evolving world society, it must be concerned with equity as well as legal rights. 

Advisory Opinions 

Besides these 'contentious cases', the Court has also given a number of advisory opinions which have in some cases been of far reaching importance. Some of them related to the UN's own affairs. A particularly important one was that relating to the costs of peacekeeping forces. The Court advised that peacekeeping costs could be reckoned as normal expenses of the organisation for the purpose of Article 19. Though this was overwhelmingly accepted by the Assembly, the UN finally decided not to apply Article 19 as allowed by the advisory opinion. The Court gave an opinion in the early years of the organisation on disputes concerning admission into the UN confirming that no admission could be made without a Security Council recommendation. On a case arising out of the death of Count Bernadette, the UN Mediator in Palestine in 1948, the Court ruled that the UN had the capacity to bring a claim for reparations for the damage caused to the organisation as a whole. The Court also advised during the McCarthy period, when US staff were being dismissed, that the UN was not entitled to refuse to honour awards of compensation made by the UN Administrative Tribunal to staff whose contracts had been prematurely terminated. Finally, it ruled that Liberia and Panama should be accepted by IMCO for the purposes of membership of its Council as being among “the largest ship owning nations”. 

The World Court-Composition and Functions

 The International Court of Justice is the principal judicial organ of the United Nations. Its statute is an integral part of the UN Charter. The Court is open to all states which are parties to its statute, and automatically includes all members of the United Nations. A state which is not a member of the UN may become a party to the statute on conditions determined in each case by the General Assembly upon the recommendations of the Security Council. All countries which are parties to the statute of the Court can be parties to cases before it. Other states can refer cases to it under conditions laid down by the Security Council. In addition, the Security Council may recommend that a legal dispute be referred to the Court. Both the General Assembly and the Security Council can ask the Court for an advisory Opinion on any legal question; other organs of the United Nations and the specialised agencies, when authorised by the General Assembly, can ask for advisory opinions on legal questions within the scope of their activities. 

Jurisdiction

The jurisdiction of the Court covers all questions which states refer to it, and all matters provided for in the United Nations Charter or in treaties or conventions in for'ce. States may bind themselves in advance to accept the jurisdiction of the Court in special cases, either by signing a treaty or convention which provides for referral to the Court or by making a special declaration to that effect. Such declarations accepting compulsory jurisdiction may exclude certain classes of cases. In accordance with Article 38 of its statute, the Court, in deciding disputes submitted to it, applies:

1.  International conventions establishing rules recognised by the contesting States; 2. International custom as evidence of a general practice accepted as law; '
2. The general principles of law recognised by nations; and 
3. Judicial decisions and the teachings of the most qualified publicists of the various nations, as a subsidiary means for determining the rules of law; 

Membership 

The Court consists of 15 Judges elected by the General Assembly and the Security Council, voting imlopendently. 'lhey are chosen on the basis of their qualifications, not on the basis of nationality, and care is taken to ensure that the principal legal systems of the world are mpresonted in the Court. No two Judges can be. nationals of the same state. The Judges serve for a term of nine years and may be reelected. “they cannot engage in any other occupation during their term of office. 

   The Court normally sits in plenary session, but it may also form smaller units called chambers if the parties so request. Judgements given by chambers are considered as rendered by the full Court. 

Judicial Settlement of Disputes 

The primary United Nations organ for the settlement of disputes is the International Court of Justice. Since its founding in 1946, states have submitted 119 cases to it, and international organisations have requested 23 advisory opinions. Most cases have been dealt with by the full Court, but since 1981 four cases have been referred to special chambers at the request parties.

The World Court, as it is popularly known, has made scores of judgements on international disputes involving economic rights, rights of passage, the non-use of force, non-interference in the internal affairs of states, diplomatic relations, hostage-taking, the right of asylum and nationality. Countries bring such disputes before the Court in search of an impartial solution to their differences. By achieving a peaceful settlement on questions such as land frontiers, maritime boundaries and territorial sovereignty, the Court has often helped to prevent the escalation of disputes. 

