Constitutional Dimension The Charter of The United Nations Revisited

The Constitutional Dimension of the Charter of
the United Nations Revisited

Pierre-Marie Dupuy
The Charter as the Substantial Constitution of the International Community: Basic Principles of the United Nations and <cJusCogens.
A. Which Norms?
aa. Identification
bb. Relationship Between Norms
B. Which Legal Regime?
aa. Article 103
bb. The Charter and the International <<Crime>,
of a State
II. The U N Charter as the Institutional Constitution of the International
Community
A. The Security Council as the <<Executive,>
of the International Community
B. A Constitutional Crisis of the U N ?
aa. Technical Reasons for the Crisis
bb. Legitimacy
111. General Conclusion
I.
1. The fiftieth anniversary of the United Nations has provided an opportunity to many authors to look back on the achievements of the United
Nations as the world organisation <<parexcellence,.
Each and every aspect of the activities of the world organisation has
been scrutinised; including, the assessment of the United Nations as a
political process, and the comparison of its goals to the concrete evolution
of the political relations between its member states during the first half
century of its existence. The way in which the organisation has been able
or unable to discharge its mandate, in particular, with regard to the
maintenance of international peace and collective security, the contribution of the United Nations to the development of the international pro-
Max Planck Yearbook of United Nations Law
tection of human rights and to the rights of people are also issues which
have been thoroughly discussed1.
It is, then, with a high sense of modesty that the following remarks try
to add to this chorus of commentaries and opinions by focusing on what
is in the first instance apurely legal question, even if it is highly conditioned
by political factors. This question is the following:
What is the current situation of the Charter, both as a legal instrument

and as a compendium of legal rules, within the international legal
system?
2. In the foreword of a stimulating book gathering under his editorial
responsibility a collection of studies devoted to The United Nations atAge
F i f y , Tomuschat gave an answer to this question. H e said:
"It has become obvious in recent years that the Charter is nothing else
than the constitution of the international community (...). Now that
universality has almost been reached, it stands out as the paramount
instrument of the international community, not to be compared to any
other international agreementw2.
This opinion reflects the views of many other writers. It suggests nevertheless some complementary observations in order to be plainly accepted.
The main reason is the sharp contrast still existing between, on the one
hand, the exigencies of normative and organic integration attached to the
idea of constitution and, on the other hand, the persisting dissemination
of power among competing and formally equal sovereign states, which
still characterises the international society in spite of the importance now
taken by the action of hundreds of international organizations.
3. As a matter of fact, to the question of whether the Charter is the
constitution of the international community, many would probably be
tempted to answer: Yes, of course! But, by the way, what was the question?
Among other studies specially devoted to the anniversary of the United

Nations, see 0.Schachter, "United Nations Law", AJIL 88 (1994), 1 et
seq.; "The United Nations at Fifty", with contributions of Sir R. Jennings,
EL. Kirgis, L.B. Sohn,AJIL 89 (1995), 493 et seq.; "The United Nations
Jubilee Issue", EJIL 6 (1995), 317 et seq.; C. Tomuschat (ed.), The United
Nations at Age Fifty. A Legal Perspective, 1995; P.M. Dupuy, "A propos
d'un anniversaire", RGDIP 99 (1995), 777 et seq.
Tomuschat, see note 1, ix.
The Constitutional Dimension of the Charter Revisited
In other words, it is important to know what exactly is understood by

the term ccconstitution,. In particular, among other classifications, two
meanings of the constitution may be understood.
-One is the constitution in the material or substantial sense of the term.
Under this notion, what is pointed to is its substantial contents, and, in
particular, its ideological and political ground, the basic principles which
it sets out with a view to defining the fundamental rights of citizens, the
general aims of the political institutions and, more generalIy, the legally
binding conceptual framework of the concerned country. As envisaged
from this perspective, a constitution is to be considered as a set of legal
principles of paramount importance for every one of the subjects belonging to the social community ruled by it. It places all of them (including the
different state's organs) in a subordinate position and implies a hierarchy
of norms, on the top of which are the legal principles belonging to the said
constitution.
- By contrast, the other perception, that of the constitution in the
organic and institutional sense, points to the designation of public organs,
the separation of powers and the different institutions which are endowed
each with its own competencies.
As it stems clearly out of the context in which Tomuschat made the
above cited statement, he had first in mind the substantial notion of
constitution as opposed to the institutional one3. Nevertheless, constitutional experiences at the internal or municipal level clearly demonstrate
that the substantial dimension of a constitution cannot be separated from
its organic one, since the second is the institutional instrument necessary
for the promotion of the first.
4. The present paper will simply try to bring some elements of response
t o the question of the function and position of the Charter within the
international legal order by examining successively two main sets of
problems:
- First, starting from the substantial constitutional dimension of the
Charter, as Tomuschat did it, what conclusions stem from the comparison
In addition to the above cited observations, Tomuschat adds, still speaking of the Charter, "It may not be fully satisfactory as a world constitution, not having been conceived of for that function in 1945. But it is the
only written text binding upon all states of this globe which sets forth
firm determinations on the general issues which make up the hard core
of any system of governance. The present-day world order rests entirely
on the Charter", ibid. For a more complete development of the opinion
of Tomuschat see his course given at the Hague Academy of International
Law, "Obligations Arising For States Without or Against their Will",
RdC 241 (1993), 199 et seq., (217).
between the principles laid down by the Charter and those which are most
generally cited by authors as ranging among the rules of c<juscogens,,?
- Second, continuing with the formal or instrumental constitutional
dimension of the Charter, does it provide the international community
with efficient mechanisms fitted to ensure that its substantial content will
be implemented by every member state? This issue will be mainly examined in the light of recent practice, notably that of the ICJ and of the United
Nations Security Council.
I. The Charter as the Substantial Constitution of the

International Community: Basic Principles of the United
Nations and ccJus Cogens,,
I. A n assimilation of the Charter to the substantial definition of a constitution raises several questions. In particular, does the Charter entail all the
substantial principles of paramount importance for the international community?
- If yes: does it mean that there is not only a substantial convergence
but also a clear identity between, o n the one hand, the fundamental
principles set forth in the Charter and, on the other hand, the peremptory
norms of international law, the definition of which, under Article 53 of the
Vienna Convention on the Law of Treaties, is precisely that it is a norm of
general international law "accepted and recognized by the international
community of States as a whole as a norm from which no derogation is
permitted ..."4, a definition which stresses its fundamental feature?
- Ifnot: how, then, to analyse those principles which, being established
outside the Charter are, nevertheless, in substance, of a constitutional
nature5? H o w to reconcile this dissemination of basic rules within and
outside the Charter with the constitutional vision of the Charter, since, in
theory, a constitution has precisely as its nature to put them all together
within the same comprehensive body of norms6?
4
5
6
ILM 8 (1969), at 698-699.

Because they .entail essential obligations for the international community
as a whole.
Tomuschat gives rather convincingly the following answer to that question: "Instead of being drawn up and put into force as a whole in one act,
a constitution can also grow contingently, being moulded by the manifold
political and historical forces at work within the community whose
fundamental order it determines. The rules on government applicable in
the United Kingdom constitute the prime example of a constitution
whose relevant components cannot be found in a single document...",
2. If these obligations are not only set out by the provisions of the
Charter but are also to be found outside, does it then mean that they are
endowed with parallel but distinct legal regimes, whereas they apply to
norms established within or outside the Charter?
More generally, the perception of the United Nations as the substantial
constitution of the world community, at least if this expression is not only
to be taken as a political metaphor but as a juridical reality does raise the
problem of the overall relationship existing between the law of the United
Nations and general customary international law including that part of it
which belongs to ujus cogens..
From these different questions derive two sets of issues which shall be
hereafter distinguished:first, how to identify the substantial norms able to
be seen either alternatively or concurrently as United Nations law and as
peremptory rules?; second, what are the questions raised, in terms of legal
regime, by these dual norms?
A. Which Norms?
aa. Identification
3. The substantial and fundamental principles which the Charter of the
United Nations lays down are mainly to be found in Articles 1and 2' and
are easy to list: The maintenance of peace and security (Article 1 para. l),
which goes together with the prohibition of the use of force laid down in
Article 2 para. 4; the peaceful settlement of disputes (Arts. 1 para. 1,2 para.
3 and 33); the principle of equal rights and self-determination of peoples
(Article 1 para. 2); the principle of cooperation which extends to every
field of international problems, in particular those concerned with
economic, social, cultural, or humanitarian character" (Article 1 para. 3);
the promotion of "respect for human rights and for fundamental free-
cited from RdC241 (1993), 217.

