Zsófia Hajnal Written and Unwritten Values in the Preamble of the

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Zsófia Hajnal
Written and Unwritten Values in the Preamble of the United Nations
Charter – The Axioms of Human Coexistence and Progress
I.
Introduction
The aim of this study
In my paper I examine the Preamble of the United Nations Charter 1 , with special
emphasis on its written – and unwritten, but intrinsic – values.
The paper is based on theory. No practical analysis of the United Nations Organization
is involved, neither about its structure, nor on its operation in the past and present. In
my paper the focus is on a single document, the Preamble, and on a sequence of events
which led to its creation.
My goal is to revive the past regarding the motivations and philosophies which were
present at the foundation of the United Nations, because I see the Preamble as the focal
point of our knowledge about global values. What has led to its birth was more than the
experience of two world wars. The values in the Preamble show an imprint of
philosophical thoughts more than a thousand years old, but the text itself looks rather
into the future. This fact resonates with a quote of Sumner Welles. The former
American diplomat suggested that to create the post-war international order the world
needed „men who have their eyes on the stars but their feet on the ground”2.
Hypothesis
The values mentioned in the Preamble form a system, which originates from three basic
unwritten values. The text is like the tip of an iceberg3: there are means and ends listed,
but the system-context remains hidden.
Although the values possess an intrinsic timelessness, I find it timely to re-examine
them at this point of human history. Again and again we face the questions where we
are from, where we go, and what the meaning of our progress is. The history of
international relations seems young compared to the history of humankind, however, it
is time for international relations experts and the international community to ask the
same questions with respect to the international level. In my opinion, global values and
their history hold the best answers to these questions.
What helps in getting familiar with the value system is examining the events which
occured directly before the Preamble’s drafting and examining the preceding long-term
historical trends. The United Nations value system has a starting point and a goal with
many connections in between. In this complex „chain” of values I analyze the
relationship between morality and law, security and freedom, individual and
community, and between progress and the pursuit of happiness. But before the analysis,
the reader will acquire a general knowledge about preambles, a relevant historical
awareness and a knowledge about the legal context.
1
Preamble of the United Nations Charter: http://www.un.org/en/documents/charter/preamble.shtml
Spijkers, Otto [2011]: The United Nations, the Evolution of Global Values and International Law.
Intersentia Ltd, Cambridge, United Kingdom; p. 68.
3
Balázs Fekete, a Hungarian scholar in law uses the same expression for preambles in a 2014 study.
2
Methodology
My paper is multidisciplinary. It contains methods and approaches of international law,
history and philosphy separately and combined as well.
The analysis takes place in a qualitative frame, containing comparative elements. After
summarizing the relevant literature, I examine the implications for the given chapter.
Presenting the genre of the Preamble will happen as follows: After a definitional
comparison I analyze preambles’ form and content, applying my observations to the
U.N. Charter’s Preamble. What helped me most in writing about the genre were the
articles of Liav Orgad4 and Makane Moïse Mbengue5.
When writing the chapter about the creation of the United Nations, its historical
background and the steps which led to the wording of the U.N. Charter’s Preamble, I
was relying – among others – on Stephen C. Schlesinger’s book6 and Jean-Pierre Cot’s
article7. It is in this chapter that I examine the imprint of historical events on the text of
the Preamble, and this is where I look deeper behind the founders’ intentions and
present their philosophies.
When getting to the legal aspects, Hans Kelsen’s critical approach plays an emphasized
role. As for the research methods in this section, I used a former group-experiment and
the comparison of other international legal documents’ preambles as well.
All the above mentioned methods prepare the reader for the last main chapter, which is
more comprehensive and somewhat adventurous. While in the first three parts a
descriptive perspective is used, this chapter is concentrating on the concepts and is
testing the hypothesis. Here I look at the values of the Preamble. The study of Otto
Spijkers which I will often refer to (The United Nations, the Evolution of Global Values
and International Law) was the basis for this part. Through my systematization and
through putting the unwritten values in the value context, the reader will understand the
newly discovered connections. I aim to reach this mainly by separating the values and
levels of individual and community, and by finding out what unites these two. My
approach is somewhat close to the teleological interpretation of international contracts,8
as it is researching aims, but this paper goes even deeper, beyond researching the
founders’ intentions.
Theoretical approach
Examining global values makes one tempted to lean towards idealism, especially when
reading the eloquent words of the significant works in this field. Elements of the liberal
and neoliberal school9 can be found in my paper, yet I am trying to keep the balance,
4
Orgad, Liav [2010]: The Preamble in Constitutional Interpretation. International Journal of
Constitutional Law, October http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1686745
5
Mbengue, Makane Moïse: Preamble, September 2006, Max Planck Encyclopedia of Public International
Law
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e1456?rskey=b9QT73&result=29&q=contract%20interpretation&prd=EPIL
6
Schlesinger, Stephen C. [2003]: Act of Creation. The Founding of the United Nations. Westview Press,
Cambridge, US.
7
Cot, Jean-Pierre: United Nations Charter, History of, 2011. April, Max Planck Encyclopedia of Public
International Law http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e541?rskey=nhuGUG&result=5&q=&prd=EPIL
8
Kardos, Gábor; Lattmann, Tamás [2010]: Nemzetközi jog. (International Law) ELTE Eötvös Publisher,
Budapest; p. 84.
9
Szörényi, András [2009]: Kiindulópontok a nemzetközi kapcsolatok elméletében a nem állami szereplők
természetének és szerepének értelmezéséhez. (Starting points in International Relations Theory to
2
and to stay objective despite the eloquent topic. In this context, a crucial point is
standing up for the objectivity of values, and within that for morality, which is the
„hallmark”10 of natural law.
My jurisprudencial approach is that of natural law, but this does not mean a
commitment to any special discipline within natural law. Natural law is neither a
starting point, nor a destination in my paper, but the created value-system is
underpinning the most basic idea of natural law disciplines: that basically, law stems not
from the people, but somewhere „above”. However, I treat the terms in this field very
cautiously. and I am not arguing against that law would stem from human nature, or the
nature of society. By no means would I approach the related questions of religion. Thus,
although the approach from the natural law perspective becomes clear in the last main
chapter, natural law is not a central theme.
Integrating the philosophy of the United Nations into a unified system has made writing
the final chapter a great challenge. My cosmopolitan worldview has helped me much
(the reader will learn in more detail about cosmopolitanism in the following chapters).
In many parts of the world, the cosmopolitan view has been accepted, and there are far
more „cosmopolitan philosophers” than in the age of Diogenes.11
At two points, my paper examines the connection between preambles and the
constitutionalization of international law, thus the constitutionalist discipline is another
basis of the research. Legal research projects in general do not use only one theoretical
or methodological approach12, therefore I find my eclectic, yet logical approach to be
correct.
II.
The preamble as a genre
In order to deal properly with the contents of the U.N. Charter’s Preamble, it is worth
learning about the genre itself. Relatively few scholars have been dealing with
preambles – the topic is considered especially understudied in comparative
constitutional law 13 – however, the few existing works about preambles are fairly
detailed.
The Latin praeambulus word is the origin of the English word preamble, and means
„going before”. 14 Here I would mention another Latin expression, which is used in
connection with preambles: captatio benevolentiae – meaning that preambles are
attempts to earn the readers’ goodwill.15 Preambles always stand at the beginning of
understand
the
role
and
behaviour
of
non-state
actors)
December,
Grotius
http://www.grotius.hu/doc/pub/DLNNSK/2009_160_szorenyi_andras_%20elmeleti_iskolak.pdf
10
Cryer, Robert; Hervey, Tamara; Sokhi-Bulley, Bal [2011]: Research Methodologies in EU and
International Law. Hart publishing, Oxford and Portland, Oregon; p. 36.
11
Spijkers [2011] p. 6.
12
Cryer, Hervey, Sokhi-Bulley [2011]; p. 14.
13
Foti, Nick; Ginsburg, Tom; Rockmore, Daniel [2013]: „We, the peoples”: The Global Origins of
Constitutional Preambles. University of Chicago Public Law and Legal Theory Working Paper 447.
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1438&context=public_law_and_legal_t
heory
14
Google, word origin.
