The Law of International · PDF fileVincent R. Johnson St. Mary’s ... For my Parents,...

The Law of International Organizations

Carolina Academic PressLaw Casebook Series

Advisory Board

❦

Gary J. Simson, ChairmanCornell Law School

Raj K. BhalaThe George Washington University Law School

John C. Coffee, Jr.Columbia University School of Law

Randall CoyneUniversity of Oklahoma Law Center

John S. DzienkowskiUniversity of Texas School of Law

Paul FinkelmanUniversity of Tulsa College of Law

Robert M. JarvisShepard Broad Law Center

Nova Southeastern University

Vincent R. JohnsonSt. Mary’s University School of Law

Thomas G. KrattenmakerDirector of Research

Federal Communications Commission

Michael A. OlivasUniversity of Houston Law Center

Michael P. ScharfNew England School of Law

Peter M. ShaneDean, University of Pittsburgh School of Law

Emily L. SherwinUniversity of San Diego School of Law

John F. Sutton, Jr.University of Texas School of Law

David B. WexlerUniversity of Arizona College of Law

The Law ofInternational Organizations

Problems and Materials

Michael P. Scharf

Carolina Academic PressDurham, North Carolina

Copyright © 2001Michael P. Scharf

All rights reserved.

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

Carolina Academic Press700 Kent Street

Durham, North Carolina 27701Telephone (919) 489-7486Facsimile (919) 493-5668

E-mail: [email protected]

Printed in the United States of America.

For my Parents,

Joan and Harry Scharf

Contents

About the Author xviiPreface xixAcknowledgments and Permissions xxiii

PART IHISTORIC 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 103. U.S. Department of State: Background Notes: United Nations (1995) 144. The Restatement (Third) of Foreign Relations Law 17

A. Introductory Note 17B. Section 102: Sources of International Law 20C. Section 111: International Law as Law of the U.S. 26D. Section 114: Interpretation of Federal Statute in Light of

International Law 34E. Section 115: Inconsistency Between International Law and

Domestic Law 355. U.N. Charter, see Annex I6. Bibliography of Additional Sources 37

PART IIMEMBERSHIP AND LEGAL STATUS

Chapter II Credential Challenges 41

1. U.N. Charter, Articles 3, 4, and 5 422. The Restatement (Third) of Foreign Relations Law 43

A. Section 201: State Defined 43B. Section 222: Membership in the U.N. 45

3. Senate Committee on Foreign Relations Report: CredentialsConsiderations in the United Nations General Assembly: TheProcess and its Role 48

4. United Nations Security Council: Resolution 919 (1994), The SouthAfrica Reintegration in the International Community 70

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5. Sean Murphy, Non-State Entities in International Law, 93 The AmericanJournal 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 93 772. Yehuda Z. Blum, Current Developments, U.N. Membership of the New

Yugoslavia: Continuity or Break , 86 American Journal of internationalLaw 830-833 (1992) 78

3. Michael P. Scharf, Musical Chairs: The Dissolution of States and Membershipin 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 TheInternational and Comparative Law Quarterly 776-808 (1994) 116

5. International Decisions: Yugoslavia v. NATO, 93 American Journal ofInternational law 929-933 (1999) 142

6. United Nations Resolution 1326 (2000) 1457. Bibliography of Additional Sources 145

Chapter IV Privileges and Immunities — Part One: Inviolability 149

1. The U.N. Headquarters Agreement, especially Sections1, 8, 11, 12, 15 (4), 21, see annex II 151

2. The U.N. Headquarters AgreementAct of 1947, especially Section 6 1533. 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) 1566. Diplomatic and Consular Immunities Chart 1597. Allen Gerson, The Kirkpatrick Mission, 25-43 (1990) 1678. Jim Anderson, Politics Wins in PLO Office Closure, UPI, March 11, 1988 1799. World Court Rules Against U.S. in PLO Mission Closure, CHICAGO TRIBUNE,

April 27, 1988 18010. U.S. Court Rules PLO Mission Cannot be Closed, Inter Press Service,

June 29, 1988 18111. 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 2002. Juliana Pilon, For Yassir Arafat, The U.S. Must Be Off Limits, Heritage

Foundation Reports, May 21, 1986 2003. Don Oberdorfer, U.S. Denies Entry Visa to Arafat, The Washington Post,

November 27, 1988 2024. What the Host Must Not Do, The New York Times, November 29, 1988 2045. Josh Friedman, U.N. Going to Geneva for Arafat, Newsday,

