The Law of International Organizations Carolina Academic Press Law Casebook Series Advisory Board ❦

Gary J. Simson, Chairman Cornell Law School Raj K. Bhala The George Washington University Law School John C. Coffee, Jr. Columbia University School of Law Randall Coyne University of Oklahoma Law Center John S. Dzienkowski University of Texas School of Law Paul Finkelman University of Tulsa College of Law Robert M. Jarvis Shepard Broad Law Center Nova Southeastern University Vincent R. Johnson St. Mary’s University School of Law Thomas G. Krattenmaker Director of Research Federal Communications Commission Michael A. Olivas University of Houston Law Center Michael P. Scharf New England School of Law Peter M. Shane Dean, University of Pittsburgh School of Law Emily L. Sherwin University of San Diego School of Law John F. Sutton, Jr. University of Texas School of Law David B. Wexler University of Arizona College of Law The Law of International Organizations

Problems and Materials

Michael P. Scharf

ISBN: 0-89089-946-0 LCCN: 2001094059

Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Facsimile (919) 493-5668 E-mail: [email protected] www.cap-press.com

Printed in the United States of America. For my Parents,

Joan and Harry Scharf

Contents

About the Author xvii Preface xix Acknowledgments and Permissions xxiii

PART I HISTORIC AND LEGAL BACKGROUND

Chapter I Introduction to the Law of International Organization 1 1. Leland Goodrich, Edvard Hambro, and Anne Patricia Simons, Charter of the United Nations: Commentary and Documents (3rd ed., Columbia University Press, 1969), 1-4, 10-16 3 2. Basic Facts About the United Nations 10 3. U.S. Department of State: Background Notes: United Nations (1995) 14 4. The Restatement (Third) of Foreign Relations Law 17 A. Introductory Note 17 B. Section 102: Sources of International Law 20 C. Section 111: International Law as Law of the U.S. 26 D. Section 114: Interpretation of Federal Statute in Light of International Law 34 E. Section 115: Inconsistency Between International Law and Domestic Law 35 5. U.N. Charter, see Annex I 6. Bibliography of Additional Sources 37

PART II MEMBERSHIP AND LEGAL STATUS

Chapter II Credential Challenges 41 1. U.N. Charter, Articles 3, 4, and 5 42 2. The Restatement (Third) of Foreign Relations Law 43 A. Section 201: State Deﬁned 43 B. Section 222: Membership in the U.N. 45 3. Senate Committee on Foreign Relations Report: Credentials Considerations in the United Nations General Assembly: The Process and its Role 48 4. United Nations Security Council: Resolution 919 (1994), The South Africa Reintegration in the International Community 70

vii viii CONTENTS

5. Sean Murphy, Non-State Entities in International Law, 93 The American Journal of International Law 179-181 (1999) 70 6. Bibliography of Additional Sources 72

Chapter III Succession Problems 75 1. U.N. Charter, Articles 3, 4, 5, and 93 77 2. Yehuda Z. Blum, Current Developments, U.N. Membership of the New Yugoslavia: Continuity or Break, 86 American Journal of international Law 830-833 (1992) 78 3. Michael P. Scharf, Musical Chairs: The Dissolution of States and Membership in the United Nations, 28 Cornell International Law Journal (1995) 82 4. Paul R. Williams, State Succession and the International Financial Institutions: Political Criteria v. Protection of Outstanding Financial Obligations, 43 The International and Comparative Law Quarterly 776-808 (1994) 116 5. International Decisions: Yugoslavia v. NATO, 93 American Journal of International law 929-933 (1999) 142 6. United Nations Resolution 1326 (2000) 145 7. Bibliography of Additional Sources 145

