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Macdonald, Ronald --- "The Charter of the United Nations in Constitutional Perspective" [1999] AUYrBkIntLaw 12; (1999) 20 Australian Year Book of International Law 205

The Charter of the United Nations in Constitutional Perspective

Ronald Macdonald[∗]

The purpose of this paper is to consider the Charter of the United Nations (UN) and its associated provisions, as represented by certain multilateral conventions, resolutions and declarations, from a constitutional point of view. It seeks to determine whether the Charter is a mere treaty, albeit with universal scope and near-universal membership, restating general principles of international law, or whether it is recognised as a world constitution increasingly influential in the creation and consolidation of a universal legal community.[1] This question is increasingly important in view of the number of states members of the UN and the variety of situations that call for more detailed regulation in the management of international affairs.

The constitutionalist perspective is about the establishment of important, albeit limited, supranational competencies and the adjustment of national legal orders to the existence and recognition of such competencies at the international level.[2 ]To consider the Charter of the UN and its extensions as the constitution of the international community tout court marks a significant step towards change and centralisation at the expense of classical sovereignty in international society. Constitutionalism is also about democratic governance and respect for individual rights. In this respect, I will suggest that the constitutionalisation of the principles of the Charter and its extensions is fully in line with the inclusionary ideals embodied in democratic constitutions and can thus be understood as a complementary feature of national constitutional traditions.[3]

The object of the paper is to emphasise the extent to which the fundamental provisions of the Charter and the laws generated by the organisation are in fact providing constitutional guidance in the normative evaluation of conflicts over interests and values which global integration is bound to produce and must resolve. In order to identify the major principles that ensure the existence of different states and the compatibility of the objectives of those states with the obligations they have assumed I will start with a brief review of the most relevant of the Charter’s 111 articles.

The Charter of the United Nations

Articles stating principles erga omnes and jus cogens

As Zemanek puts it, almost all the fundamental principles of international law can be found in the Charter.[4] The Charter has consolidated previously existing rules and developed new principles of international conduct, giving both categories ‘a distinct legal status [obtained] by having been formally incorporated into a multilateral treaty of historic importance’.[5]

The Preamble summarises the objectives and the purposes of the UN. To some extent, it duplicates the provisions of Articles 1 and 2. However, the first lines of the Preamble give the Charter a forward-looking constitutional flavour. The ‘Peoples of the United Nations’ are said to enjoy rights and obligations under the document. In fact, the first line of the Preamble, which reflects the language of the Constitution of the United States, represents the first time the concept of ‘Peoples’ appears in international law as a legal category.[6] Human rights, including social and economic rights, are referred to at the very beginning of the Preamble. As Cot and Pellet rightly observe:

il est très remarquable à cet égard que, tout au long de la Charte, commme c’est le cas du préambule, tout disposition qui évoque les droits de l’homme traite aussi des problèmes économiques et sociaux.[7]

Despite this remarkable beginning, in which the drafters courageously sought to reach out to all humankind, the focus returns to states in the closing sentence of the Preamble and governments are indicated as the subjects in charge of the rights and obligations of the Charter. Peoples are again referred to in Articles 1.2 and 55, in relation to the right of self-determination, but all other provisions in the Preamble refer to states and governments. Perhaps then the Charter does begin with an overstatement, because governments remained the authors of the Charter and states the principal actors in the creation and implementation of UN law; nevertheless, the Preamble is a text awaiting the interpreter’s attention; its time has yet to come.[8]

Article 1.1, empowering the organisation to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression, states the main objective of the UN as the maintenance of international peace and security. Article 1.2 calls for the development of friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. As evidenced by the number of formerly dependent territories brought to independence under the aegis of the organisation, this has been one of the most productive areas of action of the UN. With the passage of time, and the action of new member states, the general principle of self-determination became a principle of jus cogens.[9]

The purposes of the UN stated in Article 1.3, namely to co-operate in solving international problems of an economic, social, cultural or humanitarian character, and to promote respect for human rights, have from the outset occupied a prominent place in the work of the UN, in contrast to the League of Nations, and have been reaffirmed in countless resolutions and declarations. This provision is interpreted as binding on all states. Indeed the obligation to promote and encourage respect for human rights and fundamental freedoms for all without distinctions appears to have reached the status of jus cogens.[10]

At the time of the creation of the UN, Article 2.7 was considered a sacred, if not one of the highest principles of international law. However, the rise in importance of other principles of international law brought about a shrinkage of its traditional scope. By recognising the newly accepted values associated with the protection of human rights old distinctions between internal and international war were blurred. The cases of Somalia and Liberia are emblematic of this development in the practice of the UN.

In both cases, the existence of a civil war, which in traditional theory falls within the reach of Article 2.7, was defined by the Security Council as a situation capable of threatening international peace and security and therefore subject to resolutions under Chapter VII.[11] In both cases China, which has always considered the principle laid down in Article 2.7 as inviolable, supported the resolutions, considering the situation at hand a ‘unique situation’ not constituting a precedent.[12] Another remarkable example of this trend is Security Council Resolution 688 of 15 April 1991, which requested Iraq to allow immediate access to international humanitarian organisations.

Almost all the principles listed in Article 2 have achieved the status of jus cogens. After restating the principle of the sovereign equality of all members (Article 2.1), this Article proclaims the duty of member states to fulfil in good faith the Charter’s obligations (2.2), requires states to use peaceful means to settle international disputes (2.3), enjoins the threat or use of force against the territorial integrity or political independence of any state (2.4), and imposes on states the duty to give the UN every assistance in any action it takes in accordance with the Charter (2.5). Article 2 also imposes on the organisation a duty to ensure that states which are not members of the UN act in accordance with the principles laid down in the Charter (Article 2.6). The latter sub-paragraph, which will be examined below, is particularly relevant for purposes of ascertaining the constitutional value of the Charter.

At a later stage, General Assembly declarations and a number of treaties referred to the principle of sovereign equality as one of the bases for the right to development, the right to freely dispose of natural resources, and for the general condemnation of neo-colonialism in any form.[13] However, the principle of sovereign equality can be derogated from by treaties in which states agree to restrictions on their sovereignty or equality; derogations are permitted to the extent they are freely accepted by the state (for example, the Treaty on Non-Proliferation of Nuclear Weapons 1968, in which non-nuclear states agreed to forfeit their sovereign right to acquire nuclear weapons in the interest of world peace).

The fundamental duty to settle international disputes by peaceful means is proclaimed as one of the purposes of the organisation in Article 1.1, but is stated as a general principle in Article 2.3. Article 33 provides an illustrative, non-exhaustive list of dispute settlement modes, adding that states may resort to other modalities as long as they are peaceful. The validity of this principle was reinforced by the Manila Declaration on the Peaceful Settlement of International Disputes, and a number of General Assembly resolutions. The importance of the principle of peaceful settlement is evidenced by the prominent place it occupies in the great regional arrangements, such as the Organisation of American States and the Organisation of African Unity, the many treaties on the protection of human rights, and on arms control, the comprehensive provisions of Part XV of the Law of the Sea Convention 1982, and the Dispute Settlement Understanding of the World Trade Organisation.

Articles revealing constitutional characteristics

Article 10 defines the functions and powers of the General Assembly. Although not designed as a legislative organ, Article 10 empowers the Assembly to discuss any questions or any matters within the scope of the Charter or relating to the powers and functions of any organs provided for in the Charter and, subject to Article 12, to make recommendations to members or to the Security Council or to both on any such questions or matters. Furthermore, Article 13(1) confers on the General Assembly an unrestricted power to initiate studies and make recommendations for the purpose of promoting international co-operation in the political, economic, social, cultural, educational, and health fields, encouraging the progressive development of international law, and assisting in the realisation of human rights.

Article 12 provides for a division of labour and indeed a superiority between the two main organs of the UN: while the Security Council is exercising in respect of any dispute or situation the functions assigned to it under the Charter, the General Assembly must, in most cases, refrain from making any recommendation with regard to that dispute or situation unless the Security Council so requests.

