The UN Charter

The United Nations was founded in order to maintain international peace after the chaos brought about by World War II. It s purposes include the prevention and removal of threats to peace, suppression of acts of aggression that breaches peace, and foster adherence to principles of peace in the international setting in overcoming international disputes which could lead to war (Goodrich & Hambro, 1946, p. 59). However, issues concerning the obsolescence and the need to revise the UN Charter to facilitate suitable reforms that will realize the objectives and purpose of the organization have been a growing concern among international policy-makers. This is in line with the need to restructure the organization and the laws that govern its existence to cater to the current international relations so as to minimize international conflicts that recently have been of common concern especially after the 9/11 bombings and the subsequent US war against Iraq.

This study aims to assert the need to revise the Charters of the United Nations through critical reviews and analysis of its provisions. The study will operate under the hypotheses that (1) the provisions of the UN Charter as statute and as a contract is ambivalent and leads to open criticisms of the organization’s functions, and that (2) the UN Charter is incapable of providing justice to issues of international terrorism due to the subjective concept of terrorism and its alleged cases. Moreover, the methodology of the study utilizes the critical review and analysis of the UN Charter provisions as well as published works of informed personalities that will contribute to the elucidation of the research at hand.

As such, the paper will include chapters that justify the obsolescence of the Charter, its legal terms on war and terrorism, literature review to support the hypothesis and arguments of the study, and a concluding chapter to summarize the findings and intensify the claims of the study as supported by the accumulated data and information that are in line with the thesis stated regarding the limiting factors that beset the effective function of the United Nations amidst current concerns on international disputes.

Chapter 1 presents the rationale, objectives, hypotheses, significance, limitations, and methodology of the study. Chapter 2 consist grounded arguments as well as counter arguments that justify claims of the UN Charter provisions obsolescence. Chapter 3 reviews the coverage and terms of the UN Charter in addressing international war and terrorism issues. Chapter 4 encompasses the collection of journal articles and other reliable and valid published materials of credible authors that challenge and contribute to the study’s claims. Finally, Chapter 5 summarizes the findings and results of the academic activity along with concluding remarks to justify the arguments of the study.  

 

Chapter 2: The UN Charter: An Imperfect Document

            The rule of law has serves several purposes in state affairs. First is the rule of law regulates government power by limiting discretion (Dicey, 1982). By having a rule of law, government leaders cannot act arbitrarily because their decisions and actions are based on the standards provided by law. The rule of law limits and prevents abuse of power (Dicey, 1982) because the actions of state leaders are limited by standards. Moreover, the rule of law provides equality before the law by making every person not above the law and regarding every person as equally covered by law regardless of age, gender, race and economic status (Dicey, 1982) and provides procedural or formal justice (Ll, 2000) that arise out of the consistent application of laws that are generally acknowledged in a system intrinsic to the body of law.

When the UN Charter was enacted, it embodied both the characteristics of a statute and a contract which provided avenues for criticisms of its functions (Weinberger, 1991; Hart, 1961; Fitzpatrick & Tuitt, 2004). For instance, the Charter as a statute allows the Security Council the functions both of judge and specifically empowered executive, thus presenting vas and confounding functions. The provisions of the Articles are likewise criticized for lack of universality because the five permanent members of the Security Council are shielded from the decisions of the Security Council by their power of veto (Article 27(3)). Furthermore, since the Charter is argued to be obsolete and incapable of executing it term particularly in maintaining world peace and minimizing international disputes, its existence as a contract can be annulled and negated accordingly (“enemy”: Articles 53(2) and 107). This supports hypothesis 1 that the provisions of the UN Charter as statute and as a contract is ambivalent and leads to open criticisms of the organization’s functions 

 

 Chapter 3: The Working Concepts of Legal

Manipulating the rule of law to provide just law requires going back to the principles of the rule of law and adhering with the conditions set therein and applying these in real situations. Rule of law implies the existence of complete and fair procedural rules. The respect for sovereignty is a fair rule and the violation of this through actual attacks will be met by defensive actions by the members of the United Nations through the sanction of the Security Council. The rules and procedures are applied with transparency and consistency when fairness and equal treatment is applied. In international affairs, the rule of law treats all states as equals. In the case of the Al-Qaeda and US affair, violations upon violations of rules and procedure happened resulting to a continuing war riddled with political interests forgetting the concept of justice.

