I. Basic Assumptions
In the words of John Foster Dulles, "The United Nations Charter represents man's most determined and promising effort to save humanity from the scourge of war and to establish justice between the nations."(1) When the Charter was adopted at San Francisco on June 26, 1945, it carried the ardent hopes of the peoples of all the world. But the high hopes born then have not been fully realized.
This is due to two principal causes: First, many people tended to expect too much from the United Nations. They expected more from the United Nations than it is actually capable of doing. Secondly, many crucial provisions of the Charter were based upon the assumption that the wartime allies, the "great powers," continue their cooperation in working for peace as they did in defeating their common enemy. In actual fact, the Soviet Union has been pursuing policies contrary to the letter and spirit of the Chatter.
Now it is generally recognized that the United Nations is faced with great difficulties and that it is not possessed of the authority and effectiveness for which people had hoped in the post-war period. In their disappointment, they are inclined either to look backward to the old order, or to seek radical new solutions to their problems. In 1949, Professor Clyde Eagleton expressed the view that "Some of these critics tend to fall back on nationalism, or regionalism, or collective self-defense; others, in increasing numbers, would move in the opposite direction toward world government. The great majority of people, probably, accept the UN unthinkingly, but would like to see it operate more effectively, although without much effort on their part."(2)
This observation is very close to that made by Mr. Lincoln P. Bloomfield, Special. Assistant Secretary for International Organization Affairs:
There seem to be four well-defined extremities. At one edge are the proposals to terminate the UN as an unsuccessful and possibly dangerous experiment, or at least to withdraw our own participation. At another are proposals to convert it into a tightly knit military alliance, obviously by expelling the Soviet bloc. At the third extreme are proposals to transform the UN into some kind of super-state. And at the fourth extreme are the views of those who for varying reasons wish the status to re main absolutely "quo," who see the review conference at best as a "punctuation" exercise, and who would prefer that we not even think about Charter review.(3)
In the final analysis, one can see that the first three extreme proposals in Mr. Bloomfield's observation are not within the proper scope of a Charter review. The fourth extreme-the status quo-cannot be dismissed offhand. The anxiety underlying that position is genuine and in a way justifiable. As to professor Eagleton's observation, he himself came to the conclusion that progress toward strengthening the United Nations, or toward world government, must be made slowly, by gradual and, fur the most part, unimportant steps. "Each step will call for education of the people to its acceptance;" he noted, "each of these will build public opinion up to the point where the next step can be considered." He suggested that progress must be made by various short steps strengthening the UN rather than by an arbitrary attempt to replace it overnight with a stronger system. These short steps include "use of existing agencies," "development of usage," and "supplementary agreement on veto."(4)
II. Underlying Questions
The United Nations is a mere child of ten, dazzled with false hopes. As with all ten-year-olds, developmental problems have arisen and must be expected. It is important to examine the most fundamental issues involved in the development of this "war baby." Are weaknesses that exist in the organization inherent in the Charter? Are such things as the veto power actually expressions of reality? Constrained as we are by facts, are we able to say that it is possible to fit the Charter to the changing world?
III. Fundamental Issues
The United Nations has three major inter-related purposes: First, the maintenance of "international peace and security as set forth in Article I of the Charter; secondly, the attainment of peaceful change as set forth in Article 14; and thirdly, the promotion of "conditions of stability and well-being which are necessary for peaceful and friendly relations among nations" as set forth in Article 55. For giving effect to these objectives, the Charter envisioned the establishment of a machinery with more muscles and bigger scope than the League of Nations Covenant. The following observations deal with the most fundamental issues that will have to be faced by those who attempt seriously to improve existing institutions.