Article 24 sets out the functions and powers of the Security Council. By conferring on the Security Council primary responsibility for the maintenance of international peace and security, the members made the Council the cornerstone of the system of international security established by the Charter.[14] In carrying out its duties under this responsibility, the Security Council acts on behalf of the members. Virtually no limit is placed on the powers of the Security Council as long as, importantly, the Council acts in accordance with international law including the provisions of the Charter itself.[15] The Council exercises specific powers with regard to the maintenance of international peace and security, but, as stated by the International Court of Justice in the Namibia case, the reference to specific powers does not exclude the general powers the Council enjoys in order to carry out its duties in accordance with the Charter.[16]

Under Article 25, member states agree to accept and carry out decisions of the Security Council whether its decisions stem from specific or general powers, provided, in my opinion, the decisions in question are ‘in accordance with the present Charter’.[17] As will be referred to presently, the extensive powers conferred on the Security Council raised worries on the part of the smaller states at the San Francisco Conference, but the virtual non-functioning of the Council during the Cold-War period alleviated those particular concerns.[18] The old worries reappeared with the extraordinary reactivation of the Security Council after 1989. As stated by the representative of Zimbabwe during the debate on sanctions against Libya:

Any approach that assumes that international law is created by majority vote in the Security Council is bound to have far-reaching ramifications which could cause irreparable harm to the credibility and prestige of the Organisation, with dire consequences for a stable and peaceful world order.[19 ]

Article 25 has even more constitutional relevance than Article 24. We see here that sovereign states have agreed to accept general policy decisions they may not have voted for, considering that only 15 of the 188 members of the UN sit on the Council. This problem has led to a renewal of demands for an enlargement of the membership of the Security Council and a general reorganisation of the structures of representation within which member states operate.[20]

The famous Chapter VII refers to action with respect to threats to the peace, breaches of the peace, and acts of aggression. This is the chapter where the constitutional nature of the Charter comes clearly into view, as it gives the UN, through the Security Council, the lead role in carrying out operations that may involve the use of force. States are deprived of the right to use force unless authorised to do so by the Council itself. The only exception to this rule is contained in Article 51, which recognises the use of force in case of individual or collective self-defence.[21]

Article 39 grants the Security Council authority to determine the existence of any threat to the peace, beach of the peace, or act of aggression, and to ‘decide’ what measures shall be taken to maintain or restore international peace and security. Article 41 lists a series of measures not involving the use of armed force that the Council may call on the members to apply in order to give effect to its decisions. In those cases in which the Security Council considers the measures provided for in Article 41 would be or have been inadequate, it may, under Article 42, take such actions involving the use of force as may be necessary to maintain or restore international peace and security.

Article 43 to 47 set out the basis of Security Council action as regards the use of armed forces. Until recently, no action was taken in full compliance with the procedures of Chapter VII, nor has the Military Staff Committee been able to work according to its mandate under Article 47.[22] When military operations were authorised, the armed forces involved were not placed under the control of the Security Council through an agreement between the state or states concerned and the UN under Article 43: such forces were controlled by the states which the Security Council requested to intervene. Although, during the Gulf crisis, the Security Council acted effectively and with virtual unanimity in a declaratory and legislative sense, condemning Iraqi aggression, ordering member states to adopt sanctions against the aggressor, and authorising states to adopt all necessary measures to end the invasion, no serious attempt was made, or even considered, to activate the Military Staff Committee or to place the operations under the control of the Security Council.[23]

The only two occasions in which Chapter VII was invoked to legitimise extensive warfare actions by member states were the wars in Korea (1950–52) and in Iraq (1990–). On both occasions, Chapter VII was used to ‘provide cover for geopolitical undertakings led by the United States’. [24] While the operation in North Korea was conducted under the UN flag, although managed by the United States and its allies, the operations in Iraq, once the authorisation was granted, were conducted without space for the UN to monitor the intervention.[25]

The only other significant precedent before the end of the Cold War regarding the authorisation of the use of force by one member state against another member state, not including complete warfare operations, was the request to the United Kingdom to enforce a naval block outside the port of Beira in Mozambique, during the riots in South Rhodesia in 1966.[26] Recently other naval blockades, of larger extent, have been put in place during the Gulf war and the various phases of the Yugoslavian conflict.[27] Article 43 obliges the members to make available to the Security Council armed forces, assistance, and facilities, necessary for purposes of maintaining international peace and security. This was to have been done by special agreements or agreements negotiated on the initiative of the Security Council and concluded between the Security Council and Members. Interestingly, in view of the legal limbo NATO occupied during the Kosovo crisis of 1999, and the need to redefine NATO, which is a military alliance, not a traditional regional arrangement, those agreements can also be concluded between the Security Council and ‘groups of Members’; they are subject to ratification by the signatory states.[28]

Some authors find that several articles in Chapter VII give the Security Council a certain law-making capacity. For example, Kirgis affirms that ‘from the outset, the Security Council has had quasi legislative authority… Articles 41 and 42, buttressed by Articles 25 and 48, clearly authorise the Security Council to take legislative actions’.[29] This was also the opinion of John Foster Dulles, American Secretary of State at the time of the San Francisco Conference. He said the ‘Security Council is not a body that merely enforces law. It is law unto itself.’[30]

Under-appreciated and under-utilised, until recently, have been the possibilities inherent in Chapter VIII, which governs the functioning of regional arrangements or agencies under the Charter. Article 52 states that nothing in the Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional actions. Under Article 53 no enforcement action can be taken under regional arrangements or by regional agencies without the authorisation of the Security Council.[31]

While Chapter VIII is frequently associated with the military activities of the United States in Guatemala in 1954, the Dominican Republic in 1960, and Cuba in 1960 and 1962, Secretary-General, Boutros Ghali rightly identified wider possibilities when he underlined the ‘useful flexibility’ of the system as a whole. In his 1992 report to the Security Council, An Agenda for Peace, he pointed out that ‘decentralization, delegation and co-operation with UN efforts could not only lighten the burden of the Council, but also contribute to a deeper sense of participation, consensus and democratization in international affairs.’[32] In my opinion, the recognition of regional arrangements and agencies within the UN system, and the implicit need to work out compromises between universalism and regionalism, in the economic, cultural and social fields, as well as the military arena, is a striking example of an important constitutional feature of the Charter of the UN.

Two articles, Article 2.6 and Article 103, have particular relevance for purposes of revealing the constitutional significance of the Charter and the universal vocation of the organisation itself. Under Article 2.6 the organisation ‘shall ensure that States which are not Members of the UN act in accordance with the principles of the Charter as far as may be necessary for the maintenance of international peace and security. Article 103 provides for the superiority of Charter obligations over the obligations of members under other international agreements.[33]

The formulation of Article 2.6 is a further indication that other parts of Chapter I of the Charter, ‘Purposes and Principles’ are to be considered international customary law and therefore applicable to all states regardless of their membership in the UN. Since the obligations to maintain international peace and security and to prohibit the use of force have achieved jus cogens status, the provisions of Article 2.6 themselves would not necessarily be required to impose first-order juridical obligations on third states but would technically represent supplementary obligations and, of course, a political objective for the organisation.

Article 103, even more forcefully, assigns the Charter a quasi-constitutional relevance by giving it priority over any other treaty obligation that conflicts with the Charter. This article seriously impacts on the centuries-old rule of pacta sunt servanda, and affects the res inter alios principle as well. The implementation of this provision reverberates on third states also parties to treaties signed by member states. However, the near-universal coverage of the UN renders the practical effect of Article 103 less striking than previously.

A number of Articles, such as Articles 32 and 35, deal with non-member states, whose participation in the work of the General Assembly and the Security Council has been encouraged. In line with legitimate concerns for openness, it was recognised early on that it would be detrimental to the success of the UN if segments of the world population (non-member states) were to remain excluded from its activities and if the organisation did not provide for participation by non-state actors, who were playing an increasingly important role in international relations.[34]

The status of non-state participants in the work of the UN is different for entities with sovereignty and entities, such as non-governmental organisations (NGOs) and individuals, without sovereignty. The first category has traditionally been given a certain recognition by the General Assembly in the form of ‘observer status’, the second category has been accorded, under Article 91 of the Charter, ‘consultative status’ with the Economic and Social Committee (ECOSOC). The question of the extent of NGO participation has not yet been solved.

Access to the Security Council has traditionally been governed by Article 32 of the Charter and Rule 39 of the Provisional Rules of Procedure of the Security Council. While Article 32 limits access in principle to states, Rule 39 allows access to the Council for persons whom it considers competent to supply it with information or to give other assistance in examining matters within its competence. In recent years the Council has been flexible in encouraging contacts and consultations with non-governmental and inter-governmental organisations.