Chapter IV Privileges and Immunities —Part One: Inviolability 149 1. The U.N. Headquarters Agreement, especially Sections 1, 8, 11, 12, 15 (4), 21, see annex II 151 2. The U.N. Headquarters AgreementAct of 1947, especially Section 6 153 3. The Convention on the Privileges and Immunities of the United Nations, see annex III 4. Vienna Convention on Diplomatic Relations, see annex IV 5. The International Organizations Immunities Act of 1945, Sections 1, 7, and 8(b) 156 6. Diplomatic and Consular Immunities Chart 159 7. Allen Gerson, The Kirkpatrick Mission, 25-43 (1990) 167 8. Jim Anderson, Politics Wins in PLO Ofﬁce Closure, UPI, March 11, 1988 179 9. World Court Rules Against U.S. in PLO Mission Closure,CHICAGO TRIBUNE, April 27, 1988 180 10. U.S. Court Rules PLO Mission Cannot be Closed, Inter Press Service, June 29, 1988 181 11. U.S. v. PLO, 695 F.Supp. 1456 (S.D. N.Y. 1988) 182 Chapter V Privileges and Immunities —Part Two:Right of Entry 199 1. Washington News Brief, U.P.I., May 22, 1986 200 2. Juliana Pilon, For Yassir Arafat, The U.S. Must Be Off Limits, Heritage Foundation Reports, May 21, 1986 200 3. Don Oberdorfer, U.S. Denies Entry Visa to Arafat, The Washington Post, November 27, 1988 202 4. What the Host Must Not Do, The New York Times, November 29, 1988 204 5. Josh Friedman, U.N. Going to Geneva for Arafat, Newsday, December 3, 1988 205 6. Pay Up or Get Out, The Courier-Journal,March 27, 1992 206 7. Ronald Sullivan, Judge, No Diplomat, Orders Zaire to Pay U.N. Ofﬁce Rent, New York Times,March 26, 1992 206 CONTENTS ix

8. Deborah Pines, Eviction of Mission Prohibited Based on International Law, New York Law Journal,March 8, 1993 207 9. 767 Third Avenue Associates v. Permanent Mission of the Republic of Zaire to the U.N., 988 F.2d 295 (2nd Cir. 1993) 209 10. U.N. Headquarters Agreement, especially Articles 1, 8, 11, 12, 15(4), 21, see annex II; 11. The U.N. Headquarters Agreement Act of 1947, especially Section 6, from Ch. IV 12. The Convention on the Privileges and Immunities of the United Nations, especially Section 11 (g), 16, 22, see annex III 217 13. Vienna Convention on Diplomatic Relations, especially Articles 22 and 25, see annex IV 14. Bibliography of Additional Sources 218

PART III INTERNATIONAL DISPUTE RESOLUTION

Chapter VI Negotiation, Mediation, and Arbitration 221 1. Simulated Arbitration Background Facts, including Annex 2 from Dayton Accord and Articles 4 and 49 from the Geneva Convention Relative to the Protection of Civilian Persons in Time of War 223 2. Michael P. Scharf, History of the Yugoslav Crisis, Balkan Justice, pp. 21-30. 226 3. Dunja Tadic, Brcko —Still no Closer to a Solution, Agence France, November 20, 1996 231 4. Norman Cigar and Paul Williams, Reward Serbs With Town of Brcko? Don’t Do It, The Christian Science Monitor,March 11, 1998 232 5. The Restatement (Third) of Foreign Relations Law 233 A. Section 902: Interstate Claims and Remedies 233 B. Section 904: Interstate Arbitration 238 6. New York Convention on the Recognition and Enforcement of foreign Arbitral Awards 241 7. Bibliography of Additional Sources 245

Chapter VII The Role of Law in Peace Negotiations 249 1. Velasquez Rodrigues Case, Inter-Am. Ct. H.R. (1988) 250 2. The American Convention on Human Rights, Articles 1, 4, 5, and 7. 259 3. Michael Scharf, Swapping Amnesty for Peace: Was There A Duty to Prosecute Human Rights Crimes in Haiti? 31 Texas International Law Journal 1-41 (1996) 261 4. Bibliography of Additional Sources 302

Chapter VIII The International Court of Justice—Part One: Jurisdiction and Admissibility 305 1. Tunku Varadarajan, Sitting on Top of the World, The Times,July 18, 1995 307 2. The Restatement (Third) of Foreign Relations Law Section 903: International Court of Justice 308 x CONTENTS

3. Statute of the International Court of Justice, especially Articles 36, 38, and 59 (see Annex V) 322 4. The Norwegian Loans Case (France v. Norway) (1957) 323 5. Case Concerning Military and Paramilitary Activities, Nicaragua v.United States (1984) (Jurisdiction) 325 6. Articles 2(4) and 51 of the U.N. Charter, from Annex I 333 7. The Restatement (Third) of Foreign Relations Law 334 A. Section 521: Freedom of the High Seas 334 B. Section 522: Enforcement Jurisdiction over Foreign Ships in the High Seas 336 C. Section 211: Nationality of Individuals 340 D. Section 902: Interstate Claims and Remedies (from Ch. VI)