15
Antal, Attila [2011]: A Preambulum ornamentikája és közjogi ereje. (The ornamentation and public
power of the Preamble) In: Az alkotmány arca. Preambulum tanulmányok. (The face of the constitution.
Preamble-studies) Méltányosság Politikaelemző Központ (Méltányosság Center of Political Analysis),
L’Harmattan [2011], Budapest.
3
contracts, conventions, constitutions or charters (the syllable „pre” in their name is
reffering to this), their title is usually „Preamble”, but the words prolog, prolegomena16
are also in use. Their content varies in time and space, i.e. historically and
geographically.
Definition
The Encyclopaedia Britannica defines preambles as follows: „The preamble provides
the names and styles of the contracting parties and is a statement of the treaty’s general
objectives.”17 This definition fits the U.N. Charter’s Preamble, even if the contracting
parties are introduced in only seven words („We the peoples of the United Nations…”).
We can read in more detail about the concept of the preamble in legal encyclopidae. An
article of the Max Planck Encyclopedia of Public International Law reads: „Both
bilateral and multilateral treaties may contain a preamble enumerating the contracting
States involved in their conclusion. A treaty’s preamble defines, in general terms, the
purposes and considerations that led the parties to conclude the treaty. (…) The
preamble may also incorporate the parties’ motivations for concluding the treaty by
describing the foundation of their past, present, and future relations in so far as it
relates to the treaty. Preambles are thus indicia of the intention of the parties to a
treaty.”18 Concerning past relations, a single line in the Preamble of the UN Charter
refers to them, summarizing the relations of the signatory nations quite succinctly: „…
to save succeeding generations from the scourge of war, which twice in our lifetime has
brought untold sorrow to mankind…”. Since we are discussing a multilateral treaty, a
more detailed description of past relations would have caused difficulties in complying
to the spatial limitations.
The third and most relevant description of the preamble is to be found in the
Encyclopedia of the United Nations and International Relations. In the article
„Preamble” it reads: „The introduction to legal acts (e.g. to a constitution, or a treaty)
explaining the reasons and conditions of preparing the act or of concluding the treaty.
The importance of a preamble depends on its precision in formulating the principles of
the treaty. Under the influence of an extremely well-balanced preamble to the Charter
of the United Nations and similar preambles to various other conventions elaborated by
the Committee on International Law of the United Nations, the importance of preambles
for the interpretation of the agreement’s text has significantly increased in the second
half of the 20th century.”19 This definition suits the Preamble of the United Nations
Charter as well, moreover: it is actually based on it.
Although preambles are not compulsory elements of national constitutions and
international treaties, they may be needed because of their form and content.
A short history of preambles – from the beginning until 1945
The concept of preambles existed already in Plato’s time, around 400 BC. In his
dialogue titled Laws, Plato gives a thorough analysis of this concept. According to him,
16
Silagi, Michael: A német alaptörvény preambuluma: a preambulumok alkotmányos helyzete és
jelentősége a német jogban. (The preamble of the German Basic Law: the contitutional state of preambles
and their importance in German law) In: Lamm, Vanda [2011]: Preambulum az Alkotmányokban. (The
preamble in Constitutions) CompLex, Budapest.
17
Encyclopedia
Britannica
Online,
search:
„preamble”
http://www.britannica.com/EBchecked/topic/603884/treaty#ref236133
18
Mbengue [2006].
19
Osmanczyk, Edmund [1990]: The Encyclopedia of the United Nations and International Relations.
Taylor & Francis, New York; p. 711.
4
every law (or treaty) should have a preamble.20 The discussion of preambles continued
after Plato, but preambles came only slowly into „fashion” in practice. Diocletian was
the first Roman emperor to use a preamble, in one of his edicts (in 301 BC).
Characteristics of the Latin and Early Medieval preambles are: originating the political
power from God, emphacizing the paternal care for the subjects, and enumerating the
memories about historical events. From the Late Middle Ages, already thousands of
preambles are available, as of when the enumeration of the ruler’s virtues became a
constant pattern.21
Leo VI, Byzantine emperor (866-912 AD) was a very important ruler from the
viewpoint of this paper. In his preambles he identified the law, and not himself, as the
caring „father” of the people. His further innovation is the introduction of values into
the texts of preambles, instead of worshiping the greatness of the emperor. He wrote
about humanity, equality and justice, and outlined a global concept, a philosophy of
society.22 As there are no other examples of this kind in the given age and before, I
would highlight Leo VI as someone who was ahead of his time. We will encounter
similarly open minded personalities in Chapter III of the paper (at the philosophical
history section).
Before the existence of constitutions, preambles fulfilled their task „in miniature”:
rulers explained their views and ideas about themselves, the country and governing’s
principles in preambles. However, during the French Revolution preambles got banned
for the first time in history. This is understandable, firstly, as the king has been
removed, so there was no ruler to write a preamble, and secondly, as the „recipients”
have disappeared. The legislation fell into the hands of the people, and the people saw it
pointless to address themselves. 23 As we will see, later this was not an obstacle
anymore24, but with the spread of the revolution-wave in the nineteenth century, the art
of persuasion through preambles has completely died out in European countries (for a
while).25
Somewhat overlapping the previously mentioned period, from the early years of
constitution writing, the usage of preambles has slowly started spreading again.
Attaching preambles to constitutions can be traced back to a British habit, according to
which royal decrees and laws were prefaced with a brief statement describing the
purpose of the document. This has presumably served for royals to be able to address
their subjects outside the operational legal text.26 In my opinion, this aspect is present in
the Preamble of the United Nations Charter too. When it comes to the Charter, the
general public tends to be more familiar with the text of the Preamble (and Chapter I)
than the other chapters.
Within the constitutional context, we find the first preambles in the constitutions of the
former U.S. states (preceding 1787, 11 states had separate constitutions). These
preambles often refer to Great Britain or to the Declaration of Independence. The
20
The Project Gutenberg EBook of Laws, by Plato http://www.gutenberg.org/files/1750/1750-h/1750h.htm
21
Fogen, Marie T. [1995]: The Legislator’s Monologue – Notes on the History of Preambles. ChicagoKent
Law
Review,
70.,
January
http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3002&context=cklawreview
22
Fogen [1995].
23
Fogen [1995].
24
Foti, Ginsburg, Rockmore [2013].
25
Fogen [1995].
26
Foti, Ginsburg, Rockmore [2013].
5
preamble of the United States Declaration of Independence has been particularly
inspiring for European liberals and the U.S. Constitution’s preamble was the first one to
start with the famous words „We the People”.27
One dark period in the history of preamble-writing should be mentioned: The boundary
between legislature and politics, which had been formed with so much suffering in the
nineteenth century, has been abolished in XX. century Nazi Germany. Preambles were
used as a substitute for a non-existent national socialist constitution. As Silagi
remarked, „a number of laws adopted during the Nazi period literally contradicted their
preamble”, and „at times, preambles were longer than the legislative parts”28. They
were not banned after the Second World War, but from this point on, preambles –
among them the U.N. Charter’s Preamble – focused primarily on past mistakes, and on
how to follow the right path in the future.29
The content of preambles
According to the contemporary jurist Liav Orgad, preambles can contain references to
sovereignty, to history, to the goals to be achieved, to national identity and/or religious
elements.
Most of the preambles name the origin of sovereignty in their texts. In the case of
national constitutions, we can call these authorization clauses 30 . Sometimes,
sovereignty stems from the people themselves („We the people of…”), which the
majority of the society can identify with. I will explain in Chapter IV, why this causes
complications in the case of the U.N. Charter’s Preamble. Sometimes, sovereignty can
stem from the nation, especially in national constitutions, and this is a less neutral
specification of the origin of sovereignty. Sovereignty can further be originated form
representative bodies, or states, e.g. in the case of confederations. If we speak of a
preamble to the constitution of a federation or confederation, the listing of states is a
separate element of the preamble. 31 The identification of the source of sovereignty
cannot always be distinguished from self-identification,32 which is also an important
starting-element of preambles.
Historical references may be stories related to the language, heritage or traditions of the
nation. These provide and shape the common identity. The South-African preamble33
for instance highlights past injustices and respects those who suffered for justice and
freedom. Concerning the United Nations, president Harry S Truman had a similar
statement, in the opening speech of the San Francisco conference34: „They gave their
lives, so that others might live in security. They died to insure justice.”