A further feature of the Charter that points in the direction of its constitutional vocation is the absence of any provision regarding the possibility of withdrawal from the organisation. Although the question of withdrawal was discussed at San Francisco, where it was tacitly agreed that any state could voluntary withdraw, the only existing precedent seems to demonstrate the practical unlikelihood of such an action for any significant period of time.[35]

Acts of the General Assembly

As mentioned above, most basic principles of international law are included in the provisions of the Charter. Almost from the outset, the General Assembly assumed the task of clarifying and interpreting those principles, sometimes elaborating on principles not yet established as international customary law.[36]

The action of the General Assembly has relevance in developing the formation of principles of general customary law by adding the significant weight of an interpretation shared by the vast majority of states. When a resolution restates and clarifies existing principles of the Charter or existing principles of international customary law it means the majority of states consider the interpretation given by the resolution to be representative of the current opinio juris on the subject. As the International Court of Justice said in the Nicaragua Case:

The effect of consent to the text of … certain General Assembly resolutions cannot be understood as merely that of “reiteration and elucidation” of the treaty commitments undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves.[37]

Furthermore, through the activity of the General Assembly, developing states, which represent the majority of the members, have been able to introduce new concepts and create new standards of international law, positively contributing to its expansion from a European-centred system to a more widely based universalist system.[38]

Among the more important declarations of the General Assembly that have developed the principles of the Charter and in part become rules of jus cogens, the following must be mentioned: (i) the Declaration 217A (III) of 1948 proclaiming the Universal Declaration of Human Rights; (ii) Declaration 1514 (XV) of 1960 regarding the granting of independence to peoples under colonial domination; (iii) Resolution 2625 (XXV) 1970, Declaration on the Principles of International Law concerning Friendly Relations and Cooperation among states, and (iv) the related Resolution 3314 (XXIX) 1974 on the Definition of Aggression; (v) Declaration 1803 (XVIII) of 1962 on Permanent Sovereignty over Natural Resources; (vi) Resolutions 2749 (XXV) of 1970 on the Principle applicable to the Seabed and Subsoil of the Oceans beyond National Jurisdiction; (vii) Resolution 1962 (XVIII) Declaration of Principles Governing the Activities of States in the Exploration and Use of Outer Space. These documents, each of which is a study in its own right, dramatically illustrate the unfolding of the provisions of the Charter and the process by which extensive areas of contemporary international law have been endowed with specificity without however abandoning their Charter-based foundations.

Recent activities of the Security Council

Almost all recent interventions by the UN and the Security Council in particular have been justified by humanitarian concerns. Some of these interventions were against individual persons as well as states. The main critique of the activity of the Security Council in this particular field is that the acts in question seem to point in the direction of the establishment of new norms of international law despite the fact that nowhere in the Charter is the Council (or any other organ of the UN) explicitly endowed with law-making capacity. As Zemanek affirms, ‘The word “measures” used in Articles 39, 41, and 42 of the Charter does not suggest that the Security Council may generate rules of general international law by decision.’[39] Yet, this is exactly what the Council has done on several occasions since 1989.[40] The first legally doubtful act of the Council after the end of the Cold War was the delegation of the power to use force in the intervention against Iraq.[41] That was followed by another delegation of use of force in the case of Somalia, where the Security Council authorised member states to cooperate in carrying out the offer of the United States to use force to establish ‘a secure environment for humanitarian relief operations.’[42] More significant from a law-making point of view was the guarantee of the inviolability of the Kuwait-Iraq boundary,[43] and the establishment of a Compensation Commission to solve the Kuwait claims against Iraq.[44]

An even more evident deviation from the usual activities of the Security Council, and an action that can hardly find a basis in international law, was the request to Libya to surrender two of its nationals to other states’ tribunals and the subsequent economic sanctions imposed under Resolutions 731 (1992) and 748 (1992).

The Council again used the instrument of resolution to establish an International Tribunal for the Prosecution of Persons Responsible for Serious Violation of International Humanitarian Law Committed in the Territory of the Former Yugoslavia in Resolutions 808 (1993) and 827 (1993), and an International Tribunal for Rwanda in Resolution 955 (1994). The possibility of grounding these actions in Article 29 of the Charter does not seem to be available since it is not possible to consider the tribunals in question as subsidiary organs necessary for the performance of the Council’s functions. The Council does not have a judicial or law-making function or competence against individuals. However, no member of the UN officially objected to this extension of the Council’s activities. Only Brazil and China expressed concern about the legality of the Council’s action in establishing the tribunals but neither of them voted against the resolutions. China voted in favour of the establishment of the Tribunal for the Former Yugoslavia and abstained in the case of Rwanda.[45]

The consolidation of this attitude of the UN to intervene in cases of breaches of human rights is increasing, along with a more problematic trend: the delegation of the power to use force against a state to an individual state or group of states in the execution of Security Council decisions under Article 42. Since the end of the Cold War delegations of power to member states have multiplied and have been used to foster the multi-national intervention in the civil war in Somalia, the French intervention in Rwanda, the United States intervention in Haiti, the use of NATO forces in Bosnia-Herzegovina, and the United States-led intervention in Iraq.

The legal validity of these and other post-Cold-War actions has been questioned by scholars.[46] For some, the newly established trend seems to signify a shift in the role of the Council away from the executive and operational role provided for it in Article 42 to a more directive role.[47] It is noted that since the Gulf War, the Security Council has tended to maintain a tighter control on peace-keeping and peace-restoring operations by explicitly limiting the authorisation to use force temporally, such as in the case of France’s intervention in Rwanda (two months), or in terms of the definition of the targets to be achieved. Some authors, however, notice that another trend is developing, which seems to constitute a dramatic shift towards the ‘abandonment of collective responsibility with a return to unilateralism of the sort repudiated by the UN Charter’.[48]

The lack of explicit dissent, according to the maxim qui tacet consentire videtur, seems to embrace the possibility of the formation of a new norm of international customary law, springing from the failure of the norms of Chapter VII. However, despite the lack of formal dissent in the actual proceedings, one needs to note increasing concern on the part of less powerful states regarding the expanding sphere of action of the Security Council. As Bedjaoui notes:

The small and medium nations are again gripped by the fear which some of them had already expressed at San Francisco in 1945 when they saw danger in the sweeping powers that the Conference was ready to confer on the Security Council in the Charter then on the brink of adoption.[49]

These concerns are increased if we remember that in the past humanitarian motives were often used as a moral cover for more cynical undertakings. The risk that single states might resume the practice of acting autonomously to pursue ‘humanitarian’ objectives is rightly seen as unacceptable.

Bedjaoui goes on to argue that a major weakness in the UN system lies in the fact that no instrument to control the legality of the actions of its organs is available to member states. Zemanek underlines the same point as regards recent activities of the Security Council:

Since the Council started working properly after 1989, its permanent members, once they come to an understanding among themselves, feel not really restrained in their decision-making by provisions of the Charter or by rules of international law if it suits their combined interests, and they are apparently able to persuade other Council members to fall into line.[50]

In fact, the actions of some members in the past few years seem to stretch even farther the extension of the principle of implicit consent, in some cases arriving at the point of completely by-passing the position of the Security Council altogether. While the action of ECOWAS in Liberia, although initially carried out without explicit authorisation of the Security Council, can be explained and was approved by the Council, in view of the exceptional gravity of the situation in the country,[51] other more recent undertakings raise more serious doubts as to their legality. Exemplary of this trend is the position adopted by the United States and the United Kingdom in their decision to resume the bombing of Iraqi bases, which was based on the assumption that the authorisation of the use of force given by Council Resolution 678 was still valid, despite the fact that the Council had refused to renew its authorisation.[52] Both states reportedly threatened to veto any resolution brought forth to terminate sanctions and the authorisation to use force against Iraq.[53] The recent action of the North Atlantic Treaty Organization (NATO) in Kosovo may probably be assimilated to this trend.

The NATO action in Kosovo is even more problematic from a legal point of view because (i) NATO is not a regional organisation as considered in Article 53 of the Charter, but is based on the principle of collective self-defence in Article 51,[54] and, (ii) the UN, in particular the Security Council, did not deliberate or act directly with regard to a military intervention in Kosovo prior to the NATO intervention. NATO has the authority to take actions in response to an aggression against one of its members, if the Security Council has not acted to restore international peace and security, and only until the Security Council has acted. Interestingly, the Security Council has never referred to NATO as a regional organisation, with regard to the latter’s involvement in peace-keeping operations in other areas of the former Yugoslavia since 1992.[55]

As two American commentators rightly observed:

Unless we are prepared to concede that all nations have a right to use force to enforce Security Council resolutions — a result that the United States would not favour — we ought to accept the Charter
’s legal regime with the clear recognition that it sometimes requires us to forgo policy options we may prefer.[56]

Other Constitutional Orders

I have already referred to regional arrangements or agencies and the inviting possibilities for decentralisation, including the delegation of powers, inherent in the overall concept of order envisaged in the Charter of the UN. To complete the delineation of the legal landscape it is now necessary to say something about subsidiary legal orders: the UN Convention on the Law of the Sea, which represents a constitution for the oceans; the European Union, which constitutes a novel juridical order of international legal character; and the World Trade Organization which is presiding over and creating, an economic constitution for the world. These are cases in which states have by treaty created new legal orders that may be regarded in some measure as autonomous as regards law making, the application of law, and the settlement of disputes, in relation to other legal phenomena. All three must be taken into account in any consideration of the constitutional nature of the Charter and the organisational structure of the international community.