Chapter IX The International Court of Justice—Part Two: U.S. Withdrawal 343 1. Text of U.S. Statement on Withdrawal from the Case B efore the World Court,January 19, 1985 344 2. U.S. Terminates Acceptance of ICJ Compulsory Jurisdiction, Department of State Bulletin,January 1986 346 3. Justinian, U.S. Withdraw Another Blow to World Court, Financial Times, October 15, 1985 354 4. ABA International Law Section, Recommendations Adopted by the House of Delegates in 1994, 29 The International Lawyer 295 (1995) 356 5. Bibliography of Additional Sources 360

PART IV PEACE AND SECURITY

Chapter X The Security Council —Part One: Powers 363 1. List of Security Council Countries for the Simulation 364 2. (Fictional) Report of the Secretary-General Concerning the Simulation in the Essequibo Region, Guyana, for use in the Simulation 365 3. Map of Venezuela/Guyana 368 4. Frederic L. Kirgis, Jr., International Organizations in Their Legal Setting, West Publishing Co., 2d ed. 1993, pp. 191-193 369 5. Michael P. Scharf, History of the Yugoslav Crisis, Balkan Justice, pp. 31–36 370 6. U.N. Charter, Articles 39-41 374 7. Five Nations Join Security Council, The Boston Globe,January 2, 2000 375 8. Model Security Council Actions: 375 A. S.C. Res. 667: Condemnation (Iraq) 375 B. S.C. Res. 757: Economic Sanctions (Serbia) 377 C. S.C. Res. 816: No Fly Zone (Bosnia) 381 D. S.C. Res. 824: Safe Areas (Bosnia) 383 E. S.C. Res. 780: Investigative Commission (Bosnia) 384 F. S.C. Res. 678: Use of Force (Iraq) 385 Chapter XI The Security Council —Part Two: Reform 387 1. Timothy Penny and Mark Mullenbach, UN’s Chosen Few—A Tricky Feat, The Christian Science Monitor, September 24, 1997 388 CONTENTS xi

2. Richard Butler, United Nations: The Security Council Isn’t Performing, International Herald Tribune,August 5, 1999 389 3. Amb. Gerhard Benze, Creating a New UN Security Council, Yale Daily News,March 29, 1999 392 4. U.N. Reforms Could Limit Security Council’s Power of Veto, Agence France Presse,July 8, 1999 394 5. Imron Cotan, UN Council Needs Urgent Reform, The Jakarta Post, October 20, 1997 395 6. Tsutomu Wada, Japan Fails in Effort to Secure Permanent Seat of Power at U.N., The Nikkei Weekly, December 8, 1997 398 7. GA Seeks Vote From Two Thirds of Member States for Decisions on Security Council Reform, Xinhua News Agency, November 23, 1998 400 8. UN Charter, Articles 108 and 109 from Annex I 400 9. Bibliography of Additional Sources 400

Chapter XII U.N. Sanctions—Part One: The Sanctions Debate 403 1. U.N. Charter, Articles 39-42, from Annex I 404 2. Joy K. Fausey, Does the United Nations’ Use of Collective Sanctions to Protect Human Rights Violate Its Own Human Rights Standards? 10 Connecticut Journal of International Law 193 (1994) 405 3. Security Council Sanctions Resolutions Concerning the Former Yugoslavia 424 A. S.C. Res. 713 (para. 6): Arms Embargo 424 B. S.C. Res. 727 (para. 6): Extending Arms Embargo 426 C. S.C. Res. 757 (para. 4a): Prohibiting imports 427 D. S.C. Res. 760: Humanitarian exception 431

Chapter XIII U.N. Sanctions—Part Two: The U.N. Sanctions Committee 433 1. Summary of Sanctions Committee Cases (1992-1993) 434 2. Michael Scharf and Joshua Dorosin, Interpreting U.N. Sanctions: The Rulings and Role of the Yugoslavia Sanctions Committee, 19 Brooklyn Journal of International Law 771 (1993) 436 3. Note by the President of the Security Council, March 29, 1995 473 4. Bibliography of Additional Sources 473

