The following article was published in the June 2024 issue of the International Review of Contemporary Law, the journal of the IADL, focusing on the 77th anniversary of the United Nations Charter.
Chapter 1
The innovative,
revolutionary and founding act of
International contemporary Law:
the Charter of the United Nations
By Monique and Roland Weyl
Translated by Walid Okais
- The “international law” of yesteryear
For centuries, the world has been governed by powers relations, by their confrontations and their compromises regarding the sharing of wealth and populations. And what was called “international law” consisted in cultivating the scope of the agreements and the value of the resulting reciprocities: power relations, whose only limit was dictated by prudence and reciprocity.
Gradually a “jus gentium” was formed, founded first on the faith due to treaties – under the condition that changes in situation do not serve as a justification for violating them – supplemented bit by bit by humanitarian recommendations.
Among the said recommendations will certainly appear, for example, at the turn of 1900s, the notion of universal conscience, to which the Nuremberg judgment will also refer.
But overall, international law will not exceed the level of treaties of circumstance and agreements between powers, whose conclusion, content and respect depended strictly on power relations of those who signed them. Such treaties are valid and biding only for those who accept them, and as long as they accept them.
All international law is based on the adage “pacta sunt servanda” (treaties must be respected) to which is immediately added the prudent or cautious restriction “mutatis mutandis” (as long as things have not changed).
Even the League of Nations
This will also be the case of the pacifist attempt resulting from the First World War, with the creation of the “League of Nations”. The said league was not global because, although the initiative was advocated by President Wilson, the United States did not participate – the Senate did not ratify its accession – and the peoples’ sovereignty was not affirmed. It certainly sketched out a system of collective security, but it remained strictly an agreement between powers, moreover almost all of imperial size and nature.
- The innovative and founding character of the Charter
The true birth of international law
Everything changed in 1945.
This change is commonly identified with the constitution of a world organization, the UN, as the operator of a universal security order. But to reduce everything to the Organization is to lose sight of the fact that this organization was created by a Charter, and that its function is to ensure respect for this Charter by respecting it itself first. It is the Charter that is the first legislative text in the history of mankind establishing a universal international law.
Indeed, the Charter does not confine itself to codifying or modifying previous rules, but creates a new law, that does not relate only to this or that aspect of international relations, but to their globality. It is the first text in the history of humanity that sets out principles of universal scope, therefore of a legislative nature, applicable “erga omnes”, (“towards all”) and which establishes a body itself universal to ensure its application, and to even work collectively for its enrichment.
This permits (and obliges) us to consider that every aspect of international life must conform to it.
The Supremacy of the Charter
Article 103 is essential, according to which: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
Since the provisions of the Charter have a legislative value of public order, anything contrary to it must be deemed unwritten.
On the other hand, all previous acquisitions not contrary are integrated into this new international law, such as the humanitarian laws known as (laws of war). Thus, in 1946, without any distortion with the new law of the Charter, but on the contrary in perfect coherence with it, the judgment of the Nuremberg Tribunal was able to refer to these humanitarian conventions and since then, reference has been made more than ever to the latter, particularly for the illegality of weapons of mass destruction. Similarly, reference is made to the 4th Geneva Convention for the Protection of the Palestinian people.
International legality
It can be said that, for the first time, humanity is then endowed with a true international law based on a principle of legality. No doubt it may be objected that the Charter itself is a contractual document. But it is also true that any legal rule depends on its degree of acceptance. The fact remains, however, that what distinguishes the law from the convention or agreement is its proclamatory, universal and egalitarian character, independent of any formal adhesion to its subjection, and it is well there the new character of the Charter.
Subordination of treaties
Let us imagine a society in which no one would be required to observe rules other than those he would have accepted! This would be to replace the principle of legality with a regime of pure consensuality, in which everyone could, for example, commit assassinations as he pleased, if he has not signed a convention condemning the assassination.
It follows that the law of treaties must be confined to a new status, secondary to the dominant value of the law of the Charter. A treaty is admissible if it adds to the Charter, in order to improve, supplement, clarify and strengthen its effectiveness. But it is inadmissible that a treaty can, directly or de facto, reduce the scope of the Charter by making its application subject to contractual terms. One would be tempted to repeat here the example provided by labour law: collective agreements can add to the protections of employees as provided by law but are void in clauses that derogate from them downwards to reduce said protection.
If it were to be otherwise, it would simply be to regressing international law and bringing it back to the old consensual regime, to the detriment of its legislative value.
- The revolutionary character of the Charter
1.The philosophical significance of its preamble”
The Peoples Masters
The Preamble [see Appendices, pages 101 et seq.] sets out the philosophy, which commands any interpretation of what then flows from it.
“We, the peoples of the United Nations… It is the peoples who storm the tribune, to say their law and no longer suffer that of the powers. And first of all, they affirm their universal plurality and their Union.