Ocean regimes

The Law of the Sea Convention, a milestone in the history of international relations, clarified or replaced much of the old law of the sea and introduced new concepts in international law.[57] This convention was adopted in Montego Bay, Jamaica, on 10 December 1982, after nine years of negotiations, at the Third UN Convention on the Law of the Sea (1973–82) with 130 votes against four, and 17 abstentions. The final act of the Conference was signed by some 150 states and entities, including the European Union, and the convention entered into force on 16 November 1994.

Developments in the law of the sea over the last 70 years have followed the qualitative procedural change evolved in the twentieth century for its codification and progressive development through international consultations, negotiations, and agreements, rather than through traditional unilateral means based on discovery, effective occupation, and national claims supported by political strength. Virtually all those developments, encouragingly positive and comprehensive, have taken place under the auspices of the UN and in light of the principles of the Charter and the Law of the Sea Convention 1982. Just as the Charter of the UN stands as the mother constitution to the Law of the Sea Convention, the latter now stands as a constitution in its own right to the structure and process of continuing refinements such as those in the 1995 Agreement on straddling and highly migratory stocks. The 1982 Convention is basically a framework convention: it is to be filled in by literally hundreds of geographically or functionally sectoral agreements already in existence or yet to be created. Further progressive development, adjustment and crystallisation of all aspects of the law of the sea and sustainable ocean management will continue under the benign guidance of the overarching constitutional provisions referred to.[58]

The European Union

The European Union presents unique features. It differs from other international organisations because of the magnitude of its objectives and the power of its organs to realise those objectives. The European Union represents a further development from the original European Communities in that it broadens the scope from the economic area to the policy and security area.[59]

The main bodies of the Union are listed in Article 4.1 of the Treaty of Rome, and have remained the same through subsequent modifications.[60] They are the European Parliament, the Council of European Union (now Council of the European Union, hence Council), the European Commission, and the European Court of Justice. The European Parliament (formerly Assembly) and the European Court have been common to the three Communities from the beginning. The two executive organs, however, were initially different organs for each Community, but were replaced by a single Council and a single Commission in 1965.[61]

For purposes of exercising their competencies, European Community institutions have been provided with a number of legislative and jurisdictional instruments, some of which directly bind member states or those towards which they are directed.[62] Regulations can be issued only by the Council of Ministers; they are binding for the members in their entirety and directly applicable and enforceable in the member states. Decisions are wholly binding upon whomever they are addressed, whether it be a single state or a person. Directives are binding as regards the objectives they set, but they leave to member states responsibility for including their provisions in national legislation through apposite national laws.[63] However, the Court has ruled that provisions of a directive that are sufficiently precise may have direct effect upon a member state if the state has not provided for the implementation of the directive within the period allowed.[64] Recommendations and Resolutions are not binding although they can influence the behaviour of members in a manner similar to the recommendations of other international organisations.

Areas in which the European Community can exercise its competencies are listed in the Treaty of Rome, as amended by subsequent treaties. This list is not exhaustive. According to Article 235, the Council of Ministers can legislate in areas not covered by the letter of the treaty if such action is necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and Article 100 empowers the Council to ‘issue directives for the approximation of such provisions laid down … in Member States as directly affect the establishment or functioning of the common market’. The principle laid down in these articles is clearly stated in Article 3b of the European Community Treaty, as amended by the Treaty of Maastricht, which says that:

in areas which do not fall within its exclusive competence, the Community shall take actions, in accordance with the principle of subsidiarity, only and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

The Treaty of Maastricht is the first instrument to refer explicitly to the much discussed ‘principle of subsidiarity’. Until then the Community did legislate in areas not explicitly covered by the treaty when it deemed it functional to the achievement of the objectives of the Community.[65] The Court of Justice ruled on several occasions that the Community had power to legislate based on the need to realise the objectives of the Treaty.[66 ] According to Article 3b, member states retain sovereign rights in every area not explicitly covered by the treaties unless it is established that a certain action can better be carried on at the European level.[67] Importantly, however, the boundary between the competencies of the states and the Community is not well specified in the treaty and, since 1992, few road-blocks have been placed in the way of Community legislation in areas not covered by the treaty but ‘functional’ to its objectives; this shows once again that member states are willing to accept a larger role for the Community if that proves to be of advantage for their national interests as well.[68] It is one of the relevant features of the European Community that the competencies of the organisation can be modified by the practice of its organs and legitimised by the rulings of its court, without having to amend the founding treaties.

The treaty of Maastricht also formalises the doctrine of the acquis communautaire, by which the corpus of the Community’s law, the main treaties and all the secondary legislation, is considered as established at the Community and national level. The three original Treaties and the European Union Treaty have appropriately been called ‘a complementary constitution for each of the Member states, which, like their national constitution, structure their legal order’.[69]

Internally, states have a clear obligation to ensure respect for European law within their territory (Article 5 of the Treaty of Rome). European law therefore may directly affect citizens of the members. Individuals may be the object of a decision of the Council or Commission, and Article 177 of the Treaty of Rome provides that national courts may refer to the European Court of Justice for a preliminary ruling on matters of European law to be applied in their procedures. More significant, the European Court has ruled that national courts must refrain from applying provisions of national law that are in conflict with European provisions.[70]

Externally, the European Union is recognised as the representative of member states in international relations in several areas under its internal competence. Its achievements in the economic field have made it a point of reference for international agreements, such as the North American Free Trade Agreement (NAFTA), and an irresistible pole of attraction for other states of Europe and the neighbouring regions. Its development as an economic unity is already having effects in the international arena.

The member states and the Union have sought through the years to take a single common position in areas covered by the treaties. They have presented the Community, represented by the Commission, as a credible actor in important international economic venues such as General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO).[71] The Union’s role in other international institutions is less marked: although it enjoys full membership in the Food and Agriculture Organisation (FAO), the Community occupies observer status in the majority of the other UN bodies.[72] Despite the reforms indicated in the Amsterdam Treaty, the Union still lacks a strong common foreign policy; member states retain most of their sovereign powers in this area. However, the trend is towards stronger integration in various fields, such as the Single European Currency and the harmonisation of national legislation. The impact of the Union both internally and in the international arena is unprecedented; and its supranational character is beyond question.[73]

The World Trade Organization and the international economic order

Several articles of the Charter of the UN refer to economic development and economic cooperation as objectives of the organisation. The reason for the inclusion of these references was the widespread conviction that one of the major weaknesses of the League of Nations was its failure to deal with the instability of international economic relations between the two world wars. To avoid a repetition of this situation, the drafters of the Charter emphasised the need for concerted action by UN organs in the field of international economic relations. As envisioned in the Charter, the General Assembly and ECOSOC would be responsible for setting general policies and guidelines and for coordinating the work of the specialised agencies, which would provide technical expertise and carry out operations in the field.

While the specialised agencies managed with time to acquire expertise and achieve a degree of international credibility, the attempts of the central organs to establish general economic policy were less successful, as illustrated by the fate of the Declaration on the New International Economic Order[74], and ECOSOC never acquired a real coordinating status. In short, the fulcrum of the international economic regime never truly passed under UN leadership but remained within the system created by the Bretton Woods Conference, which established the International Monetary Fund and the International Bank for Reconstruction and Development (the World Bank) and, at the same time, called for the creation of an organisation concerned with international trade.