Chapter XIV U.N. Peacekeeping —Part One: Principles 477 1. U.N. Charter, Articles 24 (1), 37, 38, 40, 42, 44, 47, 48, and 52, in Annex I 478 2. Hilaire McCoubrey and Nigel White, The Blue Helmets: Legal Regulation of United Nations Military Operations 11-90 (1996) 480 3. Chart on U.N. Peacekeeping Operations 522 4. Jack Lang, Give the United Nations a Fire Brigade to Stop Conﬂicts, International Herald Tribune, November 7, 1997 523

Chapter XVU.N. Peacekeeping—Part Two: Reform 525 1. John Donnelly, As Global Peacekeeping Expands, Nations Questions UN’s Proper Rule, The Boston Globe, September 26, 1999 526 2. Peace-Keeping and Multilateral Relations in U.S. Foreign Policy, U.S. Department of State Dispatch, December 5, 1994 529 xii CONTENTS

3. John Gerald Ruggie, Peacekeeping and U.S. Interests, 17 The Washington Quarterly 175 (1994) 533 4. U.S. Army, FM 100-23, Chapter 1, Fundamentals of Peace Operations 542 5. Elaine Sciolino, New U.S. Peacekeeping Policy De-emphasizes Role of the U.N., The New York Times, May 6, 1994 556 6. Hearing of the Senate Armed Services Committee, Federal News Service, May 12, 1994 558 7. Report of the Panel on United Nations Peace Operations EXECUTIVE SUMMARY 568 8. Report of the Panel on United Nations Peace Operations SUMMARY OF RECOMMENDATIONS 574 9. United Nations Peacekeeping Operations Fact Sheet 580 10. Bibliography of Additional Sources 584

Chapter XVI Humanitarian Intervention: Case Study of Kosovo 587 1. U.N. Charter, Articles 2(4) and 51 588 2. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Chapter of the United States Nations, G.A. Res. 2625 (XXV), October 24, 1970 589 3. Axworthy: NATO Avoided U.N. Veto, UPI, March 31, 1999 596 4. Editorial Comments: NATO’s Kosovo Intervention, 93 American Journal of International Law 824 (1999) 597 5. Paul Williams and Michael Scharf, NATO Intervention on Trial: The Legal Case That Was Never Made, 1 Human Rights Review 103 (2000) 607 6. Dr.Klinton W. Alexander, Nato’s Intervention in Kosovo: The Legal Case for Violating Yugoslavia’s National Sovereignty in the Absence of Security Council Approval, 22 Houston Journal of International Law 403 (2000) 610 7. Secretary-General Says Relevance of Security Council Must be Cornerstone of Efforts to Promote International Peace, M2 Presswire, May 19, 1999 638 8. Russia on Intervention of Humanitarian Cases, Xinhua News Agency, October 7, 1999 641 9. Uniting for Peace Resolution, G.A. Res. 377(V), November 3, 1950 641 10. Bibliography of Additional Sources 646

PARTV PROTECTION OF HUMAN RIGHTS AND ENFORCEMENT OF INTERNATIONAL CRIMINAL LAW

Chapter XVII The International Human Rights Framework—Part One: The Human Rights Committee 649 1. Makau Mutua, The Big Idea: are Human Rights Universal? Or Is the West Imposing Its Philosophy on the Rest of the World? The Boston Globe, April 29, 2001 651 2. John Shattuck, The Big Idea: are Human Rights Universal? Or Is the West Imposing Its Philosophy on the Rest of the World? The Boston Globe, April 29, 2001 653 3. Newman and Weisbrodt, International Human Rights 13-19, 130-141 (2nd ed. 1994) 654 CONTENTS xiii

4. International Covenant on Civil and Political Rights, Dec. 16, 1966 (see annex VI) 5. Public Committee Against Torture in Israel v. State of Israel, H.C. 5100/94 et al. (Sup. Ct. Israel, September 9, 1999), summarized in 6 International Law Update 36-38, March, 2000 666 6. Bibliography of Additional Sources 669

Chapter XVIII The International Human Rights Framework—Part Two: U.N. Procedures 671 1. Newman and Weisbrodt, International Human Rights 182-213 (2nd ed. 1994) 672 2. Farhan Haq, Peru-U.S., Fujimori Visit Overshadowed by Detained New Yorker, Inter Press Service, May 21, 1996 686 3. Rhoda and Mark Berenson, Peruvian Justice, Chicago Tribune, May 29, 1997 687 4. Linda Yglesias, Fighting to Free Daughter, Mark Berenson Races the Clock, Daily News (New York), December 7, 1997 688 5. Bibliography of Additional Sources 690

