Simon Chesterman, Ian Johnstone and David M. Malone, Law and Practice of the United Nations: Documents and Commentary, Second Edition, (New York: Oxford University Press, 2016), 741 pp.

Reviewed by: Konstantin D. Magliveras (Department of Mediterranean Studies, University of the Aegean)

For any student of international relations, international law, global institutions, diplomacy, and associated fields, the study of the United Nations (UN) has long been indispensable. One cannot properly appreciate and evaluate what is happening in the global arena, if one is not familiar with the whole range of UN activities and the multi-level work it performs. While other intergovernmental organizations may have more complex operations than the UN (law-making by the European Union is a good example), the UN is still considered to be the pre-eminent organization among others. This is to be expected considering that it still holds the monopoly of the lawful (and legitimated for that matter) use of force. At the same time, the UN possesses the ultimate power to impose sanctions upon states and other international actors that fail to observe the peremptory rules of international law (as these are interpreted and applied by the UN itself). It also has the authority to oblige its entire membership to implement the punitive measures that it chooses to adopt. Moreover, the UN seems to have an almost unlimited vigour and the ability to devise new global discussions and introduce novel themes: the acronyms R2P (Responsibility to Protect), MDG (Millennium Development Goals), and, more recently, SDG (Sustainable Development Goals) are constant reminders of this process of revivification.

Security Council Considers Situation in Syria. Photo credit: UN Photo/Mark Garten.

It follows that the task of examining, let alone analyzing the law and practice of the UN, the subject-matter of Law and Practice of the United Nations: Documents and Commentary, is daunting to say the least. It is probably impossible to cover all aspects, all dimensions, all actors, and all players of this truly global institution within the confines of a single book. The law of the UN, not only includes its Charter (which has remained largely unchanged for more than 70 years, aside from some cosmetic changes), but also features the 2397 resolutions adopted by the Security Council as of the end of December 2017; and the tens of thousands of resolutions adopted by the General Assembly (year after year it approves more than 300 resolutions during the regular sessions – as an illustration, during the 2016-17 (71st) session it adopted 317 resolutions and during the current 72nd session 266 resolutions (as of 24 December 2017) ). It also includes the judgments of the International Court of Justice; the resolutions approved by the Economic and Social Council (ECOSOC) (32, 28 and 35 adopted in the course of 2017, 2016 and 2015 respectively); and the uncountable decisions reached by the myriad of the subsidiary organs, ad hoc bodies, programmes, etc. Since a large portion of the latter decisions aim at implementing the activities of the Organization in its various spheres of activity and at executing the resolutions of its principal organs, taken as a whole, they constitute the practice of the UN.

Therefore, any attempt to deal with the UN’s law and practice is, by definition, a highly selective exercise and one should be allowed to use his/her discretion in determining what to include and what to leave out. This is what the three authors of the book under review have done. The first edition (that came out in 2008) was principally based on the materials used for the class on the ‘UN Constitutional Law’ taught by Professor Thomas Franck at the New York University’s School of Law. This second edition – Law and Practice of the United Nations: Documents and Commentary –, published eight years after the first edition, features, among others, new chapters on terrorism, on nuclear proliferation, and on the environment (examined from the perspective of sustainable development). Moreover, the authors have expanded on the analysis of the ever-elusive (and disappointing for that matter) reform of the Security Council and have revised the chapter on self-determination, where so much has happened since the first edition. Given the burning issue of self-determination and associated matters, it appears that the authors have chosen to cover certain events in detail (e.g. the civil war in Sri Lanka and the crisis in Kosovo), while they have dealt with other events of arguably the same magnitude (suffice to mention the civil war in Sudan, the question of Darfur, and the creation of the Republic of South Sudan and its admission to UN membership) rather inadequately. But this is probably coming again under the discretion that authors of books on UN law and practice have or should have.

Law and Practice of the United Nations: Documents and Commentary features an impressive collection of materials and well-prepared commentary on the UN, more specifically the authors focus on the Organization of the United Nations (OUN), rather than on the United Nations system or, as is also known, the ‘UN family’. This becomes obvious from the discussion of the UN’s legal status (pp. 113 et seq.). There, one might have preferred an expansion upon the discussion on such (legal and political but also procedural) issues as to whether the OUN acts (or is meant to act) as an agent of the entire membership. The discussion could have also included consequences regarding the relationship between the Organization and its membership, especially when the ‘agent’ omits or fails to act. The UN system can only be described as gigantic. Currently, it comprises the OUN with a plethora of its principal and related organs, the fifteen Specialized Agencies (twenty, if the constituent agencies of the World Bank Group are counted as separate institutions), eleven Programmes and Funds, five so-called ‘related Organizations’, and a number of other entities. The latter are described by the UN as its ‘operational arms’ and concentrate on the areas of, inter alia, HIV/AIDS, disaster reduction, and peacebuilding.