In 1946, the newly established ECOSOC requested the convening of an international conference aimed at establishing an international trade organisation. In 1947, a conference was held in Geneva to discuss the creation of such an organisation and to negotiate a multilateral agreement on tariff reductions to be adopted pending the creation of the International Trade Organisation. The United States government was a strong sponsor of this agreement, being able to consider it under the extended negotiating authority given it by Congress to conclude tariff reduction agreements with the allies during the war. The fact that the United States could not negotiate any agreement leading to the establishment of an international organisation without Congressional approval was the main reason GATT was not conceived as an organisation. Congressional opposition to the International Trade Organisation, whose Charter was completed the following year in Havana, was so strong that the President refused to even ask for its adoption.[75]

The GATT, created as a temporary agreement to be incorporated into the International Trade Organisation, remained therefore the only international authority dealing with trade on the global level. Despite its status as a temporary agreement, it nonetheless represented a huge step forward in international economic law: before GATT, negotiations were carried out on a bilateral basis; after GATT the contracting parties had an arena in which to negotiate multilateral agreements in a variety of tariff-related subjects. As an international negotiating forum, GATT successfully achieved significant international tariff reductions and generated secondary agreements in areas not expressly covered by its original Charter[76] As the main international trade authority, although of unclear international status, it represented the third pillar of the international economic system envisioned at Bretton Woods.

With the increase in the number of developing states during the decades following its creation, the GATT system was criticised on the ground that it allowed an unequal distribution of benefits between developed and developing states. The General Assembly, therefore, in reaction to the Bretton Woods system, created several new agencies for economic matters, most notably the UN Commission for Trade and Development (UNCTAD). UNCTAD rapidly became the ‘principal forum for study and discussion of international economic issues of importance to developing countries’; it was a major pressure group fostering the cause of developing countries with GATT, and it obtained exceptions to the most-favoured nation principle and preferential treatment for developing countries.[77] At the same time, GATT’s role in the international economic system expanded to the point that it became a de facto international organisation, despite its almost total lack of organisational structure. GATT was in fact considered a de facto specialised agency in its relations with the UN, although no agreement of the kind concluded by the other two Bretton Woods institutions was concluded.

On 15 April 1994, 124 states and the European Community adopted the World Trade Organization Agreement, which, with its more than 25,000 pages, is the longest international agreement ever concluded and ‘the most complex legally and, arguably, the most important world-wide agreement since the United Nations Charter of 1945.’[78]

The WTO Charter was included in the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiation. It comprises a Preamble, 16 articles, and four annexes containing the negotiated texts of the Uruguay Round. The first three annexes are mandatory for all members and represent the first attempt at the global level to establish a body of law similar to the European Union acquis communautaire.[79] The GATT acquis is formed by the WTO Charter, and its first three annexes.

As indicated in Article II, the purpose of the WTO is to provide a common institutional framework for the conduct of trade relations among its members, the aim being to develop ‘an integrated, more viable and durable multilateral trading system, encompassing the GATT, the result of past trade liberalization efforts, and all of the results of the Uruguay Round of Multilateral Trade Negotiation’.[80] In order to achieve this objective, Article III places the WTO in charge of (i) facilitating the implementation, administration and operation of the results of the WTO and Multilateral Trade Agreements, and Plurilateral Trade Agreements where applicable; (ii) providing a forum for multilateral negotiation of the Members; (iii) administering the Dispute Settlement Understanding; (iv) administering the Trade Policy Review Mechanism and, (v) cooperating with the International Monetary Fund and the International Bank for Reconstruction and Development, thus taking the place originally intended for the International Trade Organisation and completing the Bretton Woods structure.

Despite its broad range of objectives, the structure of the WTO is relatively simple. Its main organs are the Ministerial Conference of all members, which exercises decision-making powers and meets at least every two years, and a General Council, also comprising representatives of all members, which discharges the responsibilities of the Ministerial Conference between the meetings and meets in its capacity of Dispute Settlement Body and Trade Policy Review Body when appropriate. Every agreement included in the annexes will be administered by a technical Council, under the general guidance of the General Council. Finally, the WTO has its own secretariat for administrative functions.

Overall the WTO presents itself as a more effective international organisation than GATT. It lays down ‘the legal foundation for a new international economic order for the 21st century’.[81] Its constitutional value is highlighted by the fact that it establishes a legal hierarchy among the WTO and the Multilateral Trade Agreements. For instance, in case of conflict between norms of the WTO Agreement and the Treaties, the WTO Charter prevails (Article XVI.3). As well, the other Multilateral Agreements prevail over GATT 1994 in their area of competence (General Interpretative note to Annex 1a). The Multilateral Agreements include further provisions on conflict of laws, for instance, both GATT 1994 and GATS state legal priority over trade areas and custom unions (Article XXIV, GATT 1994, and V GATS).

The Dispute Settlement Understanding provides a single integrated system without procedural uncertainties. It establishes a second degree of dispute settlement in the Appellate Body, thus strengthening the judicial character of the entire procedure. Most notably, the Appellate Body comprises individuals not representing their states and a preference is stated against choosing citizens of a party to the dispute to sit in the Appellate Body. The Appellate Body is always established unless the members decide by consensus not to do so, according to the principle of negative — or inverted — consensus; this assures the almost automatic establishment of the Appellate Body. In short, the dispute settlement system represents a major enhancement of the principle of the rule of law in the WTO system and strengthens the credibility of the WTO as a whole. It also represents, through the application of the inverted veto principle, a striking case of world-wide (the membership of WTO is over 160 states) acceptance of a compulsory dispute settlement system.[82]

The Trade Policy Review Mechanism is intended to strengthen the adherence of members to their obligations under the WTO and Multilateral Trade Agreements. The Ministerial Conference has however no power to impose specific obligations or policy commitment, on non-compliant states nor can it take such states to the Dispute Settlement Body. However, the Review Mechanism achieves greater transparency of the trade policies and practice of the WTO in the implementation of the various agreements.

Although it has been said that the WTO has ‘no more real power than that which existed for the GATT under the previous agreement,’[83] it has the potential to become the constitution of world trade.[84] According to Petersmann:

the reform of the old GATT 1947 through the 1994 WTO Agreement, and the resultant transformation of the world trading system, were the most successful attempts at reforming a worldwide organisation since the substitution of the 1945 United Nations Charter for the ineffective League of Nations Charter of 1919.[85]

Interestingly, the path chosen to adapt GATT to the changed circumstances of international trade was not that of the amendment procedure in the GATT agreement: it was decided instead to substitute the aging agreement with a completely new one, which embraced the successful experiences and results of the old one (the agreements adopted during the various rounds of negotiation), while discarding those acts considered insufficient, such as the Protocol of Provisional Applications and some of the exception to the most-favoured nations granted to developing states.

The WTO is far from perfect; nonetheless it represents the ‘culmination of over fifty years of efforts toward the development of an international institution to govern and discipline world trade’.[86] In terms of credibility, it is widely recognised as more sophisticated than many other international organisations; it is without doubt the leading agency in the sphere of international economic relations.

The three phenomena referred to above, namely, the regime of the oceans, the European Union, and the World Trade Organization, do not undermine the concept of the Charter of the UN as a constitution, that is, as the global basic order of the general community of states under international law. The Charter system represents an all-embracing legal order, a universal system of international law, even though occasionally the solidity of its specific legal characteristics may be in doubt. The development of the three subsidiary legal orders referred to has not led to the fragmentation of the more comprehensive legal order. With their own specific objects, and their own particular laws, they have brought variety and efficiency to the working of the wider system.[87]

Concluding Remarks

Bearing in mind the structure and architecture of the organisation, the fundamental principles of the Charter and their development by the great foundation texts of the last 50 years, the interpretations of the International Court of Justice, the practice of states and international organisations, the opinions of qualified commentators, the attitudes of the publics of the world to the UN as part of a flow of policy-making activity, and the long durée of the historical processes at work since the early nineteenth century — we can now return to the question posed at the outset: is the Charter of the UN a world constitution, de facto if not de jure, or perhaps in fieri? Not surprisingly, the interpretative community of the international legal profession answers this question in different ways.