27
Foti, Ginsburg, Rockmore [2013].
Silagi [2011], own translation from Hungarian.
29
Fogen [1995].
30
Kukorelli, István; Máthé, Gábor: Közjogi értékeink a preambulumban. (Our values of public law in
preambles) In: Lamm, Vanda [2011]: Preambulum az Alkotmányokban. (The preamble in Constitutions)
CompLex, Budapest.
31
Antal [2011].
32
Antal [2011].
33
The
Preamble
to
the
Constitution
of
the
Republic
of
South
Africa
http://www.thepresidency.gov.za/docs/reports/annual/2008/preamble.pdf
34
Truman, Harry S: „Address to the United Nations Conference in San Francisco” April 25, 1945
http://www.presidency.ucsb.edu/ws/?pid=12391
28
6
Another example is the constitution of China35, in the preamble of which their long
history is being praised („China is one of the countries with the longest histories in the
world”), and explicated in detail. In the preambles of the constitutions to the states of
Central – and Eastern Europe it is usual to emphasize the national efforts made for
independence.
We can apply another categorization within the group of historical elements: preambles
may contain premodern and modern historical references, or references by year. They
are means of illustration, of separartion (from the near past) or of continuity. 36 The
historical reference in the Preamble of the U.N. Charter is to be linked to two events of
world history, the beforementioned world wars („to save succeeding generations from
the scourge of war, which twice in our lifetime has brought untold sorrow to
mankind”). This is the strongest ever separation from the near past in a preamble.
As for the references to the common goals, they are most emphasized in international
treaties’ or other international documents’ preambles, as we can see in the Preamble of
the U.N. Charter. These frequently mentioned common goals are fundamental for
society’s functioning. They can be general principles (like justice or human rights),
economic objectives, or other further goals, like happiness and well-being. A few
preambles, like that of the Philippines 37 , even mention the concept of love. In the
preambles to the constitutions of the EU Member States it appears positive if they
contain a so-called „European clause”38, in which the states declare, that they share the
values and goals of the European Union. In national constitutions we may find the
preamble under the name „National Creed” or „National Avowal”, such as in the
preamble of the Fundamental Law of Hungary39, which is a good example of preambles
containing a European clause 40 . As for the Preamble of the U.N. Charter, the goals
enlisted in the text overlap largely with the values unfolding in the last main chapter of
this study.
Preambles may have a reference to God. Such preambles are those of the Canadian
Charter of Rights and Freedoms 41 and the Federal Constitution of the Swiss
Confederation 42 . Some preambles (as those in the constitutions of Greece 43 and
Ireland 44 ) refer to further elements of religion, i.e. to the Holy Trinity. All these
35
The
Preamble
to
the
Constitution
of
the
People's
Republic
of
China
http://www.npc.gov.cn/englishnpc/Constitution/2007-11/15/content_1372962.htm
36
Fekete, Balázs: Történeti elemek az EU-tagállamok alkotmány-preambulumaiban. (Historical elements
in the preambles to the constitutions of the EU-member states.) In: Lamm, Vanda [2011]: Preambulum az
Alkotmányokban. (The preamble in Constitutions) CompLex, Budapest.
37
The
Preamble
to
the
Constitution
of
the
Republic
of
the
Philippines
http://www.gov.ph/constitutions/the-1987-constitution-of-the-republic-of-the-philippines/the-1987constitution-of-the-republic-of-the-philippines-preamble/
38
Vörös, Imre: Preambulumot az Alkotmányhoz – de milyet? (Preamble to the Constitution – but what
kind of preamble?) In: Lamm, Vanda [2011]: Preambulum az Alkotmányokban. (The preamble in
Constitutions) CompLex, Budapest.
39
The
Preamble
of
the
Fundamental
Law
of
Hungary
http://www.kormany.hu/download/e/02/00000/The%20New%20Fundamental%20Law%20of%20Hungar
y.pdf
40
„We believe that our national culture is a rich contribution to the diversity of European unity.”
41
The Canadian Charter of Rights and Freedoms http://laws-lois.justice.gc.ca/eng/const/page-15.html
42
The
Federal
Constitution
of
the
Swiss
Confederation
http://www.wipo.int/wipolex/en/text.jsp?file_id=179791
43
The Constitution of Greece http://www.cecl.gr/RigasNetwork/databank/Constitutions/Greece.html
44
Constitution of Ireland https://www.constitution.ie/Documents/Bhunreacht_na_hEireann_web.pdf
7
preambles invoke the transcendent sources of power. 45 The Preamble of the U.N.
Charter does not contain any such references, despite the pressure of the Dutch
delegation to mention God.46 According to data from 2008, about 74% of the world’s
national constitutions contain a preamble, and a relatively high percentage of these,
about 45% has some reference to God, despite the fact that these paragraphs do not have
any legal connotations.47 It is possible to introduce another sub-categorization at this
point: a reference to God is either declarative-pragmatic, respects the non-believers, or
is prayerful.48
In conclusion about the content of preambles we can say that despite the presence of the
aforementioned content elements, every preamble has its own special features of
content.49
The functions of preambles
In his study50, Fekete outlines the functions of preambles on a scale. On one end we
have the view of the preamble as an ornament, on the other attributing a binding legal
force to the preamble. In between is the viewpoint from where we say that we use the
preamble as an interpretive tool. This is a relatively simple functional categorization,
and I will introduce a more complex one hereinafter.
According to Makane Moïse Mbengue’s categorization, preambles may have four main
functions: interpretative, supplementary, incorporative, and binding. Preambles can play
these roles all at once, or separately.
As for the interpretative function, it is widely accepted that the motives and goals
mentioned in a preamble can be used at a later stage, at the interpretation of the rest of
the document (treaty, convention, constitution, etc.). This principle had been layed
down in the 1969 Vienna Convention on the Law of Treaties. For this reason, a
preamble must be precise, and it has to describe the aim of the document and the intent
of the contracting parties, just as the definitons read in a previous subchapter. Preambles
are implemented in practice by international dispute resolution bodies, by the
International Court of Justice for instance. The supplementary role means that
preambles may fill legal gaps in treaties’ texts. Incorporative preambles connect the
treaty with other documents or parts of them by recalling these. They are implemented
to avoid clashes between different bodies, organisations or regimes. As for the binding
function, preambles in general do not have the power in the international legal system to
impose obligations on the contracting parties. For this reason, they are usually
formulated in general wording and do not create substantive stipulations. Rather, they
are intended to express the goodwill of the parties, to explain their intentions and
possibly to refer to natural law. Thus they gain more of a political importance.51
One more function can be added to Mbengue’s categorozation, namely that of the
integrating preamble.52 This function concerns not the treaty or other documents, but
those named in the preamble as the holders of sovereignty. The shared past and shared
values can forge different nations or ethnic groups into one people.
45
Fekete [2011].
Spijkers [2011] p. 99. footnote 228.
47
Silagi [2011].
48
Antal [2011].
49
Orgad [2010].
50
Antal [2011].
51
Mbengue [2006].
52
Fekete [2011].
46
8
From the above functions the one most fitting the U.N. Charter’s Preamble is the
interpretative, as the focus is on formulating the common goals. The Preamble sets the
tone and context of the Charter. The first two paragraphs give the organization a raison
d’Être. The Preamble does not aim to impose obligations, but in a bigger context it has
the same weight and importance as other parts of the Charter.53
Types of preambles
First of all, it is impossible to draw up a general model of a preamble.54 However, the
above categorizations can be appended by Orgad’s preamble-types. He distinguishes
between ceremonial-symbolic, interpretive and substantive preambles. Just as we have
seen at the functional description, preamble-types are not separated sharply from each
other either. Nonetheless, they can be of great help when we describe the Preamble of
the U.N. Charter.
The ceremonial-symbolic preamble type had first been developed in Plato’s Laws.
According to Plato, preambles have to be persuasive, they have to be the „soul” of the
law and let people know of the law’s morality. Plato’s preamble concept is bound to
verify the laws. It further aims to soften the law, and does so with abstractions and
poetic ideals. A good example of this type is the preamble to the U.S. Constitution55,
which is symbolic and without binding legal force. The Preamble of the U.N. Charter is
very close to this group, as it is highly ceremonial. Its most ceremonial-symbolic parts
are in my opinion the solemn verbs and their narrow context, such as „to save
succeeding generations” and „to reaffirm faith in fundamental human rights”. In fact,
almost every predicate of the Preamble carries such a level of determination and
firmness that may rigthly be called ceremonial. Regarding values, it is peace that has
most of the ceremonial nature, because of its historical topicality in 1945 and its
suitability for rhetoric. The text mentions „the scourge of war”, and thus the Preamble
is not only ceremonial, but also symbolic. Neighbourhood („live together in peace with
one another as good neighbours”) can just as well be interpreted as symbolic, but its
meaning depends on the breadth of sense we read it in.56
The second group is that of the interpretive preambles, which is overlapping Mbengue’s
functional categorization. The interpretive character of the Preamble of the U.N. Charter
shows through its values, which are starting points for further chapters in the Charter. I
will analyze this relationship – between the Preamble and the Charter’s main body – in
subhapter IV.3. of this paper.
Substantive preambles form the third group. These are the preambles which – by their
content – have a binding legal force on their own. They are independent sources of laws
and obligations. This is the case in the constitutional preambles of France57, India58,
Nepal59 and Bosnia and Herzegovina60 as well.61 The characteristics of this third group
53
Cot, Jean-Pierre: United Nations Charter, 2011. April, Max Planck Encyclopedia of Public
International Law http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e539?rskey=nhuGUG&result=4&q=&prd=EPIL
54
Fekete [2011].
55
Preamble to the United States Constitution http://constitutioncenter.org/constitution/preamble/preamble
56
More on this line in Chapter IV.3. of this paper.
57
Preamble
to
the
French
Constitution
of
1946
http://www.equalrightstrust.org/ertdocumentbank/Preamble%201946%20ENG.pdf
58
Preamble to the Constitution of India http://india.gov.in/sites/upload_files/npi/files/coi_preface.pdf
59
Preamble
to
the
Constitution
of
Nepal
http://berkleycenter.georgetown.edu/resources/quotes/constitution-of-nepal-preamble
9
could hardly fit the Preamble of the U.N. Charter, as that one has no binding force in
itself, only when read together with Chapter I of the Charter. 62 There are opinions
contrary to this,63 but even their holders refer only to some parts of the Preamble, when
writing that it has binding force.
All three preamble-types have their strengths, their emphases and a beauty. They show
us that the historic, artistic and other intrinsic values of treaties and laws are usually
carried primarily in their preambles. There is more to preambles than to a general
preface, and we need to look upon them accordingly. No matter what preamble we are
talking about, its importance in a constitution or in an international treaty is to be
valued. Preambles as mission statements have a strong motivating force.64
The constitutional role
The above functions and types show that preambles can take different roles in the
constitutional process, varying from nation to nation. In the case of the U.N. Charter’s
Preamble we can observe that although it is not a constitution of the world – and to
believe that would certainly be utopistic – it gains an important role in
constitutionalizing international law. It declares that nations will „establish conditions
under which justice and respect for the obligations arising from treaties and other
sources of international law can be maintained”. This line made it to the Preamble
because the founders wanted to establish a new legal system, the „United Nations’ legal
system”, instead of the system based on traditional international law.65 So even if the
U.N. Charter cannot be considered as the world’s constitution, it can be that of the
international community. 66 However, it is worth noting that the interpretation of the
Charter, and thus that of the Preamble is changing over time. The founders themselves
wrote the text with this intention.67
III.
Historical background
The central theme of my paper are the Preamble of the U.N. Charter and the values
formulted in it, thus I examine those steps of history which have contributed to the
development of the United Nations’ value system. The title External factors marks
historical milestones, first in a philosophical, then in a historical approach. The
subsection Internal factors concentrates on the main characters of the 1945 San
Francisco conference and their ideas, philosophies. In the subsection External factors I
take a look at the past from today’s viewpoint, whereas in Internal factors I switch
perspective and examine how the founders and drafters may have looked into the future,
i.e. our present.
60
Preamble
to
the
Constitution
of
Bosnia
and
Herzegovina
http://www1.umn.edu/humanrts/icty/dayton/daytonannex4.html
61
Orgad [2010].
62
Orgad [2010].
63
See Chapter IV.3. of this paper, and within that Bruno Simma’s standpoint.
64
Foti, Ginsburg, Rockmore [2013].
65
Spijkers [2011] p. 72.
66
Kunig, Philip: United Nations Charter, Interpretation of, 2006. September, Max Planck Encyclopedia
of Public International Law http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law9780199231690-e542?rskey=UcSOdA&result=9&q=contract%20interpretation&prd=EPIL
67
Spijkers [2011] p. 131.
10
External factors
When researching what led to the value system of the United Nations, I’m researching
the history of the U.N. itself. In the value aspect, however, steps which lead to the
foundation of the U.N. date further back, further even than the very idea of the
organization.
III.1.1.
History of philosophy
„Since ancient times cosmopolitan philosophers have advocated a world based on
common interests and values.” 68 Cosmopolitanism can be traced back to ancient
Greece. It had two branches: Stoic and Cynic. Stoic cosmopolitan thinkers believed in a
solid global community, while Cynics in the world of free individuals, who do not
belong to any community. The most prominent philosopher from the latter group,
Diogenes of Sinope, was a contemporary of Plato. However, political philosophers were
inspired rather by the positive, Stoic branch, according to which the citizens of the
world share a common rationality, common values and a common fate, despite the
different cultural backgrounds. Many people see Immanuel Kant as such a cosmopolitan
philosopher, i.e. in the positive, Stoic sense. Kant’s philosophy dictates solidarity and a
kind of reciprocity: you should treat others as you want to be treated yourself.69 This
reciprocity appears in many philosophies and religions, for example in Taoism.70 From
the Bible it is known as Jesus’ Golden Rule: „So in everything, do to others what you
would have them do to you, for this sums up the Law and the Prophets.”71
Humanism has reconciled the solidarity and reciprocity of the Stoic branch with the
Cynics’ freedom-concept. Humanists refer to a „world community” and „world law”.72
From this group of thinkers, it is worth to mention Erasmus of Rotterdam. Similarly to
the ancient philosophers, he emphasized the unity of humanity in contrast to national
and religious dividedness, arguing that humans are naturally social creatures and
destined to live in harmony.
The early modern philosophy of natural law has bent towards cosmopolitanism as well,
and this direction lead to laying down the basics for international law. It was Hugo
Grotius who pictured a „great society of states”, bound by the „law of nations”.
„The historical context of the philosophical resurgence of cosmopolitanism during the
Enlightenment is made up of many factors: The increasing rise of capitalism and worldwide trade and its theoretical reflections; the reality of ever expanding empires whose
reach extended across the globe; the voyages around the world and the anthropological
so-called ‘discoveries’ facilitated through these; the renewed interest in Hellenistic
philosophy; and the emergence of a notion of human rights and a philosophical focus
on human reason.” 73 Cosmopolitanism received its strongest impulse during the
American and the French Revolutions. Meanwhile, it was Immanuel Kant, who
68
Spijkers [2011] p. 5.
Spijkers [2011] pp. 21-24.
70
Lecture of Csaba Nahoczky [2014], China-studies: Chinese philosophy (at the Corvinus University of
Budapest).
71
Holy Bible, Matthew 7:12, New International Version [2011] by Biblica, Inc.
https://www.biblegateway.com/passage/?search=Matthew+7:12
72
Spijkers [2011] pp. 25-26.
73
Stanford
Encyclopedia
of
Philosophy,
Cosmopolitanism
http://plato.stanford.edu/entries/cosmopolitanism/
69
11
introduced the concept of cosmopolitan law, „suggesting a third sphere of public law —
in addition to constitutional law and international law — in which both states and
individuals have rights, and where individuals have these rights as “citizens of the
earth” rather than as citizens of particular states.”74
The cosmopolitan worldview does exist in practice, and nowadays, as the world is
getting „smaller”, it is becoming more convincing. The revolution in communications
has „flattened out” the world. Cosmopolitanism is being transformed from a concept
into a fact: global cooperation exceeds the level of coexistence.75
III.1.2.
History
When examining the founding of the U.N. from a historical perspective, I am going
back to the Peace of Westphalia (1648). This treaty means the date for when the
international cooperation based on diplomatic relations and contracts was established.
The international order was born, showing a community of sovereign nation-states, i.e.
international politics took for the first time the form in which we know them today.76
The aim of the countries was, despite the fact that they often formed alliances with each
other, to keep their sovereignty, under all circumstances. With the Peace Treaty of 1648,
following the Thirty Years’ War (1618-1648), the modern system of states has come
into existence. „In 1795, nearly 150 years later, the philosopher Immanuel Kant wrote
Toward Perpetual Peace, an essay that set forth more broadly the intellectual reasoning
for global federations. His treatise analyzed the ethical and moral basis for a broad
union of free states cooperating to maintain peace.” 77 A similar idea was William
Penn's, who in the late seventeenth century suggested the creation of a world
parliament. 78 Bolstered by the kantian logic, the major lands of Europe held four
conferences between 1815 and 1822 (beginning with the Congress of Vienna).
The nineteenth century was marked by the Concert of Europe, i.e. the coordinated
actions of the European powers and their leaders. „By the twentieth century, the idea of
a worldwide assemblage had taken hold. Nations from around the globe, including the
United States, met twice in so-called international peace conferences in the Hague”79
(in 1899 and 1907). However, World War I broke down the Concert of Europe, and
ruined the balance that has been kept up for a century. This „redefined the nature of
national sovereignty and noninvolvement for all countries – especially the United
States”, „which had tried with increasing difficulty to maintain the semblance of
neutrality toward the European conflict”80. When the United States entered the war,
president Woodrow Wilson replaced „the Founding Fathers’ credo of independence
with a new credo of interdependence” and started to emphasize the global role of the
U.S. He was the initiator of the process, which he managed to accomplish with his
74
Stanford
Encyclopedia
of
Philosophy,
Cosmopolitanism
http://plato.stanford.edu/entries/cosmopolitanism/
75
Spijkers [2011] pp. 26-27.
76
Arató, Krisztina; Koller, Boglárka [2009]: Európa Utazása. (The Journey of Europe) Gondolat Kiadó
(Gondolat Publisher), Budapest; p. 16.
77
Schlesinger [2003] p. 18.
78
Tams, Christian J.: League of Nations, September 2006., Max Planck Encyclopedia of Public
International Law http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e519?rskey=nhuGUG&result=1&q=&prd=EPIL
79
Schlesinger [2003] p. 18.
80
Schlesinger [2003] p. 19.
12
presidential successors in under thirty years: the establishment of a functioning global
organization.81
Among the Fourteen Points issued on January 8, 1918, Wilson wrote this as the last:
„XIV. A general association of nations must be formed under specific covenants for the
purpose of affording mutual guarantees of political independence and territorial
integrity to great and small states alike.”82 This general association was the League of
Nations, established shortly after. It meant the first attempt of the international
community to institutionalize international cooperation, and to create an international
organization that holds main bodies for the protection of world peace. There was no
precedent in the histroy of international relations for anything similar to it. Regarding
international peace, the League of Nations could build on the experiences of the Concert
of Europe and the Hague Conferences, but it also aimed to establish a collective security
system. The first public statement on the League of Nations was a pamphlet of the
South African general Jan Smuts. It widely popularized the idea, and included a
description of the organization’s structure. The League of Nations started officially to
function on January 10, 1920, at the same time with the Treaty of Versailles’ entry into
force. The organization had to face a number of issues. Perhaps the most significant
problem was that it never got the support of all major powers, and had thus no power
over their aggressive actions. It proved to be inadequate for maintaining international
peace, and several states quit the League of Nations. Nevertheless, its results should not
be ignored either. Even the idea itself has brought hope and faith in international
progress. At least for fifteen years it functioned as the general and permanent forum for
international cooperation, and its foundation has brought a huge positive change in the
conduct of international affairs.83
Eventually, as the League of Nations could not effectively act against the aggressions of
the 1930’s, a need has emerged during World War II, for a comprehensive, universal
organization, which is able to function avoiding the mistakes of the League of Nations
system.84 The circumstances of the League of Nations’ failure played a significant role
in forming the negotiations about the creation of an international organization after the
war. From the beginning until signing the Charter, it was the United States who put
most energy into the U.N.’s foundation.85 This was not surprising, because in 1945 the
U.S. was the only superpower, whose forces were still intact, and its economy was
virtually untouched. Thus they paved the way for the creation of the new international
organization. 86 Beside them, there were other nations as well with significant
contributions, who brought ideas and proposed modifications. Different people played
important roles in the process: Sir Alexander Cadogan (the British Deputy UnderSecretary), Andrej Gromiko (Soviet statesman), Jan Smuts (South African general),
Herbert Vere Evatt (Australian politician), Leo Pasvolsky (state department official),
Edward Stettinius (the U.S. Secratary of State), and president Franklin Delano
Roosevelt, just to mention the few most important of them. Roosevelt, in contrast to
81
Schlesinger [2003] p. 19.
President Woodrow Wilson's Fourteen Points, Yale Law School, Avalon Project
http://avalon.law.yale.edu/20th_century/wilson14.asp
83
Tams [2006].
84
Székely, Andrea [2011]: Az ENSZ, mint a béke záloga? (The United Nations as the pledge of peace?)
MA thesis, CUB Social Siences Faculty, Institute for International Studies; p. 10.
85
Cot, Jean-Pierre: United Nations Charter, History of, April 2011., Max Planck Encyclopedia of Public
International Law http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e541?rskey=nhuGUG&result=5&q=&prd=EPIL
86
Schlesinger [2003] p. 8.
82
13
Stalin and Churchill, was always present when events around the U.N.’s creation
unfolded, and was convinced that a new and stronger international organization than the
League of Nations needs to be created to maintain peace. Basically, he believed that the
support of all four great powers (the U.S., China, Great-Britain and Russia) was needed
for efficiency.87
In early 1941 Roosevelt’s Four Freedoms speech has opened up new perspectives. (The
four fundamental freedoms mentioned are: freedom of speech, freedom of worship,
freedom from want and freedom from fear.) 88 On August 14, 1941, Churchill and
Roosevelt signed the Atlantic Charter, which referred inter alia to the „establishment of
a wider and permanent system of general security”. On January 1, 1942, the
Declaration of the United Nations was signed by 26 countries, which, determined to
conquer the Axis powers89 wished to follow the principles of the Atlantic Charter. The
term „United Nations” was borrowed from Lord Byron’s poem Childe Harold's
Pilgrimage. From 1942 on, Deputy Secretary of State Sumner Welles chaired several
committees, with regard to international relations after the war, where they began the
planning of the United Nations. At some points, the planning gave rise to conflicts
between Welles and other state officials, Pasvolsky for example. In August 1943 Welles
resigned. Pasvolsky gathered a group of experts, and composed a preparatory Charter
based on Welles’ draft and other foreign suggestions.
To take the next steps in the establishment of the international organization, the consent
of the great powers was needed. The subsequent conferences in Moscow and Teheran
served this cause. Returning from Teheran, Roosevelt himself has worked on the draft
of the Charter. In 1944, the United States announced to the other great powers that they
want to hold an international conference on the case, and these accepted the draft as a
basis for discussion. They gathered at Dumbarton Oaks, near Washington, on August
21, 1944. The conference was prepared and chaired by Stettinius, the other two main
participants were Cadogan and Gromiko. The sessions were closed, but already then
problems arose with leakings to the press. At the end, the Dumbarton Oaks proposals,
i.e. the Proposals for the Establishment of a General International Organization gave a
fairly complete draft of the Charter. So much so that Roosevelt had decided to publish
the document, and thus put public pressure on the Congress.
Stalin still had to be convinced about the founding of the United Nations, for which the
Yalta conference offered an opportunity. It took place in February 1945, and the leaders
reached decisions important from many aspects. Roosevelt, Churchill and Stalin agreed
on the basic principles of the organization to be established. 90 Although Stalin has
mentioned the 1939 expulsion of the Soviet Union from the League of Nations on the
third day of the conference, the next day Molotov (the Soviet Foreign Minister)
announced – to Stettinius’ relief – that the draft is acceptable to them. It has been
decided to open the conference for the 26 countries who signed the Declaration of the
United Nations, as well as to those who cut their diplomatic relations with the Axis
powers, and declared war on at least one of them by March 1, 1945. Here the first
problems with smaller states arose, such as the case of Argentina's former pro-Nazi
neutrality. There were further difficulties with the Poles, regarding Japan, and in
87
Cot, Jean-Pierre: United Nations Charter, History of, April 2011., Max Planck Encyclopedia of Public
International Law http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e541?rskey=nhuGUG&result=5&q=&prd=EPIL
88
Schlesinger [2003] p. 31.
89
Schlesinger [2011] p. 38.
90
Arató-Koller [2009] p. 54.
14
connection with the political processes of Latin American States. France felt slightly
offended, de Gaulle previously not having received an invitation to Yalta, but the
French government has decided to go to the conference, where they received the greatpower status. Roosevelt's decision was to hold the conference in San Francisco, starting
from April 25, 1945. The president died two weeks before the opening of the
conference, whilst preparing its opening speech.91 He was even considering resigning
from the U.S. presidency after the conference, to become the United Nations’ first
Secretary-General. Had he not been there as a driving force, the United Nations would
not have been created right then, in that form, as we know it.
President Harry S Truman’s – Roosevelt’s successor’s – first decision was to confirm
the starting date of the conference announced previously by Roosevelt.92 „When the San
Francisco Conference started in 1945, the Second World War was nearly over. The
main challenge of the United Nations was to find something better than a common
enemy to keep the nations of the world united.” 93 These were the global values, as
Spijkers’ study suggests.
Concerning the structure of the conference, there were four committees (in addition to
the Assembly), who were responsible for different parts of the Charter (among them one
for the Preamble as well). The texts went through several stages, several committee
levels before they reached their final shape. The working languages were English and
French.
The conference was hampered by the Argentinean and Polish issues, regionalism, the
situation of colonies and areas still at war, among others, but at the end, consensuses
were reached, with cautious wording and the introduction of new concepts to the texts.
Despite all this, several conflicts were left palpable. The impending Cold War could be
felt, and there was a divide between large and small states, namely over the question of
the veto.94 Nonetheless, a healthy balance has been established, the „Little Forty-Five”
focusing on idealism, whlist the „Big Five” focused on realism.95
The Preamble’s case was the last one requiring action. In Dumbarton Oaks, the Charter
had no preamble yet. It was general Smuts to propose shortly before San Francisco that
the Charter should be introduced by a preamble „setting forth, in language which
should appeal to the heart as well as mind of men, the purposes which the United
Nations were setting themselves to achieve”. Smuts has even submitted a preamble-text,
but the final adoptation was Virginia Gildersleeve’s – a former professor of literature –
shorter version, accepted on May 29.96 The first line („We the peoples of the United
Nations…”) patterns the U.S. Constitution, as per Congressman Sol Bloom’s wish.
The Charter was unanimously accepted on June 25, 1945. The next day it was signed by
representatives of the fifty participant states.97 „The U.N. Charter was signed on the
150th anniversary of the publication of Kant’s Zum Ewigen Frieden.” 98 It is
91
Schlesinger [2003] p. 2.
Cot, Jean-Pierre: United Nations Charter, History of, April 2011., Max Planck Encyclopedia of Public
International Law http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e541?rskey=nhuGUG&result=5&q=&prd=EPIL
93
Spijkers [2011] p. 10.
94
Cot [2011].
95
Spijkers [2011] p. 65.
96
Schlesinger [2003] p. 237.
97
Cot [2011].
98
Spijkers [2011] p. 60.
92
15
questionable whether this was intentional, but Kant’s philosophy most likely has had an
influence on the founders.99
Internal factors
III.2.1.
The imprint of 1945’s spirit on the text of the Preamble
The wording of the Preamble has reached the goal set by Jan Smuts, affecting the reader
both emotionally and on an intellectual level. „Global conscience” 100 has come into
existence after the darkest period of human history in a document that reflects not only
the founders’, but also the peoples’ feelings in its lines.
Before spring 1945 the world was dominated by the horrors of war. The shuddered
nations started to appreciate global values. Experiencing the devastations of war
encouraged people to value peace and security, the way individuals were treated during
the war encouraged them to respect human dignity, the colonial oppression – to promote
the self-determination of peoples, and the general economic downturn – to support
progress and development. These efforts appeared in the Preamble too, through which
the concept of the United Nations was linked to global values. Towards the end of the
Second World War, the world awoke to the hope of a new beginning, and „it is clear
that a change in the hearts and minds of the powerful also played a role.”101
The central emotion of the first lines in the Preamble is fear. Determination
(„determined to”), responsibility („save succeeding generations”), pain („from the
scourge of war”), regret („which twice in our lifetime”) and grief („untold sorrow to
mankind”) were present at the same time. The main reason for these feelings are the
crime of genocide committed in the Second World War, and other terrible violations of
fundamental human rights.102
That desire and that quest for security, which comes from the above, was one of the
promoting forces of the United Nation’s creation, but the positive feelings related to the
founding only unfold in the next lines.
The words „reaffirm”, „establish” and „promote” show the hopeful side of their
determination. The lines containing these words, and those after, unite the feelings of
recognition and faith. And although we cannot read them directly in the lines, the
emotions of forgivenness and mercy were also present those months, as feelings
associated with the end of the war.
These feelings form a framework for the values examined in the fourth part of this
study, and these make the Preamble the type of „composition” which is almost to be
viewed as a piece of art. In the book Anthologia Humana – Wisdom of five thousand
years103 written by Béla Hamvas, a Hungarian writer and philosopher, he differeciates
between the „damned” and the „blessed” history of humankind. Comparing the history
to a composition, he recalls motifs for the „damned” part („wars, famines, revolutions,
extinctions”) and the „blessed” („fine arts, religions, philosophies, poetry”). In my
99
Spijkers [2011] p. 61. footonote 8.
Spijkers [2011] p. 10.
101
Spijkers [2011] p. 51.
102
Cot, Jean-Pierre: United Nations Charter, April 2011., Max Planck Encyclopedia of Public
International Law http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e539?rskey=nhuGUG&result=4&q=&prd=EPIL
103
Hamvas, Béla [1990]: Anthologia Humana – Ötezer Év Bölcsessége. (Wisdom of five thousand years)
Életünk Könyvek, Szombathely.
100
16
opinion, we can „hear” both the deeper and the higher sounds of the „composition” in
the Preamble.
III.2.2.
The founding fathers and the Preamble’s drafters
„In 1945, representatives of nearly fifty states came together to draft the blueprint of
the post-war legal order. The horrors of the Second World War made them aware of the
urgency of their work. All cultural and political differences faded into the
background.”104
The aim of this subchapter is to get closer to the past, through examining what was
going on in the minds of the Preamble’s drafters and the founders of the United Nations.
The expression „founding fathers” can not only be used when we speak of the United
States, but can also be applied to the U.N. These founding fathers and mothers have had
an idealism – perhaps even more honest then their predecessors’.105
When Harry Truman opened the conference in San Francisco, his very first sentences
stressed the importance of the event and its significance in history: „At no time in
history has there been a more important Conference, or a more necessary meeting, than
this one in San Francisco, which you are opening today.” He reminded the assembly on
Roosevelt and his aspirations, and encouraged them to rise above their personal
interests, and serve the principles which benefit the whole of humankind. Just like the
Preamble reminds its readers on the horrors of the two world wars, Truman reminded
his audience on them. He highlited the sacrifices made for security and justice, and
called the participants of the conference the „architects of a better world”, who hold the
future of humankind in their hands. Truman’s opening speech shows that he took over
the responsibility carried by Roosevelt, and that he supported the founding of the United
Nations fully.106
As Truman had emphasized: despite not being able to attend the conference, his
predecessor, Roosevelt had had an enormous role in the creation of U.N. Roosevelt's
condition had begun to deteriorate years before San Francisco. He took the trip to Yalta,
which was hard and perhaps fatal, mainly for the United Nations’ sake.107 Roosevelt’s
passion for the organization was one of the reasons for why the conference was hosted
by the United States. The president wished to „link the U.N. more directly to
Americans, as well as to gain better control of the proceedings”.108 It turned out from
the last interview taken with him that he dreamed a New World Order, and would have
considered conducting the San Francisco conference the peak of his career.109
Now it is just as important to know the intentions of the drafters as those of the
founders, in order to fully comprehend the Preamble and its context:
Smuts, „a hero of the Boer War”, had had his role already at the drafting for the League
of Nations.110 In 1934, during his speech as the rector of the University of St. Andrews,
he focused on freedom. Already then he highlighted the importance of small nations
sticking together, and the common moral values („We small ones of the earth feel
mutually drawn to each other in a world which has largely gone crazy with the
104
Spijkers [2011] p. 145.