In 1992, Libya brought two cases ~one against the United Kingdom and one against the United States concerning the interpretation or application of the convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, arising out of the crash, in 1988, of Pan American flight 103 at Lockerbie, Scotland. The cases are still pending before the Court. 

In 1993, Bosnia and Herzegovina brought a case against the Federal Republic of Yugoslavia concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide. The Court called upon the parties to prevent further commission of the crime of genocide and further aggravation of the dispute. In 1996, the Court rejected the objections to its jurisdiction raised by Yugoslavia; the case is still, pending before the Court. 

The Court in 1996 rejected objections by the United States to its jurisdiction in a case concerning the destruction of Iranian oil platforms by United States warships, and found that it had jurisdiction to consider some of Iran’s claims.

THE SECRETARIAT

The Secretariat is one of the six principal  organs of the United Nations, the others being; the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council and the International Court of Justice. It came into being on February  1, 1946, when the first Secretary-General of the UN was appointed by the Assembly. The Secretariat . provides se 'ces to the legislative organs of the UN, namely, the General Assembly, the Security Council, the Economic and Social Council an the Trusteeship Council, including their subsidiary bodies. The legislative organs adopt resolutions  and action programmes for the betterment of many aspects of life, such as peaceful settlement of disputes between states, achievement of independence, right to self-determination and other human rights of all peoples of the world, improvement of socioeconomic conditions in all countries, international cooperation in providing relief to victims of conflict and natural disasters and adoption of regulations for safeguarding of the environment, exploitation of marine resources and promotion of activities in outer space The resolution; and action programmes are the outcome of deliberations of representatives of member states in those organs and subsidiary bodies. The Secretariat provides the services that facilitate those deliberations and carries out that part of the work programme which is assigned to it. The work of the secretariat is carried out by the staff of the UN who are appointed by the Secretary-General. The resources it requires for carrying out the UN programme of work are provided by the member states. The Secretariat is located at the Headquarters of the UN in New York. It has branch offices at Geneva, Vienna and Nairobi. It also includes  the regional commission’s secretariats at Addis Ababa, Baghdad, Bangkok, Geneva and Santiago. Its broad functions in various fields with which the United Nations is concerned, with some variations from field to field, are as follows: 

•  Producing reports and other documents containing information, analyses, historical background, research findings, policy suggestions, etc. ., that facilitate the deliberations and decision-making by the legislative organs and their subsidiary bodies; 
• Providing secretariat services to the legislative organs and their subsidiary bodies (e.g., providing secretaries for committees, councils and commissions; assisting in planning the work of the sessions, in conducting the proceedings and in drafting reports);
• Providing meeting services (interpretation, verbatim reporting and precis-writing services) to the legislative organs, in accordance with the policies adopted by the General Assembly;
•  Providing editorial, translation and documents reproduction services for the issuance of United Nations documents in the different working languages, in accordance with the policies adopted by the General Assembly; 

• Conducting studies and providing information that answer to the priority needs of Governments of member countries, particularly of the developing countries, in meeting challenges in various fields;
• Producing statistical publications, information bulletins and analytical work which the General Assembly has decided should be issued by the United Nations in the field concerned,
• Organising conferences, expert group meetings and seminars on topics of concern to the international community, as authorised by the legislative organs. (h)Providing technical assistance to the developing countries, i.e., providing experts, resources and/ or materials to countries, offering training opportunities to officials of countries by way of fellowships to universities and other institutes and inviting them to seminars organised by the United Nations;

• Undertaking or servicing missions to countries, areas or locations as authorised by the General Assembly or the Security Council.
• Arranging for dissemination to the public, of information on United Nations activities and decisions; 
• Providing the programme planning, financial, personnel, legal, management and general services that are essential for the rational selection of work items and allocating resources among them and for the effective, economic and efficient performance of the services and functions of the Secretariat, within the legal framework of regulations, rules and policies adopted by the General Assembly.