How Does the Charter Promote the Rule of Law?
Another important question involving the powers and functions of the United Nations Organization is that of the place of law in international relations. To the extent that rules of law are observed by states, the rule of force is reduced, the appeal to arms less frequent, and peace more likely to last. How-and how far-does the Charter expand the area of the rule of law in international relations?
In forming an effective world court, the San Francisco Conference had a most useful precedent. The old World Court, provided for in the League of Nations Covenant and fully operative since 1920, became the model for the new International Court of Justice.
How will the new World Court operate?
The new World Court, like the old, will have 15 judges elected jointly by the General Assembly and the Security Council for 9-year terms. No two may be of the same nationality. The Court will sit at The Hague, but may hold hearings and other proceedings wherever necessary to carry out its functions.
Every member agrees to accept and carry out the decisions of the Court in any case in which it is a party. If it does not, the other party to the dispute may ask the help of the Security Council, which may make recommendations or decide upon measures to give effect to the judgment. The enforcement machinery of the Charter is thus put behind the decisions of the Court.
The Court does not have compulsory jurisdiction, however, over any dispute between members of the United Nations. That is, disputing nations are not required to submit their differences to the Court for settlement. This is said to be the great weakness of the statute, since nations are least likely to submit to outside settlement the very disputes that are most likely to provoke trouble. Efforts to include compulsory jurisdiction in the Charter, however, failed at San Francisco. Many nations are not yet ready to give up their freedom to settle political disputes by other than legal processes.
The Court may also render "advisory opinions" on request to the General Assembly and the Security Council, and to all the other agencies of the United Nations upon consent of the General Assembly. An advisory opinion is a formal ruling by the Court on some point of international law, rendered at the request of another authority without presentation of an actual case.
Experience at Geneva more than once demonstrated the value of this advisory opinion procedure. The Permanent Court of International Justice rendered many advisory opinions for the League of Nations and its agencies. Often, for instance, a real dispute between countries could be-and was-reduced to a procedural or jurisdictional question which, when answered by the Court, in effect settled the dispute. The same result is, therefore, likely to be repeated in the work of the new Court.
What law will the Court apply?
This is, of course, the nub of the question of how far the Charter promotes the rule of law. First, the Court will interpret and apply the Charter itself and all the administrative treaties which its various agencies will develop. Among them, for instance, will be the constitution of the International Labor Organization and the trusteeship agreements.
As the economic, social, educational, and cultural activities of the United Nations expand, more treaties in these fields will be drawn up. Since treaties are a kind of international legislation, they will be an important factor in expanding the rule of law among the United Nations.
Beyond such treaties, however, lies the whole range of international political relations. Here, as we have seen, the rule of law is still weak. What we call "international law" is limited in its range, lacks uniform interpretation, and does not have binding force among the family of nations.
Here the Charter is silent. Although Articles 1 and 2 portray certain "purposes" and "principles," they do not establish a code of law governing the actions of member states.
Do we need a code of world law?
Many argue that, until we have an exact code of international law, the whole idea of a world organization is illusory. Without a code, they say, every state can act just about as it pleases; there are no rules of law so generally accepted as to be enforcible.
This is an extreme view. Most of the day-to-day relations of states are carried on without any dispute as to their rights and duties. The real trouble arises with questions which a country views as matters of "national honor" or "vital interest." In the past, governments have often felt that such issues could be decided only by a test of strength rather than by a rule of law.
It would have been useful, no doubt, if the San Francisco Conference had drawn up a more precise code of laws to meet this danger. Certainly, the United Nations-like the League-will develop new treaties defining aggression more clearly and laying down rules for preventing it. Only in this way, in the long run, can the rule of law between nations be extended. States will accept obligations not to resort to war or aggression more willingly if their rights as well as their duties are clearly defined. This is the "path of the law" within every country; it is not less so in the international community over which now hang the terrors of the rocket-propelled atomic bomb.
Does the Charter write a code of law?
Although the Charter does not include a code of international law, it does point the way in this direction. First, the new Court provides a legal forum in which states can settle any kind of dispute they are willing to submit to impartial judgment and decision. Second, there are open to all states many other means for the peaceful settlement of disputes. Arbitration is one of them. Third, the Security Council and the General Assembly are both available for reconciling differences and finding a workable compromise.
By establishing these and similar agencies, the Charter makes available the necessary machinery for the peaceful settlement of any dispute which may arise. Although this is not a code of law, the outlines of such a code will emerge as states resort to these agencies for decisions as to their rights and duties. Each decision will create a rule to meet a crisis. As the decisions increase in scope and number, so will the rule of law in international relations grow in strength.
Were this all the Charter had achieved toward preventing war, it would leave us heavily exposed to the threat of war and aggression in the future. Two further steps have been taken to increase our insurance against future wars. One of these steps is legal, the other political.
Is the legal obligation of the Charter effective?
The legal step is to be found in two of the "principles" of the Charter. All the United Nations have pledged themselves, first, to "settle their international disputes by peaceful means" and, second, to "refrain from the threat or use of force against the territorial integrity or political independence of any member or state."
To use or threaten force, or to refuse to settle any dispute peacefully, becomes, therefore, a breach of a legal obligation accepted in ratifying the Charter. Again, although this pledge is not in itself a code of law, it is the framework-indeed the only possible framework-on which any code of international law can be erected. Unless we can rely on the good faith of the United Nations to respect their pledge of peaceful settlement, all the legislative, administrative, and judicial machinery created by the Charter will be useless.
Suppose, however, that some nation chooses to forget its promise? Suppose some aggressor nation decides that war is the lesser of two evils? What does the Charter do to provide for this contingency?
Here, the other step-the political-has been taken by the United Nations. Just as our own Constitution requires the president to protect the republican form of government in the states, so the Charter imposes on the executive agency of the United Nations-the Security Council-the duty of enforcing peace by political and military action. This is the final and most drastic form of international cooperative action. We must, therefore, review and appraise the Charter from this fourth point of view to determine how effective an executive it has created.