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Does the founding of the UN represent a radical departure from the system of international law or international society prior to 1945? Essay


The UN System

The UNO is not just an inter-governmental organization located in New York and comprising of key political organs such as the Economic and Social Council (ECOSOC), the General Assembly and the Security Council. The UN body is made up of about 16 UN specialized agencies with independent Assemblies and Councils-including Secretariats and budgets (White 281).

These agencies deal with global issues such as: international telecommunications; merchant shipping; financial crises; and diseases. These agencies have also produced several subsidiaries bodies. For example, the UN General assembly has created several bodies such as the UN Children’s Fund (UNICEF) and the UN Economic and Social Council (ECOSOC) to address children’s welfare and economic issues respectively (White 281).

The UN Values

The values that the UN promotes are enclosed within the Preamble of the system’s foremost treaties. Most of these core values (self-rule, human rights protection and peace) symbolized a new departure for the international community in 1945. These values are used as benchmarks for assessing the failure or success of the UNO.

They also provide goals that can be pursued by the UNO. What’s more, other values have been integrated with the core values. For example, environmental protection was added to the core values following the UN Conference on Human Environment held in Stockholm in 1972 (White 288).

The swift development of agencies and mechanisms for use in alleviating further destruction of world’s environment underlined the need for entrenching environmental protection as a core value (White 288).

Apart from environmental protection, the promotion of democratic system has been entrenched as a core value (derived from self-rule principle). Nevertheless, the UN’s promotion of democratic system should not be construed to mean the triumph of liberalism over communism after Cold War ended (Fox and Roth 532).

The establishment and consistency of these principles are in harmony with the UN’s core value of protection and promotion of human rights which the organization has promoted ever since the 1948 Universal Declaration of Human Rights. For example, the self-rule principle was recognized by the UN in 1945 and it has been promoted since then (White 288).

Other core values established by the UN are socio-economic comfort, justice and law, and peace and security (Falk 208). Although peace and security are pursued by the principal organs set up by the UN Charter, other values are promoted by specialized agencies as well as supplementary bodies and programmes.

Consequently, there is a general perception that peace and security is the principal value pursued while other values are deemed secondary in the pecking order (White 288).

The Nature of the Founding Law

The UN is not just an organization characterized by a convoluted structure of conference. It is a system based on law. The question that emerges then relates to the character of this law. Following the establishment of the League of Nations Covenant in1919, there have been numerous attempts to suggest the existence of a considerable distinction between constitutional multilateral agreements and normal multilateral treaties (Johnston 889).

This suggestion represented a paradigm shift from the observation that international law was, in reality, a private law between compliant states acting as equals as opposed to any type of public law. The balance in this argument can be traced back to when Max Huber asserted that the legal nature of the League of Nations Covenant was “neither contractual nor constitutional (Zimmern 290).

According to Huber, the Covenant had a dissimilar disposition from the typical contractual agreements and exchanges that had taken place before. It is worth mentioning that inter-governmental organizations-such as International telecommunications Union (ITU) founded in 1865 and the Universal Postal Union (UPU) created in 1874- existed before the League of Nations (White 290).

As a matter of fact, the treaty that created UPU was considered a constitution. The ITU and UPU established a union of services which implies that the legal framework developed by member-states of these organizations was a contractual one (Crawford 6).

The UN and Constitutionalism

If we shift from the post-1919 world order to the post-1945 order, the portrait presented above is one made up of societal values that shape, inform and regulate the functioning of an intricate set of organizations within a structure enclosed by legal instruments of foundational importance (White 291).

It is obvious that the UN structure is not only managed by a series of accords/treaties but also by a composite constitution, with the UN Charter at the centre. The UN Charter is aptly characterized by Schachter who asserted that:

The Charter is surely not to be construed as a lease of land or an insurance policy; it is a constitutional instrument whose broad phrases were designed to meet changing circumstances for an undefined future (189).

It appears that in 1945, the UN Charter was interpreted as a constitutional document and not merely as an international accord/treaty. This assertion is aptly reflected in the Preamble of the Charter-We the Peoples of the United Nations (Fassbender 555). Therefore, no one can dispute the fact that the UN Charter is the basis for constitutional document in the United Nation structure.

There is no doubt that the institutional system of the UN is imperfect. Nevertheless, this phenomenon does not prevent the UN from having a constitutional foundation. For instance, the UN General Assembly is a weak legislative body.

Nonetheless, the resolutions made by the General Assembly form a conjecture of legality in favour of behaviours that conforms to them as well as an assumption of illegality when such behaviours contradict them (Schreuer 118). What’s more, these decrees can function as a mechanism and as an expression of traditional international law.

Contrary to the basic recommendatory nature of UN General Assembly decrees, the UN Security Council boasts of legislative influence with regard to joint security (White 292).

What’s more, the Security Council functions as an executive unit which implements those resolutions. Although there is no clear separation of powers within the UN system, both the executive and legislative roles are allocated uniformly between the key political organs (White 292).

As a matter of fact, the UN Security Council has not only executive and legislative powers but also possesses partial quasi-judicial authority to propose settlement terms as well as to establish whether there is an act of aggression, breach of peace or a threat to the peace (White 292). In addition, there is the International Court of Justice’s arbitrative role (although it is weak compared to state jurisdictions).

The Security Council’s authority regarding legal disagreements between states is based on approval from UN agencies and organs (White 292). The Council’s role as a constitutional court is therefore susceptible to inquiry although its jurisprudence is somewhat moving in that direction (White 401).

There is clearly lack of separation of power within the UN system. The problem is also prevalent among its specialized agencies. The major benefit associated with separation of powers is the enhancement of the rule of law. For example, the separation of power averts the enactment, application and enforcement of laws by one body.

As a result, the absence of institutionalized judicial review within the UN system weakens the rule of law in the same manner the concentration of power (under joint security) in the hands of the UN Security Council does (White 293).

This means that the UN Security Council is effectively allowed to function as legislator, judge and enforcer with regard to the sphere of joint security (Gwynn 1). Thus, the apparent lack of separation of power in UN system is likely to result in power misuse.

In spite of the apparent structural shortages within the UN system, the Charter as well as the constitutional documents of the specialized agencies creates an intricate constitutional pecking order. Nevertheless, it can be argued that they merely represent a weak constitutional dispensation.

It can also be argued that the UN Constitution is synonymous with the rudimentary rules that govern a local golf club given that both constitute an organization. However, opinions about this issue vary among different scholars. For example, Bernhardt asserts that “the Charter has become the constitution of the international community” (1117) while Arangio-Ruiz claims that “the Charter is a mere inter-state compact” (9).

However, other scholars have adopted a cautious approach by enumerating the shortages prevalent in the UN’s constitutional structure as well as the organization’s achievements in securing conformity with its resolutions.

For example, the UN’s remarkable success in averting Iraq’s antagonism against Kuwait in the early 1990s is contrasted with its failure to secure peace in Rwanda (in 1994), Somalia (1992-3) and the former Yugoslavia in 1992-5 period (Dupuy 20).

The UN Legal Structure

There is no doubt that the UN structure is based on law. The UN’s legislative capacity has broadened over the years as the international community shifts from a horizontal structure that relies on state approval towards a purely hierarchical one (Kirgis 274).

For instance, the decrees by IAEA, ICAO, ITU and WHO are generally acknowledged and implemented as sets of laws for the international community (Schermers 117). The UN legal system can be evaluated from three phases: legislative; interpretation and application of law; and enforcement and compliance.

The Legislative Phase

The UN agencies generate laws in remarkable ways. Most of these laws transcend the conventional foundations of international law (i.e. customs and treaties).

These laws include: quasi-judicial pronouncements; guidelines; codes of practice; declarations; binding regulations; and excellent decrees with reporting requirements as well as enforcement systems (White 295). Most of these laws represent a paradigm shift from the conservative ways of making laws in the international arena.

The Interpretation and Application Phase

The interpretation and application of law occurs on a continuous basis all over the UN structure via the agencies, bodies and organs in light of the principle of effectiveness (White 296).

As the UN’s structure and legislation broadens, in terms of quality and quantity, the likelihood of some agencies and bodies transcending the constitutional laws which define their operations is apparent (White 296). However, there are several rudimentary laws that deem certain activities by the UN as unconstitutional or ultra vires (White 296). Nevertheless, the real issue at hand is the absence of a suitable judicial review system.

Compliance and Enforcement Phase

Compliance and enforcement is usually the last phase in any legal structure. White asserts that the major huddle experienced by the UN legal structure is the compliance and enforcement phase (296). Although the UN has enacted a number of legislations, little attention has been given with regard to the strategies of ensuring compliance (White 296).

Nevertheless, the UN is striving to improve compliance and enforcement of its laws at different levels. For example, the UN’s specialized agencies have adopted reporting and supervision as a common strategy to ensure compliance with the law (White 296). States are now obligated to submit reports on their compliance endeavours for inspection by a UN body.

The naming and shaming strategy is occasionally complemented in the human rights sphere whereby states (under elective protocol) permit certain persons within their authority to assume cases of human rights abuses executed by the state before a UN agency (White 296). Nevertheless, these strategies are usually ineffective when dealing with unrelenting offenders.

Consequently, the UN has considered adopting a number of intrusive strategies in order to decrease incidences of human rights abuses in many countries. An armed peace-keeping force is an example of an intrusive strategy adopted to ensure compliance with UN declarations.