Schelsinger [2003] p. xvii.
106
Truman, Harry S: „Address to the United Nations Conference in San Francisco” April 25, 1945
http://www.presidency.ucsb.edu/ws/?pid=12391
107
Schlesinger [2003] p. 57.
108
Schlesinger [2003] p. 61.
109
Schlesinger [2003] p. 72.
110
Schlesinger [2003] p. 22.
105
17
problems of size and scale”). The text of his speech shows that Smuts possessed indepth knowledge of history, law and religion, and that he was aware of the importance
of peace. He spoke of South Africa as one of the founders of a young nation. This kind
of enthusiasm is observable in the Preamble too. He strongly condemned and feared
war: he saw it in the international context as well. The most important statement he
wanted to get through to the students was that „The world is good.” He saw fears as
justifiable, but not so pessimism. He mentioned human rights, progress, cooperation,
justice and happiness.111 Having read the text of his St. Andrews speech, the eloquence
in the Preamble’s text is more familiar to me. Jan Smuts’ philosophical work in the field
of holism parallels with the creation of the United Nations. In his 1926 book with the
title Holism and Evolution he writes that holism is a trend in nature: through a creative
evolution, parts form a whole that is greater than the sum of its parts.112 However, his
personality has had a dark side. In San Francisco, he stood up for the ideas and ideals,
yet „when he returned to South Africa he continued to support the politicies of racial
segregation”.113
When Smuts submitted his Preamble proposal, the US delegation was not particularly
interested in revising it. „Virginia Gildersleeve, the most retiring member of the US
delegation, however, came afire over the preamble. As a former professor in literature
and a long-time admirer of the United States Constitution, she cared deeply about the
phraseology of the charter preamble.” 114. Gildersleeve, who put the Preamble in its
final form, once suggested that it „should be hung up in every peasant’s cottage
throughout the world.”115
IV.
The Preamble as a legal document
Constitutional preambles have both legal and political content. 116 In the case of the
Preamble of the United Nations Charter this means international legal and international
political content.
Adopting the Preamble was a result of the international political consensus. Unlike in
the case of national constitutional preambles, which spark political debates with a high
potential, no significant (international) political debates have arisen around this
particular Preamble. Another aspect to measure a preamble’s politicalness is its impact
on the development of the political system. Preambles of constitutions possess a
political weight in general because of their political declarations, but the power of the
U.N. Charter’s Preamble is different and lies in more than politics.
Because of the statements above, in this chapter I only examine the (international) legal
aspects of the U.N. Charter’s Preamble.
Hans Kelsen’s criticism
„The Preamble had an ideological rather than a legal importance. It was not intended
to legally bind the signatory States. It served as a guideline for the interpretation of the
Charter, and to explain ambiguous statements in the articles which do impose
111
Smuts, Jan C. [1934]: Freedom. A. MacLehose & Company, London; pp. 11-36.
Smuts, Jan C. [1926]: Holism and Evolution. Macmillan and Co., London.
113
Spijkers [2011] p. 71. footnote 69.
114
Schlesinger [2003] p. 236.
115
Spijkers [2011] p. 71.
116
Antal [2011].
112
18
obligations.”117 – writes Spijkers. I find that it is still worth examining the Preamble
from legal aspects, what many indeed did. The earliest commentary to mention is from
Hans Kelsen, published in 1951. In his more than a thousand pages long book The Law
of the United Nations – A Crtical Analysis of Its Fundamental Problems 118 , he is
extensively examining both the Charter and the structure of the organization.
In the first paragraph, Kelsen points out that the Preamble does refer to some, but not all
the purposes of the organization. The purposes are not properly listed even when the
Preamble is read together with Chapter I. His examples are „the registration of treaties
and the protection of the peoples of non-self-governing territories”, which are only
mentioned later. The response to this critique is that we should not object to this
practice in the U.N. Charter, as in modern constitutional law, drafters tend to fit basic
values and principles into the main chapters.119
The Preamble consists of merely two sentences. Kelsen criticizes both, or how the two
relate to each other, to be more specific. The first sentence refers to the peoples („We
the peoples of the United Nations…”), while the second to the governments („… our
respective Governments, through representatives…”). Kelsen saw this as to be
problematic for states which were represented in the form of a monarchy for example
and not a republic, like the Netherlands, where „the Crown, not the people conducted
treaties.” This critique is justifiable, yet such a small mistake does not have practical
consequences in terms of interpreting the Charter. The resolutions of the General
Assembly and the Security Council were regarded binding by monarchies just as well as
by republics, ever since.
The member states they meant by „We the peoples of the United Nations” were not
exactly the states represented at the conference (Poland was not represented for
example), and not even the countries having signed the 1942 Declaration of the United
Nations, because not even there have all the official members been present (Argentina
for example, was not). They understood the future U.N. member states by the
expression, which would mean another inaccuracy in the Preamble. However, the
reference to the peoples of the United Nations has proved to be appropriate, namely in
the case of Articles 1 and 55 (about the self-determination of peoples), furthermore, it
has had positive consequences in the areas of decolonization, human rights, democracy,
and the United Nations’ relationship with civil society.120
Kelsen mentions it as an additional error that from the text, the U.N. seems to have been
founded by signing the Charter on June 25, 1945, however, the organization has
officially only been created on October 24, 1945, after ratifications. October 24 is the
official United Nations Day since.
According to Kelsen, the second sentence of the Preamble is virtually useless.
International treaties often include similar statements, unnecessarily – he writes. This is
contradicted by the fact that it was the second sentence, i.e. the last paragraph of the
Preamble which ratified the intergovernmental nature of the organization.121 The tension
117
Spijkers [2011] p. 72.
Kelsen, Hans [1951]: The Law of the United Nations – A Critical Analysis of Its Fundamental
Problems. Stevens & Sons Limited, London.
119
Kukorelli, Máthé [2011].
120
Cot [2011].
121
Cot [2011].
118
19
between the initial words and the last paragraph reflects the controversial situation of
the international community, from 1945 until the present122.
The sharpest criticism used by Kelsen against the Preamble is related to its
interpretation. According to him, the Preamble cannot be used as an interpretive tool,
firstly because the political ideas it contains are not guaranteed, and secondly because
the reader cannot clearly distinguish the means from the ends (i.e. the goals). 123
Regarding the latter concern, I made an experiment:
IV.1.1.
The „Kelsen-experiment”
I conducted the so-called Kelsen-experiment in the spring of 2013, as a sophomore,
when I was still just forming my idea of writing about the Preamble. I read Hans
Kelsen’s critics when preparing for a presentation and I found it interesting how he
drew up the indistinguishability of means and ends in the Preamble. I was curious how
this would work in practice. I printed the lines of the Preamble separately, in large-size
fonts on A4 sheets each. I mixed up the papers of the lines about means and ends on the
board, and the students’ task was to decide one by one to which group the lines belong
to. In the end result, only three of the eight papers have been identified correctly as
means or ends. Kelsen’s critique seemed to have been justified by our seminar group. (I
should add that the experiment was carried out only once, so it is not representative,
rather just a one-time illustration.)
From the above it can be drawn that the Preamble is not a perfect text. Still, the errors
listed are of minimal significance, especially from the aspect of interpretation.
Furthermore, there is a reasoning in the fourth part of this paper, for why the meansends indistinguishability is not a just critique either.
Similarities with other international documents’ preambles
Differently from Chapter II, in this sub-chapter I wish to narrow the group of preambles
to be compared. The preambles of international treaties and declarations form a
separarte set from the preambles of national constitutions. The difference is reflected at
several points, for example in that symbols, feasts (related to historical events) and
religious references play only a minor role when it comes to preambles of the
international level. So in this section, I will compare the Preamble of the U.N. Charter
to preambles of two other international legal documents: to that of the Universal
Declaration of Human Rights 124 and of the Charter of Fundamental Rights of the
European Union 125 . Although these are legal documents of different nature in many
aspects, the function of their preambles is the same.
