Brief intro to UN Security Council and its powers and functions

U.N Security Council

Composition:

The Dumbarton Proposal emphasized the establishment of an executive organ for maintenance of international peace and security. In San Francisco Conference It was finally decided to establish such an organ in form of the Security Council. In accordance with provisions of Article 7 of U.N Charter the S.C is one of the principle organs of the U.N. It comprises on 15 members, 5 permanent members and 10 non-permanent members. China, Russia, America, France, and Britain are permanent members. The non-permanent members are elected by the G.A for a term of two years.

Voting Right:

According to Article 27 each member has one vote. Decisions on procedural matters are made by an affirmative vote of at least 9 of the 15 members. But decisions on substantial matters require affirmative votes of 9 members including the affirmative votes of 5 permanent members. There is however an exception to this rule for any decision under Chapter VI and under paragraph 3 of Article 62, a party to dispute shall abstain from voting.

Veto:

A negative vote casted by permanent member on a substantial matter is called veto. Absence of the representative of permanent member from the meeting of Council is not considered as veto. As we seen in 1950 when Soviet Union was not present at meeting and S.C takes a decision. The Soviet Union argued that absence of its representative constituted veto but this argument was rejected by U.N.

Powers and Functions of S.C:

Under the Charter of U.N primary responsibility of S.C is to maintain international peace and security in accordance with the principles of the U.N Charter.

Powers under Chapter VI:

Peaceful Settlement of disputes:

·         To call upon parties to settle a dispute or situation which might led to international friction through negotiations, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their own choice. (Art. 33)

·         The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security. (Art. 34)

• The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment.
• The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties.
• In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court. (Art 36)

S.C actions under Chapter VII:

·         The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. (Art. 39)

·         The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. (Art. 41)

·         Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. (Art.42)

Elective Function:

The Security Council also performs following elective functions;

·         Election of the judges of the International Court of Justice.

·         Security Council also recommends the appointment of the Secretary General of the U.N. the appointment of Secretary General is a substantial matter therefore affirmative vote 9 members including 5 permanent members is necessary.

·         It elects its own President.

Supervisory Functions:

The Security Council also performs some supervisory functions;

·         It supervises the functions of the Organization as whole.

·         A Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security Council. (Art. 5)

·         A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council. (Art. 6)

·         The Security Council control and supervise the Trust Territories under the Trusteeship system of the U.N.

Constituent Functions:

The constituent powers of the S.C are very important. Article 108 of the Charter provides that amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.

Brief intro to UN General Assembly

The General Assembly of U.N

Composition:

The General Assembly is one of the Principle Organ of the U.N. The General Assembly consists of all the members of the U.N. Each member can have maximum five representatives. At present there are 193 members last joined South Sudan.

Voting Right:

Each member of U.N has one vote. Decisions on important questions are made by two third 2/3 majority of the members present and vote. Decisions includes the matter related to maintenance of International peace and security; elections of the members of Economic and Social Council (ESC) and Trusteeship Council.

Functions & Powers:

According to Prof. Leonards classification of powers and functions of G.A is as following;

(i)                  Deliberative Functions.

(ii)                Supervisory Functions.

(iii)               Financial Functions.

(iv)              Elective Functions.

(v)                Constituent Functions.

(i)                         Deliberative Functions:

Functions regarding decisions, discussions, studies, declarations and different matters. Matters within the scope of present Charter: or relating to functions and powers of other organs.

(i)                  Art. 12 of U.N Charter provide an exception to interference with Security Council unless it is requested to do so.

(ii)                G.A considers general principles of cooperation in the maintenance of international peace and security.

(iii)               G.A may call attentions of the S.C to situations which are likely to endanger international peace and security Art. 11(3).

(iv)              Art. 13 G.A entrusted important responsibilities that it can initiate studies and make recommendations for the purposes of;

(a)    Promoting international cooperation in political field;

(b)   Encouraging the progressive development of International law and its codification;

(c)    Promote the international cooperation health fields and assists in the realization of human rights and fundamental freedom.

(ii)                      Supervisory Functions:

The G.A supervises the functions of other principal organs and specialized agencies of U.N;

Particularly exercises sufficient control over;

(i)                  Economic and Social Council; and

(ii)                Trusteeship Council.

Infect these two organs works as subordinate organs of G.A. Security Council and other organs of the U.N have to submit annual reports to the G.A.

(iii)       Financial Functions:

The G.A considers and approves the budget of the U.N. The expenses of organization shall be borne by the members of the G.A. The G.A examines and administrates the budgets made for the agencies of the U.N with a view to making recommendations to the agencies concerned.

(iv)        Elective Functions:

Decision the members by two third majority present and vote can lead to:

(i)                  Election of new State to U.N and also suspension, expulsion or deprivation of its vote due to preventive action taken by Security Council for violation of laws of  charter and failure to payments of financial contribution respectively.

