Is the UN Charter a World Constitution?

                                                                   
March 1, 2010

Sir Michael Wood provides an insightful approach to the UN system. He argues that the analogy between domestic constitutions and the constitution (Charter) of the UN system, is misleading. He argues that the analogies are not accurate, and that the UN has a sui generis structure. He asserts (i) that the term constitution has no particular meaning in international law. He further contends (ii) that it is not possible to compare the whole idea of checks and balances of domestic constitutions with the UN system. Finally, he argues that (iii) the international community has little in common with societies within States.

However, Sir Michael Wood does not provide a single persuasive argument in support of his conclusion. I think, on the contrary, that the UN charter is a constitution analogous to domestic ones, but of course, different in nature and scope to them.

The analogies are evident: First, generally speaking a constitution is designed to constrain, limit and distribute power and functions among the different institutions and members of an organization, whether a political body, a corporation, or a non-for-profit foundation. The Charter effectively distributes powers and functions among its different institutions and bodies. That is a fact.

Second, Sir Wood argues that checks and balances do not work in the UN in the same way they do at the domestic level. He takes for granted that domestic constitutions clearly limit and define the boundaries of the different branches of powers, thus enhancing the checks and balances structure of a state. On the contrary, he argues, the UN does not have that clear definition, and even some scholars have argued that the SC has assumed judicial or legislative functions. If that is the case we can plainly ask “So what?”

Constitutional engineering is tough, and politicians and lawyers have clearly learned throughout centuries that a strict separation of powers is never possible in a modern state. The executive branch often acts as a legislator, the courts often take decisions that can affect laws that affect macroeconomic policies adopted by the legislature or the executive branch, the legislature in some cases acts as a judicial body (in impeachment cases), etc. Even European scholars -with Zagrebelsky as the leading scholar on the field- have been developing, a new theory of cooperative interaction between branches of power, and not just of clear cut opposition or reciprocal control between them. Thus, the lack of clear delimitation of boundaries is not just a difference between the UN system and domestic constitutions, but an additional similarity.  

Third, with regard to the international community, I don’t see why it has “little in common” with domestic society as the author suggests. International community is formed by constituents of different states, just as domestic society is formed by individuals. Further, international human rights’ courts are starting to recognize the capacity of individuals to go directly to the courts, without the aid of any particular state or international body or organization. Furthermore, a new citizenship is in process of formation. Domestic citizenship is being eroded and will be in some near future substituted by regional or global citizenship. That also looks strikingly similar to the process that nation states had to go through, and are still going through, in some cases.

The point is, in conclusion, that the UN legal system is a relatively new political structure, and thus is going through a slow yet inevitable process of transformation and definition, where the main aim of the great majority of the member states and the constituents of those member states is the prevention of war, conflict, the rule of law, and in general, the constraint of power. The UN Charter is, put this way, the social contract adopted by states in order to prevent the scourge of war. The new Leviathan is the UN, which enjoys of a military arm to ensure that its decisions are respected, and that peace is not breached.