Peace and Security
According to the Charter (Article 24), the Security Council is supposed to exercise "primary responsibility for the maintenance of international peace and security." However, it is important to look at the United Nations in the total setting of present international relations. While recognizing that international organization has never been stronger, one must also recognize that the United Nations operates in a world in which the nation-state is still "king." It may be recalled that the San Francisco negotiations emphasized more on "sovereignty" (Article 2, paragraph 1) than on security. In drafting the Charter, it was apparent that the big powers would not be willing to commit themselves to armed action without their consent. Since only a handful of nations emerged from the war without being crippled by it, it was supposed that unless they were in agreement, action against an aggressor would be impossible. Seen from this perspective, the big-powar veto in the Security Council on enforcement action may be considered the cornerstone of the whole United Nations security system. Mere changes in the definition of the power or obligations under the Charter will not change the nature of the revolt in the United Nations or remove the threat to the human race. On the contrary, any drastic change in the Charter would inevitably lead to the wrecking or further weakening of the whole machinery.
The United Nations Charter provides for the maintenance of international peace and security and the prevention of war. It also provides for the machinery to implement those provisions. It is obvious, therefore, that the Charter has not stood in the way of maintenance of peace. On the contrary, it is the failure of certain nations, notably the Soviet bloc states, to do their part in implementing those provisions and living up to their obligations under the Charter which has weakened and paralyzed the Organization.
Modification of the veto power does not necessarily involve Charter revision. For instance, by the "Uniting for Peace" Resolution of 1950, the General Assembly has been put in a position to play a decisive role in relation to peace and security in the event that the Security Council is paralyzed by a veto. This is a good example of how procedure may be improved without making any change in the provisions of the Charter.
The important question is how we can continue to develop a truly effective machinery for collective defense against aggression within a world organization that takes the world as it is, not as we should like it to be. In this connection, one must ask how far the great powers are prepared to go and how much freedom of action the member states are willing to surrender in formulating more effective and automatic methods of collective security action. It is highly doubtful that the great powers will agree to any significant formal amendment of the Charter in this respect, but it is possible to pursue further the efforts which have already been made, especially under the Uniting for Peace Resolution referred to above, to arrange in advance for voluntary compliance with a United Nations recommendation for enforcement action. Much more can be done along these lines than most people suspect, even in the absence of formal agreements among the member states.
The Charter also provides for regional arrangements. It has been pointed out that regional ism would be the death of universalism. This view has been proved to be false. On the contrary, regional organizations can be a constructive step toward a broader amalgamation. Regional affinities should be utilized to accomplish tasks for which there is yet no basis at a more universal level.
Moreover, as Daniel S. Cheever and H. Field Haviland have noted, "Regional associations may serve to restrain the tensions between the United States and the Soviet Union. If regional associations do in fact acquire some measure of power and stability, they are less likely to be pawns in a global struggle for power. For some time to come regional and world organization will develop simultaneously."(5)
Peaceful Change
It is to be borne in mind that collective security must be considered in broad perspective. To the extent that the international community can devise means of effecting peaceful change, the burden on the security system may be reduced. The United Nations shows possibilities in these respects.
As against the provision of Article 19 of the League Covenant, the UN Charter (Article 24) stipulates:
... the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations.
Since the Charter was drafted, one quarter of the world's population has won independence and self-government without plunging the world into a state of war. While it is certain that severe international conflicts will continue to threaten peace, there have been grounds for hoping that these conflicts need not erupt into large-scale, devastating war. Especially since the aggression in Korea was checked, no power, big or small, feels that it can disregard its UN obligations with impunity. This is a marked change from the League. The UN serves as a restraining influence in the struggle for power.
In thinking about peaceful adjustment of any situation threatening the peace, one must bear in mind the new dimension which the problem has assumed today. More and more the questions arising out of the breakup of colonial empires and the dynamic drive of dependent territories toward self-government and equal treatment take the center of the stage in the UN. In spite of all its shortcomings, the UN system for supervising various trust territories has proved a useful instrument for raising the level of colonial administration through the prohibition of unilateral disposal of such areas and through regular international surveillance. The Trusteeship Council was designed to deal with these problems, and its composition was carefully balanced between nations with the responsibility of administration and nations without that responsibility. Apart from trust territories, there are many dependent territories administered chiefly by Western European and British Common wealth nations. Under Chapter 11 of the Charter, all colonial powers which are members of the UN have bound themselves to promote similar objectives in all their dependencies. While these many efforts have not been the only influences at work, they have helped to accelerate and guide the humanizing of colonial policies generally.
