International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Summer 2010 Issue

Historic Moments in International Law


The United Nations Charter in Historical Context

Edward J. Kolla, Ph.D.By: Edward J. Kolla, Ph.D. candidate, The Johns Hopkins University

The signing of the United Nations Charter in San Francisco in June, 1945, was a watershed moment in the history of international law and was the result of both relatively contemporary and longer-term trends. In considering the Charter’s first and most essential aim, to “maintain international peace and security” (article 1.1) especially, it is necessary to go back over a hundred years to understand the precedents and context with which the architects of today’s most important international organization were grappling. 

The most immediate motivation for the creation of the U.N. was “to save succeeding generations from the scourge of war,” just the kind of war in which Allied powers were then embroiled, and “and to reaffirm faith in fundamental human rights” (preamble) which were being so flagrantly and brutally violated by the Axis. Even before the United States entered the conflict, in his 1941 State of the Union address President Franklin Roosevelt identified “four freedoms” which ought to be accorded to all people – freedom of speech, of religion, from want, and from fear. This declaration was a none-too-subtle indictment of fascist and militaristic governments, and highlighted the belief of many western, liberal powers that basic rights and international peace and security were intimately linked. Such a belief also inspired the Atlantic Charter, signed between a still technically neutral U.S. and Great Britain, on 12 August 1941, which was even more specific in elaborating a vision of international relations in which states would not aspire to aggrandizement, territorial or otherwise (Article 1), territorial changes would not occurr that did not accord with the freely expressed wishes of the people concerned (Article 2), and the use of force was abandoned as means to resolve international disputes (Article 8). This last ideal was ultimately enshrined in one of the U.N. Charter’s most celebrated (and disputed) articles, “Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state,” (Article 2.4).

These principles did not spring from the national traditions of Allied powers or from the viciousness of the Second World War alone. As the Charter explicitly stated, “twice in our lifetime [war] has brought untold sorrow to mankind.” Both the unparalleled (until that time) slaughter of the First World War and a sense of the meaninglessness of such carnage had motivated an earlier attempt both at international organization and the creation of legal instruments to regulate or even ban the use of force. A previous U.S. President had been instrumental in those efforts, as well. Woodrow Wilson’s famous “fourteen points” included a call for the creation of “a general association of nations” to provide “mutual guarantees of political independence and territorial integrity to great and small states alike” (point 14) which was ultimately manifested in the League of Nations. Although Wilson had not called for an outright ban on offensive warfare, the aftermath of the First World War inspired that, too. The Kellogg-Briand Pact, otherwise known as a treaty “providing for the renunciation of war as an instrument of national policy,” was signed on 27 August 1928 and ultimately ratified by most western powers. It “solemly declare[d] in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.”

Of course, both the League of Nations and the Kellogg-Briand Pact failed spectacularly in their most basic purposes. This failure, however, did not cause statesmen to abandon the ideals to which the League and Pact had strived but rather to devise means to make those ideals achievable and enforceable – and in this regard, both the spirit and the letter of the U.N. Charter reflected principles that predated the twentieth century.

By 1939, there was a clear recognition that the League had failed for a number of reasons. It had not imposed clear obligations on states, either to observe its provisions or, once violations had occurred, to enforce them. The League was therefore hobbled both by the wicked and the greedy, and by the disinterested, the cowardly, and the weak. In particular, the absence of the U.S. and other major powers had undermined both its legitimacy and its ability to put its principles into force. Roosevelt intended to remedy these flaws. Soon after the U.S. formally entered the war, after the surprise Japanese attack on Pearl Harbor on 6 December 1941, he gathered together all the powers of the anti-Axis alliance in Washington to accede to the principles of the Atlantic Charter in a “Declaration by United Nations.” He wished to have as many countries as possible present, in obvious recognition of the failure of the League to achieve solidarity. These “United Nations” pledged the complete destruction of the Axis powers and vowed that they would not conclude separate peace agreements. The former point was an acknowledgement that the Paris peace settlement after the First World War had not clearly enough emphasized the victory of the western powers, itself undermining the entire and ultimately doomed postwar arrangement. The latter point, however, harkened back to the coalition which, following earlier fissures and failures, successfully defeated Napoleonic France in 1814-15 after they agreed by the Treaty of Chaumont on 9 March 1814 to preserve their alliance until Napoleon’s total defeat.

Roosevelt was particularly keen to have other great powers join the “Declaration” – illustrated by the fact that the U.S., Britain, China, and the Soviet Union all signed dit one day at the White House, and 27 “lesser” states did so at the State Department the next day. (Also, the great powers were listed first with all others afterwards in alphabetical order.) The original Atlantic Charter had clearly indicated that the implementation of its provisions would be Anglo-American, but with the Soviet Union and China enlisted, Roosevelt became to speak of these “four policemen” enforcing the new world order. It is no coincidence that these four powers (and eventually France) were given permanent seats on the U.N. body made most responsible for the preservation of peace and security, the Security Council. Under the U.N. Charter, the Security Council is the only body which can undertake military “action by air, sea, or land forces as may be necessary to maintain or restore international peace and security” (Article  42) – although states also retain their right to self-defense (Article 51) – and it is also the only U.N. organ the decisions of which are binding on all members (Article 25). But because great responsibilities come with great rights, these permanent members were given the ability to veto any Security Council action or debate. All the great powers articulated the need both to give themselves permanent membership on Council and the ability to prevent decisions they might find unpalatable, but the Soviet Union in particular was uncompromising in its desire to jealously guard its interests. Thus, while the U.N. Charter proclaimed “the principle of the sovereign equality of all its Members” (Article 2.1), it also explicitly gave five great powers greater rights and responsibilities than the rest. This recognition that all-states-are-equal-but-some-states-are-more-equal-than-others was necessary to avoid repeating the failures of the interwar period, but it also enshrined in law the political arrangement that followed, again, the defeat of Napoleon. Then, the Quadruple Alliance of Austria, Britain, Prussia, and Russia had continued to dominate European affairs after 1815 through the Concert System, and enjoyed the “right” of intervention in the affairs of smaller states in the interest of maintaining overall stability through the suppression of such destabilizing forces as liberalism and nationalism.

The Concert System remained in operation and the Quadruple Alliance retained a (relatively) common purpose until the Crimean War in the 1850s, and some would say it averted general European war for a hundred years, until 1914. The U.N., in contrast, was paralyzed almost from the start by the developing Cold War. The alliance of the victors of the Second World War very quickly dissolved, with the result of the Security Council veto being wielded, for the most part, to defend each side’s interests. Only since the fall of the Berlin Wall has the Security Council operated in a manner loosely in line with its founders’ intentions. Whether it will surpass the Concert System, the likeness of which it bears striking if seldom-noticed resemblance, in number of years preserving general peace and security is yet to be determined.   


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