An analogy could be found here with the formal presentation of many
municipal constitutions, in which the fundamental principles governing
the community submitted to that constitution are also laid down in the
Preamble or in the preliminary or first parts of the text. The usual
structure of such constitutions has most probably served as a model for
the drafters of the Charter. It may be suggested that this choice manifests
their will, as well as that of every founding member of the Charter, to
solemnly formulate the basic rules aimed at governing the community of
"...The Peoples of the United Nationsn in the name of which the Charter
has been proclaimed, as established in the first sentence of the Preamble.
doms" without any form of discrimination (Article 1 para. 3); the respect
of the "sovereign equality of all its Membersx8(Article 2 para. 1).
It is no surprise to find again the same principles in A/RES/2625 (XXV)
of 24 October 1970, the famous "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among
States ...", since it had precisely as its purpose to reiterate the major
principles consecrated by the Charter in the context of peaceful coexistence between East and West9.
4. The fact that there is a repetition of the same principles in the Charter
and in the above mentioned Declaration has been particularly considered
by the ICJ in one of its decisions, which is also important for the elucidation of some of the key rules of modern international law. In the Case
Concerning Military and Paramilitary Activities in and against Nicarap a l 0 , the Court had, in particular, to evidence the customary character of
the rule prohibiting the use of force", of the right of self-defence, of the
principle of non intervention, together with the respect of some "elementary principles of humanitarian law". With regard to the prohibition of
force repeated in Resolution 2625, the Court said:
"The effect of consent to the text of such resolutions cannot be understood as merely that of a .reiteration or elucidation. of that treaty
commitment undertaken in the Charter. O n the contrary, it may be
understood as an acceptance of the validity of the rule or set of rules
declared by the resolution by themsel~es"'~.
As to the peremptory nature of the rule, the Court added:
8
10
11
12
This last principle is surprising by its formulation which suggests that the
member states of the United Nations are not bound by the same obligation with regard to non-member states, a conclusion which it is of course
impossible to draw.
It is true that, in the Declaration an additional emphasis is put on the
principle of non-intervention (principle 3). Nevertheless, it is directly
grounded on the other basic principles enunciated by the Charter, in
particular the prohibition of the use of force and the sovereign equality
of states. See G. Abi-Saab, "La reformulation des principes de la Charte
et la transformation des structures juridiques de la communautP internationale", in: Le Droit International a u Service de la Paix, de faJustice et
de D&veloppement, Mdanges Michel Virally, 1991, 1 et seq.
ICJ Reports 1986,14 et seq.
The Court observed at the same time that a convergence
of opinions
"
(including that of the two litigating states) attributed to the same rule the
value of a peremptory norm of general international law.
ICJ Reports 1986, 14 (loo), para. 188.
"A further confirmation of the validity as customary international law

of the principle of the prohibitionof the use of force expressed in Article
2, paragraph 4, of the Charter of the United Nations may be found in
the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law
but also a fundamental or cardinal principle of such law"I3.
Moreover, as demonstrated again in the cautious wording adopted by the
Court in its most recent Advisory Opinion, concerning the Legality of the
Threat or Use of Nuclear Weapons (8 July 1996) there is an intimate
relationship between the basic rules grounded in the Charter and those
principles of customary international law which serve for the interpretation of these rules14.
bb. Relationship Between Norms

5. Nevertheless, no other case than the above mentioned between Nicaragua and the United States demonstrates more clearly the rather complex
trilateral relationship existing between the <constitutional rules* laid
down in the Charter (a), some of the most important rules of customary
contemporary international law (b), and a number of them which, at the
same time, are to be identified as belonging to the category of peremptory
norms (c).
From the views expressed by the Court in this judgment, it seems in
particular possible to draw at least the three following conclusions:
a) A rule stated by the Charter may be, at the same time, a customary
principle. A reality which the Court had already acknowledged in the
North Sea Continental Shelf Case15.It is with regard to the prohibition of
force that the Court stresses in particular that "even if two norms belonging to two sources of international law appear identical in content, and
even if the States in question are bound by these rules both on the level of
treaty-law and on that of customary international law, these norms retain
a separate existence"16. The Court considered that the affirmation of the
l3
14
l5
Ibid. at para. 190. The Court, then, observes that the ILC "in the course
of it's work on the codification of the law of treaties, expressed the view
that the Iaw of the charter concerning the pohibition of the use of force
in itself constitutes a conspicuous example of a rule in international law
having the character of jus cogens".
ILM 35 (1996), 814 et seq. See in particular para. 41 et seq., which deals
with the interpretation of Arts. 51 and 2 para. 4 of the Charter and reply
C, adopted unanimously by the Court.
ICJ Reports 1969,3 (39), para. 63.
prohibition of the use of force as a customary international rule had

appeared after its statement in the Charter. Nevertheless, from a more
general point of view, on the basis of the same judgment, it is clear that:
b) A rule stated by the Charter may have been already existing as a

customary rule of international law before its enunciation in the Charter.
Such is explicitly the case of the right of self-defence17,but the same could
quite evidently be said, in particular, of the sovereign equality of states.
This observation does not undermine the potential constitutional* character of the Charter. Quite the contrary, it demonstrates that its founders
had as their goal to reiterate and summarise in the same solemn and
fundamental text the basic principles which had already served as the
cornerstones of interstate relations while, at the same time, they wanted
to add t o these principles some new ones, aimed at reinforcing and
enhancing them. This gathering of old and new rules, then, far from
mitigating the <constitutional>>
value of the Charter, makes it even stronger.
c) A customary rule may be eventually peremptory without being
explicitly enunciated in the Charter. According t o the Nicaragua Case (see
above under I.A.aa.4), this seems to be the situation prevailing with regard
to the rule of non-intervention in internal affairs of sovereign states, as it
was analysed in this judgment as well as in an earlier one, in which the
Court had already stated:
"Between independent States, respect for territorial sovereignty is an
essential foundation of international relations"18.
16
ICJ Reports 1986, 14 (95), para. 178.
17
Ibid. at page 102, para. 193: "...with regard to the existence of this right,
[the Court] notes that in the language of Article 51 of the United Nations
Charter, the inherent right (or adroit naturela) which any State possesses
in the event of an armed attack, covers both collective and individual
self-defence. Thus, the Charter itself testifies to the existence of the right
of collective self-defence in customary international law". The Court says
nothing about the eventual belonging of the right of self-defence to jus
cogens, an issue which, generally, is not much considered by the authors.
Nevertheless, the ICJ insists on the "inherent" character of that right, an
affirmation which suggests that this right could not be derogated by way
of treaty.
Corfu Channel Case (United Kingdom/Albania), ICJ Reports 1949, 4
(35), cited in the Case Concerning Military and Paramilitary Activities in
and Against Nicaragua, ICJ Reports 1986, 14 (106), para. 202.
18
In the Nicaragua Case, the Court carefully recorded some of the most
striking evidence of the aopinio j u r i s ~according to which the principle of
non-intervention belongs to general international law. In doing so, it relied
in particular on some important resolutions or "declarations" adopted by
the General Assembly, among which Resolution 2625, already mentioned19, remains, by far, the most significant. The Court did not venture
into the explicit qualification of the rule as aperemptory one. Nevertheless,
it insisted on its paramount importance for the promotion of peaceful
international relations. The mere fact that the rule of non-intervention "is
not, as such, spelt out in the Charter"20 did not constitute an obstacle for
the designation of the principle as a crucial one, since it is directly derived
from the equal sovereignty of states, which, as already seen, is both a
customary and a United Nations principle. Furthermore, the conclusion
of the Court as to the customary nature of the rule of non-intervention
was backed by its reference to international states practice, even if the ICJ
did so mainly by special reference t o the behaviour and declarations of the
United States2' as the defendant of the litigation.
6. Generally speaking, the Court had proceeded in the same way, some
years before, in the so-called Hostage Case (United States Diplomatic and
Consular Staff in Teheran, ICJ Reports 1980, 3 et seq.), to stress "the
extreme importance of the rule of law which it [was] called upon to applyM
in that case. (It was the obligation of states to respect in every circumstance
the diplomatic and consular immunities attached to the representatives of
foreign countries). O n the basis of such an emphatic wording, it may be
suggested that, if a normative category of peremptory norms does really
exist in positive international law, a fact which is still obstinately denied
by some authorsz2, then it is to be supposed that the latter obligation
l9
20
21
22
Ibid. The other important declaration mentioned by the Court is A/RES/

2131 (XX) of 21 December 1965 the "Declaration on the Inadmissibility
of Intervention in the Domestic Affairs of States and the Protection of
Their Independence and Sovereignty"; the Court likewise cited regional
instruments, adopted, in particular, in the inter-American context, with
the participation of the United States, ibid., 107, para. 204 et seq.
Ibid. at page 106, para. 202.
Ibid. at page 108-9, para. 207 et seq.
See in particular J. Combacau, "Le droit international: bric-i-brac ou
systirme?", Arch. de Philos. du Droit 31 (1986), 85 et seq.; P. Weil, "Le
droit international en qu&e de son identiti", RdC237 (1992), 261 et seq.
contra, P.M. Dupuy, Droit international public, 3rd edition, 1995, at
219-222,264-265,313-3 17. As for it, the French government maintains
its persistent objection to the existence of <<juscogens,, a reason why it
has still not ratified the 1969 Vienna Convention on the Law of Treaties.
10
belongs to it. Here again, this obligation to respect diplomatic immunities

is not mentioned as such in the Charter, but it may be easily connected
with some of its basic principles, and, in particular, with the rule of the
equal sovereignty of states.
The same conclusion could be drawn with regard to several other norms
which are usually cited as belonging to jus cogens without being explicitly
mentioned in the Charter. This is, for instance, the case in the domain of
human rights, for the prohibition of slavery, genocide or apartheid or for
all those rules which reflect what the Court called in 194923and in 1986
some "elementary considerations of humanity", as they are laid down, in
~articular,with regard to humanitarian law, in Article 3 common ta all
four Geneva Conventions of 12 August 1949. An identical observation
may likewise be made as to those principles formulated in the provisions
of the same conventions the content of which would not be affected by
their eventual denunciation. They reflect "the principles of the law of
nations as they result from the usage established among civilised peoples,
from the law of humanity and the dictates of the public c o n ~ c i e n c e " ~ ~ .
An identical demonstration could be made if one started from a different
but proximate basis, namely the different categories of .International
Crimes. which are listed under Article 19 of Part One of the Draft Report
of the ILC on the work of its 48th Session, Chapter 111, State Responsibility of 16 July 1996 (Doc. A/CN4./L.528/Add.2). All of them, in
particular those mentioned under sub-paragraph 3 1it.d d o not reflect in
the same way the basic or <<constitutional>>
principles established in the
CharteS5. Their conceptual analysis demonstrates nevertheless a close
23
24
25
Corfu Channel Case, ICJ Reports 1949,4 (22).