It is apparent that international peace can only be secured through a common rule of law. The UN is undoubtedly a legal or constitution al order in the sense that it is based upon a charter, i.e., a treaty or a constitution which authorizes it to do certain things and forbids it to do others. With a view to providing an accepted standard of international conduct, the Charter calls on the General Assembly to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification. However, little progress has so far been made in this respect. On the contrary, the UN has developed a political rather than a legal order. Decisions and recommendations of the Organization are more and more apt to be dictated by considerations of political expediency rather than by accepted international law.
But this situation cannot be redressed by a mere stroke of the pen. The fundamental issues are: First, what can be done to encourage the real development of international law in the face of the profound clash of "value systems" in the world? Secondly, how can we get a rule of law to which nations will subscribe in their best interests? To answer these questions, many suggestions have been made, such as the suggestion of universal acceptance of the Optional Clause without reservation as proposed by Professor Eagleton.(6) One thing, however is certain: that is, no change in the Charter as it now stands would be needed, for we can find no obstacles to the development of international law or to the rule of law in the Charter.
Stability and Well-being
In addition to its specific functions directed toward keeping the peace and conciliating political and territorial disputes among nations, the UN also devotes itself to promoting constructive cooperation for economic and social betterment of peoples. While it is clear that the overall UN economic and social system is fundamentally a continuation of the League system, it represents much that is an improvement on the League system. In essence, the chief strength of the UN system lies in its more positive and comprehensive objectives (Article 55), the greater importance of these activities in relation to the UN's security functions based on a clearer recognition of the interaction of the two fields (Article 65), the closer links to the full UN membership through the Assembly (Article 60), the broader range of Asian and other nations participating in the system (Article 68), the more thorough and competent direction furnished by a separate Economic and Social Council distinct from the Security Council and the more ample financial and personnel resources.
On the other hand, one of the defects of the UN system is that nations are loath to relinquish any more of their freedom of action than they think absolutely essential for their well-being. Consequently, the architects of the UN system led by the major powers, have given no formal binding authority to the Assembly, ECOSOC or the Commissions, although in actual practice their policies and action are frequently influenced by these bodies. Finally, the Members still contribute amounts that are insignificant compared with what they devote to national programs. These are the most basic weaknesses of the UN economic and social system.
In spite of all these imperfections, the UN has provided means for economic and social developments which have benefited a large part of the human race. With all this in mind, is there a better way of organizing the work of the UN and the specialized agencies to avoid duplication, confusion, lack of control and what might be called "organizational exacerbation of tensions?"
To the above question, the answer is that no change in the Charter or machinery would be required to achieve results; all that are needed are better coordination among the organs and more vigorous cooperative endeavor by the Member States.
All the issues dealt with in the foregoing paragraphs are questions of structure and procedure. The following analysis will deal with three issues of a substantive nature vital to the whole UN system.
Membership
The first concrete issue concerns the scope of membership. Article 4 of the Charter prescribes that membership is open to peace-loving states which accept the obligations contained in the Charter and are able and willing to carry out these obligations. This involves a divergence of view within the free world between those who favor universality and those who hold the view that membership in the Organization should be limited as prescribed in the Charter. Under such circumstances, one may ask: Does Article 4 set the desirable standards for admission?
Of course, both automatic admission and selective admission have their advantages and disadvantages. It is apparent, however, that no universality in the complete and literal sense will be likely at this stage. The Communist rulers do not respect the elemental decencies of international conduct. Therefore, they cannot properly be brought into the organized community of nations. That being so, one can see that at the present stage, Article 4 still provides the best possible standards for admission.
Domestic Jurisdiction
Article 2(7) of the Charter restrains the UN as a whole from intervening in matters essentially within the domestic jurisdiction of a state. This has become a prime issue. All the various forms in which the problem of "colonialism" presents itself are involved in it. Many powers contend that under the Charter, the UN has no right to discuss or decide such issues. Unfortunately, nations which are impatient with conditions elsewhere are increasingly inclined to overlook the distinction. This is a tendency which might endanger the whole foundation of the Organization. In the light of this stalemate, one may ask: Where should the line be drawn? Is it now adequately drawn?
