5 August, 2021
By Jessica Honan – Research Assistant
The Charter of the United Nations, signed in 1945, is the constitutive instrument of the organisation, which provides for the powers invested in different bodies within the UN. For this reason, it is considered a foundation of modern international law. However, the language is – as with most UN documents – aspirational, and its often vague nature is conducive to broad interpretations. As a result, it has often been interpreted to confer a meaning beyond its express wording. Per the basic principles of treaty interpretation contained in article 31(1) of the Vienna Convention on the Law of Treaties (VCLT), the Charter’s interpretation should be done ‘in accordance with the ordinary meaning to be given to its term in their context, and in the light of its object and purpose’. The VCLT is not applicable to the Charter as treaty law, since the Charter predates the entry into force of the VCLT and law should not operate retrospectively. However, it is accepted today that the principles of treaty interpretation contained in the VCLT are reflective of Customary International Law (CIL). This means that parts of its content are crystalised into international law irrespective of its treaty status.
An example of the UN Charter operating beyond its ‘ordinary meaning’ is the accepted interpretation of the powers of the United Nations Security Council (UNSC). Over time, the UNSC has given itself power to practically engage in situations not expressly provided for by the wording in the Charter. This has been done by continuously expansively construing what constitutes a ‘threat to the peace, breach of the peace or act of aggression’ under article 39 of the UN Charter. If the UNSC determines there to be such a threat, it is empowered to make recommendations or take actions in accordance with the rest of the Charter. According to the Cambridge Dictionary, the ordinary meaning of ‘threat’ is a ‘promise to hurt’ and ‘peace’ is ‘freedom from war or violence’. Thus, the UNSC is empowered to determine those situations intending to injure another State or that disturb international tranquillity.
However, the UNSC has extended the scope of its power beyond actions that may cause war. For example, in a 1992 Note by the President of the Security Council, the Security Council acknowledged that threat to peace is more than promising violence or war, as ‘instability in the economic, social, humanitarian and ecological fields have become threats to peace and security.’ This interpretation is contrary to the ordinary meaning, as ecological and economic crises are not cognisant and thus cannot have ‘intent’ to injure. Therefore, the UNSC’s interpretation of article 39 is an indication of how the Charter has been interpreted contrary to its literal meaning.
The second branch of article 31(1) of the VCLT provides for provisions to be interpreted literally, but also within their context. Reading the UNSC’s article 39 powers within its context further indicates that the provision does not actually mean what State practice has accepted it to mean. For example, the determination of a threat is to be made by the UNSC to restore ‘international peace and security’. Read in conjunction with the Charter’s promotion of sovereignty in article 2(1), this indicates that the role of the UN – including the UNSC – is to preserve international peace whilst respecting States’ sovereignty. The UNSC’s interpretation of article 39 to include domestic crises is therefore inconsistent with the literal and contextual interpretation. For example, in Resolution 841 (1993) condemning Haiti’s political system, the UNSC was interfering with Haiti’s political independence, which does not respect Haiti’s sovereignty and is therefore beyond what it is empowered with under article 39 according to a literal interpretation.
A further example of the accepted interpretation of a Charter provision not following the ‘ordinary meaning’ of the words is the interpretation of article 2(4). This provision states that ‘All [UN] Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. Reading this literally, force is only prohibited in situations that fulfil the requirement of being against territorial integrity, political dependence of another country, or is inconsistent with the principles of the UN. This interpretation appears to contradict other provisions of the Charter, such as the article 51 right to self-defence which authorises force – including those that interfere with territorial integrity and political independence. This demonstrates the way a principle has been interpreted into the Charter, despite a contextual interpretation suggesting an alternate meaning.
In conclusion, some interpretation of the UN Charter has created situations in which the literal and contextual interpretation provided for in article 31(1) of the VCLT is overlooked in favour of interpretations that go beyond this interpretation. Given that this interpretation is different to the text which States consented to when joining the UN, the interpretation of the Charter beyond its literal and contextual meaning creates issues for the Principle of Consent. This underpinning principle of international law holds that States should be bound by obligations by which they have chosen to be bound. Interpretations that go beyond the original intentions of States seemingly pose issues for ensuring State consent is respected. Nonetheless, the UN Charter is sometimes interpreted in a way that extends beyond the intended meaning conveyed through context and words in the instrument.