The following article was published in the May 2022 special issue of the International Review of Contemporary Law, the journal of the IADL, focusing on the 75-76 anniversary of the United Nations Charter.
Norman PAECH
No conversation about the United Nations is without criticism and disappointment, but there is no alternative in sight. The situation is quite different with the UN Charter, which has become the unchallenged basis for modern international law despite some requests for amendments. It was signed in San Francisco on 26 June 1945 by the four of the five great powers: the USA, the USSR, the People’s Republic of China and England (without France) and the states of the anti-Hitler coalition, 50 in all. This was only possible so soon after the great war because Franklin D. Roosevelt and Winston Churchill had already met in Newfoundland in 1941 to discuss a new peace order after the certain victory over Nazi Germany. The League of Nations was long dead but still formally existed and Churchill saw it as a model for a new effective peace organisation despite its failure. Roosevelt, on the other hand, believed that a strong US-British military axis was a better guarantee of future peace. He also did not want the states that had collaborated with the Nazis or had not been able to oppose the Nazis to be involved in decisions about world peace. In addition, the British wanted to secure their preferential tariff system vis-à-vis the Commonwealth countries on the basis of “existing obligations”, while the USA wanted to regulate the reorganisation of the commodities market on the basis of freedom of world trade. In the joint final declaration of 14 August 1941, now known as the Atlantic Charter, Roosevelt was initially able to get his way. A permanent organisation for general security would come into existence only after the disarmament of such states that threatened to use force.
The Agreement
However, when the US was invaded by the Japanese at Pearl Harbour, they were ready for an extension of the Dual Alliance. Together, Churchill and Roosevelt drafted a “Declaration of the United Nations” on 1 January 1942. During a subsequent visit by Vyacheslav Molotov to Washington DC, Roosevelt was also prepared to include the Soviet Union and China in the Alliance. He continued to have reservations about France because of the collaboration of the Vichy government. It remained a laborious process of negotiation. It was only at the Moscow Conference in October 1943 that Churchill was able to overcome his fears for the existence of the British Commonwealth, and the US came to terms with a permanent international organisation. Immediately after the Tehran Conference in November 1943, Roosevelt set about outlining such a permanent organisation. In the following discussions, the main issues were the effective enforcement of decisions by an executive committee, which the League of Nations had failed to achieve, and the certainty that none of the great powers could be outvoted in the committee. The proposals were summarised in the same year in the “Outline Plan”, which formed the basis of the negotiations for the subsequent conferences in Dumbarton Oaks near Washington in 1944 and Yalta in February 1945.
The Veto
At the Yalta Summit Conference, the People’s Republic of China was not yet represented and the three great powers were able to agree on outstanding differences. In particular, Joseph Stalin was given the unrestricted veto on the Security Council vote, which was of paramount importance to the Soviets. Churchill recounted the reasons in his memoirs: “Stalin declared that while the Three Great Powers were allied today and none of them would commit acts of aggression, he feared that the present leaders would disappear in the course of the next ten years, and a new generation would come to power who would no longer know from personal experience what we had gone through in this war. But we all,” he explained, “want to secure peace for at least fifty years. The greatest danger lies in a conflict between ourselves; if we remain united, the German danger will not weigh heavily. Therefore, we must now consider how to secure this unity in the future and what guarantees are necessary to ensure that the three great powers (and perhaps China and France) maintain a common front. A system must be worked out which will prevent conflict among the leading Great Powers.” Stalin alluded to the experience of the Russo-Finnish War in December 1939, when the British and French succeeded in isolating and excluding the Soviet Union in the League of Nations. “Can we not get guarantees that such a thing will not happen again?”, Churchill went on to quote Stalin. And so, four months later in San Francisco, the right of veto was enshrined in the UN Charter, a clear-sighted decision – for all the later criticism of the frequent paralysis of the Security Council.
However, the great powers could not agree on the inclusion of the protection of human rights. Stalin did not consider them to be of particular importance for international peace and Churchill did not want them in the Charter with a view to the Commonwealth. For the colonies, Roosevelt found a way out by placing them under a special trusteeship of the UN, which was to prepare them for independence. Again, Churchill fought to preserve the British colonial empire and wanted to save the British colonies from trusteeship, which he succeeded in doing.