`Terrorism’ is a highly subjective concept (Sorel, 2003), and instances of its alleged perpetration or threatened perpetration, for reason of the inevitable subjectivity of the allegation, are not justifiable in terms of the UN Charter. Security Council Resolution 1441 tended to be discussed in contract-regarding terms (Iraq was said to be `in material breach’ of it) to have legitimated the second – 2003 - war against Iraq. McDougal and Feliciano (1961) claimed that Article 51 of the UN Charter only constitutes what the international law for peace should have been. Stone (1958) and Bowett (1958), however, recognized that the lack of consensus on defining “aggression” among member nations led to the inefficient function of the UN in dealing with threats to international peace. Moreover, according to Kellog (1928) aggression and self-defense are contradicting concepts that means to put justice to both sides would deem impossible particularly when dealing with opposing sided of international security between two nations. This supports the arguments of hypothesis 2 that the UN Charter is incapable of providing justice to issues of international terrorism due to the subjective concept of terrorism and its alleged cases.

 

Chapter 4: Literature Review

Customary law is regarded as the foundation of the international legal system. It is satisfying that the current has seen colossal bounds forward in international law (Byers, 1999). Nevertheless, these growths are a long way from fulfilling the requirements of the international community for legal regulation. The decade of international law asserted by the United Nations General Assembly gives evidence that the international community is conscious of a pressing requirement for further progressive improvements in international law, and those actions are need to be acquired to guarantee its success (Brownlie, 1990). This connotes that at the outset the extra improvement of general international law, which is the underpinning of the entire system of international law. The predicament is whether the public is supposed to depend on the expansion of the general international law by custom only, or if it may possibly be also be acquired by multilateral treaties.

Iraq was ipso facto deemed to be a state with links to Al Qaida that is contemplating acts of terrorism. Evidence, since proven to be fabricated, was presented to the UN Assembly and Council to demonstrate Iraq’s `material breach’. Nothing in the Charter exists that might have inhibited this facile `in material breach implies contemplating acts of terrorism’ proposition. In the absence of Charter guidance on the notion `terrorism’ and its effect on the vaunted legality of pre-emptive war, the Bush Doctrine, now formally encapsulated in the 2002 National Security Strategy (The National Security Strategy of The United States of America, 2002) was able to flourish (Wedgwood, 2003). In practical effect, therefore, `legality’ vis-à-vis considerations of terrorism are vested an instrument other than the Charter.

The rule of law provides just law through adherence. Al-Qaeda does not respect the rule of law making it liable for many violations under the law and the group should be made liable through the procedures provided by law. The United States should have waited for the sanction of the Security Council and it could have waged war not on Iraq but on Al-Qaeda alone because the rest of the people of Iraq are not waging war on the United States or the American people. This violation resulted to the senseless deaths of many civilians (Falk, 2003). The US also was in violation of the rule of law when it conducted air strikes in Iraq when the country did not attack the United States (Glennon. 2003). If the United States wanted Saddam Hussein to become liable for violations of Human Rights then the intervention should be targeted only to the apprehension of Saddam Hussein and not against the Iraqi people. Removing or violating the rule of law results to the unlimited power that belies just law. Just law is achieved when all the principles and conditions of just law exist.