Convention I, Art. 63; Convention 11, Art. 62; Convention 111, Art. 142;
Convention IV, Art. 158, cited in ICJ Reports 1986,14 (113-4), para. 218.
Article 19 para. 3 lists as examples of "international crimes and international delicts" (a) "a serious breach of an international obligation of
essential importance for the maintenance of international peace and
security...", (b) "a serious breach of an international obligation of essential
importance for safeguarding the right of self-determination of peoples...",
(C)"a serious breach on a widespread scale of an international obligation
of essential importance for safeguarding the human being... ". As to these
three sets of "international crimes", they quite evidently directly derive
from the principles of the Charter. The same is not true for the fourth
category which deals with (d), "safeguarding ... of the human environment'', an obligation which, as such, is not explicitly laid down in the
Charter. It is nevertheless not too.difficult to attach it to several provisions
of the Charter, in particular those stated by Article 1 para. 3.
11
connection with the principles of the Charter, some of which have been
developed and extended by the United Nations bodies.
7. The first general conclusion to be drawn from the preceding observations is that, even if it is true that the Charter cannot pretend to list
explicitly each and every existing peremptory norm of modern international law, it remains evident that all of them benefit from a substantial
link with it. These norms can be said, at least, to derive from the logical
implications of the generic rules established in the C h a r t e P . They need to
be designated in a global way as "so essential for the protection of fundamental interests of the international communityn2'.
The provisions of the Charter remain the same whereas peremptory
rules may change during the course of time, as proved by Articles 64 and
66 of the 1969 Vienna Convention o n the Law of Treaties. Nevertheless,
from a substantial point of view, it seems possible to pretend that the
Charter constitutes the constitutional <<Lawof Nations, in the sense that
it is the ethical and legal matrix for every rule able to be qualified as
peremptory. This conclusion does not pretend to solve every legal problem
created by it. O n the contrary, it leaves open the questions raised under
paragraph 1.2 above.
B. Which Legal Regime?

8. This issue is a particularly rich and complex one, which may only be
explored here. The striking point lies in the fact that the same rules, existing
both outside and within the law of the United NationsZ8"retain a separate
26
Some problems may be raised for some rules, the direct connection of
which with the Charter is not as evident as for other ones. Nevertheless.
this is the place where it should be remembered that United Nations Law
is not only made up of the provisions of the Charter. It is also developed
and interpreted by the whole corpus juris which has been
by
or under the auspices of the United Nations organs. See in particular, 0.
Schachter, "United Nations Lawm,AJ1L88 (1994), 7-9. The author notes
rightly that one field now has a particular development in spite of the fact
that the references to it in the Charter were rather slight: it is the domain
of human rights (page 17). Nevertheless, the fact that the protection and
~ r o m o t i o nof fundamental human richts is mentioned in Arts. 1 and 55
suffice to place them under the general scope of the Charter. See generally
T. Meron, Human Rights and Humanitarian Law as Customary Law,
1989.
This terminology is retaken from Article 19 para. 2 of the ILC draft of
1996.
<The law of United Nations, is to be understood as covering both those
'J
27
28
12
e ~ i s t e n c e " This
~ ~ . may well create a duality of legal regimes, as to what
concerns, in particular, the consequences of their respective violation30.
aa. Article 103

9. There is one provision in the Charter which deals (not on the ground
of international responsibility but on that of primary obligations) with the
relationship between the obligations of its members deriving from the
Charter and those deriving from other instruments. It is Article 103,which
reads as follows:
"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".
The constitutional, feature of this provision has been often underlined
by commentators. Bernhardt writes in particulagl:
"The Charter has become the constitution of the international codmunity and third states must, in their relations and otherwise, respect the
obligations arising under the Charter for UN members"32.
10. Nevertheless, now that participation in the United Nations has become
almost universal, this constitutional, dimension of Article 103 still remains, since it manifests the priority of the Charter over any other
commitments which may also be concluded between member states. It is
especially remarkable that Article 103 applies not only to obligations laid
down in the Charter but also to the decisions taken in conformity with it
by the competent organs, as illustrated, among many others, by SIRES/
rules which are in the Charter itself and their development by the United
Nations principal organs, as, in particular, the General Assembly and the
Security Council.
ICJ Reports 1986, 14 (95), para. 178.
See M. Lachs, "The Law in and of the United Nations (some reflections
on the principle of self-determination)", IJIL 1 (1960), 429 et seq.
R. Bernhardt, "On Article 103", 1117 et seq., in: B. Simma (ed.), The
Charter of the United Nations. A Commentary, 1994; Th. Floty, "Article
103", in: J.P. Cot, A. Pellet (eds.), La Charte des Nations Unies, 2nd
edition, 1991, 1381.
Id. 1123;J. Combacau, Le pouvoir de sanction de Z'O. N. U., 1974,286 et
seq.
13
670 (1990) of 25 September 199033.Such is also the case for S/RES/748

(1992) of 31 March 1992, as it was stated b y the ICJ in its Order in response
to the request for provisional measures filed by Libya against the United
States and the United Kingdom, in the Lockerbie Case34.
11. The establishment of such a normative hierarchy in derogation to
the common law of treaties35does create a situation which, in some respect,
seems similar to the one existing at the municipal level between the
constitution and ordinary legislation. However, the similarity should not
be exaggerated and Article 103 raises quite a number of problems.
In particular, it says nothing about the relationship between the obligations of the United Nations and those which are rooted in general i.e.
customary international law36.A logical explanation may be given to this
silence, which does not necessarily weaken the .constitutional>> interpretation of Article 103 in the spirit of the founding fathers, since, with regard
to general international law existing at that time, it was probably obvious
that this new Charter was designed to serve as a comprehensive updating
of previously established customs (see above under I.A.bb.5b). As to the
future customary rules, in the mind of the same drafters, these rules would
never be substantially incompatible with the norms established in the
Charter, for ideological more than for legal reasons. If this interpretation
is the correct one, then it reinforces the idea that the Charter was aimed at
See E. Roucounas, "Engagements paralleles et contradictoires", R d C 206

(1987), 13 (66-70).
ICJ Reports 1992,3 (15), para. 39. The Court said that "przmafacien, "this
obligation extends to the decision contained in resolution 748 (1992); and
(...) in accordance with Article 103 of the Charter, the obligations of the
Parties in that respect prevail over their obligations under any other
international agreement, including the Montreal Convention". See in
particular T. Franck, "The Power of Appreciation: Who is the Ultimate
Guardian of U N Legality?", AJIL 86 (1992), 519 et seq.
Article 103 establishes aclear derogation to the rule 4ex posterior derogat
lex priori..
Contrary to a proposal made during the San Francisco Conference,
according to which the latter should be superseded by the former: see
Combacau, see note 32, 282. It should be noted that one of the highly
controversial issues raised by the Order of the Court in the Lockerbie
Case is that it does not even consider the fact that the rule <<autdedere,
aut judicare,, embodied in the Montreal Convention (over which Resolution 748 prevails on the basis of Charter Article 103) is most probably
at the same time a customary rule. O n the customary nature of this
principle, see in particular, J.A. Carrillo Salcedo, "The Legal Aspects of
International Terrorism", in: Centre for Studies and Research in International Law and International Relations, 1988, 39 et seq.
14
becoming and remaining the direct expression of the true <<spirit,of

modern international law, against
which no rule of general
international
law should ever prevail37.
12. Here again, however, the existence of Article 103 does not necessarily make easier the definition and articulation of the different legal regimes
eventually overlapping each other: let us imagine a treaty concluded
between two member countries of the United Nations which results in the
violation by its parties of their common obligation to safeguard the rights
of a people to its self-determination and its permanent sovereignty over
its natural resources (an hypothesis of which the circumstances having
given rise to a recent case prove that it is not purely academic)38.
N o t only would such a situation give rise to the question of the
coordination of the international responsibility of both states for their dual
violations, a) of their <<constitutional*or statutory obligation as members
of the United Nations; b) of their obligation under general international
law to respect the same rights. It would likewise raise another issue, namely
the fate of the bilateral treaty at the origin
of the wrongfulness.
As an agrcement giving rise to a conflict between, on the one hand, the
obligations of its state parties on the basis ofpacta sunt servanda and, on
the other hand, their obligations as members of the United Nations, the
latter would prevail over the former in application
of Article 103 and the
-treaty could not be carried out.
Now, as a treaty in contradiction with what is most generally seen as a
peremptory norm of international law (the obligation to respect the rights
~ ~ , is something legally
of people) this treaty would be void ad i n i t i ~which
37
38
39
See M. Virally, L'Organisation mondiale, 1972, 160 et seq.