The interests of the “free West“
The UN Charter came into force on 24 October 1945, after the five permanent members of the Security Council (France had joined in the meantime) and the majority of the signatory states had deposited their ratifications. The General Assembly met for the first time on 10 January 1946 in London’s Westminster Central Hall. The UN was not the only international organisation of those years. The institutions of the Bretton Woods Conference in 1944, the International Monetary Fund (IMF) and the World Bank, but also the General Agreement on Trade and Tariffs (GATT) in 1947,[1] were created primarily on the initiative of the USA. They were not only intended to form the framework of a new international legal order that could guarantee peace more successfully than the failed League of Nations. They were also conceived as instruments of the “free West” whose dominance was to be secured. This meant, above all, securing the USA’s claim to hegemony. For it was time, wrote the Republican publisher of “Time” and “Life”, Henry R. Luce, as early as 1941, “to take seriously our task and our opportunity as the most powerful and vital nation in the world, and therefore to assert in this world our unrestricted influence, for ends we think proper and by means we think proper.”[2] This was not a solitary voice, but showed the way to Truman, who had assumed the US presidency after Roosevelt’s death in April 1945. The latter’s Secretary of State, James F. Byrnes, then put it only slightly differently: “What we must do is make the world safe not for democracy but for the United States.”[3] This sentence outlasted all administrations up to the present day and meant the expansion of a gigantic military apparatus with exorbitant arms budgets, the unconditional willingness to intervene in every weaker country that did not primarily serve the interests of the USA, and the complete subordination of international law to these interests.
The Cold War and the preservation of peace
The fact that a military confrontation between the major powers has not yet occurred is attributed not so much to the UN and its Charter, but primarily to the nuclear standoff between the powers. But how would the last 75 years have gone if there had been no veto in the Security Council? For as early as March 1946, Churchill had delivered his infamous “Iron Curtain” speech in the presence of Truman, invoking a threat from the East posed by “two sinister marauders – war and tyranny” and calling for an immediate show of force with the Soviet Union: “From Stettin on the Baltic down to Trieste on the Adriatic, an Iron Curtain has been drawn across the continent.”[4] Although with Truman, the “Cold War” had already entered the arena of the “United Nations” immediately after the World War, he and Churchill agreed to the objectives of the UN in Art. 1 of the Charter: the maintenance of international peace and security, the development of friendly relations among nations, respect for and maintenance of human rights, and the solution of international problems on the basis of cooperation.
In addition, Art. 2 formulated basic principles of international law, probably the most significant contribution to international law after the Second World War: the renunciation of the threat and use of force, the independence and sovereign equality of states, the equal rights and self-determination of peoples, non-interference in the internal affairs of a state, international mutual cooperation to solve economic, social, cultural and humanitarian problems, and the peaceful settlement of their disputes. The states were also not just concerned with the defence against and prevention of war, the so-called negative peace. In the ninth chapter on “International Cooperation in the Economic and Social Spheres”, the Charter formulates in Art. 55 et seq. the tasks of the United Nations to improve living standards, promote full employment and solve international problems of economic, social, health and cultural dimensions. Even human rights and fundamental freedoms, which find no other mention in the Charter, must be respected “without distinction as to race, sex, language or religion” (Art. 55 d). Everything that is subsumed under the term “positive peace” should likewise be part of the UN’s tasks.
