The UN Charter as a "living document"

 Introduction

When Kofi Annan stated in his 1999 Annual Report to the General Assembly that the UN Charter is a “living document, whose high principles still define the aspirations of peoples everywhere for lives of peace, dignity and development”^[1], he perhaps unknowingly highlighted the idiosyncrasy of the Charter: a hybrid document, contractual, normative and constitutive in nature.^[2]

The conflict between the static and dynamic nature of the Charter will be central to this article, in asking whether the document retains the fluidity required to adapt to the new challenges facing international peace and security, particularly the increasing threat to civilians, the rise of terrorism, and the changing nature of war. The UN seeks to maintain its effectiveness in a contemporary context, therefore, an evolving interpretation of the Charter is necessary to bring the document to life.

The first section of this article will discuss the success of the UN Charter in adapting to certain new challenges it faces. It will be noted how favourable interpretations of the Charter have led to operations and measures that combat the new threats to international peace and security. Subsequently, however, the questionable legality of evolution through practice will be discussed, with doubts being raised regarding the UN’s reliance on norms, and not legality.

The second section of this article will highlight how procedural requirements enumerated in the Charter have prevented the UN from legally adapting to negate certain modern day threats, firstly as a result of the influence of politics in the document, and also through the constraints of the interpretative method of evolution.

To conclude, a synthesis of both approaches will be provided, declaring that while the UN charter has shown that it has the capacity for evolution in meeting certain contemporary challenges that arise, questionable legality and the stunted effectiveness of reliance on evolution through practice will prevent the Charter from further combatting the contemporary threats to international peace and security as they continue to emerge.

1. Norms, Not Legality: Success of the UN Charter in Combating Certain Modern Challenges

a. Interpretations of the UN Charter Emphasising Civilian Protection

As threats to international peace and security have evolved, so too has the UN sought to develop powers to counteract new challenges as they arise, through creative interpretation of the UN Charter. Perhaps one of the most striking new challenges to international peace and security is the threat facing civilians during wartime. War has become incredibly mobile and omnipotent, leaving civilians in dangerous proximity to conflict, and indeed, at times, increasingly targeted by armed actors.^[3] Although this development was not foreseen by the original drafters, one area of great success for the UN in interpreting the Charter to find solutions to newly emerging threats to international peace and security has been in relation to civilian protection.

One of the most prominent examples of interpretations of the UN Charter combating a modern threat to international peace and security is the concept of peacekeeping operations.^[4] There is no legal basis for peacekeeping forces in the UN Charter. However, as the Charter gives primary responsibility for maintaining international peace and security to the Security Council^[5], this was interpreted as allowing resolutions to be passed deploying UN forces to conflict and post-conflict regions with the aim of keeping the peace.^[6]

Following the devastating civilian casualties in Srebrenica and Rwanda during the 1990s, the UN was made to adapt again to the new threats to international peace and security.^[7] In a striking example of how creative interpretations of the Charter can breathe life into the document, the concept of robust peacekeeping was born. Although the only two legal uses of force enumerated in the Charter are when authorised by the Security Council^[8] and when deployed in self-defence^[9], in an innovative interpretation of the Charter, beginning in Sierra Leone in 1999. The Security Council began to issue “robust” peacekeeping mandates under Chapter VII,^[10] which presented UN peacekeepers with the authorisation to use force, through resolutions allowing them to use “all necessary means” in defence of the mandate.

The UN Charter further counteracted new emerging threats through the development of the concept of ‘a threat to international peace and security’. Article 39 of the Charter gives responsibility to the Security Council to determine the existence of such a threat and in the drafting of the Charter itself, this was seen to be inextricably linked to interstate conflict, state sovereignty, and collective security systems. Recently, however, as the UN sought to interpret the Charter in a way that would allow them to provide further protection for civilians, such “non-military sources of instability” acknowledged as being within the remit of the Security Council’s authority under Article 39 included “economic, social, humanitarian and ecological threats”.^[11] This expansion of the definition of threat to international peace and security was formally acknowledged at the meeting of the Security Council in 1992.^[12] Furthermore, in a bid to maintain relevance vis-à-vis evolving trends of modern warfare, the 2004 Report of the UN Secretary General’s High-Level Panel noted “economic and social threats, transnational organised crime, as well as inter-state conflict, internal conflict, terrorism, and weapons of mass destruction” as threats to international peace and security.^[13]

By interpreting a wider definition of an international security threat from Article 39 of the Charter, the UN granted itself the power to widen the scope of UN peacekeeping operations, and increase the instances where the Security Council could intervene, even in domestic conflicts. This bolstered its power to counteract the emerging threat to civilians. However, while this could generally be seen as a positive development, doubts regarding the legality of such interpretations of the Charter have been raised. Certain evolutions are feared to be not merely creative interpretations, but the creation of legal fiction, a sentiment which will now be discussed in depth.