Chapter XIX U.N. Conference to Deﬁne Terrorism 693 1. Paust, Bassiouni, Williams, Scharf, Gurule, and Zagaris, International Criminal Law: Cases and Materials 1175-1190 (1996) 694 2. Michael P. Scharf, Deﬁning Terrorism as the Peace Time Equivalent of War Crimes: A Case of Too Much Convergence Between International Humanitarian Law and International Criminal Law? 7 ILSA Journal of International & Comparative Law 1 (2001) 708 3. Bibliography of Additional Sources 711

Chapter XXInternational War Crimes Tribunals 715 1. Michael Scharf, Balkan Justice, pp. xi-xvii, 3-17, 37-90, and 207-228 717 2. M. Cherif Bassiouni, Extending the Arm of International Justice, Los Angeles Times,June 13, 1999 764 3. Michael Scharf, Indicted for War Crimes, Then What? The Washington Post, October 3, 1999 766 4 Trial of Milosevic, The Boston Globe 769 5. Bibliography of Additional Sources 770

Chapter XXI Toward a Permanent International Criminal Court 771 1. Lawrence Weschler, Exceptional Cases in Rome: The United States and the Struggle for an ICC, in The United States and the International Criminal Court 85-114 (Sarah Sewall and Carl Kasen, eds., 2000) 772 2. Hearing Before the Senate Foreign Relations Committee, July 23, 1998 793 3. Bartram Brown, U.S. Objections to the Statute of the International Criminal Court: A Brief Response, 31 N.Y.U. Journal of International Law and Policy 855 (1999) 821 xiv CONTENTS

4. Michael P. Scharf, The U.S. and the ICC: A Recommendation for the Bush Administration, ASIL—International Organization Interest Group, Spring 2001, Newsletter 843 5. Statute of the International Criminal Court, see annex VII 6. Proposed Text to Supplemental Document to the Rome Treaty 846 7. Bibliography of Additional Sources 847

PART VI FINANCING AND MANAGEMENT

Chapter XXII Financial Issues 849 1. U.N. Charter, Articles 17 and 19 from Annex I 850 2. Budget of the United Nations 850 3. Allan Gerson, The Kirkpatrick Mission, 44-53 (1990) 852 4. Jose Alvarez, Financial Responsibility, The United Nations and International Law (C. Joyner, ed., 1995) 858 5. Michael Scharf and Tamara Shaw, International Institutions, 33 The International Lawyer 567-570 (1999) 868 6. White House, Statement by the President, Dec. 2, 1999 870 7. Colum Lynch, U.S. Faces Tough Sell Persuading U.N. to Accept Debt Deal, International Herald Tribune, November 18, 1999 871 8. Julie Rovner, Family Planning Restrictions Written Into U.S. Law, The Lancet, November 27, 1999 872 9. Elizabeth Neuffer, US-UN Relations Seen Worsening Overdue US Payments and New Talk of Freeze Draw Ire of Diplomats, The Boston Globe, May 10, 2001 873 10. Barbara Crossette, Rudeness Awakens America, The New York Times, May 13, 2001 874 11. Bibliography of Additional Sources 876

Chapter XXIII Responding to Mismanagement 879 1. Management and Mismanagement at the United Nations, Hearing Before the Subcommittee on International Security International Organizations and Human Rights of the Committee on Foreign Affairs House of Representatives, March 5, 1993 880 2. Foreign Relations Authorization Act, Fiscal Yeras 1994 and 1995 890 3. Secretary-General’s Bulletin, Establishment of the Ofﬁce of Internal Oversight Services, September 1994 891 4. 32 Million Dollars Misused by United Nations, Associated Press, November 13, 2000 897 5. Report of the Ofﬁce of Internal Oversight Services on the Audit and Investigation of the International Criminal Tribunal for Rwanda —A/51/789 898 6. Bibliography of Additional Sources 917

Annexes Annex I. U.N. Charter 919 Annex II. U.N. Headquarters Agreement 941 CONTENTS xv