UN peace-keeping force has evolved into a multi-dimensional strategy that encompasses the conventional blue-helmeted force as well as human rights and development element (White 297). The Sierra Leone case is a clear demonstration that the UN peace-keeping force is in dire need of reforms although this should not undermine the successful operations undertaken by UN forces in Mozambique, Nicaragua and Namibia (White 297).

Other coercive strategies adopted by the UN include conditional loans and aid that are granted to those states that respect UN decrees and suspension of delinquent states from UN membership (White 297).

The Security Council has also invoked article 41 of the UN Charter to impose other non-military enforcement actions such as economic sanctions on rogue states (White 297). In addition, the Security Council has sanctioned the use of armed forces on several occasions in countries such as Kosovo, East Timor, Bosnia, Somalia and the Gulf region to enforce compliance (White 297).

The UN judicial system represents another major hurdle in the enforcement system. It is worth mentioning that the International Court is somewhat weak with regard to judicial enforcement. The Rome Statute, which established the International Criminal Court, represents a significant step with regard to holding accountable and punishing individuals who commit war crimes, genocide and other crimes against humanity (White 298).

However, the ability of the International Court to discharge its functions is severely compromised by the UN Security Council which focuses its judicial enforcement efforts at individual level rather than at the state level (White 298). Thus, there is an urgent need to evaluate whether the UN’s judicial enforcement, at individual level rather than state level, is the most successful strategy to guarantee respect for UN principles.

Works Cited

Arangio-Ruiz, Gaetano. “The Federal Analogy and UN Charter Interpretation: A Crucial Issue.” European Journal of International Law 8.1(1997): 9. Print.

Bernhardt, Rudolf. The Charter of the United Nations: A Commentary. Oxford: Oxford University Press, 1994. Print.

Crawford, James. The Charter of the United Nations as a Constitution. London: British Institute, 1997. Print.

Dupuy, Marie. “The Constitutional Dimension of the Charter of the United Nations Revisited.” Max Planck Yearbook of UN Law 1(1997): 20. Print.

Falk, Richard. The United Nations and a Just World Order. Boulder: Westview, 1991. Print.

Fassbender, Bardo. “The United Nations Charter as a Constitution of the International Community.” Columbia Journal of Transnational 529(1998): 555. Print.

Fox, Gay and Brad Roth. Democratic Governance and International Law. Cambridge: Cambridge University Press, 2000. Print.

Gwynn, Barbara. The Meaning of the Separation of Powers. The Hague: Nijhoff, 1965. Print.

Johnston, Douglas. Structures and Processes of International Law. Dordrecht: Nijhoff, 1983. Print.

Kirgis, Frederic. International Organizations in their Legal Settings. St. Paul: West, 1993. Print.

Schachter, Oscar. “Review of Kelsen: The law of the United Nations.” Yale Law Journal 61(1951): 189. Print.

Schermers, Henry. “We the Peoples.” Max Planck Yearbook of UN Law 1(1997): 117. Print.

Schreuer, Christoph. “Recommendations and the Traditional Sources of International Law.” German Yearbook of International Law 20(1997): 118. Print.

White, Nigel. “The United Nations System: Conference, Contract or Constitutional Order?” Singapore Journal of International & Comparative Law 4(2000): 281-299. Print.

White, Nigel. “To Review or Not to Review? The Lockerbie cases before the World Court.” Leiden Journal of International Law 12(1999): 401.

Zimmern, Alfred. The League of Nations and the Rule of Law, 1918-1935. New York: Russell and Russell, 1969. Print.

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IvyPanda. (2019, May 30). Does the founding of the UN represent a radical departure from the system of international law or international society prior to 1945? Retrieved from https://ivypanda.com/essays/does-the-founding-of-the-un-represent-a-radical-departure-from-the-system-of-international-law-or-international-society-prior-to-1945/

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"Does the founding of the UN represent a radical departure from the system of international law or international society prior to 1945?" IvyPanda, 30 May 2019, ivypanda.com/essays/does-the-founding-of-the-un-represent-a-radical-departure-from-the-system-of-international-law-or-international-society-prior-to-1945/.

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IvyPanda. "Does the founding of the UN represent a radical departure from the system of international law or international society prior to 1945?" May 30, 2019. https://ivypanda.com/essays/does-the-founding-of-the-un-represent-a-radical-departure-from-the-system-of-international-law-or-international-society-prior-to-1945/.

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IvyPanda. 2019. "Does the founding of the UN represent a radical departure from the system of international law or international society prior to 1945?" May 30, 2019. https://ivypanda.com/essays/does-the-founding-of-the-un-represent-a-radical-departure-from-the-system-of-international-law-or-international-society-prior-to-1945/.

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IvyPanda. (2019) 'Does the founding of the UN represent a radical departure from the system of international law or international society prior to 1945'. 30 May.

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