As was Posner (1992, pp. 48-49) elaborated, “the use-of-force regime set out in the U.N. Charter failed because the Charter sought to impose rules that are out-of-sync with the way states actually behave. A new use-of-force regime that does work will have to rest far more firmly upon actual patterns of practice that reveal, with solid empirical evidence, what regulation of force is possible and what is not”

 

Chapter 5: Conclusion

The world was undergoing tremendous change even before the horrors of 11 September. Both democracy and the market economy have proliferated globally since the collapse of communism, and revolutionary developments in communication and information technology have helped trigger an increasing interdependence between countries at an unprecedented pace. Contemporary processes of globalization have several dimensions or faces: technological, cultural, religious, economic and political. First, it suggests that political, economic and social activity is becoming worldwide in scope. Secondly, it suggests that there has been an intensification of levels of interaction and interconnectedness among the states and societies (Held, 1991). Among these relations are those created by the progressive emergence of a global economy, the expansion of transnational links which generate new forms of collective decision-making, the development of intergovernmental and quasi-supranational institutions, etc. (Giddens, 1990 p. 71).Laws are dynamic.  It evolves as society does.  In order to be reasonable and fair it must adopt to the needs and practices of the new society.  Otherwise, it will become a dormant which will eventually cause injustice or worst shield injustices.  It is imperative that the enactment of laws should depend on the situation of a particular society, and in the case of the UN Charter, the international setting.  

Verily, it should take into consideration, the culture, practices, political beliefs and other factors of social change that lead to international consideration.  The essence of the law is to maintain order. Thus, maintaining the international orders regarding sustainability of peace should reflect the current international concerns enacted and enforced to cater to the global needs and practices. Hence, where a document has elements of obsolescence and is jurisprudentially amorphous, the likelihood is high of its being unable to perform the role it purports to perform. That the UN Charter is such an amorphous document must be taken seriously, and steps should be taken, as a matter of urgency, to revise it.

 

References:

Bowett, DW 1958, Self-defense in International Law, pp. 187-92.

 

Brownlie, I 1990, Principles of Public International Law. Oxford: Clarendon Press.

 

Byers, M 1999, Custom, Power, and the Power of Rules: International Relations and Customary International Law. Cambridge University Press.

Dicey, A 1982, Introduction to the Study of the Law of the Constitution, Liberty Fund, Indianapolis.

Falk, R 2003, What Future for the UN Charter System of War Prevention?, http://www.transnational.org/forum/meet/2003/Falk_UNCharter.html

Fitzpatrick, P & Tuitt, P 2004, Critical Beings: Law, Nation and the Global Subject

Giddens, A 1990, The Consequences of Modernity.  Cambridge: Polity Press.

 

Glennon, MJ 2003, Why the Security Council Failed, Foreign Affairs, http://www.foreignaffairs.org/20030501faessay11217-p0/michael-j-glennon/why-the-security-council-failed.html

 

Goodrich, LM & Hambro, E 1946, Charter of the United Nations: Commentary and Documents, World Peace Foundation, Boston.

 

Hart, HLA 1961, The Concept of Law, Clarendon Press, Oxford.

 

Held, D, McGrew, A, Goldblatt, D & Perraton, J 1991, Global Transformations: Politics, Economics and Culture.  Cambridge: Polity Press.

 

Kellogg, FB 1928, Address Before the American Society of International Law (Apr. 28, 1928), in 22nd Proclamation of American Society of International Law, pp. 141-143.

 

Ll, B 2000, ‘What is rule of law?’, Perspectives, vol. 1, no.5, viewed 9 December      2005, http://www.oycf.org/Perspectives/5_043000/Contents.htm.

 

McDougal, MS & Feliciano, FP 1961, Law and Minimum World Public Order: The Legal Regulation of International Coercion, p. 234.

 

Posner, R 1992, The Essential Holmes: Judicial Opinions and Other Writings of Oliver Wendell Holmes, Jr., pp. 48-49.

 

Stone, J 1958, Aggression and World Order: A Critique of United Nations Theories of Aggression, p. 44.

 

The National Security Strategy of The United States of America (17 September 2002) available at http://www.whitehouse.gov/nsc/nss.pdf

 

Wedgwood, R. (2003), `The Fall of Saddam Hussein: Security Council Mandates and Pre-emptive Self-Defence, 97 American Journal of International Law 576

 

Weinberger, O 1991, Law, Institution and Legal Politics: the fundamental problems of Legal Theory and Social Philosophy, Kluwer Academic Publishers.

 

 

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