Skip to main content Accessibility help
×
Home
  • Get access
    Check if you have access via personal or institutional login
  • Cited by 2
  • Print publication year: 2009
  • Online publication date: June 2012

4 - The UN Charter – A Global Constitution?

Summary

Is the UN Charter a constitution? Answering that question depends on what we mean by a constitution and to what alternative we are contrasting a constitution.

If the relevant contrast is to the U.S. Constitution – the constitution of a sovereign state – the answer is clearly no. The United Nations was not intended to create a world state. As the Charter's preamble announces, it was created for ambitious but specific purposes: “to save succeeding generations from the scourge of war,” to “reaffirm faith in fundamental human rights,” to “establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained,” and to “promote social progress and better standards of life in larger freedom.” The United Nations, moreover, is an organization based on the “sovereign equality of all its members” (art. 2.1), its membership being open to all “peace-loving states” (art. 4.1). This contrasts strikingly with the U.S. Constitution's much more general, sovereign-creating purposes: “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves and our posterity.”

The UN Charter lacks at least two of the three key attributes that the Constitutional Court of South Africa identified as essential to a constitution. In Pharmaceutical, the court averred that a constitution is a unified system of law: “There is only one system of law.

Helfer, Laurence R., Constitutional Analogies in the International Legal System, 37 Loy. L.A. L. Rev.193, 207–08 (2003)
Fassbender, Bardo, The United Nations Charter as Constitution of the International Community, 36 Colum. J. Transnat'l L.529 (1998)
Gross, Leo, Voting in the Security Council: Abstention from Voting and Absence from Meetings, 60 Yale L.J.209 (1951)
McDougal, Myres S. & Gardner, Richard N., The Veto and the Charter: An Interpretation for Survival, 60 Yale L.J.258–92 (1951)
Russell, Ruth, United Nations Financing and the Law of the Charter, 5 Colum. J. Transnat'l L.68, 83–85 (1966)
Plachta, Michael, The Lockerbie Case: The Role of the Security Council in Enforcing the Principles of Aut Dedere aut Judicare, 12 Eur. J. Int'l L.125 (2001)
Crawford, David, The Black Hole of a U.N. Blacklist, Wall St. J., Oct. 2, 2006, at A6
Bolton, John R., Letter to the Editor: U.N. Rightly Imposed Sanctions on Terrorists, Wall St. J., Oct. 6, 2006, at A15
Dyzenhaus, David, The Rule of (Administrative) Law in International Law, 68 Law & Contemp. Probs.127 (2005)
Lehnardt, Chia, European Court Rules on UN and EU Terrorist Suspects, ASIL Insight, Jan. 31, 2007
Bowett, Derek, The Impact of Security Council Decisions on Dispute Settlement Procedures, 5 Eur. J. Int'l L.1 (1994)
Reisman, Michael, Constitutional Crisis in the United Nations, 87 Am. J. Int'l L.83 (1993)
Urquhart, Brian, Beyond the Sheriff's Posse, 32:3 (May–June, 1990) Survival, 196–205
Johnstone, Ian, The Role of the Secretary-General: The Power of Persuasion Based on Law, 9 Global Governance441, 443 (2003)
Zacher, Mark, The Secretary-General and the United Nations' Function of Peaceful Settlement, 20 Int'l Org.724, 728 (1966)
Guttieri, Karen, Symptom of the Moment: A Juridical Gap for U.S. Occupation Forces, 13 Int'l Insights131 (Fall 1997)
Fortna, Page, Does Peacekeeping Keep the Peace?, 48 Int'l Stud. Q.269 (2004)
Abbott, Kenneth & Snidal, Duncan, Hard and Soft Law in International Governance, 54 Int'l Org.421 (2000)
Snidal, Duncan, The Limits of Hegemonic Stability Theory, 39 Int'l Org.579 (1985)