General International Law and the United Nations Charter

Abstract

At STUDY of the relations between general or universal international law, binding upon all States, and the Charter of the United Nations seems at first sight to be a very simple question. For the Charter was agreed upon in the form of an international treaty binding on the basis of general international law. It therefore pre-supposes the continued validity of general international law; a thesis supported by the presupposition that its Members are subjects of international law. The continued validity of general international law is, in fact, expressed in the Charter itself. In the preamble, the United Nations undertake to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. In Article I, paragraph I, the United Nations agree to settle their disputes in conformity with the principles of justice and international law. The same idea is found in Article 38 of the Statute of the International Court of Justice, itself an integral part of the Charter. The Charter is not a worldwide treaty, having been neither concluded, nor recognized, by all States: 6o States are Members of the United Nations, and 27 are not. There seems no doubt, therefore, that the Charter of the United Nations must be regarded as particular international law within the framework of general international law. Nevertheless the relationship of general international law and the Charter is much more complicated than it seems to be for the following reasons. First, many problems of general international law, which before the second world war were still matters of controversy, are solved in the Charter. The most important of these is the problem of the sources of international law. Before the Charter was ratified, the question whether the general principles of law recognized in Article 38 of the Statute of the Permanent Court of International Justice were rules of international law binding upon all States, or whether this Article authorized the Court only to apply these principles on the basis of its Statute, was much disputed.' This controversy is now clearly settled by Article 38 of the new Statute. While the old Statute simply said that the Court 'shall apply' the rules of law, the new Statute provides that the Court 'whose function is to decide in accordance with international law . . . shall apply': (a) international conventions, (b) international custom, and (c) the general principles of law recognized by civilized nations. The additional words 'whose function is 1 A. Verdross, 'Les Principes G6n6raux du Droit Applicables aux Rapports Internationaux', Revue GInurale de Droit International Public, vol. 45 (I938), p. 44. 342