Reconstructing Article 109(3) of the UN Charter: Towards Constitutionalisation of the United Nations and International Law

ABSTRACT

By critically assessing the discourse, intent and teleology of the United Nations Charter when the text of the instrument was being finalised in 1945, this thesis argues that the majority of the world's states gathered at the UN Conference on International Organisation in San Francisco were aware of the fact that the core provisions of the treaty were being dictated by the five permanent members of the Security Council. Nevertheless, these states accepted the Charter in its current form in return for the promise of a more democratic UN in the future. This qualified acceptance was manifested in Article 109 of the Charter and, more specifically, in that article's paragraph 3, which provided for a facilitated Charter review in ten years' time.

Recognising that globalisation has outpaced fragmented state-centric global governance, and that world-wide threats in areas such as the violation of human rights, climate change, armed conflicts, and the use of conventional and nuclear weapons continue to exist, this thesis argues that elusive global governance and its instrument of international law are, in the absence of a global government, ill-equipped to deal effectively with these borderless problems.

Bridging the governmental gap, however, the UN Security Council, with its monopoly on the use of force in order to maintain "peace and security" under Chapter VII of the Charter, has demonstrated erratic and unplanned competencies. In fact, in the past 25 years, the Council has deployed its auto-interpreted expanded powers in the diverse areas of court-making, law-making, defining criminality and sanctioning non-state actors as criminals. It has even involved itself in the settlement of tort claims, awarding damages to individuals and corporations. The Council has, in effect, emerged at the apex of the legal order and has shown its capacity to legislate globally.

The founders, when drafting the Charter, were aware of the democratic and legitimacy deficiencies of the Council and, in order to redress them, and to apply the experiences learned during the UN's first years of operation, provided for a revisions process, including the holding of a Charter review conference, as enshrined in Article 109.

Why the UN has never in its 70-year history held such a review conference, and whether paragraph 3 of Article 109-neglected by researchers and politicians-is still in force, are at the core of this thesis's analysis. It will be argued that, if such a review conference is convened now, it would most likely trigger the process of UN constitutionalisation, and thus help transform the UN, so it can ultimately fulfil the objectives set out in the Charter's preamble-including guaranteeing and the protecting the fundamental rights of "we the peoples".