Responsibility of States and International Organizations

Quite paradoxically given the importance of the topic in the system of international law, issues pertaining to responsibility of states and international organizations are not dealt with in treaties of universal character or “United Nations” treaties. So far, the General Assembly has merely taken note of the Articles on State Responsibility and the Articles on the Responsibility of International Organizations—respectively adopted by the International Law Commission (ILC) in 2001 and 2011—and refrained from taking any decision as to the final status of these texts. Three options are available: keeping the formal status quo, adopting the Articles as a General Assembly declaration, or using the text as a basis for a United Nations Convention on Responsibility. While the latter option would bring the Articles on state responsibility outside the realm of soft law, it could also have a “decodifying effect,” insofar that it could threaten the balance carefully designed by the ILC. Even though the 2001 Articles will most likely retain their current status, drafting a treaty on state responsibility could however prove useful.

International Criminal Law

By virtue of its longevity, territorial scope, mandate, and resources, the UN has been pivotal in the development of international criminal justice. While its contribution has been mostly institutional, in terms of genesis, establishment, and functioning of international and hybrid criminal courts, the UN has also shaped their procedural and substantive law. Starting with the first to be established—the ad hoc tribunals—the UN Security Council, acting under Chapter VII, adopted the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) statutes and fully managed them. To a lesser extent, the same could be said of Timor Leste’s Special Panel for Serious Crimes. Regarding the creation of hybrid criminal courts, that is, the Extraordinary Chambers in the Courts of Cambodia (ECCC), Special Court for Sierra Leone (SCSL), and Special Tribunal for Lebanon (STL), the UN served as a bilateral treaty-making forum for the negotiation and conclusion of UN-member states’ agreements. Through the ICTY completion strategy and rule 11bis, the UN also internationalized domestic courts (War Crimes Chambers) to enhance national judicial capacity building to prosecute international crimes. Finally, the UN served as the ultimate multilateral treaty-making body in the ICC’s half-century-long creation; starting with the Genocide Convention, and continuing with the ILC and subsequent negotiations leading to the adoption of the ICC Statute, which created a complex institutional and jurisdictional relationship with the UN. Institutionally, this has included cooperation and judicial assistance, dispute settlement functions, UN treaty functions, and adherence to the UN common system. Jurisdictionally, this has involved Chapter VII referrals and deferrals and jurisdiction over a range of crimes close to other UN created tribunals.

United Nations Treaty-Making

Refugees, stateless persons, and those without protection were among the first international problems faced by the League of Nations, almost from the moment of its creation. Building on the practice of the League’s High Commissioner for Refugees, Fridtjof Nansen, in securing agreement on issues such as identity and travel documents for those without or denied the nationality or protection of their country of origin, the United Nations took steps from its opening session onward to ensure protection and facilitate solutions. It established its own organizations and promoted a series of treaties on refugees, stateless persons, and statelessness, which to this day remains the basic international legal framework. States, in turn, have recognized that refugees (and now migration) are an international issue, and that no state should be expected to shoulder alone the responsibilities of admission, protection, and solutions. The Office of the United Nations High Commissioner for Refugees (UNHCR), a subsidiary organ of the General Assembly, is mandated to provide international protection, to assist governments in finding solutions, to promote treaties and agreements, and to supervise their application. UNHCR’s direct engagement with states and its worldwide operational activities contribute significantly to the consolidation of protection principles, such as non-refoulement and asylum, to the expansion of humanitarian relief for the displaced, and to the progressive development of customary international law. Recent displacement crises, protracted refugee situations, greater mobility, and a highly globalized and securitized environment will bring fresh challenges to an international protection regime with nearly one hundred years of law and organization behind it.

Intellectual Property

The international intellectual property (IP) system remains one of the areas of law in which norm-setting through the treaty method is at its most prolific. This chapter discusses the trend of prolific treaty-making in IP, a trend that is at variance with the generally slow pace of treaty-making in other areas of international law. It reviews norm-setting through treaty-making in the IP field and discusses the historical and political forces that have shaped the international IP system today. The IP system nevertheless needs to adopt non-treaty means of norm-setting or international cooperation. Certain platforms and other non-treaty means are in vogue now and will likely increasingly be used in the IP setting. This chapter also describes some of the new and innovative means of non-treaty forms of international cooperation in the IP arena, and ends with the prediction that the multilateral system of cooperation in IP will continue to be enhanced through a combination of treaty and non-treaty forms of collaboration.

Health

The evolution of United Nations treaties in the domain of public health over the last two decades is one of the most significant developments in public international law. Although public health is one of the earliest fields of international legal cooperation and one of the first domains in which an intergovernmental organization was created, the scope of international legal cooperation in public health was, until recently, highly limited. This chapter provides an overview of the contribution of United Nations treaties in the evolving field of international health law. It examines the historical origins and the factors contributing to its contemporary evolution. In addition, the chapter briefly reviews the contribution of UN organizations, especially the World Health Organization, to the codification efforts in this realm.

