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The `Federal Analogy' and UN Charter Interpretation: A Crucial Issue
II. Prima Facie Data
It is common knowledge that the locus classicus of the doctrine of implied powers is the constitutional practice of the United States of America. It is on the basis of this doctrine that the Congress and the President have gradually extended their powers at the expense of those reserved to the states by the 1791 Constitution; it is also common knowledge that this process has gone so far as to prompt a judge of the United States Supreme Court to declare that the idea that congressional and presidential powers derive from the Constitution is a mere fiction.
Now, according to the adherents of what I refer to, for the sake of brevity, as the `constitutional' theories of the UN,2 the Charter presents sufficient similarities to federal constitutions, and especially to that of the United States, to justify - and to justify in law - the application to UN organs of that same doctrine of implied powers which provided the basis for the gradual extension of powers of the two most important organs of the United States central government. Justice Holmes' famous statement would thus apply just as well to the UN Charter as it does to the Constitution of the United States.3 Indeed, the UN Charter has also created a `being', an `organism' - that, we can all readily see. Hence, according to the `constitutionalists', the doctrine of implied powers would also apply to the organs provided for by the Charter. Practice shows that those states which prevail by number or voting rights in the political organs of the UN do not fail to exploit the doctrine of implied powers whenever they find it convenient, without much concern for the need to justify its application. It is mainly international legal scholars who seek that justification. Anxious as they are to be able to extend to their own discipline the most refined tools developed in the theory and practice of public law within national legal orders, the great majority of international law scholars seem ready to do their utmost to invent any theory that may help demonstrate the legality of the conduct of UN organs. In the 1960s and 1970s, those members of the Assembly prevailing by number resorted to the implied powers doctrine in an attempt to justify a legislative or quasi-legislative function for that body. In the Security Council some states seem now to be increasingly inclined to rely, more or less explicitly, on the same doctrine to justify a broadening of the Council's powers, taking them far beyond what this author believes to lie within that body's tasks according to any reasonable interpretation of the Charter.
Supporters of the federal or quasi-federal nature of the UN Charter would surely not be short of arguments based on `circumstantial evidence'.
Firstly, the Charter does establish an institutional union of states. This places the UN in a very general category to which, albeit to qualitatively different extents, both the confederation and the federal state also seem to belong. Secondly, since the confederation sub-species, even more than that of the federal state, offers concrete models characterized by various degrees of centralization or decentralization, the possibility of generic rapprochements cannot be denied a priori. It follows that, however small the degree of similarity may have been between the Charter and a federal constitution in 1946, and however small it may be today after the real or presumed evolution of the Charter in response to the vicissitudes of half a century, one consideration cannot easily be set aside: that only history will tell whether, in which ways, and to what extent a comparison of the Charter to a constitution may be justified. While we cannot fail to agree with Leo Gross' comment that `the United Nations is not like the United States even in its infancy', we must by the same token also agree with him when he adds:
The possibility, of course, cannot be excluded that after a century, and, as Mr. Justice Holmes said, much sweat and blood - not to mention Sir Winston Churchill's tears - the United Nations will acquire the degree of integration which will make the comparison with the federalism of the United States more tenable.4
Open-mindedness is also impelled by the fact that such a perceptive observer of the League of Nations as Sir Alfred Zimmern, while recognizing (unlike a number of contemporary scholars) that international law did not have a `constitution' up until the First World War, seemed by implication to suggest that the Covenant had perhaps marked a first step towards the closing of what he viewed as a `constitutional' gap.5 A fortiori one may be inclined to think, as indeed many appear to do, that that step was taken after the Second World War with the creation of the new `being' or `organism' whose fiftieth anniversary is now being celebrated.
What should one say, then? Are the majority - the `constitutionalists' - right? And if so, to what extent?
In response to the claim that the `being' or `organism' created by the Charter presents the features of a constitutional structure - an assertion which manifestly implies the federal analogy - one might be content to counter, continuing on the same line of `circumstantial evidence', with a series of equally straightforward considerations.
