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Book Reviews
Hobe, Stephan (ed.). Die Präambel der UN-Charta im Lichte der
aktuellen Völkerrechtsentwicklung. Berlin: Duncker & Humblot,
1997. Pp. 161.
This collection of essays constitutes the outcome of a symposium on the
occasion of the 60th birthday of Professor Jost Delbrück of the University
of Kiel. In the foreword, Dr. Stephan Hobe (Kiel) introduces one of the main
topics of the following essays. In his view, the Preamble constitutes a
normative binding programme (`normativ voll verbindliches Programm').
Some contributors, including Professor Karl-Ulrich Meyn (Jena) and Dr. Hobe
himself, place their emphasis on the legally binding nature of the Preamble. In
the opinion of others, such as Professors Hans-Joachim Schütz (Rostock)
and Eibe Riedel (Mannheim), the Preamble rather contains aspirational ethical
standards and basic values in need of concretization by legal rules.
The political scientist Professor Klaus Dicke (Jena) interprets the
affirmation of faith in fundamental human rights as an express rejection of a
positivist understanding of law towards an almost liturgical reaffirmation of
common values and principles. He draws two concrete inferences from this
interpretation: a plea for universal common interests against national
interests, and a statement in favour of the universality of human rights, which
should in his opinion not be diluted in endless dialogue.
All the authors of this volume - with the notable exception of Professor
Dicke - seem to feel at ease with an explicit Judeo-Christian understanding of
the values underlying the Charter. Even if this may well be historically
accurate, one would have liked to find a bit more on the problem of
universality in light of the current discussion on fundamentalism and the
threat of a `clash of civilizations', especially in the contribution by the
theologian Professor Lutz Rendtorff (Munich) on the ethical foundations of the
Preamble. In line with this uncritical `Western' standpoint is the optimism
with which most authors see current developments, especially concerning the new
role of the Security Council (Professors Dicke, Meyn and Riedel, Dr. Hobe).
Several contributors argue in favour of a broad, `positive' reading of the
notion of peace in the Preamble and in Chapter VII of the Charter.
Taking up a term coined by, among others, Professor Delbrück,
several contributors aim at the establishment of a `world internal law' dealing
with human, not only state concerns. With its emphasis on human values, the
Charter Preamble certainly constitutes the appropriate legal basis for such an
endeavour - which, of course, takes us back to the discussion on its legal
significance. Dr. Ursula Heinz (Kiel) and Dr. Hobe even go so far as to plead
for an international corollary of the German constitutional `social state
principle'. Dr. Heinz emphasizes the continuity of the UN world conferences and
the implementation of the new Law of the Sea with the ambitions for a new
international economic order of the 1970s, notwithstanding the change of
economic philosophy which has taken place since. Applying Rawls' `difference
principle' to the international sphere, Dr. Hobe argues that the Charter
Preamble indirectly contains a similar approach to international distributive
justice.
In his remarkable closing article, Professor Schütz uses the
relationship between change and persistence, according to Luhmann's systems
theory, for his analysis of the idea of peaceful change in the Preamble, with
its reference to the tension between justice and international law. For a
concretization of this dichotomy, Professor Schütz examines Articles 1, 2,
14 and 55 of the Charter as well as UN practice. The articles are written in
German, but contain an English summary and extensive references to both English
and German literature. Less useful are the documents in the appendix, which
bear only a scant relationship to the articles.
In general, this book constitutes a positive example for the inclusion
of philosophical and political science perspectives in the legal analysis of
the Charter. It offers some important insights into the values and aspirations
of a `new world order' which is continuing the tradition embodied in the
Charter Preamble. For this project, the precise legal character of the Preamble
seems far less important than the shaping of goals and values in the process of
change.
Andreas L. Paulus
Ludwig-Maximilians-Universität München
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