b. Questionable Legality: Evolution Through Practice

Following the formation of the UN Charter, Cold War stalemate continuously manifested itself in blocking amendments to the Charter through procedural actions, as substantive amendments had to be passed in the Security Council without veto.^[14] While certain successful examples have been discussed where creative interpretation of the Charter has allowed the UN to counteract emerging threats, there are many corresponding unsuccessful examples where changes were insufficient or impossible. Therefore, as the UN sought to maintain the Charter’s relevance as a “living document”, it has been subject to the dubious legality of evolution through practice.

The accepted view of international treaty law, as per Article 31(3)(b) of the Vienna Convention of the Law on Treaties^[15], is that “the subsequent practice of parties is able to be taken into account for the purpose of interpretation but not modification or amendment”.^[16] As affirmed by the ICJ in the seminal Namibia Opinion, if subsequent practices of an organisation are “generally accepted by members”, these can be used to interpret and apply the organisation’s rules.^[17] While informal modification through subsequent practice was unequivocally excluded from the 1966 United Nations Conference on the Law of Treaties, both the UN and its members (supported by the ICJ) have often maintained the legal fiction that their changes in practice have purely been as a result of interpretation of the Charter, and not modification and amendment.

This flexible understanding of modern Customary International Law, where accepted practice has been “deferred to, and favoured over, a plain reading of formal rules”^[18] has led to a tension between norms and legality. Such developments rejects the categorisation of the Charter as a rigid constitution and provides a vehicle to challenge newly emerging threats to international peace and security.

However, while Customary International Law may breathe life into a 70 year old document, the legality of such action must be called into question. Goldsmith & Posner, taking on a realist viewpoint, believe that powerful, self-interested states “pay lip service to CIL in order to avoid the inference that they are rogue states”^[19].

An example of this would be the US’ justification of use of force in Iraq in 2003 as an interpretation of Article 51 self-defence, based on pre-emption, despite such a practice being omitted from the Charter.^[20] The US saw their actions simply as an “interpretation of the application of the law”.^[21] Although the US faced stern criticism from other Member States and Secretary General Kofi Annan, their continued operations under the auspices of pre-emptive self-defence received no official condemnation from the Security Council, as a result of the political paralysis of the Charter, which will be discussed further on in this article.

Furthermore, following  French airstrikes in Syria in 2015, France sent a letter of notification to the Security Council stating their actions to be an interpretation of Article 51 of the Charter^[22]. This particular interpretation infers pre-emptive self-defence from the provisions of Article 51, as there was no ongoing armed conflict. As such the Charter’s doctrine seems to have been stretched once more.

Arguably, from this silence it could be inferred that there is a common practice emerging.^[23]Indeed, the ICJ has remained pro-actively reticent regarding the legality of preemptive self-defence, stating in the Nicaragua Opinion case “the issue of the lawfulness of a response to the imminent threat of an armed attack has not been raised ... the Court expresses no view on the issue”.^[24]

Relying on norms rather than legality to develop the ability of the UN Charter to counteract emerging threats is of dubious legality, and can lead to the founding values and principles of the Charter being compromised. If the norm of pre-emptive self-defence comes to be accepted, founding values of the Charter, namely the maintenance of peace and security through non-proliferation of use of force, will have been ignored.^[25] Similarly, the emerging doctrine of “Responsibility to Protect”^[26] was referred to in the UN-authorised intervention by NATO in Libya in 2011 on the grounds of humanitarian intervention.^[27] “Responsibility to Protect” is defined as the instances where the doctrine of state sovereignty yields to an international responsibility to protect a population “suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it”.^[28] If accepted as Customary International Law, this emerging doctrine could be said to contravene the Charter’s commitment to state sovereignty and non-intervention.^[29]

Kofi Annan, while supportive of the “living” nature of the Charter, warned in relation to Article 51 that acceptance of pre-emptive self-defence “could set precedents that resulted (sic) in a proliferation of the unilateral and unlawful use of force.”^[30] Although maintaining a certain degree of flexibility in the interpretation of the Charter is important, this commitment to keeping the document alive must not serve to delegitimise the very founding principles which it espouses.

2. Choked by Procedural Requirements: Failures of UN Charter to Legally Adapt to Modern Threats

Thus far in this article the creative interpretation of the Charter has been discussed and how a flexible understanding of customary international law the UN has negated certain modern threats to international peace and security. However, the analysis has noted the dubious legality of relying on norms rather than reality. The following section will discuss how the success of the UN to adapt to modern challenges through legal amendments of the Charter has been minimal.