“Uniting for Peace“
The Security Council has been entrusted in the Charter with the task of peacekeeping (Art. 11). To this end, the states have committed themselves in Art. 25 to “adopt and implement the decisions of the Security Council in accordance with this Charter”. The General Assembly, on the other hand, can discuss and deliberate on all peacekeeping issues but cannot make recommendations with its resolutions as long as the Security Council is dealing with the matter (Art. 12). However, this well thought-out “division of labour” led to problems with peacemaking, even to the point of blocking it, soon after the founding of the United Nations. It is a conflict of competences between the two organs of the UN[5] that continues to this day and has repeatedly given rise to calls for reform. It first arose during the Korean War, when the Security Council, at the request of the USA, asked the member states to provide aid to South Korea against the North Koreans advancing across the demarcation line of the 38th parallel. This had only become possible because the Soviet Union was boycotting the Security Council at the time in protest against the UN’s refusal to admit the Peoples Republic of China. Had the Soviet Union been present, it would undoubtedly have blocked the decision with its veto. This is what it subsequently did after returning to the Security Council table so as not to be caught off guard a second time. However, this left the Council deadlocked. In this situation, US Secretary of State Dean Acheson managed to get the famous Resolution 377 (V) “Uniting for Peace” passed in the General Assembly by 50 votes to five with 2 abstentions. It stated that “if, in the absence of unanimity of its permanent members, the Security Council fails in a case of manifest threat to the peace to exercise its primary responsibility for the maintenance of international peace and security, [the] General Assembly shall immediately deliberate the matter … with a view to making appropriate recommendations to the members for collective action, including, in the case of breach of the peace or act of aggression, for the use of armed forces, if necessary to maintain or restore international peace and security.” This was a clear violation of the division of powers in Articles 10 and 12 of the Charter and not just a serious blow to the Soviet Union, but also clearly contrary to international law. The General Assembly should be able to convene an Emergency Special Session for its new peace-making competence outside of session periods. Indeed, it has since convened 10 Emergency Special Sessions, the most recent in December 2017 on the Israel-Palestine conflict. The Soviet Union also resorted to this procedure, which it had strongly condemned initially, in the Suez crisis, so this constitutes a new norm of customary international law.
Human rights
Human rights had been bypassed by the founders of the UN because they could not agree on the relationship of civil and political rights to economic and social rights. Stalin’s demand that economic and social rights be included in the Charter with the same binding force as civil and political rights met with additional resistance from Churchill, who wanted to maintain Britain’s colonies without interference from human rights. But the non-aligned states in particular pressed for codification of economic and social rights. Thus, in 1948, a strategy was developed to unite all human rights in one declaration, but to withhold their binding force. The Universal Declaration of Human Rights was adopted by the General Assembly on 10 December 1948 with 48 votes in favour, 48 against and 8 abstentions. The codification in two covenants was supposed to follow immediately. However, the covenants were not adopted by the General Assembly[6] until 18 years later in 1966 and only entered into force 10 years later in 1967. Although both covenants claim the same binding force, in Western capitalist countries, the International Covenant on Economic, Social and Cultural Rights is still denied the binding force accorded to the International Covenant on Civil and Political Rights.
A multitude of specialised and subsidiary organisations, from the IMF to the International Criminal Tribunals for the former Yugoslavia and Rwanda, have been established and the framework of general as well as humanitarian international law has been expanded by countless treaties and conventions. Without the work of these organizations, most international relations would not function so silently and smoothly. It is only the fulfilment of its central task — peacekeeping — that the UN fails time and again. The inability of the UN to banish the danger of war and guarantee peace is blamed on its outdated construction and above all, on its lack of assertiveness. But the fault really lies in the inability of the member states to abide by the norms they themselves have developed and to which they claim adherence. The core of the criticism of the Charter and the repeated demands for reform is the veto power, which paralyses the ability to act. But one thing is certain. No power will renounce its veto, nor will it be willing to grant the power to other states. Everything can be reformed, but the basic decision rendered in 1945 cannot be reformed as long as the power constellation remains the same. Particularly in periods of increasing confrontation between the mighty powers, the veto’s function of actually preventing violence should not be underestimated.
Norman Paech
Hamburg, 13. June 2021
[1] Norman Paech, Gerhard Stuby, Machtpolitik und Völkerrecht in den internationalen Beziehungen, Hamburg 2013, S.517 ff., 730 ff.
[2] Henry L. Luce, 1941, The American Century, in: Life v. 17. Februar, S. 63.
[3] Henry H. Arnold, 1949, Global Mission, New York, S. 589.
[4] Winston S. Churchill, 1948, 1985, Der Zweite Weltkrieg, Bern, München, Wien, S. 1102ff.
[5] Norman Paech, Gerhard Stuby, Völkerrecht und Machtpolitik in den Internationalen Beziehungen, Hamburg 2013, S. 582 ff.
[6] UNGV Res. 2200 A (XXI) v. 18. Dezember 1966.
All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.