See under I.B.bb.14: the so called East Timor Case, the occasion of which
was given by a treaty concluded between Australia and Indonesia to
explore and exploit the oil resources on the continental shelf situated
between East Timor and Australia. It should be noted that, in this case,
Portugal, as explained hereafter did not want to invoke the nullity of the
Australian-Indonesian treaty, since its claim focused, as that of Nauru
had successfully done a few years before for another matter, on the
specific responsibility of Australia, (in spite of the fact that Australia was
not the sole Trustee exercising its authority over Nauru but shared this
quality with the United Kingdom and New Zealand). The conduct of
Indonesia was not considered in the claim. For Portugal, it constituted a
mere fact (of which, furthermore) the illegality had been already declared
by the competent political organs of the United Nations (Security Council and General Assembly) at the time of their creation.
At least, if both parties were parties to the 1969 Vienna Convention on
the Law of Treaties (without discussing here the question whether jus
cogens could be invoked outside the framework of this convention).
15
completely different. It may be assumed that the end result wouid be

roughly the same, but this example demonstrates again that the basic
principles laid d o w n in Articles I and 2 of the Charter as c constitutional>>
rules of the international community and the same norms existing in
general international law retain a separate identity, as rightly pointed out
by the Court in the above mentioned Nicaragua Case. Legally speaking,
they are not merged one with the other, each one staying with its o w n legal
regime (see above under 1.A.bb.h). We then come to the conclusion that
the substantially aonstitutional>>dimension of the Charter gives rise to
some important unresolved questions. It is, at the same time, irrefutable
and uncompleted.
bb. The Charter and the International *Crime* of a State

13. This paradoxical reality has been one of the reasons why, in particular,
the I L C has met so many difficulties in assessing what could be the
consequences of the commission of an international <~rirne,~O.
As a matter of fact, the breach of a United Nations obligation by one
of the member states may give rise t o institutional reactions, i.e. t o reactions by the competent organs to condemn but also t o sanction the
responsible state. Both the Security Council (Arts. 41 and 42) and the
General Assembly (Arts. 5 and 6) are able t o d o so. However, all these
reactions d o not cover the same field. Articles 5, 41 and 42 are explicitly
connected with the threat to the peace, breach of the peace o r an act of
aggression. Inasmuch as the wording of the Charter is t o be read as it is
formulated, this then leaves o u t cases in which the breached obligation
does not directly concern peace and collective security4'.
In any event, any institutional reaction by the competent organs of the
United Nations does not prejudice the implementation of the international
responsibility of the wrongful state o n the ground of the secondary rules
existing in general intcrnational law and governing state responsibility.
40
41
See in particular J. Weiler et al. (ed.), International Crimes of States. A

Critical Analysis of the I L C i Draft Article 19 on State Responsibility,
1989; with a general bibliography; Sh. Rosenne (ed.), The International
Law Commission's Draft Articles on State Responstbility, 1991, particularly page 179-207.
The scope of Article 6 is larger, since it covers in general the persistent
violation of "the Principles contained in the present Charter". But, as the
absence of its practise has clearly shown during the first fifty years of the
organization, its use is politically extremely difficult and presents the
great disadvantage of placing the concerned state out of any action by the
United Nations after it has been expelled from the organization.
16
Even more, it is often forgotten that, in the true spirit of the Charter,
sanctions decided by the Security Council o n the basis of Chapter VII are
not to be taken as a form of international responsibility but merely as an
action of international policy, undertaken with a view limited to the
re-establishment of peace42.This is a further argument for evidencing that
the implementation of institutional reactions is not meant to replace the
implementation of state responsibility rules and mechanisms under general international law. However, as shown by the complexity of the work
of the ILC on this issue, the question is even more critical for those United
Nations principles the violation of which constitutes an international
crime, as it amounts to a breach of a peremptory norm43.
14. An illustration of this can be found in the recent East Timor Case
brought to the ICJ by Portugal against A ~ s t r a l i aThe
~ ~ . requesting state
asked the Court to declare responsible the defendant state for having
ignored both the respective quality of Portugal as theadrninisteringpower
of East Timor and of the People of East Timor as a non-self-governing
territory in the sense of Article 73 of the Charter. Portugal thus claimed
that Australia was responsible for having ignored the rights of the People
of Timor (to self-determination, together with its permanent sovereignty
over its natural resources) in negotiating and concluding an agreement o n
exploration and shared exploitation of the continental shelf with the
illegally occupying country, namely Indonesia. Indonesia, indeed, had
invaded by force the territory of East Timor in December 1975. As such,
it had been at that time condemned by the Security Council through
resolutions SIRES1384 (1975) of 22 December 1975 and SIRES1389 (1976)
of 22 April 1976 and by the General Assembly, which reiterated later its
condemnation and maintained the clualification of Portugal as the administering Country in conformity with Article 73.
42
43
44
See for instance R. Higgins, "International Law and the Avoidance,

Containment and Resolution of Disputes", RdC 230 (1991), 19 (220);
P.M. Dupuy, "The Institutionalization of International Crimes of State",
in: Weiler, see note 40,170-1 76; id., "Le fait ginkrateur de la responsabilitk
internationale des Etats", RdC 188 (1984), 21 (55).
The present author does not share the view of the authors who say that
the violation of a peremptory norm should not necessarily be constitutive
of a rcrime of state,. See Dupuy, note 42: "Le fait ginkrateur..." and id.,
"Observations sur le crime international de l'Etatn, RGDIP 84 (1980),
449 et seq.
ICJ Reports 1995, 90 et seq.; see I. Scobbie, "Self-Determination Undetermined: The Case of East Timor", LJIL 9 (1996), 185 et seq.; C.
Esposito, "El asunto Timor Oriental ante la Corte Internacional de
Justicia", Anu.Der.Internac. 12 (1996), 617 et seq.
17
The interesting fact is that Portugal based its request on two grounds:
first, o n the law of the United Nations (especially, the obligation of every
member state to respect the principle of equal rights and self-determination of peoples and their duty to cooperate in good faith with the Organisation); second, Portugal invoked, together with the latter ground, the
same principle of equal rights and self-determination as exists, most
probably with the quality of a peremptory norm, zn general customary
international
Quite unfortunately, the Court did not take u p this opportunity for
clarifying the relationship existing between the legal international responsibilities incurred by a state having acted, both, in breach of its <<constitutional. obligations as a member of the United Nations and, at the same
time, in violation of the same rule as comprised within general customary
international law46. The international community is thus left with this
question largely unsolved.
15. If one turns to general international law, the last version of Part Two
of the I L C Draft of July 1996, fills this gap only ~ a r t i a l lsince
~ , it does not
establish a complete regime of state responsibility for international crime.
What it does, without differentiating between responsibility for the violation of law and the responsibility for crime, is to insist o n the obligations
of all states. So far, the Commission has chosen, perhaps wisely, to reject
the rather unrealistic but highly interesting proposals made in the seventh
report by its former Special Rapporteur, Gaetano Arangio-Ruiz47. Instead
45
46
47
East Timor Case, ICJ Reports 1995, 90 (93/94) para. 10. The author of
the present paper was Counsel for the Government of Portugal, acting in
defence of the rights of the People of East Timor.
The Court decided that it had no jurisdiction on the case because, in order
to decide the claims of Portugal, it would have to rule, as a prerequisite,
on the lawfulness of Indonesia's conduct in the absence of that state's
consent, contrary of the arguments of Portugal that the illegality of
Indonesia's conduct had already been established by the Security Council
and the General Assembly in 1975 and, repeatedly, during the following
years and that Australia's responsibility staid on its own, as it had violated
by its own conduct its obligations as a member of the United Nations and
as a member of the international community. For the eventual contradiction between the so called <<MonetaryGold Principle. in the Nauru Case
and in the East Timor Case, see in particular E. Jouannet, "Le principe
de I'or monttaire, ipropos de I'arrzt du 30 juin 1995 dans l'affaire du
Timor oriental", RGDIP 100 (1996), 673 et seq.
G.Arangio-Ruiz, seventh Report on Statc Responsibility, Doc. A/CN.
41469 of 9 May 1995, particularly paras.70-119. See Report of the ILC
on the work of it's 47th Session, 2 May - 21 July 1995, GAOR 50th Sess.
Suppl. No. 10, (A/50/10), particularly paras. 304-319.
18
of a complex system in which either the Security Council or the General

