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The Charter of the United Nations - A Commentary, Volume I (2012-11-22)

Interpretation of the Charter

Stefan Kadelbach

From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition)

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)

(p. 71) Interpretation of the Charter

Prof. Dr. Stefan Kadelbach

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Main Text

A.  Introduction

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.

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

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

Both positions encounter canonized objections. Whereas the positive law approach appears to overstate the self-contained character of law and to ne