The description of the Charter as a “living document” may be damningly rebutted by the fact  that since its inception the only formal, legal revisions of the Charter have been solely related to procedure and composition.^[31] Amendments were passed to increase non-permanent membership of the Security Council, and requiring more affirmative votes for Security Council decisions, and changes have been made to the composition of the Economic and Social Council.^[32] Such a pedestrian pace of evolution could not be said to be indicative of a “living document”, nor of an organisation adapting to modern threats.

Central to this stunting of evolution is the “notorious difficulty in achieving formal amendments”.^[33] Article 108 of the Charter sets out the procedure to legally amend the document, namely that formal amendments must be adopted and ratified by two thirds of the members of the General Assembly, as well as passing the Security Council without veto. The permanent members of the Security Council are reluctant to amend the Charter in a way that will dilute their own power, and, as a result, the Charter has avoided any radical or progressive amendments that would otherwise be beneficial in combatting threats to international peace and security.

Politics has paralysed formal and legal progression of the Charter, and as a result the UN has had to rely on creative interpretation and customary changes to maintain the relevance of the document. Kelsen has argued that without a functioning legal avenue for evolution, interpretations of the Charter have been solely as a result of political motivation^[34]. Changes can only be incremental in nature, not institutional, and the only actors capable of amending the document through customary practice are strong states, who have personal interest to do so. This can potentially leave certain emerging threats unaccounted for, if they are not within the interests of certain member states, a point which will now be discussed in depth.

While this article has applauded certain evolutionary actions by the UN in countering modern challenges to peace and security, both as a result of creative interpretations of the Charter and customary international law, there remains still many major newly emerged and emerging threats to international peace and security that are unaccounted for. As noted, this could be as a result of the political paralysis preventing formal amendments, leaving it up to powerful, self-interested actors to develop a new practice and seek approval a posteriori.

The outcome of this development is that there exists no clear international consensus concerning certain modern threats to international peace and security. A key example of this is the rise of transnational terrorism. While Article 51 does not expressly  restrict the right of states to respond in self-defence against non-state actors, the main development of the doctrine has been driven by the US, post 9/11, as they preempt transnational terrorist attacks^[35]. Furthermore, through claiming to be involved in an transnational armed conflict against terrorist groups, the US have presented themselves with the legality, through self-defence, to carry out targeted killings, drone strikes, and airstrikes against suspected terrorists, anywhere in the world.^[36]

While there are instances where Customary International Law has been successful in negating certain threats as they arise, political paralysis has left certain modern interpretations of the Charter at the mercy of state practice. As a result, certain new threats to international peace and security are left unopposed, or dealt with in an unsatisfactory manner, beyond the remit of the supposedly “living document” that is the UN Charter. 

Conclusion

As a 70 year old document, it is an incredible achievement for the UN that their original Charter is still relevant in modern international law. Throughout this article, it has been shown that through creative interpretation of the Charter, and accepted evolution through practice, the UN has managed to adapt the document in relation to the newly emerging threats to international peace and security. Through the deployment of peacekeepers, the legal fiction of “robust peacekeeping mandates”, and expanded definitions of a threat to international peace and security, the UN has managed to infer from the Charter greater authority for civilian protection. However, where creative interpretation has reached its limits, evolution through practice has been relied upon to breathe life into the Charter, a development which is of dubious legality. The role of politics in the Charter has prevented any formal, legal amendments which could counteract emerging threats to international peace and security.

In conclusion, while this article has shown that the UN Charter has enjoyed certain success in adapting to contemporary challenges, this capacity is limited. The absence of a functioning legal, formal avenue to amend the Charter could leave certain emerging threats to international security unaccounted for. While the Charter has proven its “living” nature over the past 70 years, sentimental attachment should not stand in the way of radical overhaul, as a rapidly evolving world continues to present newly unimagined and unimaginable challenges to international peace and security.

^[1] United Nations, The Secretary General’s Annual Reports to the General Assembly (20 September 1999), available online at <http://www.un.org/press/en/1999/19990920.sgsm7136.html>.

^[2]Schrijver, “The Future of the Charter of the United Nations” (2006) 10 Max Planck United Nations Yearbook 1, 5.

^[3] Kjeksrud, ‘Protecting civilians from violence: A threat-based approach to protection of civilians in UN peace operations’ (2016)  Norwegian Defence Research Establishment (FFI) and Norwegian International Center 1.

^[4] Liang,  ‘Modifying the UN Charter through Subsequent Practice: Prospects for the Charter’s Revitalisation’ (2012) 81 Nordic Journal of International Law 1, 10.