While most scholars acknowledge the prominence of the Charter above other conventional instruments and recognise that it contains norms of jus cogens, many do not believe the Charter has more significance than that of a treaty, even though it is more far-reaching than any other treaty. While the UN is generally considered ‘the most important international organisation for the maintenance of peace and security which has been established in modern history’,[88] many scholars remain reluctant to recognise the Charter as other than an historic instrument founding a permanent system of general security. Rao underlines a widely held view when he says that, although the tasks of the organisations are far reaching and of a global nature, ‘the United Nations has not been conceived as a world government, nor could transform itself into one’.[89] The lack of effective capacity of UN organs to impose their decisions on the members, as well as the absence of any mechanism to juridically review their acts are almost universally seen as serious problems for the constitutional perspective.[90]

The distinguished Italian jurist Arangio-Ruiz, now a judge of the United States-Iran Claims Tribunal in The Hague, answers the question posed rather negatively. In a recent article, he does not exclude a priori the possibility that sometime in the future the UN may develop into something more on the lines of a confederation or a federation. For the time being, however, he sees the UN as a mere union of states, subordinate rather than superior to its members.[91] On the same line is Conforti, who sees the Charter as a treaty, not binding on third states, and the UN as a voluntary community.[92] Crawford, although recognising the existence of several constitutional traits in the Charter, which have the potential to make it a constitutive act, notices the constitutional inadequacies of the Charter and suggests that it can be considered a starting point towards the development of a constitution for the international community.[93]

Somewhat in the middle is Picone, who sees the UN as having a double nature in the international system. On one hand, it is a traditional international organisation, with forms and modalities defined by the Charter. On the other, it acts, in specific cases, as an organ of the international community, able to guarantee to states operating uti universi in the defence of rules erga omnes, a further layer of legitimisation.[94]

Other influential commentators have little doubt that the Charter is a world constitution. For Dupuy the vocation of the Charter is to serve as ‘the text of reference’ when international law is analysed, the Charter being ‘at the same time the basic covenant of the international community and the world constitution … [It is the] world constitution, already realized and still to come’.[95] Others perceive the Charter as a global constitution, in fieri. In a similar vein, Mosler quite rightly envisions the ‘trend of history [as going] towards relative sovereignty’.[96] An even stronger stand is taken by Tomuschat, who affirms that ‘the Charter is nothing else than the constitution of the international community … not to be compared to any other international instrument’.[97]

However perceived, doctrine agrees that the Charter is a treaty establishing the most comprehensive framework of cooperation in the history of international relations. The importance of the organisation as a permanent forum for multilateral diplomacy, and the moral as well as legal strength of the Charter as the only comprehensive covenant common to the universality of states, is undoubted. The dominant prism through which many commentators view ‘a constitution’, that is, what counts as a constitution and what does not, concentrates too heavily on posited rules. This image excludes issues of ideal — directed theory and social-cultural practices within an historical context; it tends to preclude inquiry into the telos or ends towards which a constituted system may be evolving.

In my opinion, the Charter is not only the most important document of the twentieth century, it is indeed one of the most important texts in the history of humankind; it stands at the apex of the international legal system providing inspiration and guidance to ‘the great community, the universal commonwealth of the world’.[98]

What then are the implications of the constitutional perspective of the Charter of the UN and its extensions?[99] The truth is that we have only begun to examine them.[100] While this vast terrain cannot be explored in this paper, it needs to be emphasised that even a brief overview of the provisions of the Charter and its extensions indicates that the constitutionalisation of the principles of the Charter is in line with the inclusionary ideals embodied in democratic constitutions and that legal supranationalism can be understood as a complementary common feature of national constitutional traditions. Supranational constitutionalism is therefore to be understood as a fundamentally democratic concept. It is an addition to the model of the constitutional nation-state, respecting the state’s constitutional legitimacy but at the same time clarifying and sanctioning the commitments arising from its interdependence.[101]


Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14 11


Declaration on the New International Economic Order 1974 21

General Agreement on Tariffs and Trade 1947 20, 21, 22, 23, 24

General Agreement on Trade in Services 1994 23

Manila Declaration on the Peaceful Settlement of International Disputes 1982 5

North American Free Trade Agreement 1965 20

Treaty Establishing the European Community 1957 17

Treaty of Amsterdam 1997 17, 20

Treaty of the European Community 1992 18

United Nations Charter 1945 1, 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 20, 21, 22, 23, 24, 25, 26, 27

Universal Declaration of Human Rights 1948 11

[∗] Faculty of Law, University of Toronto; formerly Judge at the European Court of Human Rights, Strasbourg, 1980–1998.

[1] B Conforti, The Law and Practice of the United Nations (1996) 4–5:

One might say that the Charter was born in a certain sense as a constitution granted (octroyée) [by the Great Powers]. The basic outline sketched at Dumbarton Oaks was presented as unchangeable. Although the Conference could decide by majority (two-thirds) on the wording of the individual articles, the participants knew that any substantial change in the Dumbarton Oaks proposals would have resulted in the rejection by the Great Powers, or by some of them, of the new Organization.

[2] On the Europeanisation of domestic legal systems in Europe see C Joerges ‘European Challenges to Private Law: on False Dichotomies, True Conflicts and the Need for a Constitutional Perspective’ (1998) 18 Legal Studies 146.

[3] See especially H Mosler, The International Society as a Legal Community (1980).

[4] K Zemanek, The Legal Foundations of the International System (1997) 47; See also, M Giuliano, T Scovazzi and T Treves, Diritto Internazionale (1991) 238; R St J Macdonald, ‘The Charter of the United Nations and the Development of Fundamental Principles of International Law’ in B Cheng and E D Brown (eds), Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenberger on his 80th Birthday (1988) 196.

[5] Q He, ‘The Crucial Role of the United Nations in Maintaining International Peace and Security’ in C Tomuschat (ed), The United Nations at Age Fifty, A Legal Perspective (1995) 80.

[6] This origin, clearly recalled by the rapporteur of the First Committee of the First Commission on 13 June 1945, is also reported in J-P Cot and A Pellet, La Charte des Nations Unies, Commentaire Article par Article (1985) 18. See also, R Ranjeva, ‘Peoples and National Liberation Movements’ in M Bedjaoui (ed), International Law: Achievements and Prospects (1991) 101–112.

[7] J-P Cot and A Pellet, ‘Préambule’ in Cot and Pellet, ibid 15.

[8] See in particular R B Russell, A History of the United Nations Charter: The Role of the United States 1940–1945 (1958) 910 (explaining the reasons for the ambiguities in the Preamble); H Kelsen, The Law of the United Nations (1950) 3–11; C Heyns, ‘The Preamble of the United Nations Charter: The Contribution of Jan Smuts’ (1995) 7 African Journal of International and Comparative Law 329; B Broms, The United Nations (1990) 49–51; B Simma (ed), The Charter of the United Nations (1994) 45; E Suy, ‘Le Preambule’ in E Yakpo and T Boumedre (eds), Liber Amicorum Judge Mohammed Bedjaoui (1999) 253; Hans Georg Gadamer reminds us that ‘Every age has to understand a transmitted text in its own way.’ The text lacks meaning until it is interpreted; and it makes a difference who the interpreter is. H Gadamer, Truth and Method (trans G Barden and J Cumming 2nd ed, 1975) 263.

[9] A Cassese, International Law in a Divided World (1986) 131; K Partsch, ‘Self-Determination’ in R Wolfrum (ed), United Nations: Law, Policies and Practice (1995) 1171.

[10] P Malanczuk (ed), Akehurst’s Modern Introduction to International Law (7th rev ed, 1997) 57, 58, 220; K Partsch and R Wolfrum in Simma (ed), above n 8, 777, 793.

[11] Conforti, above n 1, ch 3, s II.

[12] On the behaviour of China during recent developments in the Security Council, see R Wheeler, ‘China, the UN and National Sovereignty. Drawing the Line on Supranationalism?’ in R Wheeler and H McConnell (eds), Swords and Plowshares: The United Nations in Transition (1997) 33.

[13] While member states enjoy legal equality in so far as representation and voting is concerned, the Permanent Members reserved to themselves, and other states expressly accepted, special position in the Security Council. See P J Baker, ‘The Doctrine of Legal Equality of States’ (1923–24) 4 British Yearbook of International Law; R A Klein, Sovereignty and Equality among States: The History of an Idea (1974).

[14] R Degni-Sagui, ‘Article 24, paragraphes 1 et 2’ in Cot and Pellet (eds), above n 6, 451ff.

[15] This constraint follows inevitably from the nature of the UN legal system (a special legal system) and the interpretation of the Charter outlined in this paper. For a full recent discussion see K Zemanek, ‘Is the Security Council the Sole Judge of its Own Legality’ in Yakpo and Boumedre (eds), above n 8, 629.

[16] [1971] ICJ Rep 54ff. For a discussion of the case itself see, among others, Conforti, above n 1, 4, 253ff.; Degni-Segui, above n 14, 452.

[17] Conforti, above n 1, 17, 266; Zemanek, above n 15. N Angelet, ‘Protest Against Security Council Decisions’ in K Wellens (ed), International Law: Theory and Practice: Essays in Honour of Eric Suy (1998) 277.

[18] M Bedjaoui, The New World Order and the Security Council. Testing the Legality of its Acts (1994) 5.

[19] UN Doc S/PV 3063 54–55.

[20] F L Kirgis, Jr, ‘The Security Council’s First Fifty Years’ (1995) 89 American Journal of International Law 517.

[21] R Higgins, Problems and Process: International Law and How we Use It (1994) chs 14 and 15.