The ILO’s Standard-Setting

Established 100 years ago as a normative institution to promote social justice, the International Labour Organization (ILO) fulfills its mission principally through the adoption of international labor standards. To date, those standards have taken the form of 189 international labor Conventions, six Protocols, and 205 international labor Recommendations. ILO standard-setting follows special techniques and practices, mainly because of the Organization’s unique tripartite structure, that have given shape to specificities such as the inadmissibility of reservations, the frequent recourse to built-in flexibility, and the limited possibility for denunciation. The interpretation of international labor Conventions is, pursuant to a specific constitutional provision, entrusted to the International Court of Justice, while the application of international labor standards is monitored by an elaborate supervisory system that combines standing bodies responsible for the regular examination of reports and special adversarial procedures activated by different complaint mechanisms. Today, the abrogation of outdated instruments and the consolidation of up-to-date standards into framework Conventions are among the key challenges for enhancing the relevance and impact of standards. Standard-setting has distinctively marked the Organization’s 100-year-long history and has in many respects broken new ground in the field of international treaty law.

Creating from Chaos

In practice, negotiations leading to a United Nations treaty are often untidy and anarchic. The ambition to adopt a strong treaty covering the whole UN membership is habitually at odds with the overriding significance of national sovereignty. Unwilling countries, knowing that proponents aspire consensus, can block progress where they deem fit. And that same sovereignty principle plays out in the limited options a chairperson of a conference has for firm process management. The disarray has other origins as well. At treaty conferences, delegates need to develop pockets of informality in which they can build the trust needed for recognition of their most pressing priorities. The abundance of informal exchanges outside the meeting room adds to making process management a challenge. Also, a lack of national resources, and patronage in recruitment, often negatively impact on consistent, knowledgeable engagement by delegations. Last, unavoidable time restrictions prevent the process from playing out in a well-planned, methodical way. Bringing order to this process is only limitedly possible. Multilateral treaty-making seems inherently messy and deeply improvisational. Such a setting tends to reward those countries that can field skilled, creative, resourceful diplomats who can be trusted to make the most from only generic instructions.

The Choice of a Treaty

From a lawmaking perspective “soft law” is simply a convenient description for a variety of non-binding normatively worded instruments used in contemporary international relations by states and international organizations. Examples include UN conference declarations, appropriately worded resolutions and declarations adopted by the UN General Assembly or one of its subsidiary organs or specialized agencies, or codes of conduct, guidelines, and principles adopted by any of these UN organs. The main advantage of adopting rules and principles in soft-law form is that the process is simpler, faster, and potentially more inclusive than a multilateral treaty. The UN has pioneered the use of soft law, most obviously through the adoption of General Assembly resolutions that, inter alia, interpret and amplify the UN Charter, codify and progressively develop international law, provide evidence of opinio juris on new norms and general principles, or legitimize state practice. The functions of soft law in the international legal system—and in UN practice—are diverse, but it would be wrong to see the choice of instrument—treaty or soft law—in either/or terms. Non-binding soft law sometimes presents alternatives to lawmaking by treaty; at other times it complements and amplifies treaties while also providing different ways of understanding the legal effect of different kinds of treaties. But it is inconceivable that modern treaty regimes or international organizations such as the UN could function successfully without resort to soft law.

Treaty-Making at the United Nations

Beginning in the mid-1970s, the UN General Assembly conducted a review of the multilateral treaty-making process. A 1980 Report of the Secretary-General on this review concluded that there was “extensive diversity” among the various procedures that had been utilized in treaty-making processes, including whether such processes made use of established entities or were ad hoc in nature, the extent to which this involved expert or representative bodies, and the extent of the involvement of the General Assembly. The only generalization that was seen to be possible was that such processes almost always involved a multistage process. This chapter assesses the conclusions of the Secretary-General’s 1980 Report in light of the practice of the intervening years, focusing, in particular, on the role of the Secretariat in the treaty-making process, and adopting for the purposes of its analysis the five stages in the multilateral treaty-making process as identified in the Secretary-General’s 1980 Report: initiation of treaty-making, formulation of multilateral treaties, adoption of multilateral treaties, post-adoption concerns, and supplementing and updating treaties. This chapter also briefly discusses other treaty-making activities of the Secretariat.

The Role of the Secretary-General of the United Nations as Depositary of Multilateral Treaties

While the responsibilities of the depositary of a multilateral treaty are indispensable to the treaty functioning, the role of the depositary is commonly unknown. The chapter discusses the role and key features of the practice of the UN Secretary-General, as depositary of multilateral treaties, in the aspects that correspond to the general depositary functions as codified in the Vienna Convention on the Law of Treaties. Beginning at the turn of the century, the UN Secretary-General—by far the largest depositary in the world—began to engage in initiatives that have modernized and expanded the traditional depositary role. The UN Secretary-General has increasingly been involved in treaty-making during treaty negotiations, and in promoting participation in and dissemination of UN treaties, including through treaty events. The chapter also discusses key features of the depositary role in those aspects that are more innovative and peculiar to the UN Secretary-General.