Election of member of other organs:

(a)    It elects 10 non-permanent members of the Security Council.

(b)   Elects 54 members of Economic and Social Council.

(c)    It also elects some members of the Trusteeship Council.

(d)   Take part in the election of the judges of International Court of Justice.

(e)   Also take part in appointment of Secretary General.

(v)           Constituent Functions:

The G.A takes part in the amendments of the Charter. The two third majority of the members pass the Charter and it should be rectified in accordance with the constitutional processes again by the majority of two third of the members.

Example:

Amendments to Article 23, 27, and 61 of U.N Charter were adopted by G.A on 17^th December 1963 and came into force on 31^st August 1965.

Equity acts in personam

Equity acts in personam

Introduction:

The court of equity always enforced its decree in personam. The court orders the defendant to carry out its order. The decree of the court of equity do not directly operate to transfer legal right from the defendant to the plaintiff, but is of nature of personal command on the defendant and it is effected through his personal obedience. If he fails to obey the order of court of equity he is arrested and imprisoned.

Meaning:

Equity binds the conscience of a person do which is required by court. The court of chancery always enforced its decree in personam. It entertain suits respecting immovable property, though the property might be situated abroad if relief sought could be obtained through the personal obedience of the defendant and the personal obedience can only be secured. If he resides within the local limit of the jurisdiction of the court or carried on business within those limits.

Purpose:

Its purpose is to avoid the direct clash with the court of law.

Importance:

This maxim has a vital importance. It describes the procedure in equity the judgments of the court of equity operate in personam upon defendant. Specially in cases of land falling outside the jurisdiction of the court.

Explanation:

It is the general rule that the court will not adjudicate on questions relating to title or the right to possession of immovable property out of the jurisdiction. The maxim equity acts in personam is exception to this rule.

Application:

This maxim applies in the following matter.

(i)                  For redemption and foreclosure.

(ii)                For specific performance of a contract to create a mortgage.

(iii)               For sale.

(iv)              For account of rent and profit.

(v)                For the appointment of receiver.

Conditions:

Following are the conditions for application of this maxim:

(i)                  The remedy sought must be equitable remedy.

(ii)                There should not litigation in the appropriate foreign court.

(iii)               The dispute must be one of the consciences.

(iv)              Dispute must not be in which involves a breach of foreign law.

Exceptions:

(i)                  It will not apply to an action for local transfer of land abroad.

(ii)                It has no application where there is no contract and the dispute between the parties is only a question of title foreign land.

Limitation:

(i)                  Where there is no contract there is no jurisdiction.

(ii)                It has no application to local tress pass.

Position in Pakistan:

High Courts in Pakistan have all powers of court of equity. High Court can enforce decrees in personam.

Case law PLD 2003 LAH 197:

It was held that judicial officer has to decide matter before him in accordance with the evidence produced in that matter. The right of parties are determined in accordance with the law applicable.

Conclusion:

To conclude I can say that, the equity acts in personam was adopted by the early chancellors, in order to avoid a direct collision with the court of law. The own judgment of court of equity operates in personam upon the defendant. The court of equity has jurisdiction to entertain suits respecting immovable property, though the property may be suited abroad.

Equality is equity

Equality is equity

Introduction:

Equity always tries to put litigating parties to an equal level so for as their rights and liberties are concerned. Equity acts in such manner that no party gets undue advantage over other party. Benefits and burden of common interests and obligations cannot be imposed upon and passed against anyone.

Meaning:

“Equality is equity” also expressed as equity delighted in equality which means that as far as possible equity would put the litigating parties at equal pedestal. It expresses the object of both law and equity in order to effectuate distribution of property and losses, proportionate to several claims and liabilities of the parties concerned so equality therefore means proportionate equity.

Application:

This maxim has application on following matters:

(i)                 Joint Tenancy:

Equity dislikes joint tenancy. Joint tenancy meant joint ownership regarding rights of survivorship.

(ii)               Equal distribution:

Where property is to be distributed between the rival claimant, court will equally distribute if there is no basis for division.

(iii)             Contribution:

Where a creditor has a single claim against several persons he has the option by realizing the rest from any one of them and by common law, the debtor who had compelled to pay the debt in full had no remedy against his co-debtor, but in equity he could claim contribution from latter so that the burden might be pressed equally on all.

(iv)              Abatement of legacies:

If legacies are general, they are liable to be proportionate reduction in assets providing insufficient to pay the legacies in full.

(v)                Power of appointment:

Where donee of a power in the nature of the trust fails to exercise his power the court of equity on the principle of equality will carry the same into effect, so that it may not fail, and distribute the property equally among the persons concerned.

Position in Pakistan:

(i)                  The Contract Act 1872 Sections 42, 69, 70, 145 and 146.

(ii)                Transfer of Property Act Section 56 and 82.

(iii)               Trust Act Section 27.