^[5] UN Charter, Article 24(1).

^[6] United Nations, “Mandates and the legal basis for peacekeeping”, available online at <http://www.un.org/en/peacekeeping/operations/pkmandates.shtml>.

^[7] Wedgewood, ‘The Evolution of United Nations Peacekeeping’, (1995) 28(3) Cornell International Law Journal 631.

^[8] UN Charter, Article 42.

^[9] UN Charter, Article 51.

^[10] UNSC Res 1270 (22 October 1999) UN Doc S/RES/1270.

^[11] Nasu, ‘The Expanded Conception of Security and International Law: Challenges to the UN Collective Security System’ (2011) 3(3) Amsterdam Law Forum 15, 18.

^[12] UNSC Res 3046 (31 January 1992) UN Doc S/PV.3046, available online at <http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/RO%20SPV%203046.pd>f.

^[13] UN Secretary-General’s High-Level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’ (2 December 2004) UN Doc A/59/565, 23; Nasu, ‘The Expanded Conception of Security and International Law: Challenges to the UN Collective Security System’ (2011) 3(3) Amsterdam Law Forum 15, 18.

^[14]Schrijver, (2006) “The Future of the Charter of the United Nations” [2016] 10 Max Planck United Nations Yearbook 13; UN Charter, Article 108.

^[15]Vienna Convention on the Law of Treaties (adopted 23 May 1969) 1155 UNTS 331, available online at <http://www.refworld.org/docid/3ae6b3a10.html>.

^[16] Jessica Liang,  ‘Modifying the UN Charter through Subsequent Practice: Prospects for the Charter’s Revitalisation’ [2012] 81 Nordic Journal of International Law 1, 5.

^[17] Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia, International Court of Justice (ICJ), (21 June 1971), Rep 16, 22 [22] in Jessica Liang, (2012) ‘Modifying the UN Charter through Subsequent Practice: Prospects for the Charter’s Revitalisation’, Nordic Journal of International Law, 81, p.1-20, p. 18.

^[18] Jessica Liang, ‘Modifying the UN Charter through Subsequent Practice: Prospects for the Charter’s Revitalisation’ (2012)  81 Nordic Journal of International Law 1, 7.

^[19] Jack Goldsmith and Eric Posner, ‘A Theory of Customary International Law’,  (1999) 66 The University of Chicago Law Review 1113, 1137.

^[20] Arend Clark, (2003) “International Law and the Preemptive Use of Military Force’, (2003) 26(2) The Washington Quarterly, 89.

^[21] Alex Bellamy,  ‘International Law and the War with Iraq’, (2003) Melbourne Journal of International Law 4, 5.

^[22] United Nations, Security Council, Identical letters dated 8 September 2015 from the Permanent Representative of France to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc S/2015/745, (8 September 2015).

^[23] Sean Murphy, ‘The Doctrine of Preemptive Self-Defense’, (2005) Villanova Law Review 50, p. 3.

^[24] Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), (27 June 1986), 194.

^[25] UN Charter, Article 1.1.

^[26] The International Commission on Intervention and State Sovereignty, ’The Responsibility to Protect: The Report of the International Commission on Intervention and State Sovereignty’ (IDRC Books 2000).

^[27] United Nations, Security Council Resolution 1973, The Situation in Libya, S/RES/1973 (17 March 2011).

^[28] The International Commission on Intervention and State Sovereignty, ’The Responsibility to Protect: The Report of the International Commission on Intervention and State Sovereignty’ (IDRC Books 2000) XI.

^[29] UN Charter, Article 2.1, Article 2.7.

^[30] United Nations, The Secretary General’s Address to the General Assembly, (23 September 2003), available online at: http://www.un.org/webcast/ga/58/statements/sg2eng030923.htm.

^[31]Liang (n 18) 3.

^[32] United Nations, “Charter of the United Nations: Procedural History”, Audiovisual Library of International Law, available online at: http://legal.un.org/avl/ha/cun/cun.html.

^[33] Liang (n 18) 4.

^[34] Hans Kelsen, The Law of United Nations: A Critical Analysis of its Fundamental Problems (Stevens 1951) p. 15.

^[35] Marco Sassóli, ‘Transnational Armed Groups and International Humanitarian Law’ (2006) Humanitarian Policy and Conflict Research, 6, available online at: http://www.hpcrresearch.org/sites/default/files/publications/OccasionalPaper6.pdf.

^[36] United Nations, General Assembly, Study on Targeted Killings: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/14/24/Add.6 (28 May 2010); ICRC (2008) “How is the Term "Armed Conflict" Defined in International Humanitarian Law?” , International Committee of the Red Cross (ICRC), available online at: https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf.