On 26 June 1945, President Harry Truman addressed 900 delegates at the Herbst Theatre in San Francisco:
Out of all the arguments and disputes, and different points of view, a way was found to agree. Here is the spotlight of full publicity, in the tradition of liberty-loving people, opinions were expressed openly and freely. The faith and the hope of fifty peaceful nations were laid before this world forum. Differences were overcome. This Charter was not the work of any single nation or group of nations, large or small. It was the result of a spirit of give-and-take, of tolerance for the views and interests of others. It was proof that nations, like men, can state their differences, can face them, and then can find common ground on which to stand. That is the essence of democracy; that is the essence of keeping the peace in the future. By your agreement, the way was shown toward future agreement in the years to come.
75 years ago today, after nine weeks of debate and negotiation, 50 allied countries signed the Charter of the United Nations. Undivided in their aim to preserve peace and security, the UN Charter has become the bedrock of the modern international order, establishing the United Nations and its principal organs, while also restricting the use of force and promoting the peaceful resolution of disputes. It has lasted the past three-quarters of a century, unrivalled and central to the operations of post-war society. Nevertheless, with US unipolarity waning, doubts over its effectiveness to resolve disputes, further non-security issues arising, and bureaucratic problems becoming more evident, the Charter ceremoniously celebrated all those years ago in the dying days of the War is now under pressure to be amended to reflect a new reality.
Reflecting on the past to protect the future – Failures of the League of Nations
The UN was born from the ruins of the League of Nations. Established at the Paris Peace Conference through the Covenant of the League of Nations, the League had a similar mandate to the current UN – to ensure international peace and security. Yet, due to overall instability, the lack of hegemonic power to underpin the system, and overall ineffectiveness of reeling in states who use unwarranted force, the League was short-lived and disbanded when it failed to prevent global warfare.
The UN Charter sought to fix the issues the League faced. A major point was the aforementioned absence of major powers, with the US not joining the League, while Germany, Italy and Japan subsequently withdrew and disregarded its jurisdiction. Without a hegemon to uphold its power, the League remained beleaguered from day one. This was not helped by the weak mandate and jurisdiction of the League’s organs. The Council did not have the power to bind States to resolutions, an omission done to appease various Member-States who threatened to not join the League as it threatened their sovereignty. This meant the League had difficulties intervening when one State violated the rights of another State under international law, namely the invasion of Manchuria by Japan in 1931 and the invasion of Ethiopia by Italy in 1935.
These deficiencies were resolved through three key changes outlined in the UN Charter:
- The formation of the Security Council which had the power to bind States;
- Restrictions on the use of war; and
- Explicit provisions for the UN and other States to intervene.
The development of the Security Council under the Charter was of the utmost importance. Article 23(1), which enshrined the position of the five Permanent Members in the Security Council (China, Russia, France, United Kingdom, and the United States), meant the most powerful States (victors of the Second World War) were empowered to act as guardians of the UN system. Unlike the League, this meant the UN had hegemons who had powers to underpin its actions and protect the operation of the entire system.
This is further accentuated by Article 25 which reads:
The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.
Different to its antecedent under the League, this Security Council had the power and the military force of the largest powers to enact whatever it willed for the maintenance of international peace and security.
This caused issues with delegates at the San Francisco Conference. Australian Foreign Minister HV Evatt disagreed with the veto power as it curtailed the power of smaller States. He submitted an amendment which would have removed the veto power from the Permanent Members. This led to the Permanent Members threatening to not join the UN, and the veto was ultimately retained.
The Security Council remains problematic still, with the veto power being questioned, especially in light of the growing power of other Member-States and the declining position of some Permanent Members. While this may be the case, the UN Charter through more powerful organs such as the Security Council sought to create a firmer world order which could be more robust in reinforcing the collective decision of the UN and preserving international peace and security than its antecedent.
The Security Council’s power is evident in its response to international crises. Article 2(4) prohibits states from using (or threatening to use) force with the Security Council being the only legitimate authoriser as regulated under Chapter VII (although self-defence per Article 51 is not prohibited). While a principle of non-intervention in the domestic affairs of states is enshrined in Article 2(7), the Security Council has over various times authorised the use of force to intervene, the first time being to ensure a North Korean withdrawal from South Korea in 1950, recently with humanitarian intervention in Yugoslavia, and controversially with warfare in Iraq.
Far from perfect and questionable in its past actions, the powerful Security Council is an example of one significant change that sought to resolve a deficiency with the failed League. The UN’s longevity alone is a testament to the work done by the delegates to fix the errors in the Covenant, which failed in creating an effective organisation which could prevent global war and limit the use of force.
A Constitution for the World?
In his address at the signing of the Charter, President Truman made various references to the US Constitution, stating:
This Conference owes its success largely to the fact that you have kept your minds firmly on the main objective. You-had the single job of writing a constitution–a charter for peace. And you stayed on that job.
This begs the question of whether the Charter is actually a world constitution, capable of regulating the functioning of the international order in a similar way to domestic constitutions. This has a simple answer – no.
As all students of International Relations learn within the first few weeks of their degrees, we live in an anarchic international order due to the lack of a world government. The preservation of Westphalian Sovereignty means that States remain the primary actors under international law, with all other bodies empowered through State authority. The UN is not an international sovereign and States continue to be equals who monopolise political power and force within their own territory.
Even so, the UN Charter attempts to act as the basis of a quasi-constitutional legal order which seeks to further integrate the world, namely through collective aims of preserving international peace and security. It attempts to mirror domestic structures, with a judiciary through the International Court of Justice (ICJ), a legislature through the General Assembly, and the Security Council and Secretariat acting as an executive.