“We, the peoples (…) have resolved to combine our efforts. … » So, from now on, it is we who decide, and if we create an organization, it will no longer be an assembly of governments falsely labeled as the League of Nations, but a place where we will unite our efforts.
“Accordingly, our governments… Thus, it is no longer the governments that decide, since they are not the ones who unite their efforts; they now have only the mission to implement the decisions of their respective peoples, and to express the union of these, since they only represent them.
The old international law of control over peoples is succeeded by a new international law of concerted control of peoples over their respective and common affairs.
“We, the peoples of the United Nations (…) We resolved(…) accordingly, our governments… Thus, one could not be clearer, when repudiating the delegation of power!
The banner of the world proclamation of popular sovereignty is raised.
Multiple and equal peoples
Since the world population is plural, according to its territorial distribution, it is not proclaimed “We, people of the world” (in the singular), but the binomial universality-plurality being inseparable, the plurality and universal solidarity of peoples are affirmed by the unitary plural “peoples of the United Nations”,
Therefore “ We peoples” are sovereign but together, together but sovereign.
Sovereigns for what?
The Preamble also sets out the objectives of this new international law, for which peoples intend to take in hand world affairs.
First of all, peace:
Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind…
But not just peace: human rights. And not only in the minimal sense of the first generation (civil and political rights), but globally all that implies the development of humanity:
Determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small; (…) to promote social progress and better standards of life in larger freedom,
Thus, the new International Law will be the one by which the peoples, in the union and peace, will work together for their happiness.
But the first of these objectives, which conditions all others, is peace, the outlawing of war and the use of force. At the same time war is banned, including under the banner of “human rights”. This will be one of the foundations of the principle of non-interference.
- The rules and principles implied
The rules and principles which must govern international relations are articulated in the same logic: that of the obligation of mutual respect requires by the binomial universality-plurality and implying equal right for all peoples to self-determination and prohibition of the use of force to settle their disputes.
Equality, mutual respect and negotiated settlement of disputes
The plurality of peoples being concretized in their territorial distribution and, their States being assumed to be only the instruments of the exercise of their sovereignty competence over their territory, respect for their right of self-determination entails the obligation of respect for the territorial competence of their State that is only entitled to intervene in the management of the internal affairs of a territory in which the State is exercising its authority there
This approach is reflected in the following key paragraphs:
Art. 1.2: to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples….
Art. 2.1: The Organization is based on the principal of sovereign equality of all its Members.
Art. 2.3: All Members of the Organization shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered.
Art. 2.4: All Members of the Organization shall refrain in their international relations from the threat or use of force, either against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations.
Surely, this does not prevent a State, victim of aggression in defiance of these rules, from defending itself, but only in case of emergency and on condition that it relies as soon as possible on the protection of the international community:
Art. 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security.
Non-interference
Respect for the right of peoples to self-determination and to exclusive control over their affairs is such a fundamental principle that the Charter forbids even the international community to undermine it. This follows from Article 2.7, which provides that:
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require Members to submit such cases to the terms of the present Charter; however, these principles shall in no way affect the application of the coercive measures provided for in Chapter VII. (It will be seen later that they are relative and strictly limited to peacekeeping or peacemaking)
This makes a non-negotiable obstacle to the exercise of the so-called “right to interfere”. Moreover, that one dares to speak of “right” and not of “duty” deserves special note. This would mean that, under the pretext of helping the population, the interveners would be exercising a right that belongs to them. If the pretext were sincere, it would be the right of the people who are supposed to be helped and therefore to request this help through their qualified representatives. The assistance action that this kind of intervention would constitute would not be the exercise of a right, but the fulfilment of a duty.
However, history never gives examples where interventions under the veil of a right or duty to intervene have been requested by bodies representative of the majority of the people concerned, because no people has ever wished to be liberated by being bombed or starved[1].
And since any rule of international law must be applied on the basis of objective and universally acceptable criteria, it would be too easy, with the “right” or duty of interference, to permit punitive expeditions against any people whose free self-determination would not please the decision-makers of such expeditions.
One thing is the active and militant solidarity and militant of the peoples with other peoples in struggle for their liberation from tyranny, another thing is a license that would be given to state powers to throw the weight of their economic and military apparatus into it
Burma
The question of a “duty” to interfere rebounded even more sharply when Burma, devastated by a cataclysm, refused external rescue. It was no longer a question of interference in internal affairs, but of food and health obligations.
Yet do not the processions accompanying the rescue risk giving pretext or cover to other Infiltrations? And besides, wasn’t it warships that had been instituted as rescuers?
It is obviously not intended to defend or justify Burmese Junta, but it is all too well known that, if the legitimacy of the end begins to justify illegitimate means, the exception quickly becomes the rule, and the precedent is therefore acquired to serve less legitimate ends. Principles must therefore never give in to the opportunity.
In any case, the fact that Burma opposes, subordinated unavoidably territorial access to the use of coercion. Then? Should iron and fire be the price of humanitarianism?
Surely, the whole edifice of international law is based on the presupposition of the absence of inhumane regimes. But before finding the territorial competence opposed by such regimes, one should probably deal upstream with what has brought them to power and keeps them there, as it is well known that in Burma powerful foreign companies are very comfortable with it.
- The Organization to ensure compliance and implementation of the rules
It is to ensure the implementation of this philosophy and the application of these rules that the Charter builds an Organization: the United Nations.
A universal and egalitarian General Assembly
The basic structure, which alone responds to the principle of universality-plurality-equality, is the General Assembly. governed by the principle of “one state, one vote”.
Since the text of the Charter constantly refers to “member States”, it is usually considered that it is the States which are the members of the Organization. However, it is obvious that the formulation is only a shortcut for convenience of language. It is indeed governments, and therefore instruments of state, that sit at the UN. But to say that states are sovereign actors is to forget that states are only apparatuses of power, instruments by means of which those who hold it in fact exercise their own sovereignty. Admittedly, in the reality of the balance of power, these instruments most often express other wills than those of their peoples. the fact remains that in principle and theory, following the logic of hierarchy established by the Preamble, it is the peoples who are members of the United Nations – to unite their efforts as they have decided, and the States are present only for this purpose.
A Security Council in contradiction
Everything “skids” when the power of intervention is transferred to a “Security Council”, itself subject to special rules of deliberation giving voting privileges to “permanent members” and thus making an exception to the principle of equality-universality.
Certainly, in the spirit of the Charter, the Security Council can intervene only within the limits of the needs of maintaining or restoring peace. Moreover, under Article 2.7 Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State. All this precludes the Security Council from extending its interventions to police measures other than strict peacekeeping or peacemaking.
The fact remains, however, that the existence of permanent members with voting privileges (the so-called “right of veto”) is contrary not only to the principle of universality and plurality which constitutes the essence of the Charter, and therefore of the new international law, but even more to the principle of equality of nations large and small proclaimed in the Preamble.
Reasons for privilege
The reasons why the framers of the Charter built the Organization, in contradiction to the principles that it is mandated to apply, are purely conjunctural.
On the one hand, decolonization has not yet taken place, nor has the Soviet break-up. The Five, whom their common victory over Nazism jointly and mutually implicated them in the “never again”, share control of a major part of the surface of the globe. It is legitimate for them to assume major responsibility for this.
On the other hand, these powers belong to antagonistic politico-economic systems and fear, on both sides, that the potential adversary can gather a majority to wage war on the other. Hence their agreement that no recourse to force can be decided unless there is agreement between them to define the necessity and the means. And for this reason, Article 27.3, which regulates the method of voting in the Security Council[2], establishes what was first called the “principle of unanimity” which required the “affirmative” vote of the Five and therefore allowed the use of coercive, military or only economic or political means only on condition that the Five agree. And so that this would be safer, and the decision would be easier to be discusses the competence was reserved for a limited operational cenacle. Its very name, “Security Council”, also suggests that it was ultimately an organ of mutual security between them.
A so called right of veto
The principle of unanimity will later be transformed into a “right of veto”, which is very different. Indeed, with the principle of unanimity, an abstention means that the decision is not adopted, while with the right of veto, abstention, which consists in not using it, means that the decision is adopted. However, the term “veto” will be searched in vain in the Charter[3]. It was on the Korean War (1950-53) that the Western powers concocted, against the USSR, the transformation of the “principle of unanimity” into the “right of veto”.
This did not require any deliberation amending Article 27.3. All that was needed was a request for an opinion to the International Court of Justice, which, playing on the place of the word “affirmative” in the text, considered that it concerned the need for nine affirmative votes, and that the votes of the Five were only to be counted. Thus, the transformation of the principle of unanimity into the right of veto arose from a simple interpretation of Article 27.3 by the International Court of Justice
Be that as it may, the principle of unanimity or the right of veto, this remains the privilege of the Five which enables them to confiscate the Organization together as a police body at their common service and, to any one of them, to block its intervention when it interferes with its own sovereign freedom to despise and violate the principles which the Organization normally has the function of enforcing them.
A Council with limited competences
Precisely because one of the two essential axes of the Charter is the repudiation of the use of force, the Charter prohibits the Organization itself from using it beyond the needs of its fundamental objectives, that is, for the maintenance or restoration of peace.