[22] B Conforti, ‘In tema di azioni del Consiglio di Sicurezza a tutela della pace e della sicurezza’ (1993) 48 Comunità Internazionale 701; R Falk, ‘Explaining the UN’s Unhappy Fiftieth Anniversary: Towards Reclaiming the Next Half-Century’ in Wheeler and McConnell (eds), above n 12, 23.

[23] Sir Anthony Parsons, ‘The United Nations in the Post-Cold War Era’ (1992–93) 11 International Relations 190.

[24] Falk, above n 22, 22.

[25] P Rao, ‘The United Nations and International Peace and Security: An Indian Perspective’ in Tomuschat (ed), above n 5, 161.

[26] Conforti, above n 22, 704.

[27] M Bennouna, ‘L’Embargo Dans La Practique Des Nations Unies: Radioscopie d’un Moyen de Pression’ in Yakpo and Boumedre (eds), above n 8, 555.

[28] Simma, above n 8, 679 (outstanding analysis); Wolf, below n 31, 293.

[29] Kirgis, above n 20, 520. Kirgis considers as legislative actions those being unilateral in form, creating or modifying part of a legal norm of general nature. Actions such as economic sanctions are unilateral because adopted by the Security Council instead of the generality of states, are binding, and not directed to a particular state but general in nature.

[30] J Foster Dulles, War or Peace (1950) 194.

[31] Simma, above n 8, 679; J Wolf, ‘Regional Arrangements and the UN Charter’ in R Bernhardt (ed), Encyclopedia of Public International Law (1983) instalment 6, 289; S Galvez, ‘The Future of Regionalization in an Asymmetrical International Society’ in R St J Macdonald and D M Johnson (eds), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine, and Theory (1986) 661; R St J Macdonald, ‘The Developing Relationship between Superior and Subordinate Political Bodies of the United Nations and the Organization of American States’ (1964) 2 Canadian Yearbook of International Law 21. This essay ends with the statement (p 54) that ‘there is a certain inevitability about the articulation and acceptance of effective standards on review and supervision, and one can’t avoid thinking that, had Chapter 8 not appeared in the Charter, the Organization’s practice would have created it nevertheless.’ I believe that as firmly in 2000 as I did in 1964; see too R B Russell, above n 8, 693ff.

[32] As quoted by N Sybesma-Knol, ‘The Continuing Relevance of the Participation of Observers in the Work of the United Nations’ in K Wellens (ed), above n 17, 371, 385 (with full notes).

[33] R Bernhardt, ‘Article 103’ in Simma (ed), above n 8, 1116.

[34] N Sybesma-Knol, above n 32; D Dormoy, ‘Recent Developments Regarding the Law on Participation in International Organizations’ in K Wellens (ed), above n 17, 323.

[35] F Lauria, ‘Il recesso dall’Organizzazione delle Nazioni Unite: il caso dell’Indonesia’ in (1966) 20 Diritto Internazionale 153–174; M Scerni, ‘Aspetti giuridici del Ritiro delle Nazioni Unite’ in (1965) 20 Comunità Internazionale 228.

[36] The status of declarations of the General Assembly has produced a vast literature. See, among others, Zemanek, above n 4; Conforti, above n 1, Giuliano, Scovazzi and Treves, above n 4; R Falk, ‘The Quasi-legislative Competence of the General Assembly’ (1996) 90 American Journal of International Law 782.

[37] C Joyner, ‘The United Nations as International Law-Giver’ in O Schachter and C Joyner (eds), The United Nations and International Law (1997) 440ff.

[38] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14, 150 [188]. For further elaboration on the significance of the Court’s judgment with regards to the General Assembly resolutions, see R St J Macdonald, ‘Fundamental Norms in Contemporary International Law’ (1987) 25 Canadian Yearbook of International Law 130ff; and Zemanek, above n 4.

[39] Zemanek, ibid 203.

[40] Conforti, above n 22, 703, G Gaia, ‘Reflexions sur le role du Conseil de Securité dans le nouvel ordre mondial. A propos des rapports entre maintin de la paix et crimes internationaux des Etats’ (1993) 97 Revue Général de Droit International Publique 297–320.

[41] G Burci, ‘L’azione del Consiglio di Sicurezza delle Nazioni Unite nella crisi del Golfo’ (1991) 46 Comunità Internazionale 278–315; Kirgis, above n 20, 520ff.

[42] Res 794, 3 December 1992. S/PV 3145, discussed by Malanczuk, above n 10, 402.

[43] In Council Resolution 687/1991. The representative of United States, which was the main Supporter State of the Resolution, hastened to declare that ‘certainly the United States does not seek, nor will it support, a new role for the Security Council as the body that determines international boundaries’. Quoted in Bedjaoui, above n 18, 42.

[44] Res 705, 9 August 1991.

[45] Zemanek, above n 4, 205 fn.

[46] Among others, Bedjaoui, above n 18.

[47] Conforti, above n 22, 706.

[48] R Falk, ‘The Haiti Intervention: a Dangerous World Order Precedent for the United Nations’ (1995) 36 Harvard International Law Journal 341. Falk questions the justifiability of a UN Endorsement of ‘all necessary measures’ in a situation where the only foreseeable threat to international peace and security was the outflow of refugees to other countries (notably the United States). See also J Lobel and M Ratner, ‘Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime’ (1999) 93 American Journal of International Law 124.

[49] Bedjaoui, above n 18, 5.

[50] Zemanek, above n 4, 93–94.

[51] The members of ECOWAS were initially disinclined to ask for UN intervention, because the situation in Liberia was clearly a civil war, and because ECOWAS, being an economic organisation was hardly responsible for peace-keeping operation in the area. The aggravation of the civil war, and the high risk that it could destabilise the entire region, prompted five members of ECOWAS to intervene. Liberian consent was not sought, as the entire political system of the country was by then non-existent. The Security Council subsequently praised the intervention. See B Rivlin, ‘Regional Arrangements and the UN System for Collective Security and Conflict Resolution: A New Road Ahead?’ (1992–93) 11 International Relations 101. The ECOWAS Intervention seems to be the only successful intervention by a regional organisation in a local conflict.

[52] Lobel and Ratner, above n 48.

[53] D Caron, ‘The Legitimacy of the Collective Voting of the Security Council’ (1993) 87 American Journal of International Law 576–584.

[54] Article 5 of the North Atlantic Treaty of 1949 affirms that:

[t]he Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area’ (emphasis added).

North Atlantic Treaty, Washington DC, 4 April 1949, text in <http//>.

[55] Even in the case of Resolution 1031 of 15 December 1995 on Implementation of the Peace Agreement for Bosnia and Herzegovina and transfer of authority from the UN Protection Force to the multinational Implementation Force (IFOR), the Security Council did not refer to NATO as a regional organisation as implied in the Agreement on the Military Aspects of the Peace Settlement, Annex 1-A of the General Framework Agreement for Peace in Bosnia Herzegovina. In Resolution 1031, the Council, declaring to act under Chapter VII of the Charter, does authorise the member states to establish an IFOR under unified command and control through or in co-operation with ‘the organisation referred to in Annex 1-A of the Peace Agreement. Article I.1(a) of the Annex invites the Security Council to authorise member states or regional organisations and arrangements to establish an IFOR. Article I.1(b) clearly states that NATO is to establish such a force, and the North Atlantic Council is to maintain direction and political control. Agreement on the Military Aspects of the Peace Settlement, Annex 1-A to the General Framework Agreement for Peace in Bosnia and Herzegovina, reprinted in 1996, 35 ILM 91–101.

[56] Lobel and Ratner, above n 48, 137.

[57] S Nandan, ‘Introduction to the Law of the Sea’ in Bedjaoui (ed), above n 18, 839, E Borgese, The Oceanic Circle: Governing the Sea as a Global Resource (1998); S P Jagota, ‘The Seabed Outside the Limits of National Jurisdiction’ in Bedjaoui (ed), ibid 931.

[58] S P Jagota, ‘Developments in the Law of the Sea Between 1970 and 1998’ (2000) 2 Journal of the History of International Law 91; S P Jagota, ‘Asia and the Development of the Law of the Sea: 1983–1992’ in R St J Macdonald (ed), Essays in Honour of Wang Tieya (1994) 367.

[59] The European Union is ‘founded on the European Communities, supplemented by the policies and forms of co-operation established by … [the] Treaty’. Treaty of Maastricht, consolidated version as modified by the Treaty of Amsterdam, Official Journal of the European Communities C 340, 10.11.1997, pp 145–172. The Treaty of Maastricht also provides for renaming the European Economic Community in European Community. The task of the European Union is to organise, in a manner showing consistency and solidarity, relations between the member states and between their peoples. The European Union does not replace the European Community, which still remains the organisation in charge with the social, economic and monetary field.