Assembly would ask the ICJ to qualify an illicit act as a crime, leaving it
to the Court to enable the member states to take counter-measures against
the "criminal" state, the ILC decided to come back to its earlier drafts,
established on the basis of Riphagen's reports. Its draft Article 53 adopted
on first reading merely indicates what are the duties of the other states
(apart from the wrongful one) with regard to the situation created by the
committing of the crime and to the "criminalJ' state itself48.This is certainly
a very useful provision. But it is not enough for defining in a positive and
more concrete way which authority will qualify a wrongful act as being a
<<crime>>,
and what will be the specific consequences of the creation of such
an illicit act for the wrongdoer.
16. The current situation as to the legal regime of <<essential
obligations,
(as defined above I.A.aa.3-4; bb.5-7) existing at the same time within and
outside the Charter is then equivocal. There is still some ambiguity as to
the legal consequences of their violation. Such an unsatisfactory situation
is reflected in the very cautious but vague opening articles of Part Two of
the 1996 ILC Draft. In particular, Article 37 reserves the case of a special
regime of state responsibility for an act having been "determined by other
rules of international law relating specifically to that act"49. Article 39
carefully says that "The legal consequences of an internationally wrongful
act of a State set out in the provisions of this Part are subject, as appropriate,
to the provisions and procedure of the Charter of the United Nations
relating to the maintenance of peace and securityn50.
Now, if one wants to avoid the spreading of unilateral reactions to the
committing of an alleged <<crime,by one state, as its practiceproved, under
other names, to be effective during the early eighties from the Western
countries in reaction to the invasion of Afghanistan by the former Soviet
Union or the Argentine invasion of the Falkland Islands51, the logical
outcome of this substantial link unifying all these <essential obligations,
under the Charter as a constitution leads to one conclusion: The regime of
state responsibility for crimes should logically be institutionalised within

the framework of the United Nations52.
48
49
50
51
52
Obligations "not to recognize as lawful the situation created by the

crime" and not to assist the state "which has committed the crime" as well
as to "cooperate with other States", Doc. A/CN. 4/L. 528/Add. 2, Article
53.
DOC.A/CN. 4/L. 528/Add. 2, page 15.
Ibid. page 16.
See P.M. Dupuy, "Observations sur la pratique ricente des sanctions de
l'illicite", RGDIP 87 (1983), 505 et seq.
For the same conclusion, see P. Picone, "Valori fondamentali della Comu-
19
Nevertheless, the difficulty is to establish such an institutional regime

without creating any major destabilisation in the actual distribution of
political and juridical powers allocated b y the Charter to the main organs,
in particular the Security Council, the General Assembly and the ICJ. This
conclusion points to the fact that the substantial dimension of the Charter
as a constitution is necessarily not to be kept apart from its organic or
institutional one.
11. The UN Charter as the Institutional Constitution of

the International Community
I. Contention that the United Nations Charter could be considered as the
constitution of the international community in the organic or institutional
sense would mean that, in complement t o its constitutional nature as a set
of substantial rules and principles aimed at governing the behaviour of
each and every member of the same community, the Charter should be
able to provide them with the competent organs to set forth effectively
these rules and principles in interstate relations.
Furthermore, the constitutional scheme suggests that these organs
should be endowed with enough legal (and political) authority to enable
them to be obeyed by the member states. The fact that the Organisation
is "based on the principle of the sovereign equality of all its Members" is
not necessarily an obstacle to the application of that scheme. It implies
only that each of its members be placed on the same equal footing with
regard to the legal competencies of the United Nations bodies. Incidentally, the same members have conferred on the Security Council "primary
responsibility for the maintenance of international peace and ~ e c u r i t y . . . " ~ ~ ,
and agreed "to accept and carry out the decisions of the Security Council
in accordance with the present Charter"54. Nevertheless, as everyone
knows, during most of the first forty-five years of its existence, the Security
Council was unable to discharge its mandate, since it was paralysed by the
veto inasmuch as it dealt (or would have dealt) with an issue giving rise to
a conflict of political interest between two or more of its permanent
members.
53
54
niti internazionale e Nazioni Unite", Comuntta Znternaz. 50 (1995), 439

et seq.
Article 24 of the Charter.
Article 25 of the Charter.
20
2. However that may be, since the beginning of what is usually (and, it
is suggested, rather improperly) called the post cold war era55,the Security
Council has proved able to act in a new way. It took a great number of
decisions, dealing with many cases in which it considered that a "threat to
the peace" actually existed which would justify the use of its special
authority based on Chapter V11 of the Charter. The discipline respected
almost unanimously by the members as to the sanctions decided by the
Security Council against Iraq effectively gave the unprecedented image of
a world community placed under the centralised authority of the organ
primarily responsible for the maintenance of collective security, a vision
which would, at the first glance, fit within the perspective according to
which the Security Council acts as the world executive, at least as far as
peace and security are concerned.
Nevertheless, this new era is already composed of, at least, two differentiated periods. From August 1990 (Gulf Crisis) to December 1992
(Somalia C r i ~ i s ~the
~ ) Security
,
Council through the exercise of its newly
recovered authority, did not evoke any real criticism from the large
majority of the member states. By contrast, from mid-1993 onwards, the
outcome of the Somalia Crisis, together with the increasing difficulties met
by U N P R O F O R in Bosnia and, above all, the questionable decisions
taken by the Security Council with regard to Libya in connection with the
Lockerbie Case, raised new questions. They pointed, in some situations,
to the legality, in others, to the efficiency, of several Security Council's
decisions. It was all the more the case for some of those decisions which
appeared to be directly inspired by the political will of a sub-group among
the permanent members of the Security Council, if not even, by one of
them. This explains why the degitimacy, of the Security Council's action
(a notion which is familiar to constitutional lawyers) is such a frequently
raised issue. It is, then, necessary to review these two successive periods.
55
56
If, really, the .cold warn ended only in 1990, what, then, about more than
twenty-five years of .peaceful coexistence>>,a period which began with
the real end of the .cold war period., i.e. the end of the Cuba crisis in
October 1962, thanks to the determination of 1.F.Kennedy?The question
is not a purely semantic one, since this very beriod of (<peacefuicoexistence,, was, by far, the most fruitful one in terms of contribution by the
United Nations (mainly the General Assembly) to the development of
modern international law. Cf. Dupuy, see note 1.
S/RES/794 (1992) of 3 December 1992.
A. The Security Council as the <<Executive,of the

International Community
3. The different steps taken by the Security Council during the <<Gulf
Crisis, with regard to Iraq's characterised aggression against Kuwait and
its aftermath have been often analysed in a most conclusive way by several
authors to whom it is sufficient, here, to refer57.For testing the <<constitutional* approach, it is necessary to focus, first, on the main features of the
Security Council's actions, and, second, on their inhercnt lcgal significancc.
4. As for the features of the actions undertaken by the Security Council
during the first period contemplated above, they can be characterised in
three ways: from August 1990 until at least December 1992, these actions
were: a) diversified, as they were aimed at varied goals, some of which, in
particular in S/RES/687 (1991) of 3 April 199158,are hardly reconcilable
with a strict interpretation of the Security Council's power within Chapter
VII; b) authoritative, at least for a good part of them, which consisted in
decisions, some of which established sanctions against the targeted state;
c) accepted by the great majority of member states.
The conjunction of these three characteristics is striking Since it demonstrates the high level of legitimacy achieved by the Security Council
during this period. It is, in particular, impressive to ascertain that the
obligation in all instances including those for the implementation of
sanctions,
some economic -prejudice,
to implement the sanctions
.
decided by the Security Council against Iraq under the authority of the
Sanctions Committee ,which was composed of the same member states as
the Security Council itself59.
57
58
59
See in particular Colloque du CEDIN, "Les aspects juridiques de la crise

et de la guerre du Golfe, aspects de droit international public et de droit
international privi", 1991;J. Verhoeven, "Etats alliis ou Nations Unies?:
I'ONU face au conflit entre 1'Irak et le Kowei't", AFDI 36 (1990), 415 et
seq.; 0 . Schachter, "United Nations Law in the Gulf Conflict", AJIL 85
(1991), 452 et seq.; P.M. Dupuy, "Aprts la guerre du Golfe ...", RGDIP
95 (1991), 621 et seq.; Symposium: The Gulf War and its Aftermath, EJIL
2 (1991), 85 et seq.; Agora, "The Gulf Crisis in International and Foreign
Relations Law", AJIL 85 (1991), 63 et seq.
S/RES/687 was taken immediately after the conclusion of the armed
action carried out by the allied forces against Iraq. See S. Sur, "La
risolution 687 du 3 avril 1991 du Conseil de sicuritt dans l'affaire du
Golfe: Probltmes de rktablissement de la paix", AFDI 37 (1991), 25 et
seq.
See M. Koskenniemi, "Le Cornit6 des sanctions crii par la risolution 661

In the same way, almost n o state raised real concern as to the legality of
some quasi-judicial determinations exercised b y the Security Council, in
particular with regard to declarc <<null,>
and <<void*all Iraqi statements
made since 2 August 1990~"The same proved to be true both for use by
the Security Council of Chapter V11 to impose a binding settlement of the
boundary dispute between Iraq and Kuwait6' and for creating the Compensation Commission, aimed at carrying out a very special and new legal
regime of state liability on the burden of Iraq for the reparation of damage
caused by its aggression against Kuwaitb2.
5 . During this initial period, everything seemed at least t o happen as if
almost every state had found it legally and politically justified to support
the action of an organ acting in the name of the international community
as a whole in defence of the interests and values regarded b y the same
community as being fundamental for the maintenance of its o w n integrity.
This seems to be the inherent legal significance of the manifold actions
undertaken by the Security Council. In particular, the extended way in
which this organ interpreted the "threat to the peace" set out in Article 39
may be understood as demonstrating its willingness to cover under it a
bright spectrum: not only the situations creating a risk of armed conflict
but also several cases in which it seemed that the threat did not concern
peace but the respect of some "international obligation so essential for the
protection of fundamental interests of the international community" that
their breach "is recognised as a crime by that community as a whole" to
speak with Article 19 para. 2 of I L C Draft 199663.
6. This inspiration seems, indeed, to have inspired in articular the
content of S/RES/687 (1991) of 3 April 1991, humorously called by F.
Kirgis "the mother of all resolution^"^^. In particular, the situation in
which Iraq was placed after the successful ending of the allies' armed action
authorised by the Security Council made the United Nations act both in
a quasi-legislative and in a quasi-judicial way. The parallel between the
legal regime established in the institutional framework of the Compensa-
63
61
62
63
."6
(1990) du Conseil de sicurite", AFDI 37 (1991), 119 et seq.

