Reviewed by Spencer Zifcak, Professor of Law and Director of the Institute of Legal Studies, the Australian Catholic University. Email: Spencer.Zifcak [at] acu.edu.au.
There have been a number of new books published recently that seek to cover the terrain of United Nations law. Each makes a distinctive and valuable contribution. The third edition of Bennedeto Conforti’s book, THE LAW AND PRACTICE OF THE UNITED NATIONS, provides a most accessible, interesting and lucid introduction to this sometimes complex domain. Professors Thomas Franck, Simon Chesterman and David Malone have compiled the first major book of texts and materials – LAW AND PRACTICE OF THE UNITED NATIONS: DOCUMENTS AND COMMENTARY. The absence of such a book has been keenly felt. It is a readable, educative and enlightening addition to the field, based on the course that the authors have taught at New York University for many years. Then there is the magnum opus, THE CHARTER OF THE UNITED NATIONS: A COMMENTARY, compiled and edited by Professor Bruno Simma. A new third edition of this two volume work is due out soon. It provides the most comprehensive overview of the relevant law that one could imagine. Consequently, it has been the standard text with respect to UN law for the past two decades, providing an encyclopaedic survey of the field. But it runs to several thousand pages and costs almost US$700. So it will be beyond the reach of most, except in university libraries.
Professor Robert Kolb has now added to these his new text on the Law of the United Nations. As is made clear in the title, this is meant to be an introduction to the field and it serves this purpose well. It is relatively brief (at 176 pages) but is accompanied by appendixes containing the full text of the Covenant of the League of Nations and the United Nations Charter. These are most helpful when one is considering the sometimes somewhat arcane law that has developed from them, politically and judicially. Professor Kolb describes his perspective, in a personal vein, in the following terms:
“The perspective chosen is thus a sweeping view from the mountain peak: a sort of bird’s eye view of the valley below like the views one can see from the Swiss Jura mountains of Lake Geneva, where I go hiking in summer. It is not the perspective of a fully-fledged treatise or reference book” (p.v).
Appropriately, Professor Kolb begins by situating present UN law in its proper historical context. The book opens with a detailed chapter on the Covenant and operation of the UN’s precursor organization, the League of Nations. This Chapter sketches the background to the establishment of the League and describes the key provisions of its Covenant. It then elucidates the key similarities and differences between the League of Nations and the United Nations. It concludes with a concise analysis of the reasons for the [*168] League’s decline and fall. The underlying purpose of the discussion is to provide an effective foundation for an historical understanding of the United Nations Charter’s development and provisions. In succeeding brief chapters, the author traces the political processes leading to the UN’s formation, historical phases in its development, its founding principles and the author’s view as to its ideological underpinnings.
The discussion of the law begins in Chapter 7 with a lengthy consideration of the fundamental principles of the UN Charter as set down in Article 2. Article 2 is sweeping in scope and, in its seven paragraphs, it lays down the primary values and commitments to which the UN’s member states must adhere:
- To uphold the sovereign equality of states
- To act in good faith in fulfilling their obligations under the Charter
- To settle international disputes by peaceful means so that international peace, security and justice may be preserved
- To refrain from the threat or use of force against one another
- To give the UN every assistance in any action it take under the Charter
- To ensure that nations that are not UN members shall act in accordance with the objective of maintaining international peace and security; and
- To prohibit the UN from intervening in matters that are within the domestic jurisdiction of states, except where it is applying the enforcement measure provided for in the Charter’s Chapter VII
The fundamental principles set down here provide the organizing force for the book’s consideration of the law concerning the UN’s powers and functions. Only after this elaboration of powers is the law with respect to the UN’s membership and organization described and analysed.
By proceeding in this way, Professor Kolb differentiates the structure of his book from those of most others in the field. Generally speaking legal texts, including those on the UN, proceed by considering the articles of the constitutional document sequentially. One moves from Article 1 to Article 111 in turn. This book does not.
