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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

[∗] 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//www.nato.int/docu/basictxt/Treaty.htm>.

[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.