S/RES/687 (1991) of 3 April 1991, para. 17.
S/RES/687, para. 2/3.
S/RES/692 (1991) of 20 May 1991 which followed the declaration of
Iraq's international responsibility made in S/RES/687. See F. Kirgis,
"Claims Settlement and the United Nations Legal Structure in The
United Nations Compensation Commission", in: R. Lillich (ed.), 13th
Sokol Coiloqtrrrn, 1995, 110-1 13.
See note 40.
Kirgis, "The Security Council's First Fifty Yearsn,AJIL 89 (1995), page
524.
23
tion Commission and the first experience of a state responsibility for crime
has been explicitly drawn by several auth01-s~~.
It also inspired G. ArangioRuiz in his seventh Report to the ILC on State R e ~ ~ o n s i b i l i t ~ ~ ~ .
As a matter of fact, for the very first time in the history of international
relations, an individual state was and still is confronted, at the time of
writing, by the rest of the international community, represented and
organised within a subsidiary organ of the Security Council. This state is
held liable for having breached, among others, the prohibition of aggression, the right to self-determination of peoples, the serious breach on a
widespread scale of human rights (in particular, as regards the Kuwaiti, the
Shiite and the Kurdish population) and the massive pollution of the
atmosphere and of the sea (by the voluntary burning of Kuwaiti oil spills),
all of these wrongful acts constituting an *international crime* under Draft
Article 19 para. 3 adopted by the ILC.
7. At this stage, it is very tempting to place the Security Council's line
of action in connection with the remarks made in the first part of this paper.
There is a parallel to be drawn between, on the one hand, the substantial
constitutional dimension of the Charter, as it federates the basic rules of
the international community, and, on the other hand, the action of the
Security Council in the early nineties, precisely aimed at defending the
same rules, breached by an individual aggressor.
If one looks at the records of debates which preceded the adoption of
SIRES1687 (1991) of 3 April 1991, 688 (1991) of 5 April 1991, and 705
(1991) of 15 August 1991, it does not seem exaggerated to say that, at least
during that period following the victorious allied coordinated action
against Iraq, one was very close to the unification of the substantial and of
the organic dimensions of the Charter under the recovered authority of a
Security Council recognised by an almost unanimous international community as its diligent executive.
The substantial connection established by the Council between the
maintenance of peace and the ~erformanceof the other duties included in
Arts. 1 and 2 of the Charter does not seem, by itself, to be in contradiction
with the spirit of the Charter, which does contain such a relationship
65
66
See in particular, G. Gaja, "Riflexions sur le r6le du Conseil de sicuriti

dans le nouvel ordre mondial", RGDIP 97 (1993), 298 et seq.; P.M.
Dupuy, "SCcuritC collective et organisation de la paix", RGDIP 97 (1993),
617 et seq.; P. Picone, "Interventi delle Nazioni Unite e obblighi erga
omnes", in: P.Picone (ed.), Interventi delle Nazioni Unite e diritto internazionale, 1995, 517 et seq.; G. Christenson, "State Responsibility and
the U N Compensation Commission: Compensating Victims of Crimes
of State", in: Lillich, see note 62, 311 et seq.
DOC.A/CN. 4/469, of 9 May 1995 at para. 82.
24
between the prohibition of force and the promotion of the many ways of
cooperation among its members to eradicate the diverse causes of warG7.
The innovation seems more to be found in the way in which the Security
Council, originally backed by the rest of the member states, considered it
necessary to be not only primarily responsible for international peace but
also for respect universally due t o the main principles set out by the
Charter.
8. This purpose p i d e d some of the following Security Council's demonstrations of expanded understandings of a "threat to the peace". Two
directions, in particular, may be recorded here:
- One is the involvement of newly designed actions having as their goal
humanitarian interventions in anon-international armed conflict: such was
notably the case in Iraqi/Kurdistan (S/RES/688 (1991) of 5 April 1991), in
Somalia (S/RES/794 (1992) of 3 December 1992), later, in Rwanda (S/RES/
929 (1994) of 22 June 1994). Even if preceded by an action exercised by
one or few member states actingunder the mandate of the United Nations,
these actions were later directly endorsed by a new type of United Nations
forces. This led the Secretary-General, in his Agenda for Peace, to differentiate, at least, between 'preventive diplomacym, "peacemaking" and
"peace-keeping".
- The other direction likewise inspired by a pretension of the Council
to act as the executive of the international Community is the creation,
under the umbrella of Chapter V11 of special war crime tribunals for
judging the atrocities committed in former Yugoslavia and in Rwanda, as
they appear clearly as massive breaches of those "elementary principles of
humanity" mentioned above.
Nevertheless, the tremendous action of the Security Council on the
basis of Chapter VII, together with the evolution of the political balance
which had prevailed during this first period led to manifold criticism as to
the perpetuation of such a broad concept of "threat to the peace"6s.
67
68
See P.M. Dupuy, "Sicuriti coLlective et organisation de la paix", RGDIP

97 (1993), 615 et seq.; id., "Stcurit6 collective et construction de la paix
dans la pratique contemporaine du Conseil de sicuriti", in: U. Beyedin
et al. (eds.), Recht zwischen Umbruch und Bewahrung. Festschrift fur
Rudolf Bernhardt, 1995,41 e t seq.
See for instance Ch. DominicC, "Le Conseil de sicuriti et l'acces aux
pouvoirs qu'il reqoit du chapitre V11 de la Charte des Nations Unies",
Revue suisse de droit international et de droit compari, 1995,417 et seq.
25
B. A C o n s t i t u t i o n a l C r i s i s of t h e UN?
9. The idea that the United Nations could be confronted with a aconstitutional crisis* has been spread by several authors, such as, in particular,
Reisman6' o r Bedjaoui70. These opinions were inspired by Libya's suit in
the International C o u r t of Justice against the United States and the United
Kingdomi1. The C o u r t adopted in 1992 t w o decisions o n a Libyan request
for interim measures, one for the United States, the other for the United
Kingdomi2. These decisions point to one of the technical reasons explaining the contention of a constitutional crisis,, within the United Nations.
These reasons go along with others, even more determinant, which are
political.
aa. Technical Reasons for the Crisis

10. The technical reasons are all caused by the sudden rebirth of the
Security Council's activity after the ending of the East-West confrontation.
There are three main reasons here:
- T h e first one derives from the way in which the Security Council has
extended the scope of its initiatives. As already mentioned, the generalised
invocation of the notion of "threat to the peace" is one of the most frequent
tools used b y the Council to decidesanctions, to create organs, o r t o define
some set of actions to be undertaken b y the member states. This notion of
"threat t o the peace" is in itself rather ambiguous and n o precise determination as t o it stems from practice. Frowein rightly points t o it as to "the
M. Reisman, "The Constitutional Crisis in the United Nations", AJIL 87

(1993), 83 et seq. and under the same title, a contribution of the same
author to Le de'veloppement du r6le du Conseil de se'curite'/TheDevelopment of the Role of the Security Counc~l,Acadimie de droit international
de La Haye, Colloque/Workshop, The Hague, 21-23 July 1992, 1993,
399 et seq.
M. Bedjaoui, Nouvel ordre mondial et contrde de la Ie'galite' des actes du
Conseil de se'curite', 1994, 7 et seq. with supplementary documents. See
also M. Arcari, "Le risoluzioni 731 e 748 e i poteri del Consiglio di
Sicurezza in materia di mantenimento della pace", Riv. Dir. Int. 75 (1992),
932 et seq.; J.M. Sorel, "Les ordonnances de la CIJ du 14 avril 1992 dans
I'affaire relative i des questions d'interpritation et d'application de la
Convention de Montrkal de 1971 rksultant de l'incident airien de Lockerbie", R G D I P 97 (1993), 689 et seq.
Initiated on 3 March 1992.
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, ICJ Reports 1992,
3 et seq. (1 14).
26
broadest and most indistinct concept in Article 39"73. This implies that it
is an inherent weakness of the Charter. Quite evidently o n purpose, its
drafters wanted t o leave as much freedom as possible t o such a highly
political organ dominated by the &ig Five>>when appreciating the necessity to intervene in a concrete ~ i t u a t i o n ' ~ .
In recent practice, the striking fact is that the Security Council did not
deem it necessary to demonstrate o r justify the effective existence of a
threat to the international peace including in some situations in which it
was not necessarily self-evident that such a threat did exist at the international scale. Such was, in particular, the case with regard to the situation
prevailing in Somalia in December 1994, when S/RES/794 (1992) of 3
December 1992 was adopted. The humanitarian crisis left n o doubt. But
its cross-border effects were not discernible, at least at first view75. I n the
same way, SIRES1748 (1992) of 31 March 1992 does not demonstrate in
which respect the alleged conduct of Libya in the Lockerbie context creates
a real threat t o the international peace. As said by a qualified American
author, "mere allegations that a particular government supports terrorism
d o not make the case"76. O t h e r examples of such a practice could easily be
found in recenr times7'.
See in particular J.A. Frowein, "On Art. 39", 605 et seq., in: Simma, see
note 31; G. Cohen-Jonathan, "Article 39", in: Cot, Pellet, see note 31,645
et seq.
See B. Conforti, "Le pouvoir discritionnaire du Conseil de sicuriti en
matikre de constatation d'une menace contre la paix, d'une rupture de la
paix ou d'un acte d'agression", in: Le dkveloppernent ..., see note 69, 51 et
seq.; J. Combacau, Lepouvoir de sanction de l'O.N.U., 1974,104-106; J.
Arntz, Der Begriff der Frieden~bedrohun~
In Satzung und Praxis der
Vereinten Nationen, 1975, 24 et seq.; U. Beyerlin, "Sanctions", in: R.
Wolfrum (ed.), United Nations: Law, Policies and Practice, Vol. 2, 1995,
1111 et seq.
See Kirgis, note 64, 513; R. Gordon, "United Nations Intervention in
Internal Conflict: Iraq, Somalia and Beyond", Mich. J. Int'l L. 15 (1994),
519 et seq.
Kirgis, note 64, 516.
Another issue which may be noticed here is the proportionality one, as
applied to the reaction decided by the Security Council in response to
what it determines as being a "threat to the international peace". See M .
Bothe, "Les limites des pouvoirs du Conseil de sicuriti", in: Le dkveloppement ... , see note 69, 76 et seq.; more generally, see Sociiti fraqaise
pour le droit international, Colloque de Rennes, Le chapitre VIZ de La
Charte des Nations Unies, 1995, see in particular, J.M. Sorel, "L'ilargissernent de la notion de menace contre la paix", 3 et seq., et P. Daillier,
"Elargissement et diversification de l'intervention des Nations Unies au
27
-The second technical reason to the alleged constitutional crisis of the