For the UN Charter to become a fully-fledged constitutional order similar to its domestic counterparts, the most radical shakeup of international law would be required, resulting in States permanently forfeiting some of their sovereignty to the UN. This would be in addition to the establishment of further accountability at a global level, and more robust enforcement measures which allow the UN to transcend national boundaries and enforce decisions within Member-States. Without this power and authority, the Charter cannot be a completely empowered constitution.
This change is unlikely to ever come unless there is a major event which radically changes the perspectives of States in relation to the premise of sovereignty and the importance of international institutions. The prodigious position of States is so dominant that norms and customs under international law rely on the presence of national boundaries and the States’ monopolisation of power, force and violence within their spatial setting.
Common sense … should warn us that obviously all states cannot remain supreme in all they choose to do, unless we are willing to accept the cynical view that might makes right. The only alternative to world-wide anarchy lies in some form of international organization. This means a happy balance between the rights of individual nations and their obligations to others.
President Harry Truman
Jefferson City, 22 February 1945
If we merely look at the international law principle of uti possidetis juris, which serves to preserve the boundaries of colonies when becoming independent States, the importance of spatial setting is reinforced with the ICJ and other international institutions unwilling to shift borderlines. This was reiterated in various cases before the ICJ such as the Frontier Dispute, with a “photo of territory” taken so borders are kept intact perpetually.
While the UN did attempt to form its own military force, it never truly tried to form a constitutional order with fully-powered institutions equivalent to those of their Member-States. Instead, it has focused on the premise of preserving international peace and security through provisions such as Article 2(3) which ensures Member-States resolve disputes first by peaceful means, along with Article 2(4) which places a positive restriction on the States’ right to use force or threaten to use it. This means we cannot call it a constitution for a world government, but a constitution to preserve peace and security.
75 years on – Is it time for reform?
President Truman did not claim this document to be perfect, far from it, instead highlighting that it had faults and would be continuously amended by Member-States:
This Charter, like our own Constitution, will be expanded and improved as time goes on. No one claims that it is now a final or a perfect instrument. It has not been poured into any fixed mold. Changing world conditions will require readjustments–but they will be the readjustments of peace and not of war.
Truman was right, the Charter needs to be updated, modernised and adapted to meet current challenges. That was why Article 108 was included, which reads:
Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two-thirds of the Members of the General Assembly and ratified in accordance with their respective constitutional processes by two-thirds of the Members of the United Nations, including all the Permanent Members of the Security Council.
This provision has only been utilised for five amendments, all occurring between 1965 and 1973. These include increasing the size and majority vote of the Security Council, expanding the Economic and Social Council, and changing the requirements for a General Conference of Member-States for reviewing the Charter.
Since the last amendment to the Charter 47 years ago, there have been major geopolitical ramifications, including:
- The end of the Cold War and further economic integration on a Western capitalist norms;
- Growth of the UN from 131 Member-States to 193 Member-States with the admission of former African and Caribbean colonies along with former Soviet countries;
- An economic shift from Western Post-Fordist countries to emerging economies such as China and India;
- Prevailing issues with State responsibility and intervening in the internal affairs of States.
This begs the question whether it truly reflects the current world.
As previously mentioned, one key proposal is the introduction of more Permanent Members to the Security Council, with unofficial candidacies from countries such as India, Germany, Brazil, South Africa and Japan. The removal of the veto from the Permanent Members has been floated as another suggestion. This will be unlikely to occur as Article 108 means that any amendment to the UN Charter requires the approval of all Permanent Members, and no State would ever give up this power.
The UN Charter fails to explicitly codify State responsibility, with this area of law under-developed until the International Law Commission published the Draft Articles on the Responsibility of States for Internationally Wrongful Acts in 2001. These are only draft articles – although well received and cited by the ICJ, they are only draft. This means the actions of States, and when States can legitimately intervene, remains somewhat ambiguous.
More importantly, humanitarian intervention remains under a cloud of uncertainty and lacks clarity under the Charter. While customary law regarding humanitarian intervention dates back centuries, the Charter superseded this as it prohibited all use of force except under the two circumstances previously discussed: UN Security Council action under Chapter VII; or self-defence against an armed attack.
The UN Charter still fails to address this issue, with debate ensuing after the Rwandan Genocide in 1994 and the NATO intervention in Kosovo in 1999, exacerbating tensions between State sovereignty and evolving international norms in the development of human rights. While the UN Security Council has attempted to justify Chapter VII use of force for the protection of human rights, many States remain of the opinion the UN Charter does not provide a legal basis for this and are hesitant to authorise any action.
Conclusion – Here’s to 75 years… and 75 years more?
The UN Charter is from a different age, without recognition for the various issues that the world has faced since 1945 and the expanding influence of the Third World. President Truman acknowledged 75 years ago the Charter isn’t perfect and will need to be amended overtime as new challenges emerge. This is important to note with shifts in geopolitics and international relations requiring systemic changes.
On overall review, the UN Charter has succeeded where the League failed, preventing global war. The system it established forms the bedrock of the modern international order, accepted by all States. This makes it much more robust than it seems, especially in light of the barrage of criticism it receives.
Have there been failures? Yes. Is reform possible? Sure. Is it likely? Not dissimilar to all bureaucratic issues, it will take time and cause rifts between Member-States. Yet, today we should celebrate the milestone reached, with the Charter instituting a world order that has allowed for greater integration of States, regardless of their geography, culture, politics, and economic standing. Because of it, we now live in an ever closer society and have forums for States to cooperate.