This is already not without problems: how far does peacekeeping go and stop? Since war is a crime, the preparation for war is as criminal as the war itself. Moreover, Article 2.4 condemns both the threat of force and the use of force. In any case, this justifies a priori the possibility of sending intervention forces to protect any country that has reason to fear being the victim of aggression. But can this go so far as to legalize preventive interventions against a country that is known to be preparing for aggressive actions?
While this certainly does not allow states to engage in preemptive wars as Israel claims the right to do, it could be accepted that this falls within the scope of the Security Council’s peacekeeping competence. And one might even think that it could have given its approval against Iraq if the existence of weapons of mass destruction had been proven.
But all rules are interdependent and indivisible. While the letter of the texts makes it possible to envisage that the prevention of war, and therefore coercive intervention against anything that may threaten the peace, falls within the competence of the Security Council, the implementation of such measures is nevertheless admissible only in compliance with another fundamental principle, that of equality. To take just one example, action against possible threats of war by this or that small state would be admissible only on condition that the great powers, which on other occasions make no secret of such threats and preparations, are not themselves exempt from them. We are here at the moment of truth according to which no rule of law is valid only under the benefit of the balance of forces and as being able to contribute to it.
Bringing peoples and States into coherence
People and State, a relation to be clarified
All that has just been said may seem very simple to those who seek the comfort of abstractions. But this will not have failed to irritate those who do not forget the gap that may exist between, on the one hand, the peoples living in a territory and, on the other hand, the State which exercises the monopoly of its competences there.
When there is only one people in the territory concerned, the question is essentially one of democracy. It is then easy. to refer to the principle of free disposition and exclusive control of a people over the affairs of its territory, knowing moreover that democracy is not a matter of import-export.
Things become more uncomfortable when the competences of a State are exercised over a territory inhabited by several peoples. In this case – except in the exceptional hypothesis, which is perfectly imaginable, that true democracy allows all peoples to participate equally in the exercise of their sovereignty by the institutions of a common State – there is a contradiction between the Charter’s assertion that the peoples are the sovereigns and the fact that it is the States which, as their representatives, are the members of the Organization.
The Organization may then find itself called upon to find formulas for admitting peoples into the international arena outside the intermediary of the competent State. Thus, in the past, the ANC, representing the South African people who were victims of apartheid, and then the PLO, representing the Palestinian people, were admitted as observers.
The combination and coherence of the various components of the overall logic of the Charter, namely the sovereignty of peoples, their obligation of mutual respect and the negotiated solution of disputes, lead us above all to deduce from it a competence of the Organization to promote negotiations not only between States, within the framework of their respective territorial administrative competences, but also between States, but also between their respective territorial administrative competences, but also, between the peoples, to whom the territories belong, and the States, which have competence only by delegation.
Indeed, since such intervention does not use any means of coercion, it would in no way constitute an infringement of Article 2.7, which prohibits the Organization from intervening in the internal affairs of a State.
The people-state relationship, an alternative and an essential issue
What is at issue is the inescapable problem of the relationship between the principle of the sovereignty of peoples and the means of this sovereignty.
For each people, the problem posed is present in the same terms in international matters as at the internal level, as to people self-administration.
The participation of a people in international life is only one of the attributes (and one of the requirements) of the globality of its powers of self-administration.
This struggle of peoples for taking control of their sovereignty is not new
At the national level, it has been, since the notion of democracy has acquired a place in history, a permanent struggle between the supporters of privileges, to confiscate the State as a means of domination over the people, and the forces of progress, to make the concept and the means of popular sovereignty triumph.
Similarly, when the Charter begins with “We the peoples” sorrowful spirits may pout and say that the framers of the Charter were probably far from wanting to abdicate it in the hands of their peoples.
One could be content answer them that regardless of the intentions of those who wrote, from the moment a text exists, it escapes their discretion and become a text at the disposal of its apparent beneficiaries so that they seize it and make it a reality.
Whether its authors wanted it or not, this proclamation of the peoples’ sovereignty can and must, from a mere guarantee of legitimacy, be concretized in the effective exercise of popular sovereignty. The same struggle that is needed for each people, at home, for its own administration, impose upon peoples, as a whole for mastering their international relations.
[1] It is sometimes objected that, during the Second World War, the Allies had to resort to bombing to liberate Europe from the Nazis. However, bombings in the context of an international war are inherent in the nature of it and – except for the too many cases of unnecessary bombing experienced by the 2nd World War, which are criminal as affecting civilian populations – They have no other illegitimacy than the war itself. These bombings therefore have no reference value to justify committing internal human rights abuses on a country on the pretext of putting an end to internal violation of human rights
[2] Art. 27. 3: Decisions of the Council on all other matters taken by an approved vote of nine of its members in which the votes of all the permanent members are included, it being understood that in decisions taken under Chapter VI of Article 52, paragraph 3, a party to a party shall abstain from voting.
[3] See note above.
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.