UNITED NATIONS CHARTER 59 Stat. 1031 (1945)

The United Nations Charter, a multilateral treaty which serves as the "constitution" of the United Nations Organization, was drafted in San Francisco at the United Nations Conference on International Organization in 1945 and ratified by fifty-one original member states. Like the Constitution of the United States, the charter has proved to be a flexible instrument subject to broad interpretation.

The charter was ratified by the United States Senate, 89–2, and it became law, binding both internally and externally, when it entered into force on October 24, 1945. Treaties, properly executed and ratified, are international law, at least formally, and in the United States they also are domestic law by virtue of the supremacy clause of Article IV of the Constitution.

Despite the charter's nearly unanimous endorsement by the Senate, it was eagerly suggested that, in removing the right of the United States to go to war at will and in authorizing the Security Council to commit the member states to war in certain circumstances, the charter improperly delegated to the United Nations powers and functions belonging to the federal government, including the power to declare war, vested in Congress, and the power to conduct war, vested primarily in the President as commander-in-chief.

Congress and the President are not, however, deprived by the charter of the powers to declare and conduct war, only of the right to exercise these powers in contravention of international law (including the charter). All treaties, the charter included, limit only the international legal right—not the constitutional authority—of states to do freely that which is within their power to do freely in the absence of a treaty. Moreover, as a sovereign nation, the United States has the final authority to decide how it will comply with the particular terms and requirements of a treaty; and as a permanent member of the Security Council, the United States retains, in any event, an absolute veto over any action that would commit the United States to unwelcome policy. When Congress and the President act to comply with their charter obligations, in accordance with the United Nations Participation Act of 1945, they do so pursuant to the treaty power and to their more general foreign affairs powers.

Another, more recent, matter of constitutional concern is the question of whether United States courts, state and federal, are bound by the human rights clauses of the charter and related instruments, such as the Universal Declaration of Human Rights. The United States Supreme Court has never addressed the question of whether the charter's human rights provisions are self-executing in the United States; lower courts have answered that question in the negative.

Burns H. Weston
(1986)

Bibliography

Cahill, J. 1952 "The United Nations Charter as Law of the Land." Albany Law Review 15–16:51–57.

Charter of the United Nations and Statute of the International Court of Justice. Office of Public Information, United Nations, New York.

Goodrich, M. and Hambro, E. 1949 Charter of the United Nations: Commentary and Documents. Boston: World Peace Foundation.

Henkin, Louis 1972 Foreign Affairs and the Constitution. Mineola, N.Y.: Foundation Press.