To answer these questions, again I quote Messrs. Cheever and Haviland:
So far as amendment of the Charter's domestic jurisdiction clause is concerned, it is inconceivable that either the United States or the USSR, without mentioning others, would consent to any liberalization of this provision. The greatest danger is that some states may attempt to raise the domestic jurisdiction barrier even higher ... The decision regarding domestic jurisdiction should rest with the international community and not with individual states. As it now stands, domestic jurisdiction can bar UN interference in everything but the application of sanctions against aggression. The immediate problem is to hold ground already gained. The long-range problem is to build a broader sense of community so that national barriers will gradually be lowered to facilitate the solution of inter national problems. This would necessitate not only liberalizing the definition of "domestic jurisdiction" but giving international organization more authority to control the interpretation of such a definition.(7)
Disarmament
One issue which in a way overshadows all others is the question of disarmament. The Charter makes only one vague reference (Article 47) to this question because it was drafted in the "pre-atomic age." Since the Charter was adopted, there has been a vast development of possibilities of mass destruction, particularly in terms of atomic energy and nuclear weapons. The present arms race is unique in view of the unimaginable destructiveness of such modern' weapons. Every avenue to "the regulation of armament and possible disarmament" must be explored.
But the disarmament issue is not in its present stage of deadlock the result of any substantive defects in the Charter or because of the lack of a forum to negotiate. Real disarmament can come about only when it is in the interest of all to disarm. Agreement on disarmament is blocked by Soviet Union's refusal either to accept the UN plan, or to come forward with an effective plan of its own. Mere alterations in the Charter will do nothing to change the spots of the Communist leopard or enhance the prospect of successfully dealing with this monumental problem.
IV. Conclusion
If the above analysis is accurate, then our main object, so far as reviewing the Charter is concerned, should be to settle the various problems with means that are already at our disposal. The Charter has, of course, many imperfections. But in view of the present deadlock among the great powers in the Security Council, any improvement through revision of the Charter is impossible. In this sense, the UN Charter, despite its obvious shortcomings, remains the best possible instrument for advancing the purposes and principles for which it was created. Consequently, when we approach the problem of Charter review, we should recognize that the Charter as it is can be made to serve, and to serve well, the cause of inter national peace and justice. Many things could be accomplished simply by development of usage among members or by interpretation of the Charter. Agreements supplementary to the Charter may also be made among the members.
As Professor Eagleton has said, "The weakness of the UN lies not so much in its Charter, as in lack of support by its members."(8) Therefore, change of the Charter is not at the moment nearly so important as a change in the attitude of UN members. The most important step is therefore to develop a broader "sense of community" so that national barriers will gradually be lowered to facilitate the solution of international problems.
What was said by Mr. Gross makes a fitting conclusion, "Flexibility," he said, "is the life blood that sustains and perpetuates constitution Concepts as to the nature of the foundations of peace and freedom change. This underlines the advisability of letting the UN Charter evolve, little by little, case by case. The general principles will remain, as they should do in any constitutional system. The practice will change to suit new needs and meet new emergencies."(9)
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(1) John Foster Dulles. "United Nations Charter Review." The Department of State Bulletin, Vol. 30. No. 762 (February 1, 1954), p. 170.
(2) Clyde Eagleton. "Proposals for Strengthening the United Nations." Foreign Policy Reports, Vol. 25. No. 9 (September 15, 1949), P. 102.
(3) Lincoln P. Bloomfield, "Charter Review-Some Pertinent Questions," The Department of State Bulletin, Vol. 31. No. 796 (September 27, 1954), P. 448.
(4) Clyde Eagleton, op. cit., P. 102.
(5) Daniel S. Cheever & H. Field Haviland, Jr., Organizing for Peace (Houghton Mifflin Company, 1954), P. 828.
(6) Clyde Eagleton, op. cit., p. 109
(7) Daniel S. Cheever & H. Field Haviland, Jr., op. cit., p. 826
(8) Clyde Eagleton, op., cit., p. 111
(9) Earnest Gross, "Revising the Charter," Foreign Affairs, Vol. 32, No. 2 (January 1954), p. 216