United Nations and the Law 101: The Process of Lawmaking

Foreword

The United Nations remains one of the most well-known pillars of international relations, dominating many conceptions of what exactly the international system consists of. Despite this, the exact concepts present within the United Nations legal framework can often appear nebulous and daunting, consisting of a plethora of interworking parts and countless moving actors. As a result, this 101 series therefore aims to simplify the concept of the United Nations and its connection to international law. It first begins with a chronological history of how international law, specifically within the context of the United Nations, was formed and eventually adopted by states in the system. The series also includes a brief explanation of the main lawmaking bodies of the United Nations, along with methods of how to interpret and put the law into practice. By analyzing enforcement mechanisms for states in the system, the 101 series ends with a case review of the most well-known cases within the United Nations canon and a hypothetical look into the future as to the relevancy of UN law. It is the aim of this series to provide the reader with a foundation from which many dimensions of international law can be better understood, along with a critical lens to analyze many facets of the international system within this context of the United Nations' deep connection to the law. United Nations and the Law 101 is therefore divided into six chapters:

1. United Nations and the Law 101: A Chronological History

2. United Nations and the Law 101: The Process of Law-making

3. United Nations and the Law 101: Interpreting The Law

4. United Nations and the Law 101: Enforcement Mechanisms

5. United Nations and the Law 101: Case Review

6. United Nations and the Law 101: Future Implications


United Nations and the Law 101: The Process of Law-making

The United Nations, at its core, was not intended to be a legislative body. Rather, the original intent behind many of its charters and specialized agencies was to provide “recommendations” to its member states. However, as the United Nations proceeded to evolve and cement itself into the international arena with the decades that passed, it became evident that UN political bodies “could act like legislatures by adopting law making treaties and declarations of law”, now with the power to enact binding laws (Schachter, 1994, p. 1). This chapter of the United Nations and the Law 101 series therefore aims to explain the methods in which certain bodies of the UN serve as legislative bodies and the tasks these agencies subsequently perform to classify them under such a designation.



The Kyoto Protocol on Climate Change is one of the most well-known multilateral treaties.

Multilateral Treaties

The most obvious method in which the United Nations enact laws is through multilateral treaties, or treaties that involve multiple states whom come to a consensus over a particular topic (Cornell Law School, n.d.). First “initiated, negotiated, and adopted by UN organs or by international conferences under the aegis of a UN body”, multilateral treaties are among the most common lawmaking processes available to the UN; ranging in number to the hundreds, the topics covered vary drastically (Schachter, 1994, 2). Ranging from human rights to interstate trade and environmental concerns, the treaties cover nearly any facet of international law. A recent example of a multilateral treaty is the Kyoto Protocol, a treaty dedicated to reducing greenhouse gas emissions in accordance with set standards, binding high-income states to a higher standard to reach their emission targets (United Nations Climate Change, n.d.).


It must be noted that all treaties are the result of a political process deeply imbedded within the UN system, as states conflict with one another over balances of power and diverging international policy interests. As a result, many subsidiary organs and major bodies play a role within this process, such as the General Assembly, the Economic and Social Council (ECOSOC), and various other subsidiary organs devoted to a specific topic within international law (Sohn et al., 1986). These various organs mark a profound “democratization” within the UN system, as hypothetically “the rule is that all member states have a right to participate in the negotiation and adoption process” with a simple or two-thirds majority vote as to the treaty in question (Schachter, 1994, 2). Recognizing the simple dilemma that many states do not have an equal weight in the negotiation process, as they often do not have the population or power equal to that of the “big players” within the international system, many institutions within the system have adopted weighted voting to give these smaller states a larger voice.


Ambassadors to the United Nations voting on a Security Council resolution.

Furthermore, the General Assembly and the Security Council are often regarded as a “concentrated forum” in which states can convene to debate a variety of issues and begin the negotiation processes behind multilateral treaties (Higgins, 1970, 38). Due to the UN’s broad membership and near ubiquitous presence within the international system, many smaller states view participation within the UN as one of their most predominant sources of international negotiation (de Serpa Soares, 2016). As a result, these two organizations provide what is known as a formal source of law in the international system, or the “evidences of a recognized source of law in the form of state practice showing the existence of a custom” (Higgins, 1970, 38). Furthermore, they form material source of law: being bound to these institutions, member states have certain tasks to perform when adopting a new multilateral treaty, such as adopting the specific terms of that treaty to the specific context of their own state. As such, the General Assembly and the Security Council engage in both enacting multilateral treaties and interpreting them within the jurisdiction of their own respective states (opinio juris).


The General Assembly


Though the previous section provided a brief explanation of the General Assembly, this portion of the 101 article aims to go in depth regarding its composition and actions taken to enact multilateral treaties and other sources of recommendations. Delving deep within the UN Charter, Article 13(1)(a) “calls on the General Assembly to initiate studies and make recommendations for the purpose of ‘encouraging the progressive development of international law and its development’” (de Serpa Soares, 2016, 103). Composed of member states whom assent to being part of the UN, the General Assembly is where specific instruments of law are further considered by member states before their adoption. Furthermore, the Assembly has the power to provide policy guidance to lawmaking bodies such as the International Law Commission (a commission established by the General Assembly whose main purpose is to help to establish and codify international law) (International Law Commission, n.d.). On a more procedural note, the Assembly also can enact procedural bodies and subsidiary organs with the express purpose of investigating a specific issue (de Serpa Soares, 2016).

The Security Council is authorized to deploy the UN's military personnel, the Blue Helmets, to maintain the peace and enforce international law to noncompliant states.




The Security Council


Though the General Assembly has a much wider breadth of scope in the issues it can study, the Security Council is much more persuasive due to its legally binding nature. Article 39 of the UN Charter sets out the Security Council’s duties: “to first determine the existence of a threat to the peace, or an act of aggression, and then ‘make recommendations, or decide what measures shall be taken… to maintain or restore international peace and security” (de Serpa Soares, 2016, 105). Mandates enacted by the Security Council go beyond the domestic jurisdiction of states, implementing enforcement mechanisms to be followed by all states. Additionally, the Council acts as an enforcement body: sanctioning states and non-state actors whom violate international law and enacting binding decisions. Finally, the Council is authorized to enact peacekeeping and peacebuilding operations in high-tension scenarios, often invoking Chapter VII of the UN Charter to legitimize its claims (United Nations, n.d.).


Conclusion


The common perception of the United Nations sees the General Assembly and the Security Council at the forefront of the organization. However, it must be noted that its actual functioning is more akin to numerous subsidiary organizations and specialized organs, working in tandem with the General Assembly and the Security Council, in order to further establish international law. A complex machine is therefore created, each with its own intricate moving part, to negotiate and adopt the policy they are most inclined to. However, despite this complex behemoth of an international organization, these subsidiary bodies do not interpret the multilateral treaties they help to enact. The following article in this 101 series on the UN and the law seeks to elucidate this action in the legal process.

Bibliographical References

Cornell Law School. (n.d.). Multilateral Treaties. Legal Information Institute. Retrieved from: https://www.law.cornell.edu/wex/multilateral_treaties

de Serpa Soares, M. (2016). UN70: Contributions of the United Nations to the Development of International Law. The Fletcher Forum of World Affairs, 40(1), 99–112. http://www.jstor.org/stable/45290062

Higgins, R. (1970). THE UNITED NATIONS AND LAWMAKING: THE POLITICAL ORGANS. The American Journal of International Law, 64(4), 37–48. http://www.jstor.org/stable/25660347 International Law Commission (n.d.). Retrieved from https://legal.un.org/ilc/

Schachter, O. (1994). United Nations Law. The American Journal of International Law, 88(1), 1–23. https://doi.org/10.2307/2204020 Sohn, L. B., Meron, T., Carey, J., Shestack, J. J., & Szasz, P. C. (1986). Reforming United Nations Human Rights Lawmaking. Proceedings of the Annual Meeting (American Society of International Law), 80, 175–190. http://www.jstor.org/stable/25658307 United Nations. (n.d.). Chapter VII: Action with respect to threats to the peace, breaches of the peace, and acts of aggression (articles 39-51). United Nations Charter. Retrieved September 2, 2022, from https://www.un.org/en/about-us/un-charter/chapter-7

United Nations Climate Change. (n.d.). What is the Kyoto Protocol? Unfccc.int. Retrieved from https://unfccc.int/kyoto_protocol


Visual Sources


Author Photo

Dana Kit

Arcadia _ Logo.png

Arcadia

Arcadia, has many categories starting from Literature to Science. If you liked this article and would like to read more, you can subscribe from below or click the bar and discover unique more experiences in our articles in many categories

Let the posts
come to you.

Thanks for submitting!

  • Instagram
  • Twitter
  • LinkedIn