Having said that, it is true that the book does have some references to most of the Specialized Agencies. The reader has the opportunity to obtain an overall picture of their mandate as well as of their law-making functions and capabilities (pp. 155-159). The authors’ choice to concentrate on the OUN rather than on the broader UN system probably reflects the origins of the book, namely a detailed collection of materials and critical observations on the UN Charter, the latter understood as the Constitution of the Organization of the United Nations.

However, for many years the bulk of the Organization’s transactions have been carried out under the auspices of the UN system and not by the OUN per se. Therefore, it might be the case that the student of UN affairs (as opposed to a general reader) will require a more detailed understanding of the functions, activities, and operations of the extended family of UN’s entities and bodies. Although the book is focused on the main OUN organs, it is quite descriptive of the work and procedures guiding the principal but also the subsidiary organs of the OUN. And it is welcomed that the authors have chosen to include specific, detailed, and contemporary examples of its practice. Thus, is the case of the Human Rights Council, a subsidiary organ established by the General Assembly under Resolution 60/251 on 15th of March 2006. Its work is illustrated by the authors’ examination of China’s national human rights report (submitted in August 2013), the report of the Working Group on the Universal Periodic Review pertaining to China (presented in December 2013), and, finally, China’s reply to the Human Rights Council (filed in February 2014) (pp. 496-503).

But what is arguably missing is an evaluation of the work that the various UN organs carry out. This addition would have made this collection of materials and insightful commentary complete. Presumably, any reader (and not only the student of UN affairs) would be interested to know whether, in the opinion of the authors or in the opinion of other commentators, organs such as the General Assembly, the Security Council, the Human Rights Council, and the International Court of Justice are effective, somewhat effective, ineffective, or completely ineffective. One may also be curious whether their activities have appreciable results or not; in short one is left wondering whether their overall performance is good, bad, or irrelevant. The question of efficiency and effectiveness is ever crucial and certain member states believe that the financing of the UN system should be linked to its performance. Thus, to the four parts of the book, namely Relevance; Capacity; Practice; and Accountability, a fifth part on the ‘Effectiveness and Efficiency’ might have been added.

Even though Chapter 16, titled ‘Accountability in Practice’, does offer some insight on certain cases of failure as well as on certain instances of inaction, the reader is probably left with a big question in regards to a general evaluation of the UN’s practice; is the UN a stellar performer or is it a huge bureaucracy with an average rate of success and with a more than average rate of failure? In today’s world, which is characterized by a superabundance of international institutions, is the UN as indispensable as it was in previous decades?

General Assembly Adopts Resolution Declaring the Indian Ocean as a Zone of Peace. Photo credit: UN Photo/Rick Bajornas.

This last question, no matter how complex and intricate it is, emerges from an undisputed reality, which should not go unnoticed and which has consequences for the UN’s external relations. Specifically, in an increasing number of areas the UN is in (direct or indirect) competition with other international institutions, primarily regional organizations. The significance of this development for both – the perceived primacy of the UN and for the global community as a whole – should not be underestimated. For example, for many decades the UN has not been the only active international organization in the area of promoting, protecting, and safeguarding human rights and fundamental freedoms. On the contrary, there are various regional human rights systems in the Americas, in Africa, in the ASEAN, in the Arab world, in the Islamic world, and in Europe. These systems are invariably pursued in the context of intergovernmental organizations and play a very important role in consolidating human rights in the respective regions and occasionally even beyond them. While it has not been possible to have a UN human rights court until now (although it is arguably within the International Court of Justice’s remit to adjudicate cases dealing directly with breaches of fundamental freedoms), three regional human rights courts are in operation and a fourth one was recently created by the Arab states (and remains to be operationalized).

In sum, the UN should not only be examined internally but also externally; in other words, it should be viewed as the multilateral institution par excellence which must survive in a multi-polar global community characterized by a superabundance of international institutions. One does hope that this extremely useful and well-prepared book will see many more editions that will record how the UN copes (or not) with the staggering number of challenges that it faces. Until then, the diligent student of UN affairs will no doubt find an invaluable companion in Law and Practice of the United Nations: Documents and Commentary, which will serve him/her well in unravelling this multifaceted Organization.