Annex III. Convention on Privileges and Immunities of the United Nations 951 Annex IV. Vienna Convention on Diplomatic Relations 957 Annex V. Statute of the International Court of Justice 971 Annex VI. International Covenant on Civil and Political Rights 983 Annex VII. Statute of the International Criminal Court 1005 Annex VIII. Researching International Organizations on the Internet 1069

Index 1075

About the Author

During the Bush and Clinton Administrations, Michael Scharf served in the Office of the Legal Adviser of the U.S. Department of State, where he held the positions of Counsel to the Counter-Terrorism Bureau, Attorney-Adviser for Law Enforcement and Intelligence, Attorney-Adviser for United Nations Affairs, and delegate to the United Nations General Assembly and to the United Nations Human Rights Commission. In 1993, he was awarded the State Department's Meritorious Honor Award "in recognition of superb performance and exemplary leadership." Scharf left the State Department in August 1993, to join the faculty of the New England School of Law in Boston, Massachusetts, where he is a Professor of Law and Director of the Center for International Law and Policy.He has also taught as a Visiting Professor at the Fletcher School of Law and Diplomacy, the University of Paris X, the National University of Ireland in Galway, and the Australian National University in Canberra. He teaches criminal law, criminal procedure, public international law, international criminal law, the law of international organizations, and international human rights law. Scharf is the author of numerous articles and several books, including Balkan Justice, which was nominated for the Pulitzer Prize in 1998, and The Interna - tional Criminal Tribunal for Rwanda, which was awarded the American Society of Inter- national Law's Certificate of Merit for the Outstanding book in International Law in 1999. Scharf has testified as an expert before the U.S. Senate Foreign Relations Com- mittee, and has appeared as a frequent commentator on CNN's Burden of Proof, Court TV, the BBC's The World, and National Public Radio. A past Chairman of the D.C. Bar's International Law Section, Scharf is currently Chairman of the American Bar Association's International Institutions Committee, Chairman of the American Society of International Law's International Organizations Committee, Chairman of the Board of Directors of the International Law Students As- sociation, a member of the Executive Committee of the American Branch of the Inter- national Law Association, a member of the Board of Directors of the International Legal Assistance Consortium, and Executive Director of the Public International Law and Policy Group—a non-profit corporation that provides pro-bono international legal services to foreign governments and international organizations.

xvii

Preface

Since the creation of the United Nations system fifty-five years ago, much of international law and diplomacy has been developed, shaped, implemented, and enforced through U.N. bodies and related international organizations. But during the decades of the cold war, many of the organizations in the U.N. system too often suffered from paralysis due to East-West and North-South tensions. With the disintegration of the So- viet Bloc in the early 1990s emerged a considerably revitalized United Nations. Bol- stered by a new (if only fleeting) era of cooperation, the international organizations associated with the United Nations began to boldly respond to challenges and threats to peace, to human rights, to the environment, and to the world’s increasingly interdepen- dent economy. From 1991-1993, I had the good fortune to serve as Attorney-Adviser for U.N. Af- fairs (and Counsel to the International Organizations Bureau) at the U.S. Department of State, and to participate in and witness first hand what history may consider the modern resurrection of the United Nations and its associated organizations. When I left the State Department to become an international law professor, I was surprised to dis- cover that there existed very few teaching texts devoted to the study of international organizations, especially in light of the increasingly prominent role international organizations have begun to play in the formation of international law and resolution of global problems. The rather dated texts that did exist failed to cover what I considered to be some of the most important current issues relating to international organizations. And the issues that were covered were dealt with in a fairly dry fashion that did not ap- pear to be calculated to stimulate student enthusiasm for what should be among the most exciting of subjects. Consequently, when I was invited to teach “The Law of International Organiza- tions” as a Visiting Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University in the spring of 2000 (a position long held by the emi- nent Leo Gross), I decided to assemble my own teaching materials focussing on the most important current issues relating to international organizations based on my ex- periences at the State Department, as well as my subsequent work as Chairman of the American Bar Association’s International Institutions Committee and Chairman of the American Society of International Law’s International Organizations Interest Group. Rather than gear the materials to the Socratic method or lecture approach, it occurred to me that an effective way to teach this area of law was to approximate the way I learned it at the State Department—by employing simulations, roll-play exercises and debates. In the fall of 2000, my good friend and publisher, Keith Sipe, suggested that I pub- lish my Fletcher course materials as a coursebook employing this unique active learning approach. Thanks to the efforts of my Research Assistant, Joao Godoy, and the sugges- xix xx PREFACE tions of the students in my International Organization courses at Fletcher and New England School of Law,1 just six months later this book was completed and sent to press. This book is not designed to be a comprehensive textbook on international organizations, but rather a user-friendly coursebook that exposes students to the most sig- nificant current legal issues relating to international organizations in a stimulating format. In addition to simulations in the form of an introductory problem, the chapters contain excerpts from international treaties, negotiating history, decisions by international organizations, international and domestic judicial opinions, diplomatic corre- spondence, contemporary news accounts, first-hand narratives, and scholarly articles, as well as a comprehensive Bibliography of Additional Sources. Rather than require students to purchase an additional Documents Supplement, the full texts of the key international instruments are reproduced in the Annexes of the book. In contrast to the tra- ditional passive reading model of most coursebooks in which discussion questions are found at the end of each chapter’s readings, the format of this book mirrors the way a legal research assignment would be given in the real world. Here, the questions and problems are presented at the beginning of each chapter, prompting the student to ac- tively read the material with an eye to finding the answer. The book is organized into twenty-three Chapters (corresponding with teaching units) for ease of use in a course that meets twice-a-week, with room left over for the professor to introduce his or her own units on areas not covered in detail in the book, such as the World Trade Organiza- tion or World Bank. In a once-a-week course, the professor can select the thirteen or fourteen units he or she finds of most interest. International organizations both make international law and are governed by it. Yet, a distinguished commentator once remarked that the decision-making of international organizations such as the United Nations “is less a question of law than one of political judgment,” and that “legal principles and Charter interpretation take a back seat to political and administrative convenience.” (L.C. Green, 1967). Throughout, the materials in this book highlight the tension between politics and law in the U.N. Sys- tem. Given the political context in which international organizations often operate, the reader will find that substantive rules and precedents play a perhaps surprisingly important role in influencing the actions of international organizations. At the same time, it is essential to keep in mind that the decision-making of organizations in the domestic system, including the U.S. Supreme Court, are just as frequently swayed by politics. Another theme that emerges throughout the book is the important role that process plays in the decision making of international organizations. The international bodies examined in the book include those that make decisions by simple majority vote, by weighted voting, and by unanimous consent. In examining these materials, the reader may consider: why did the framers select the particular voting system for each organization; how strictly do the bodies follow their procedural (as opposed to substantive) rules; and how do the voting rules influence the outcome of the body’s decision making. It is true that very few students will go on to directly participate in any international organization. It is also true that few students will go on to practice Constitutional Law before the Supreme Court, or even the lower courts. Yet “Con Law” is a required law school course and is taught extensively at the undergraduate level in light of the im-

1. Especially Kathleen Anderson, Michael Ashkouri, Donald Brown, Karen Bacardi, Harry Chaveriat, Samantha Daley, Patrick Joliet, Michelle Ryan, and Akbar Sharif who helped design the simulations and develop the bibliographies that follow each chapter. PREFACE xxi portance the decisions of the Supreme Court play in our daily lives. Given the growing signiﬁcance of the decisions of international organizations to our well-being and sur- vival, and the prominent (if not always decisive) role that law plays in arriving at those decisions, the “Law of International Organizations” may be among the most meaning- ful courses in the modern curriculum. It is thus my ardent hope that the publication of this coursebook will help foster the growth of courses at the law school and university level devoted to this important subject.

Michael P. Scharf Boston, Massachusetts June 2001

Acknowledgments and Permissions

I wish to gratefully acknowledge permissions from the following authors and/or pub- lishers with respect to use of various materials listed below:

Klinton W. Alexander, Nato’s Intervention in Kosovo: The Legal Case For Violating Yu - goslavia’s National Sovereignty in the Absence of Security Council Approval, 22 Hous- ton Journal of International Law 403 (2000) Jose Alvarez, Financial Responsibility, The United Nations and International Law (1995) American Bar Association—Section of International Law and Practice and the Standing Committee on World Order under Law Reports to the House of Delegates, 29 The International Lawyer 295 (1995) American Law Institute, Restatement (Third) of Foreign Relations Law of the United States, excerpts from sections 102, 111, 114, 115, 201, 211, 222, 521, 522, 902, 904 (1987). Jim Anderson, Politics Wins in PLO Ofﬁce Closure, United Press International, March 11, 1988 Axworthy: NATO Avoided U.N. Veto, United Press International,March 31, 1999 M. Cherif Bassiouni, Extending the Arm of International Justice, Secretary-General Says Relevance of Security Council Must be Cornerstone of Efforts to Promote International Peace, Los Angeles Times,June 13, 1999 Amb. Gerhard Benze, Creating a New UN Security Council, Yale Daily News,March 29, 1999 Rhoda and Mark Berenson, Peruvian Justice, Chicago Tribune, May 29, 1997 Yehuda Z. Blum, 86 American Journal of International Law 830-833 (1992) Bartram Brown, U.S. Objections to the Statute of the International Criminal Court: A Brief Response, 31 N.Y.U. Journal of International Law and Policy 855 (1999) Richard Butler, United Nations: The Security Council isn’t Performing, International Herald Tribune,August 5, 1999 Norman Cigar and Paul Williams, Reward Serbs With Town of Brcko? Don’t Do It, The Christian Science Monitor,March 11, 1998

Barabara Crossette, Rudeness Awakens America,THE NEW YORK TIMES, May 13, 2001 John Donnelly, As Global Peacekeeping Expands, Nations Questions UN’s Proper Rule, The Boston Globe, September 26, 1999

xxiii xxiv ACKNOWLEDGMENTS AND PERMISSIONS

Joy K. Fausey, Does the United Nations’ Use of Collective Sanctions to Protect Human Rights Violated Its Own Human Rights Standards?, 10 Connecticut Journal of International Law 193 (1994) Five Nations Join Security Council, The Boston Globe,January 2, 2000 Josh Friedman, U.N. Going to Geneva for Arafat, Newsday, December 3, 1988 Allan Gerson, The Kirkpatrick Mission: Diplomacy Without Apology 44–53 (The Free Press, 1991)

Leland Goodrich, Edvard Hambro, and Anne Patricia Simons, CHARTER OF THE UNITED NATIONS:COMMENTARY AND DOCUMENTS, 1–4, 10–16 (3rd Ed., Columbia University Press, 1969) Farhan Haq, Peru-US, Fujimori Visit Overshadowed by Detained New Yorker, Inter Press Service, May 21, 1996 International Decisions: Yugoslavia v. NATO, 93 American Journal of International Law 929-933 (1999) Justinian, U.S. Withdraw Another Blow to World Court, The Financial Times, October 15, 1985 Frederic L. Kirgis, Jr., International Organizations in their Legal Setting 191–193, (West Publishing Co., 2d Ed. 1993) Jack Lang, Give the United Nations a Fire Brigade to Stop Conﬂicts, International Her- ald Tribune, November 7, 1997 Colum Lynch, US Faces Tough Sell Persuading U.N. to Accept Debt Deal, International Herald Tribune, November 18, 1999 Hilaire McCoubrey and Nigel White, The Blue Helmets: Legal Regulation of United Nations Military Operations 11–90 (1996) Sean Murphy, Non-State Entities in International Law, 93 The American Journal of International Law 179-181 (1999)

Makau Mutua, The Big Idea: are Human Rights Universal?,THE BOSTON GLOBE, April 29, 2001 NATO’s Kosovo Intervention, 93 American Journal of International Law 824 (1999) Elizabeth Neuffer, US-UN Relations Seen Worsening: Overdue US Payments and New Talk of Freeze Draw Ire of Diplomats,THE BOSTON GLOBE May 10, 2001 Newman and Weisbrodt, International Human Rights 13–19, 130–141, 182–213 (Anderson Publishing Co., 2nd ed. 1994) Don Oberdorfer, U.S. Denies Entry Visa to Arafat, The Washington Post, November 27, 1988 Pay Up or Get Out, The Courier-Journal,March 27, 1992 Timothy Penny and Mark Mullenbach, UN’s Chosen Few—A Tricky Feat, The Christ- ian Science Monitor, September 24, 1997 Juliana Pilon, For Yassir Arafat, The US Must Be Off Limits, The Financial Times, May 21, 1986 Deborah Pines, Eviction of Mission Prohibited Based on International Law, New York Law Journal,March 8, 1993 ACKNOWLEDGMENTS AND PERMISSIONS xxv

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