United Nations is the absence of checks and balances in the Charter itself.
The way in which the Charter apportions competences among the Genera1
Assembly and the Security Council, in particular as to the maintenance of
peace leaves room for some concurring action, as demonstrated by the ICJ
in its Advisory Opinion in the Certain Expenses Case78.However, there
is no constitutional* way in which one would be able to control the action
of the other. The recent period (i.e. from 1990 onward) has revealed the
contrast between an overactive Security Council and a rather discreet
General Assembly, which seems far from the time when it used to be the
cradle of many far reaching normative innovations, which gave rise to the
controversial <<softlaw* issue. After 1990, the Security Council became
the almost exclusive center of initiatives within the United Nations, and
its activity, dominated by the <<BigFive., is not balanced by the universal
deliberating body.
- This absenck of political control is all the more striking in that there
is no more judicial control over the decisions taken by the Security
Council. As said again by the ICJ in the above mentioned opinion, "each
organ must, in the first place at least, determine its own juri~diction"'~.
This appreciationstems from the positionadopted by the Court in the two
orders which it adopted after the request of interim measures requested
by Libya in the Lockerbie Case. Refusing to make any statement of law
as to the legality of SIRES1748 (1992) of 31 March 1992, adopted by the
Security Council after the closure of the oral proceedings, the Court
merely said that "both Libya and the United States, as members of the
United Nations, are obliged to accept and carry out the decisions of the
Security Council in accordance with Article 25 of the Charternso.This
conclusion was backed by an interpretation of the legal impact of Charter
Article 103.
11. It is striking that, in commenting on these two identical orders, the
parallel with municipal constitutional law was commonly made by authors, Franck going so far as cornparing the issue at stake with the famous
Marbuvy v. Madison U.S. Supreme Court Case8'. Indeed, reference made
78
79
80
81
titre du chapitre VII", 121 et seq.; i comparer i P. Picone (ed.),Interventi

dclle Nazioni Unite c diritto internazionale, 1995.
ICJ Reports 1962, 151 (163): "The Charter makes it abundantly clear,
however, that the General Assembly is also to be concerned with international peace and security".
.
ICJ Reports 1962, 151 (168). See generally Bedjaoui, see note 70.
ICJ Reports 1992, 3 (5), para. 42.
T. Franck, "The aPowers of Appreciation,: Who is the Ultimate Guardian of U N Legality?", AJIL 86 (1992), 519 er seq.; compare with J.
2S
by the Court to Article 103 reinforces this constitutional approach, since

it stresses the hierarchical position of United Nations obligations. It makes
the basic rules and principies contained in the Charter superior to every
other and gives a special weight to the decisions taken by the competent
United Nations organs. From this point of view, and without prejudice to
the remarks made earlier with regard to it (see above under I.B. 8-13),
Article 103, as seen by the ICJ, seems to consecrate the constitutional
dimension of the Charter, both in the substantial and in the organic sense:
United Nations obligations have priority over others and the Security
Council has the power to make them respected, since its decisions are
peremptory ones. Nevertheless, this reference made by the Court to
Article 103 should not obscure the main purpose of the ICJ in this case:
its first target was to avoid a delicate confrontation between the concurrent
exercise of their respective competencies by two principal organs, the
Security Council and the Court itself.
In reality, the Lockerbie Case, while giving a new impetus to the
constitutional approach of the Charter, still demonstrates that two logics
are at work within the Charter. The one is legal. It aims to develop in the
future new procedures aimed at controlling thc Sccurity Council's actions
so as to make it respectful of the rule of law. The other remains political.
Contrary to the former, it suggests that the Security Council's permanent
members (even if their number would be extended) will (and would)
maintain as much as possible the discretionary character of any legal
determinations made by the Security Council on the ground of Article 39.
O n e may then ask whether the current situation is correctly characterised if identified in terms of "constitutional crisis". Crisis suggests that
a situation is the result of a dysfunction of organs or institutions designed
for another function. This does not secm to be the case, at least as far as
the respective situations of the Security Council and of the Court are
concerned. According to the Charter, none of them holds a controlling
power over the other. If there is a crisis, then, it seems much more to be
found in the political mistrust manifested by the other members of the
United Nations with regard to the Security Council's continued action
after mid-1992.
bb. Legitimacy
12. Examining the current challenge to the legitimacy of the Security
Council's use of its constitutional authority, Caron points to two main
reasons: one is that "the Council is dominated by a few states". The other
Alvarez, "Judging the Security Council", AJIL 90 (1996), 1 et seq.
29
is "that the veto held by the permanent membrrs is unfair"82. O n e may

easily share this view. Here again, nevertheless, it should not be forgotten
that, from a legal and constitutional point of view, the paradox of the
Charter, as it was voluntarily established in the text of the Charter was t o
combine the equality of every one of its members (Article 2 para. I) with
the organisation, at the same time, of a directorate composed of the <<Big
Five), as they were after World War I1 (Article 27). T h e privilege is legal
but, as any privilege, it must be deserved. In other terms, what creates a
problem is the very way in which it was used during the period beginning
with S/RES/731 and 748 (1992), both of themdirected towards Libya with
a view to ordering it to disregard its rights as a state submitted to general
international lawx3 and its obligations as a party t o the 1971 Montreal
Conventiona4.
13. The crisis of legitimacy lies then precisely in the absence of loyal
representation by these resolutzons of the generalopznionprevailing among
the members of the international community, contrary t o what it used,
more o r less, to be during the previous period.
T h e Security Council suddenly ceased t o appear as the world executive.
Rightly or wrongly, for many member states, it began to appear as a tool
for the promotion of the political interest of a sub-group within the group
of permanent memberss5. Later lack of coherence in the Security Council's
position with regard t o the Bosnian crisis, together with the growing
implication of NATO in this country o r the evident i m ~ l i c a t i o nof the
United States in the Haitian crisiss6 contributed t o reinforcing the idea of
82
83
84
85
D. Caron, "The Legitimacy of the Collective Authority of the Security

Council", AJIL 87 (1993), 552 et seq., (562). Interestingly, the legitimacy
problematic is basically an American one? See in particular T. Franck,
T h e Power of Legitimacy Among Nations, 1990; see commentary by J.
Alvarez, "The Quest of Legitimacy: An Examination of the <<ThePower
of Legitimacy Among Nations3 by T. Franck", N.Y.U.J. Int'l L. & Pol.
24 (1991), 199 et seq.
As said above, the principle a u t dcdere aut judicare,, is most probably a
general custom of international law.
Cf. Reisman, see note 69, "The Consritutional Crisis ... ", 404-409.
This persistent perception is currently reinforced by the prominent
position of the United States, within and outside the Security Council.
See in particular Caron, see note 82,562; for an illustration of American
pressures already during the "Gulf Crisis" period, see B. Weston, "Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy",AJIL 85 (1991), 516 et seq.; Reisman, see note 69, "The
Constitutional Crisis...", 83; A.F. Cooper, R.A. Higgotr & K. Nossal,
"Bound to Follow? Leadership and Fellowship in the Gulf Conflict",
Pol. Sci 106 (1991), 391 et seq.; Kirgis, see note 64, (526).
30
an organ aligned on the position imposed by a very limited group of states,

not always by one.
Such a crisis is of a political nature much more than a constitutional one,
but it has juridical outcomes. It results in getting out of the way the image
of a Security Council acting in defence of the <<essential
obligations, (see
above under I.A.bb.7). If the Security Council is n o longer the representative of the world community but rather that of a very small minority
of powerful countries acting to some extent under pressure exercised by
the only super-power, then the international community lacks its main
tool for the promotion and defence of its main rules. The reconciliation
between the substantial and the organic dimensions of the Charter as the
World Constitution, foreseen during- a brief period after the "Gulf War",
vanishes again, even if one should be careful, in such matters, not to move
from one vision to the other with the same lightness.
if
111. General Conclusion