[60] The original treaties, which are still the basis of the European system, are the Treaty establishing the European Coal and Steel Community (ECSC), signed in Paris on 18 April 1951, the Treaty establishing the European Economic Community (EEC) and the Treaty establishing the European Atomic Energy Community (Euratom), both signed in Rome on 25 March 1957. These founding Treaties have been revised three times: in 1987 by the Single European Act, in 1992 by the Treaty on European Union, or Treaty of Maastricht, and in 1997 by the Treaty of Amsterdam. Several other treaties and instruments modified the original setting. The Single European Act, intended to further simplify and rationalise the provisions of the three founding treaties, by adopting an integrated approach to the ‘European Communities’. The European Economic Community was renamed European Community (EC) by Article 8 (ex. Art. G.2) of the Treaty on European Union, which amends Article 1 of the EC Treaty.

[61] In 8 April 1965 A Treaty merging the executives of the three Communities (ECSC, EEC, and Euratom) was signed in Brussels. The Treaty replaced the Special Council of the ECSC, the Council of the European Economic Community, and the Council of Euratom with a Single Council of Ministers, and the High Authority of ECSC, the CEE Commission, and the Euratom Commission with a Single Commission. Both organs however continued to act in accordance with the rules governing each of the Communities.

[62] C Archer and F Butler (eds), The European Community: Structure and Process (1996) 44.

[63] Ibid.

[64] The rationale for this ruling is to avoid that states use the non-implementation of a directive to avoid the application of European law. In fact, states often do not promptly adopt such laws, thus causing delays in the implementation of the Community’s policies. Some states have adopted legislative measures to avoid excessive delays in the implementation of European directives. The Italian Parliament, for instance enacted a law which automatically allows all directives that have not been converted in the previous year to be made effective at the local level of administration.

[65] P Taylor, ‘Prospects for the European Union’ in S Stavridis (ed), New Challenges to the European Union: Policies and Policy-making (1997) 13.

[66 ] The most evident effect of this doctrine is in the recognition of the capacity of the Community to enter into international treaties on behalf of member states. According to the Court, wherever the European Community has internal power to legislate, it also has the corresponding external power to enter into treaties, while the member states have no longer the right to do it, even if the Community has yet to exercise its internal powers. See for instance, opinion 2/91 Re Convention No 170 of the International Labour Convention.

[67] C Rhodes, ‘Introduction: The Identity of the European Union in International Affairs’ in C Rhodes (ed), The European Union in the World Community (1998) 1.

[68] M Mahor, ‘Towards Political Union: Assessing Two Strategies of EPU’ in Stavridis (ed), above n 65, 43.

[69 ] B de Witte, quoted in D Phelan, Revolt or Revolution. The Constitutional Boundaries of the European Community (1997) 145.

[70] See for instance, European Court, case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal SpA (1978) Eur Ct Rep 629, 644.

[71] The European Commission has represented the member states in the GATT since at least the 1960s, as they realised immediately that their relative weight in negotiation would be greatly increased by creating a united front. The European Union made an important contribution to the formulation of the WTO agenda. See F Cameron, ‘The European Union as a Global Actor: Far from Pushing Its Political Weight Around’ in C Rhodes (ed), above n 67, 19–43.

[72] The FAO constitution had to be changed to allow the Community to join. Interestingly, Article II.4 now provides for the admission of regional organisations constituted by sovereign states to which its member states have transferred competencies, thus making it possible for other regional organisations with similar competencies to be admitted.

[73 ] K Lenaerts and E De Smÿter, ‘The United Nations and the European Union: Living Apart Together’ in K Wellens (ed), above n 17, 439.

[74] See generally K Hossain (ed), Legal Aspects of the New International Economic Order (1980).

[75] J H Jackson, The World Trading System. Law and Policy of International Economic Relations (1997) 36.

[76] S Zamora, ‘Economic Relations and Development’ in O Schachter and C Joyner (ed), United Nations Legal Order (1995) 503.

[77] Ibid 506.

[78] E Petersmann, International Trade Law and the GATT/WTO Dispute Settlement System (1997) 11; T J Dillon Jr, ‘The World Trade Organization: A New Legal Order for World Trade?’ (1995) 16 Michigan Journal of International Law 355.

[79] G Marceau, ‘Transition from GATT to WTO. A Most Pragmatic Operation’ (1995) 29 Journal of World Trade 147, fn 1.

[80] WTO Charter, Preamble.

[81] Petersmann, above n 78, 11.

[82] F Weiss, ‘The WTO Dispute Settlement and the Economic Order of WTO Member States’ in P Van Dijck and G Faber (eds), Challenges to the New World Trade Organization (1996) 88.

[83] Testimony of John Jackson during the Hearings before the Senate Finance Committee, quoted by Dillon, above n 78, 356.

[84] See for instance, Jackson, above n 75, 341ff, Petersmann, above n 78, Weiss, above n 82, 89.

[85] Petersmann, above n 78, 23.

[86] J Jackson and A Sykes, Implementing the Uruguay Round (1997) 2.

[87] M Sorensen, ‘Autonomous Legal Orders’ (1983) 32 International and Comparative Law Quarterly 559.

[88] He, above n 5, 77.

[89] Rao, above n 25, 182.

[90] Conforti, above n 1, 13 ff; Rao, above n 25; J Crawford, ‘The Charter of the United Nations as a Constitution’ in H Fox (ed), The Changing Constitution of the United Nations (1997) 12.

[91] Arangio-Ruiz focuses on recent activities of the UN organs, Security Council in particular, in order to reject the analogy between a federal system and the system established by the Charter, an analogy that has been used (under the doctrine of implied powers) to justify the expansion of the activities of the Security Council. Arangio-Ruiz considers this analogy marginally justified with regard to peace-keeping operations, which are ‘carried out by the organization under the legal cover not so much of the Charter, but of more or less special agreements with the state(s) whose territory or people are to be affected’. Otherwise, the federal analogy is, in his opinion, ‘undemonstrated and implausible’. Although he recognises that the UN has had a significant impact on the rules of inter-state relations among members, he finds several weaknesses in the concept of the Charter as a Constitution. The UN as created by the Charter has no direct power on the peoples of the member states, and the peoples themselves had no role in the foundation of the UN and still have no voice in the procedures of the organisation. Moreover, the international system gives no room for a change in the distribution of powers among states, being the differences of political economic and military powers among members tendencially permanent, and since the organs of the UN are composed of representatives of states, they are therefore not independent in their decisions. The author looks with alarm at the increasing tendency of certain states to operate uti universi on behalf of the UN and the entire international community, without control. He considers the application of the doctrine of implied powers to the actions of the Security Council a dangerous trend that could be used by certain states to use the UN as an instrument of their own foreign policy, with the risk of undermining the future of the organisation. G Arangio-Ruiz, ‘The Federal Analogy and UN Charter Interpretation: A Crucial Issue’ (1997) 8 European Journal of International Law 1.

[92] Conforti, above n 1, 10.

[93] Crawford, above n 90, 15. Crawford indicates a number of constitutional characteristics met by the Charter, such as virtual universality, broad scope of activities and success in certain fields, and lack of any rival organisation. However, he also points out weaknesses, such as the lack of a clear distribution of powers and, most dangerous of all, lack of institutional means for the protection of states from unlawful or unjust acts of the UN organs.

[94] P Picone, ‘Nazioni Unite e oblighi “erga omnes”’ (1993) 48 Comunità Internazionale 717.

[95] P Dupuy, ‘The Constitutional Dimension of the Charter Revisited’ (1997) 1 Max Planck Yearbook of United Nations Law 31, 33.

[96] Mosler, above n 3, 5.

[97] C Tomuschat in Tomuschat (ed), above n 5, ix.

[98] C W Jenks, The Proper Law of International Organizations (1962) 257 citing Phillimore’s Commentaries (1879) vol 2.

[99] P Szasz, “The Complexification of the United Nations System’ (1999) 3 Max Planck Yearbook of United Nations Law 1.

[100] B Fassbender, ‘The United Nations Charter as Constitution of the International Community’ (1998) 36 Columbia Journal of International Law 529.

[101] Joerges, above n 2, and on the whole subject see the remarkable study by P Allott, Eunomia: New Order for a New World (1990) and my review of this book in (1991) 70 Canadian Bar Review 822.

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