Instead, it introduces each paragraph of Article 2 and then collapses into the consideration of each one the Chapters, Articles, treaties, resolutions and judicial decisions that are referable to it. So, for example, the book introduces Article 2(4), with respect to the prohibition on the threat or use of force, and then in that context examines the operation of the Charter’s Chapter VII enforcement powers; the right of nations to engage in self-defence in Article 51; the elaboration of the Article in the Declaration on the Principles of International Law concerning Friendly Relations and Cooperation among States; and the considerable powers of the Security Council.
There is some merit in this method of organization. In the abstract at least, it is a good idea to proceed from a fundamental principle to a comprehensive consideration of the Charter provisions that give it effect. But in practice I don’t think it works so well. Perhaps I am just too traditional a [*169] lawyer. If I want to explore the legal operation of a provision of the UN Charter, say Article 51 that deals with the inherent right of a state to act in self-defence when subject to armed attack, I prefer to go directly to the text’s consideration of that Article. Then I might consider it in the context of those by which it is surrounded. And then I might refer to relevant political debates and judicial decisions.
But such a systematic and sequential consideration is made more difficult here because the whole discussion of the use of force is framed, moulded and contained within a primary consideration of Article 2(4). So finding what I want becomes more difficult. And I am at least initially deprived of the intellectual and textual connections that I find most helpful. I accept, however, that not everyone will think in this way and other readers of this review may readily prefer the structure that Professor Kolb has chosen.
Generally speaking, the legal analysis in the book is highly competent and technically very proficient. There are no self-evident errors, although I may beg to differ with some of the author’s legal conclusions. Having said that, this is an introductory text and if it provokes lively academic debate so much the better.
The section on the UN’s membership and key institutions is similarly proficient. However, I did find that some of the key institutions were considered only in a most abbreviated way. So, for example, while the General Assembly and the Security Council merited 10 pages each, the Economic and Social Council received 2 pages, the UN Secretariat 3 pages, subsidiary organs including the Peacebuilding Commission 3 pages, and the International Court of Justice just 5 pages. These might usefully have been expanded, even in an introductory text, given that such a cursory consideration does not illuminate the legal operation of the relevant institutions very much at all.
I thought it a pity too that the book did not give more attention to the whole issue of the UN’s commitment to and operation with respect to economic and social development. This is an enormously important facet of the UN’s work but hardly receives any attention here. Of course, the law is more developed in other arenas but there is, it seems to me, more than enough material and work to found a more detailed consideration of, for example, the legal structure and administrative operation of hugely important UN divisions such as the United Nations Development Program. The same might be said of the consideration of the legal standing of UN Peacekeeping.
There are a few more suggestions that might be helpful should a second edition of the book be considered. In my view, the book loses some of its impact because it concentrates so heavily in the first instance upon a detailed analysis of the text of the Charter. So, the literal, linguistic discussion is good. However, it could be much better and more illuminating if that discussion were complemented by practical examples of the way in which Charter provisions have been applied, both politically and judicially, and of how political disagreements between nations have led to widely different legal interpretations of some of the Charter’s most important terms. The use of such examples, [*170] however, is all too rare and reference to relevant judicial decisions is sparse.
Other sections need some filling out. To take perhaps the most unfortunate example, a concluding Chapter on the UN’s effectiveness consists only of one paragraph by the author followed immediately by a lengthy quotation from the work of two others. That is all. One could do better.
I noticed too that far too many references to relevant writing were to books and articles that were written a decade or more ago. I don’t think that this necessarily prejudiced the quality of the legal analysis but it does deprive the reader of useful referrals to much more contemporary work. The editing here could also have been better with some footnotes referring to others but incorrectly so; several grammatical errors; and frequently unclear expression – owing perhaps to the translation from the Swiss.
In conclusion, if I were setting this book for an introductory course in the Law of the United Nations I would be inclined to do so in conjunction with the excellent Casebook by Franck, Chesterman and Malone that I mentioned above. The Casebook would provide the practical, political and judicial materials and examples that would bring this book’s more technical approach to life.
© Copyright 2011 by the author, Spencer Zifcak.