The `Federal Analogy' and UN Charter Interpretation: A Crucial Issue

Gaetano Arangio-Ruiz ¹

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I. Introduction

The wealth of literature sparked by the so-called revitalization of the United Nations (UN) Security Council following the end of the Cold War indicates a healthy and growing interest among international legal scholars in the question of the legality of UN action or inaction. This trend is supported by the almost simultaneous occurrence of the fiftieth anniversary of the UN Charter. The present article does not directly examine the problem of the legality of UN action, but rather deals with just one aspect, however fundamental, of that issue, with particular reference to the Security Council. Its focus is upon the analogy between the UN Charter and federal constitutions, upon which a number of officials and scholars seem to rely, more or less explicitly, in order to establish a legal basis for that expansion of the Security Council's sphere of action which, for better or worse, we have witnessed over the past few years. As is well known, it is in effect this analogy which, it is claimed, gives legitimacy to the application of the doctrine of implied powers to extend the field of action of international bodies, notably the UN, beyond the areas expressly covered by the provisions of their constituent instruments.

In relation to the UN, the federal analogy may be justified, marginally, within the framework of operational activities carried out by the Organization under the legal cover not so much of the Charter but of more or less special agreements with the state(s) whose territory or people are to be affected. However, for the Charter provisions concerning the Organization's statutory functions vis-à-vis the member States, the analogy is, in this author's opinion, both undemonstrated and implausible. It cannot be assumed, therefore, that the doctrine of implied powers is applicable as an interpretive tool of the Charter for the determination of the powers of the political organs of the UN. In the case of the Security Council, the analogy is even less justified than it may be for other bodies, and is more dangerous for the preservation and development of the rule of law in the `organized international community'. My aim in writing in this forum, prompted also by my recent experience as the International Law Commission's Special Rapporteur on state responsibility, is not to draw conclusions on an issue which I intend to delve into more deeply than is possible in an article, but to stimulate a serious discussion of the federal analogy as an alleged basis for the application of the implied powers doctrine to the role of the UN, and particularly of the Security Council.

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1 Professor of International Law, Law Faculty, University of Rome.

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