(i) On a par with the League of Nations, the UN is not a `super-state'. This was stated by the International Court of Justice in 1949 and was confirmed by the same body on another occasion;6 furthermore, the head of the US delegation to the San Francisco Conference had already assured the President of the United States to the same effect.7
(ii) The degree of centralization of the UN is so far removed from that of a federal state that it does not even approach that of a confederation. Pursuing the comparison with the North American Union, the UN does not even achieve the degree of integration of the Articles of Confederation: an instrument to which the name of constitution was most likely given only after it had been surpassed by events and when the elites of the thirteen colonies had espoused the idea that the Articles should be completely superseded by a true constitution.8
(iii) The Charter disqualifies itself as a constitution in that it expressly reserves, together with equality, the sovereignty of all member States (Article 2.1) and their domestic jurisdiction (Article 2.7). This point was firmly stressed by Dulles at San Francisco, when he observed (in defence of his preferred formulation of Article 2.7) that the UN was to deal only with governments.9 A federal state, and even an `advanced' confederation, as may be seen in the Articles of Confederation, goes beyond governments.
(iv) The only point which would seem to lessen the gap between the Charter and a confederal pact (although remaining very far from a federal constitution) is the provision - rara avis - for the direct availability of armed forces on the part of the Organization. One might be tempted to equate this with what was achieved by the North American Union during the war of independence, even prior to the entry into force of the Articles of Confederation; namely, the possibility of recourse to armed forces by the Congress, under the command of George Washington who was directly appointed by that body. Apart from the fact, however, that only under certain highly problematic conditions would the Charter provisions in question be sufficient to qualify the UN as a constitutional fabric under international law, it is well known that the implementation of those provisions remains highly improbable.10
2 See Section III of this article.
3 `When we are dealing with words that are also a constituent act,
the Constitution of the United States, we must realize that they have called
into life a being the development of which could not have been foreseen
completely by the most gifted of its begetters. It was enough for them to
realize or to hope that they had created an organism; it had taken a century
and has cost their successors much sweat and blood to prove that they created a
Nation.' Missouri v. Holland, US Supreme Court, 252 U.S. 416, at
433.
4 Gross, `The International Court of Justice and the United
Nations', 120 RCADI (1967, I) 403 (emphasis added).
5 A. Zimmern, The League of Nations and the Rule of Law
(1936) 277 et seq.
6 Interpretation of the Agreement of 25 March 1951 between the WHO
and Egypt, Advisory Opinion, ICJ Reports (1980) 89-90, para. 37 citing the
Court's analogous dictum in Reparation for Injuries Suffered in the
Service of the United Nations, Advisory Opinion, ICJ Reports (1949)
179.
7 U.S. Department of State, Charter of the United Nations:
Report to the President on the Results of the San Francisco Conference by
the Chairman of the United States Delegation, the Secretary of State, 26 June
1945, Publication 2349, Conference Series 71, at 157-8.
8 This calls for qualification. Although generally referred to as
`the Confederation', the Articles did contain elements transcending a merely
inter-state compact. Such was the case with a number of powers attributed to
the Congress. In addition, and most importantly, the Articles were drawn up
within a body composed of men who emanated less indirectly from the peoples of
their respective communities of origin than is the case with governmental
delegates to an inter-state body. Be that as it may of such constitutional
elements, what matters most for comparative purposes is that an
inter-individual constitutional fabric in a material sense had already started
developing among the peoples of the 13 colonies (together with the very idea of
an American `nation') at least from the time of the First Continental Congress
of 1774 and the early `Association'. That process continued, albeit not without
a number of crises, until the Philadelphia Constitutional Convention of 1787
and beyond. It is thus clear that two sets of normative phenomena were
concurring within American society during the founding period. On the one hand,
there were the tendentially egalitarian, international-type relations among the
13 political units, as formally governed by the `Association' and later by the
Articles; on the other hand, there was the inter-individual legal fabric, at
first barely going beyond the milieu of, and around, the First Congress but
later gradually embracing all the peoples of the Thirteen as one nation. By
1791 this latter phenomenon had prevailed over the former, after a period of
more or less critical coexistence. Recent works by J.N. Rakove, The Beginnings
of National Politics: An Interpretative History of the Continental Congress
(1979), Idem, `The Collapse of the Articles of Confederation', in J.J.
Barlow, L.W. Levy and K. Masugi (eds.), The American Founding (1988),
and E.S. Morgan, The Birth of the Republic, 1763-1789 (3rd ed.,
1992) confirm the opinion which the present writer drew long ago (See G.
Arangio-Ruiz, Rapporti contrattuali fra Stati e organizzazione
internazionale (Sixth Series, 1-2. 1950) 105-114, para. 29) from the
older works by J. Fiske, A.W. Small and M. Hockett. See also Jensen, `The
Articles of Confederation', in B. Ollman and J. Birnbaum (eds.), The United
States Constitution (1990).
10 This issue is discussed further in Section IV.
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