Interpretation of the Charter
Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor)
- UN Charter — Treaties, interpretation — Vienna Convention on the Law of Treaties — Customary international law — United Nations (UN)
Prof. Dr. Stefan Kadelbach
- Alvarez JE, ‘Constitutional Interpretation in International Organizations’ in JM Coicaud and V Heiskanen (eds), The Legitimacy of International Organizations (UN UP 2001) 104.
- Amerasinghe CF, Principles of the Institutional Law of International Organizations (2nd edn, CUP 2005).
- Aust A, Modern Treaty Law and Practice (2nd edn, CUP 2007).
- Claude I, Swords into Plowshares (4th edn, Random House 1971).
- Corten O and Klein P (eds), Les Conventions de Vienne sur le Droit des Traités. Commentaire Article par Article, vol 2 (Bruylant 2006).
- Dörr O and Schmalenbach K (eds), Vienna Convention on the Law of Treaties. A Commentary (Springer 2012).
- Engel S, ‘“Living” International Constitutions and the World Court (The Subsequent Practice of their Constituent Instruments)’ (1967) 16 ICLQ 865.
- Fassbender B, The United Nations Charter as the Constitution of the International Community (Nijhoff 2009).
- Gardiner RK, Treaty Interpretation (OUP 2008).
- (p. 72) Hexner E, ‘Teleological Interpretation of Basic Instruments of Public International Organizations’ in S Engel and R Métall (eds), Law, State, and International Legal Order—Essays in Honor of Hans Kelsen (U Tenn P 1964) 119.
- Johnstone I, ‘Treaty Interpretation: The Authority of Interpretive Communities’ (1991) 12 Mich J Intl L 371.
- Kolb R, Interprétation et création du droit international (Bruylant 2006).
- Kunig P, ‘United Nations Charter, Interpretation of’ MPEPIL (online edn).
- Macdonald RSJ, ‘A Short Note on the Interpretation of the Charter of the United Nations by the International Court of Justice’ in N Ando (ed), Liber Amicorum Judge Shigeru Oda, vol 1 (Kluwer 2002) 177.
- Malone DM, ‘The Security Council in the Post-Cold War Era: A Study in the Creative Interpretation of the UN Charter’ (2003) 35 NYU J Intl L & Pol 487.
- McNair AD, The Law of Treaties (OUP 1961).
- Orakhelashvili A, The Interpretation of Acts and Rules in Public International Law (OUP 2008).
- Pollux, ‘Interpretation of the Charter’ (1946) 23 BYIL 54.
- Rama-Montaldo M, ‘Contribution of the General Assembly to the Constitutional Development and Interpretation of the United Nations Charter’ in RSJ Macdonald and DM Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Nijhoff 2005) 493.
- Ress G, ‘The Interpretation of the Charter’ in B Simma (ed), The Charter of the United Nations (2nd edn, OUP 2002) (cited as Ress on Interpretation (2nd edn)).
- Schachter O, ‘Interpretation of the Charter in the Political Organs of the United Nations’ in S Engel and R Métall (eds), Law, State, and International Legal Order—Essays in Honor of Hans Kelsen (U Tenn P 1964) 269.
- Schermers HG and Blokker NM, International Institutional Law (4th edn, Kluwer 2003).
- Sevastik P, ‘Reflections on the Interpretation of the UN Charter and its Binding Force’ in D Amnéus and K Svanberg-Torpman (eds), Peace and Security—Current Challenges in International Law (Studentlitteratur 2004) 23.
- Simon D, L’interprétation judiciaire des traités d’organisations internationales (Pedone 1981).
- Sinclair I, The Vienna Convention on the Law of Treaties (2nd edn, Manchester UP 1984).
- Skubiszewski K, ‘Remarks on the Interpretation of the United Nations Charter’ in R Bernhardt and others (eds), Völkerrecht als Rechtsordnung. Internationale Gerichtsbarkeit. Menschenrechte, Festschrift für Hermann Mosler (Springer 1983) 891.
- Sohn LB, ‘The UN System as Authoritative Interpreter of its Law’ in O Schachter and C Joyner (eds), United Nations Legal Order, vol 1 (CUP 1995) 169.
- Torres Bernárdez S, ‘Interpretation of Treaties by the International Court of Justice Following the Adoption of the 1969 Vienna Convention on the Law of Treaties’ in G Hafner and others (eds), Liber Amicorum Ignaz Seidl-Hohenveldern (Kluwer 1998) 721.
- Villiger ME, Commentary on the 1969 Vienna Convention on the Law of Treaties (Nijhoff 2009).
- Watson GR, ‘Constitutionalism, Judicial Review, and the World Court’ (1993) 34 Harv Intl LJ 1.
1 The interpretation of the Charter is a cognitive process which precedes any act of application and thus any attempt to fill its institutional design with life. The line is difficult to draw, the more so since practice is often intuitive and does not necessarily result from an intentional act of interpretation. In general treaty law, however, interpretation and application are distinct concepts. Interpretation is an intellectual exercise whereas application transforms a rule into social facts. Both are supposed not to modify the obligations agreed upon in a way which amounts to an amendment. Practice, interpretation, and modification are interdependent. Application implies interpretation, but consulting (p. 73) practice is also a means to enquire into the intentions of the parties.1 Practice often takes a direction which was not envisaged at the time the treaty was negotiated, thus raising the question when the border to revision is transgressed (Arts 108 and 109 UNC), but it also influences the interpretation of what undue modification may be. Rules on Charter interpretation are thus supposed to answer the questions as to how to indicate in which directions the practice of the UN may develop, to identify the line between concordant practice and ultra vires acts, and in whose power it is to resolve doubt and conflict.
2 In order to address these questions, four different approaches are taken. The first of them corresponds with classical positivism and is found in the early Charter commentaries. Accordingly, there is a spectrum of possible results of interpretation, and to leave this spectrum is only permitted if the formal revision procedure is followed. The tools for interpretation are provided by general international law, and it does not make a fundamental difference whether they are applied to a bilateral agreement or to the constituent instrument of the UN.2
3 By contrast, the second tradition of thought propounds more or less strong versions of international constitutionalism.3 Such notions start from the assumption of unity in international law and suppose that some of its norms are placed on a higher rank. International law would have to be interpreted against the background of norms of such a constitutional character. Along these lines, the Charter may be seen as the most important, if not the only, source of international constitutional law.4 Here, two variants can be discerned, one taking the whole of international law as a constitutional system, whereas the other would concentrate on the Charter alone as the ‘higher law’,5 as expressed in its primacy clause in Art. 103 UNC.6 One of the consequences of such a constitutionalist approach on interpretation might be that practice of the UN institutions could be checked against their ‘constitution’.7 Another possible outcome, even though rarely expressly stated, would be that interpretation itself is informed by constitutional law principles,8 whatever this means in specific cases. In all variants of constitutionalism, (p. 74) interpretation is rather guided by an idea of an ‘objective’ existence of the constitutional instrument than by the motive to identify the original intentions of the parties.9