December 3, 1988 2056. Pay Up or Get Out, The Courier-Journal, March 27, 1992 2067. Ronald Sullivan, Judge, No Diplomat, Orders Zaire to Pay U.N. Office

Rent, New York Times, March 26, 1992 206

viii CONTENTS

8. Deborah Pines, Eviction of Mission Prohibited Based on InternationalLaw, New York Law Journal, March 8, 1993 207

9. 767 Third Avenue Associates v. Permanent Mission of the Republic ofZaire 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 UnitedNations, especially Section 11 (g), 16, 22, see annex III 217

13. Vienna Convention on Diplomatic Relations, especiallyArticles 22 and 25, see annex IV


PART IIIINTERNATIONAL DISPUTE RESOLUTION

Chapter VI Negotiation, Mediation, and Arbitration 221

1. Simulated Arbitration Background Facts, including Annex 2 from DaytonAccord and Articles 4 and 49 from the Geneva Convention Relative to theProtection 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 233A. Section 902: Interstate Claims and Remedies 233B. Section 904: Interstate Arbitration 238

6. New York Convention on the Recognition and Enforcement offoreign Arbitral Awards 241


Chapter VII The Role of Law in Peace Negotiations 249

1. Velasquez Rodrigues Case, Inter-Am. Ct. H.R. (1988) 2502. The American Convention on Human Rights, Articles 1, 4, 5, and 7. 2593. Michael Scharf, Swapping Amnesty for Peace: Was There A Duty to Prosecute

Human Rights Crimes in Haiti? 31 Texas International Law Journal1-41 (1996) 261


Chapter VIII The International Court of Justice— Part One: Jurisdictionand Admissibility 305

1. Tunku Varadarajan, Sitting on Top of the World, The Times, July 18, 1995 3072. The Restatement (Third) of Foreign Relations Law Section 903:

International Court of Justice 308

CONTENTS ix

3. Statute of the International Court of Justice, especially Articles36, 38, and 59 (see Annex V) 322

4. The Norwegian Loans Case (France v. Norway) (1957) 3235. Case Concerning Military and Paramilitary Activities, Nicaragua v. United

States (1984) (Jurisdiction) 3256. Articles 2(4) and 51 of the U.N. Charter, from Annex I 3337. The Restatement (Third) of Foreign Relations Law 334

A. Section 521: Freedom of the High Seas 334B. Section 522: Enforcement Jurisdiction over Foreign Ships in the High

Seas 336C. Section 211: Nationality of Individuals 340D. 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 WorldCourt, January 19, 1985 344

2. U.S. Terminates Acceptance of ICJ Compulsory Jurisdiction, Departmentof 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 theHouse of Delegates in 1994, 29 The International Lawyer 295 (1995) 356


PART IVPEACE AND SECURITY

Chapter X The Security Council — Part One: Powers 363

1. List of Security Council Countries for the Simulation 3642. (Fictional) Report of the Secretary-General Concerning the Simulation

in the Essequibo Region, Guyana, for use in the Simulation 3653. Map of Venezuela/Guyana 3684. Frederic L. Kirgis, Jr., International Organizations in Their Legal

Setting, West Publishing Co., 2d ed. 1993, pp. 191-193 3695. Michael P. Scharf, History of the Yugoslav Crisis, Balkan Justice,

pp. 31–36 3706. U.N. Charter, Articles 39-41 3747. Five Nations Join Security Council, The Boston Globe, January 2, 2000 3758. Model Security Council Actions: 375

A. S.C. Res. 667: Condemnation (Iraq) 375B. S.C. Res. 757: Economic Sanctions (Serbia) 377C. S.C. Res. 816: No Fly Zone (Bosnia) 381D. S.C. Res. 824: Safe Areas (Bosnia) 383E. S.C. Res. 780: Investigative Commission (Bosnia) 384F. 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

x CONTENTS

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 DailyNews, March 29, 1999 392

4. U.N. Reforms Could Limit Security Council’s Power of Veto, Agence FrancePresse, 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 atU.N., The Nikkei Weekly, December 8, 1997 398

7. GA Seeks Vote From Two Thirds of Member States for Decisions on SecurityCouncil Reform, Xinhua News Agency, November 23, 1998 400

8. UN Charter, Articles 108 and 109 from Annex I 4009. 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 4042. Joy K. Fausey, Does the United Nations’ Use of Collective Sanctions to

Protect Human Rights Violate Its Own Human Rights Standards? 10Connecticut Journal of International Law 193 (1994) 405

3. Security Council Sanctions Resolutions Concerning the Former Yugoslavia 424A. S.C. Res. 713 (para. 6): Arms Embargo 424B. S.C. Res. 727 (para. 6): Extending Arms Embargo 426C. S.C. Res. 757 (para. 4a): Prohibiting imports 427D. 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) 4342. Michael Scharf and Joshua Dorosin, Interpreting U.N. Sanctions: The Rulings

and Role of the Yugoslavia Sanctions Committee, 19 Brooklyn Journal ofInternational Law 771 (1993) 436

3. Note by the President of the Security Council, March 29, 1995 4734. 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: LegalRegulation of United Nations Military Operations 11-90 (1996) 480

3. Chart on U.N. Peacekeeping Operations 5224. Jack Lang, Give the United Nations a Fire Brigade to Stop Conflicts,

International Herald Tribune, November 7, 1997 523

Chapter XV U.N. Peacekeeping — Part Two: Reform 525

1. John Donnelly, As Global Peacekeeping Expands, Nations Questions UN’sProper 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

CONTENTS xi

3. John Gerald Ruggie, Peacekeeping and U.S. Interests, 17 The WashingtonQuarterly 175 (1994) 533

4. U.S. Army, FM 100-23, Chapter 1, Fundamentals of Peace Operations 5425. Elaine Sciolino, New U.S. Peacekeeping Policy De-emphasizes Role of the

U.N., The New York Times, May 6, 1994 5566. Hearing of the Senate Armed Services Committee, Federal News

Service, May 12, 1994 5587. Report of the Panel on United Nations Peace Operations EXECUTIVE

SUMMARY 5688. Report of the Panel on United Nations Peace Operations SUMMARY OF

RECOMMENDATIONS 5749. United Nations Peacekeeping Operations Fact Sheet 58010. Bibliography of Additional Sources 584

Chapter XVI Humanitarian Intervention: Case Study of Kosovo 587

1. U.N. Charter, Articles 2(4) and 51 5882. Declaration on Principles of International Law Concerning Friendly

Relations and Cooperation Among States in Accordance with the Chapterof the United States Nations, G.A. Res. 2625 (XXV), October 24, 1970 589

3. Axworthy: NATO Avoided U.N. Veto, UPI, March 31, 1999 5964. Editorial Comments: NATO’s Kosovo Intervention, 93 American Journal

of International Law 824 (1999) 5975. Paul Williams and Michael Scharf, NATO Intervention on Trial: The Legal

Case That Was Never Made, 1 Human Rights Review 103 (2000) 6076. Dr. Klinton W. Alexander, Nato’s Intervention in Kosovo: The Legal Case for

Violating Yugoslavia’s National Sovereignty in the Absence of Security CouncilApproval, 22 Houston Journal of International Law 403 (2000) 610

7. Secretary-General Says Relevance of Security Council Must be Cornerstoneof 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 64110. Bibliography of Additional Sources 646

PART VPROTECTION 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 WestImposing 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 WestImposing 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

xii CONTENTS

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 in6 International Law Update 36-38, March, 2000 666


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


Chapter XIX U.N. Conference to Define Terrorism 693

1. Paust, Bassiouni, Williams, Scharf, Gurule, and Zagaris, InternationalCriminal Law: Cases and Materials 1175-1190 (1996) 694

2. Michael P. Scharf, Defining Terrorism as the Peace Time Equivalent of WarCrimes: A Case of Too Much Convergence Between International HumanitarianLaw and International Criminal Law? 7 ILSA Journal of International& Comparative Law 1 (2001) 708


Chapter XX International War Crimes Tribunals 715

1. Michael Scharf, Balkan Justice, pp. xi-xvii, 3-17, 37-90, and 207-228 7172. M. Cherif Bassiouni, Extending the Arm of International Justice, Los Angeles

Times, June 13, 1999 7643. Michael Scharf, Indicted for War Crimes, Then What? The Washington

Post, October 3, 1999 7664 Trial of Milosevic, The Boston Globe 7695. Bibliography of Additional Sources 770

Chapter XXI Toward a Permanent International Criminal Court 771

1. Lawrence Weschler, Exceptional Cases in Rome: The United Statesand the Struggle for an ICC, in The United States and the InternationalCriminal 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 CriminalCourt: A Brief Response, 31 N.Y.U. Journal of International Law andPolicy 855 (1999) 821

CONTENTS xiii

4. Michael P. Scharf, The U.S. and the ICC: A Recommendation for the BushAdministration, ASIL — International Organization Interest Group,Spring 2001, Newsletter 843

5. Statute of the International Criminal Court, see annex VII6. Proposed Text to Supplemental Document to the Rome Treaty 8467. Bibliography of Additional Sources 847

PART VIFINANCING AND MANAGEMENT

Chapter XXII Financial Issues 849

1. U.N. Charter, Articles 17 and 19 from Annex I 8502. Budget of the United Nations 8503. Allan Gerson, The Kirkpatrick Mission, 44-53 (1990) 8524. Jose Alvarez, Financial Responsibility, The United Nations and

International Law (C. Joyner, ed., 1995) 8585. Michael Scharf and Tamara Shaw, International Institutions, 33 The

International Lawyer 567-570 (1999) 8686. White House, Statement by the President, Dec. 2, 1999 8707. Colum Lynch, U.S. Faces Tough Sell Persuading U.N. to Accept Debt Deal,

International Herald Tribune, November 18, 1999 8718. Julie Rovner, Family Planning Restrictions Written Into U.S. Law, The

Lancet, November 27, 1999 8729. 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


Chapter XXIII Responding to Mismanagement 879

1. Management and Mismanagement at the United Nations, Hearing Beforethe Subcommittee on International Security International Organizationsand Human Rights of the Committee on Foreign Affairs House ofRepresentatives, March 5, 1993 880

2. Foreign Relations Authorization Act, Fiscal Yeras 1994 and 1995 8903. Secretary-General’s Bulletin, Establishment of the Office of Internal

Oversight Services, September 1994 8914. 32 Million Dollars Misused by United Nations, Associated Press,

November 13, 2000 8975. Report of the Office of Internal Oversight Services on the Audit and

Investigation of the International Criminal Tribunal for Rwanda —A/51/789 8986. Bibliography of Additional Sources 917

Annexes

Annex I. U.N. Charter 919

Annex II. U.N. Headquarters Agreement 941

xiv CONTENTS

Annex III. Convention on Privileges and Immunities of theUnited 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 theInternet 1069

Index 1075

CONTENTS xv

About the Author

During the Bush and Clinton Administrations, Michael Scharf served in the Officeof the Legal Adviser of the U.S. Department of State, where he held the positions ofCounsel to the Counter-Terrorism Bureau, Attorney-Adviser for Law Enforcement andIntelligence, Attorney-Adviser for United Nations Affairs, and delegate to the UnitedNations General Assembly and to the United Nations Human Rights Commission. In1993, he was awarded the State Department's Meritorious Honor Award "in recognitionof superb performance and exemplary leadership."

Scharf left the State Department in August 1993, to join the faculty of the NewEngland School of Law in Boston, Massachusetts, where he is a Professor of Law andDirector of the Center for International Law and Policy. He has also taught as a VisitingProfessor at the Fletcher School of Law and Diplomacy, the University of Paris X, theNational University of Ireland in Galway, and the Australian National University inCanberra. He teaches criminal law, criminal procedure, public international law, inter-national criminal law, the law of international organizations, and international humanrights law. Scharf is the author of numerous articles and several books, includingBalkan 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 in1999. 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, CourtTV, the BBC's The World, and National Public Radio.

A past Chairman of the D.C. Bar's International Law Section, Scharf is currentlyChairman of the American Bar Association's International Institutions Committee,Chairman of the American Society of International Law's International OrganizationsCommittee, 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 InternationalLegal Assistance Consortium, and Executive Director of the Public International Lawand Policy Group — a non-profit corporation that provides pro-bono internationallegal services to foreign governments and international organizations.

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xix

Preface

Since the creation of the United Nations system fifty-five years ago, much of inter-national law and diplomacy has been developed, shaped, implemented, and enforcedthrough U.N. bodies and related international organizations. But during the decades ofthe cold war, many of the organizations in the U.N. system too often suffered fromparalysis 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 as-sociated with the United Nations began to boldly respond to challenges and threats topeace, 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. Departmentof State, and to participate in and witness first hand what history may consider themodern resurrection of the United Nations and its associated organizations. When I leftthe 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 or-ganizations, especially in light of the increasingly prominent role international organi-zations have begun to play in the formation of international law and resolution ofglobal problems. The rather dated texts that did exist failed to cover what I consideredto 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 themost 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 andDiplomacy 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 themost 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 theAmerican Bar Association’s International Institutions Committee and Chairman of theAmerican Society of International Law’s International Organizations Interest Group.Rather than gear the materials to the Socratic method or lecture approach, it occurredto me that an effective way to teach this area of law was to approximate the way Ilearned it at the State Department — by employing simulations, roll-play exercises anddebates.

In the fall o f 2000, my good friend and publisher, Keith Sipe, suggested that I pub -lish my Fletcher course materials as a coursebook employing this unique active learningapproach. Thanks to the efforts of my Research Assistant, Joao Godoy, and the sugges-

xx PREFACE

1. Especially Kathleen Anderson, Michael Ashkouri, Donald Brown, Karen Bacardi, HarryChaveriat, Samantha Daley, Patrick Joliet, Michelle Ryan, and Akbar Sharif who helped design thesimulations and develop the bibliographies that follow each chapter.

tions of the students in my International Organization courses at Fletcher and NewEngland School of Law,1 just six months later this book was completed and sent topress. This book is not designed to be a comprehensive textbook on international orga-nizations, but rather a user-friendly coursebook that exposes students to the most sig-nificant current legal issues relating to international organizations in a stimulating for-mat. In addition to simulations in the form of an introductory problem, the chapterscontain excerpts from international treaties, negotiating history, decisions by interna-tional 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 stu-dents to purchase an additional Documents Supplement, the full texts of the key inter-national 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 arefound at the end of each chapter’s readings, the format of this book mirrors the way alegal research assignment would be given in the real world. Here, the questions andproblems 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 b ook is organized intotwenty-three Chapters (corresponding with teaching units) for ease of use in a coursethat meets twice-a-week, with room left over for the professor to introduce his or herown 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 orfourteen 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 interna-tional organizations such as the United Nations “is less a question of law than one ofpolitical judgment,” and that “legal principles and Charter interpretation take a backseat to political and administrative convenience.” (L.C. Green, 1967). Throughout, thematerials 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, thereader will find that substantive rules and precedents play a perhaps surprisingly impor-tant role in influencing the actions of international organizations. At the same time, it isessential to keep in mind that the decision-making of organizations in the domestic sys-tem, including the U.S. Supreme Court, are just as frequently swayed by politics.

Another theme that emerges throughout the book is the important role thatprocess plays in the decision making of international organizations. The internationalbodies examined in the book include those that make decisions by simple majority vote,by weighted voting, and by unanimous consent. In examining these materials, thereader may consider: why did the framers select the particular voting system for eachorganization; how strictly do the bodies follow their procedural (as opposed to substan-tive) rules; and how do the voting rules influence the outcome of the body’s decisionmaking.

It is true that very few students will go on to directly participate in any interna-tional organization. It is also true that few students will go on to practice ConstitutionalLaw before the Supreme Court, or even the lower courts. Yet “Con Law” is a requiredlaw school course and is taught extensively at the undergraduate level in light of the im-

PREFACE xxi

portance the decisions of the Supreme Court play in our daily lives. Given the growingsignificance 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 thosedecisions, 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 ofthis coursebook will help foster the growth of courses at the law school and universitylevel devoted to this important subject.

Michael P. ScharfBoston, Massachusetts

June 2001

Acknowledgments andPermissions

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 Int ervention 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 StandingCommittee on World Order under Law Reports to the House of Delegates, 29 TheInternational Lawyer 295 (1995)

American Law Institute, Restatement (Third) of Foreign Relations Law of the UnitedStates, 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 SaysRelevance of Security Council Must be Cornerstone of Efforts to Promote InternationalPeace, Los Angeles Times, June 13, 1999

Amb. Gerhard Benze, Creating a New UN Security Council, Yale Daily News, March29, 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: ABrief Response, 31 N.Y.U. Journal of International Law and Policy 855 (1999)

Richard Butler, United Nations: The Security Council isn’t Performing, InternationalHerald Tribune, August 5, 1999

Norman Cigar and Paul Williams, Reward Serbs With Town of Brcko? Don’t Do It, TheChristian 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

Joy K. Fausey, Does the United Nations’ Use of Collective Sanctions to Protect HumanRights Violated Its Own Human Rights Standards?, 10 Connecticut Journal ofInternational 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

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xxiv ACKNOWLEDGMENTS AND PERMISSIONS

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ACKNOWLEDGMENTS AND PERMISSIONS xxv

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