1. In expressing the idea that the Charter of the United Nations is o r has
become "the constitution of the international community", one must
always be conscious that such an expression entails for a part a metaphoric
dimension.
The international legal order remains more characterized by the spreading of sovereignty than by the overall normative and organic subordination of states to an international public order embodied in the text of a
Charter that would at the same time provide for a central authority aimed
at enforcing the "constitutional" rules characterising that public order.
What the ICJ said in 1949 remains true: the United Nations is not a
"super-Statexs7.
That being said, the assertion that the creation of the United Nations
has introduced a radical change in the structure of international law, which
was made by a series of authors including FriedmanS8, LachsR9,Schach-
S6
57
88
89
See M. Reisman, "Haiti and the Validity of International Action", AJIL

89 (1995), 82 et seq. Y. Daudet (ed.), La crise d'Haiti (1991-1996), 1996;
0.
Corten, "La risolution 940 du Conseil de sicuriti autorisant une
inten~entionmilitaire en Hai'ti: L'imergence d'un principe de ligitimiti
dimocratique en droit international?" EJIL 6 (1995), 116 et seq.
ICJ Reports 1949, 174 (179).
W. Friedmann, The Changing Structure o f International Law, 1964.
M. Lachs, "The Development and Trends of International Law in our
Time", RdC 169 (1980), 9 et seq.
31
ter93,Virally91 or R.J. DupuyS2has likewise proved to be true over the last

fifty years.
2. In particular, on the normative front, the development of United
Nations law through the activity of its principal organs, notably the
General Assembly (during the sixties and seventies), the Security Council
(during the first half of the nineties) and, in some decisions, the ICJ9' has
enhanced the seven principles contained in Charter Arts. 1 and 2 as
reiterated in A/RES/2625 (XXV) of 24 October 1970. This demonstrated
the vocation of the Charter to serve as t h e text of reference. It does not
entail each and every of the "essential obligations" binding o n all members
of the international community. Nevertheless, the Charter, together with
its further normative developments set forth the most comprehensive
among them. As such, it establishes a substantial and logical link between
all of these "essential obligations".
Thanks to the intimacy of their connection with the Charter, these
obligations are practically all connected to the overall universal obligation
to promote peaceful international relations in conformity with Article 2
para. 4 which realizes the ratio legis of the basic principles laid down in
the Charter. A striking demonstration of this dynamic of integration has
been demonstrated, among other examples, by the way in which the
Security Council was able to welcome into the scope of the Charter the
defence of those rules of humanitarian law "which are beyond any doubt
part of customary international law", as it was accurately noticed recently
by the ICJ in its Advisory Opinion on the Legality of the Threat o r Use
of Nuclear Weapons, of 8 July 1 9 9 6 ~ ~ .
3. More generally, and this brings us to the organic o r institutional
dimension, the way in which the Security Council has expanded the scope
."9
91
92
93
94
Schachter, "International Law in Theory and in Practice", RdC 178

(1982), 9 et seq.
M. Virally, "Panorama du droit international contemporain", RdC 183
(1983), 9 et seq.
R.J. Dupuy, "Communautt internationale et disparitis de diveloppement", RdC 165 (1979), 9 et seq.
See P.M. Dupuy, "Le juge et la rtgle ginirale", RGDIP 93(1989), 569 et
seq.
ILM 35 (1996), 828 para. 81. The Advisory Opinion refers in this paragraph to the Report of the Secretary-General introducing the Statute of
the International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the
Territory of the Former Yugoslavia since 1991. This Report was unanimously adopted by the Security Council with S/RES/827 (1993) of 25
May 1993.
32
of Chapter VII, in particular through an enlarged acceptance of the concept

of "threat to the peace", gave during a short period (1990-1993) some
consistency to the idea that, as the organ primary responsible for the
maintenance of international peace, it would become the promoter and
defender of the universal respect due to these essentlal obligations, as
defined above (see above under 1.2-7).
4. However, the quick, but effective loss of credibility of the Security
Council after the conjunction of different factors among which some of
its decisions having taken place from 1993 onward demonstrate that its
capital, in terms of legitimacy remains rather fragile. Now, this is a crucial
element for the support and enhancement of its role as the "World
Executive". The condition for the promotion of an extended concept of
"threat to the peace" enabling the Security Council to act as the defender
of the international public order depends on its recognition as such by "the
international community as a whole".
This Security Council's legitimacy is in particular dependant o n the
fitness of its permanent members (especially the most powerful among
them) for the taking of initiatives and decisions that represent effectively
the will of the international community and not the achievement of their
own foreign policy. The idea of a "constitutional crisis" affecting the
United Nations is then to be viewed with some caution. It is true that a
better balance of power between the General Assembly and the Security
Council or a real control of the legality of its actions could be thought of
in theory and, eventually, in practice95.It is likewise true that a modification of the composition of the Council must be envisaged, in order to make
it more representative of the actual distribution of power among nations.
The procedural and political difficulties for a revision of the Charter
should, however, not be underestimated.
5. Nevertheless, the promotion of the Charter as the effective and stable
constitution of the international community constitutes a challenge of
particular importance. There are many reasons for that, both political96
and
The Charter of the United Nations is at the same time apolitical
95
96
97
See J. Alvarez, "Judging the Security Council", AJIL 90 (1996), 1 et seq.

(38-39).
Behind the illusion of a world community reconciled by an apparent
common belief in the virtues of free trade and democracy, the divorce of
mentalities and immediate interests remains as huge as before the "end of
the Cold War".
There is a real legal technical concern and an element of threat placed on
the international legal order which makes this issue even more stringent.
It consists in the dissemination of treaty based regimes establishing each
for itself, their mechanisms of sanctions and settlement of disputes, as
The Constitutional Dimensior. of the Charter Revisited
33
project a n d a legal commitment f o r its m e m b e r states as well as a binding

treaty a n d programme of ambitious cooperation. I t is at the same time t h e
basic covenant of the international c o m m u n i t y a n d t h e w o r l d constitution,
already realised and still t o come.
dc~nonstratedin particular in human rights law, in environmental law, o r

in some branches of international economic law. The advantages of such
"follow-up mechanisms" in terms of impIementation and, even, of enforcement of treaty obligations is striking. Nevertheless, the way in which
they could be worked out o n the false assumption that each of them
constitutes a "self-contnzned regzme", more o r less autonomous and
independent from the general framework of the international legal order
creates a real danger of thc legal fragmentation of this order. O n e of the
means aimed at safeguarding its unity would consist in the effective
p r o n ~ o t i o nof the Charter as the substantial and organic constitution of
the international community. See P.M. Dupuy, "The International Legal
Order: Unity o r Fragmentation?",forthcoming

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The Constitutional Dimension of the Charter of

the United Nations Revisited

Max Planck Yearbook of United Nations Law

What is the current situation of the Charter, both as a legal instrument

Among other studies specially devoted to the anniversary of the United

The Constitutional Dimension of the Charter Revisited

In other words, it is important to know what exactly is understood by

Max Planck Yearbook of United Nations Law

I. The Charter as the Substantial Constitution of the

ILM 8 (1969), at 698-699.

The Constitutional Dimension of the Charter Revisited

cited from RdC241 (1993), 217.

Max Planck Yearbook of United Nations Law

The Constitutional Dimension of the Charter Revisited

"A further confirmation of the validity as customary international law

bb. Relationship Between Norms

Max Planck Yearbook of United Nations Law

prohibition of the use of force as a customary international rule had

b) A rule stated by the Charter may have been already existing as a

ICJ Reports 1986, 14 (95), para. 178.

The Constitutional Dimension of the Charter Revisited

Ibid. The other important declaration mentioned by the Court is A/RES/

Max Planck Yearbook of United Nations Law

belongs to it. Here again, this obligation to respect diplomatic immunities

Corfu Channel Case, ICJ Reports 1949,4 (22).

The Constitutional Dimension of the Charter Revisited

B. Which Legal Regime?

Max Planck Yearbook of United Nations Law

aa. Article 103

The Constitutional Dimension of the Charter Revisited

670 (1990) of 25 September 199033.Such is also the case for S/RES/748

See E. Roucounas, "Engagements paralleles et contradictoires", R d C 206

Max Planck Yearbook of United Nations Law

becoming and remaining the direct expression of the true <<spirit,of

See M. Virally, L'Organisation mondiale, 1972, 160 et seq.

The Constitutional Dimension of the Charter Revisited

completely different. It may be assumed that the end result wouid be

bb. The Charter and the International *Crime* of a State

See in particular J. Weiler et al. (ed.), International Crimes of States. A

Max Planck Yearbook of United Nations Law

See for instance R. Higgins, "International Law and the Avoidance,

The Constitutional Dimension of the Charter Revisited

Max Planck Yearbook of United Nations Law

of a complex system in which either the Security Council or the General

state responsibility for crimes should logically be institutionalised within

Obligations "not to recognize as lawful the situation created by the

The Constitutional Dimension of the Charter Revisited

Nevertheless, the difficulty is to establish such an institutional regime

11. The UN Charter as the Institutional Constitution of

niti internazionale e Nazioni Unite", Comuntta Znternaz. 50 (1995), 439

Max Planck Yearbook of United Nations Law

The Constitutional Dimension of the Charter Revisited

A. The Security Council as the <<Executive,of the

See in particular Colloque du CEDIN, "Les aspects juridiques de la crise

Max Planck Yearbook of United Nations Law

(1990) du Conseil de sicurite", AFDI 37 (1991), 119 et seq.

The Constitutional Dimension of the Charter Revisited

See in particular, G. Gaja, "Riflexions sur le r6le du Conseil de sicuriti

bb. The Charter and the International Crime of a State