The Universal Declaration of Human Rights was adopted by the United Nations
General Assembly on December 10, 1948. Its preamble shows many similarities with
that of the Charter, which might come from their temporal proximity. It refers in its first
line to the values of freedom, justice and peace, which also appear in the Preamble of
the UN Charter at various points. Similarly to the Preamble of the Charter, in the second
paragraph it recalls the horrors of wars. The third paragraph of the Universal
Declaration of Human Rights’ preamble refers to the rule of law and calls our attention
to its importance, which is another shared feature with the Charter’s Preamble.
122
Cot [2011].
Kelsen [1951] pp. 3-12.
124
The Universal Declaration of Human Rights http://www.un.org/en/universal-declaration-human-rights/
125
Charter
of
Fundamental
Rights
of
the
European
Union
http://www.europarl.europa.eu/charter/pdf/text_en.pdf
123
20
Hereinafter the Declaration’s main focus is on human rights. In the rest of its preamble
it explains the views of the General Assembly regarding human rights and freedoms.
The Charter of Fundamental Rights of the European Union was proclaimed in
December, 2000, by the European Parliament, the Council of Ministers and the
European Commission. The difference in time and the difference in the context of states
bring many new elements with themselves. These are: solidarity, democracy, the rule of
law, the diversity of the cultures and traditions of the peoples, and sustainable
development. However, this preamble too shows similarities with the Preamble of the
U.N. Charter. Firstly, it has a positive vision of the future. The European preamble even
points out that this future will be based on common values. Secondly, the values of
freedom, security, justice and law, and the goal of social progress are mentioned here as
well as in the U.N. Charter’s Preamble.
In all three preambles, the character of natural law126 manifests itself when they mention
human rights, or the dignity of the human person to be more specific. It appears in the
following sections:
- „… to reaffirm faith in fundamental human rights, in the dignity and worth of
the human person…” (Preamble of the United Nations Charter)
- „… recognition of the inherent dignity and of the equal and inalienable rights
of all members of the human family is the foundation of freedom, justice and
peace in the world…” (Preamble to the Universal Declaration of Human Rights)
- „… the Union is founded on the indivisible, universal values of human dignity,
freedom, equality and solidarity…” (Preamble to the Charter of Fundamental
Rights of the European Union)
--Overall we can say of the preambles of international legal documents that they contain
common elements, core values. But besides all these, each has specific features, aspects,
current values of the given historical situation.
The context of some of the Preamble’s lines in international law
Every word in the Preamble of the U.N. Charter counts, but some lines are of particular
importance in international law. In this section, I will present these lines and terms
together with their international legal context.
The starting words of the Preamble („We the peoples”) have been mentioned already
several times. The term has been borrowed under American influence from the United
States Constitution, the only difference is the plural, the „s”. Its international legal
significance lies in the fact that it integrates the concept of „peoples” into this branch of
law.127 The title of Kofi A. Annan Ex-Secretary General’s 2001 book is based on the
starting words of the Preamble too: We the peoples: The Role of the United Nations in
the 21st century.
The thought „to save succeeding generations from the scourge of war” has been
existing in a form already after the First World War, in the preamble of the League of
126
Orakhelashvili, Alexander: Natural Law and Justice, August 2007., Max Planck Encyclopedia of
Public
International
Law
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law9780199231690-e730?rskey=Ez05mW&result=2&q=&prd=EPIL
127
Cot, Jean-Pierre; Pellet, Alain: What they had in mind – The Preamble to the Charter
http://www.alainpellet.eu/Documents/PELLET%20-%201986%20%20What%20they%20had%20in%20mind%20The%20preamble%20to%20the%20charter.pdf
21
Nations Covenant. 128 This can be considered as the first manifestation of the
responsibility that a given generation of humankind takes, not to deprive future
generations of the opportunities of life and development that they themselves have
had.129
„to reaffirm faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and small”: When
studying this line, we should split it into two parts: the one about human rigths and the
other about nations. At the time of the League of Nations it was the competence of
states exclusively to respect human rights. After the Second World War, the Allies
recognized that the protection of human rights is a responsibility of the international
community as well. In the body of the Charter Article 1, paragraph 3 extends the
concept of human rights („without distinction as to race, sex, language, or religion”),
repeating that in Articles 13, 55 and 76. The U.S. delegates and Jan Smuts also urged
that a human rights clause be attached to the Charter, which did not happen in 1945, but
the intention „opened the door” for the Universal Declaration of Human Rights. 130
According to Bruno Simma, the reference in the Preamble to the dignity and worth of
the human person, as well as that to the equal rights of men and women, can be viewed
as a „mini human rights charter”131. It is worth mentioning that on the national level,
France leads the way in the number of preambles containing human rights clauses,
where this has a tradition since the 1789 Declaration of the Rights of Man and of the
Citizen.132 Article 8 of the UN Charter stresses equality between women and men, and
Article 68 gives an opportunity for the establishment of committees for the promotion
of human rights. 133 Most scholars referred to in this study are of the view that the
Preamble has no legal binding force, Simma however represents the opposite point of
view. If Simma was right, the Preamble would not only possess a declarative, but a
normative 134 part as well. This however, is contradicted by Spijkers’ and Orgad’s
writings, and I incline to this latter position. If we allowed the Preamble to have binding
legal force, the features and functions in the Charter would get mixed up. The other
chapters could loose their power on the long term, which would be risky for the
international community. In my opinion, the focus in the Preamble is not on the –
questionable – obligatory character. It is rather on the values, which will be examined in
Chapter V. The values are put into practice by the provisions of the nineteen chapters
following the Preamble.
One last argument against the binding nature of the Preamble is this: The so-called mini
human rights charter and further parts of the Charter mention only respect for human
rights. The international community had not yet had sufficient experience to also
declare the protection of human rights. And respect is much less binding than
protection.
128
Cot, Pellet
Simma, Bruno [2002]: The United Nations Charter – a commentary. Oxford University Press, Oxford;
p. 34.
130
Cot, Pellet.
131
Simma [2002] p. 35.
132
Granger, Marie-Pierre: A Francia Alkotmány Preambuluma(i): tartalom, státus, alkalmazás és
módosítás. (Preamble(s) to the French Constitution: content, status, application and modifications) In:
Lamm, Vanda [2011]: Preambulum az Alkotmányokban. (The preamble in Constitutions) CompLex,
Budapest.
133
Cot, Pellet.
134
Vörös, Imre: Preambulumot az Alkotmányhoz – de milyet? (Preamble to the Constitution – but what
kind of preamble?) In: Lamm, Vanda [2011]: Preambulum az Alkotmányokban. (The preamble in
Constitutions) CompLex, Budapest.
129
22
The line „equal rights (…) of nations large and small” appears in other forms in
Articles 1 and 55 of the Charter. Furthermore, it is present in Article 2 and 78 as the
principle of the sovereign equality. This has a double meaning: nations are equal in the
organization as well as in their international relations.135
„to establish conditions under which justice and respect for the obligations arising from
treaties and other sources of international law can be maintained”: This thought is
continued in Article 13 and 14 of the Charter.136 The wording, which mentiones justice
separately from treaties and other sources of international law, suggests that these are
different concepts. It is likely that with justice the drafters refer to natural law, and to
the fact that respecting treaties does not exclude the possibility of their review.137
„to promote social progress and better standards of life in larger freedom”: This line is
echoed in Article 13 and 55 of the Charter, as well as in its Chapters IX and X, where
the founders determine the framework for economic and social progress, as well as the
tasks of the Economic and Social Council.138
„to practice tolerance and live together in peace with one another as good
neighbours”: This line was inspired by Franklin D. Roosevelt’s inaugural address of
March 4, 1933. 139 It can be interpreted in different ways. Some understand it as a
narrow geographical neighborhood only, the broader interpretation in contrast applies to
every nation. Chapter VI, on the pacific settlements of disputes, gives tools needed to
keep the peace between these „neighbors”.140
„to unite our strength to maintain international peace and security”: This concept is
already contained in the Atlantic Charter, referring to the principle of collective
security. The principle emerges in further Articles and Chapters of the Charter (Articles
1, 2, 4, 5 and 6; and Chapters IV, VI and VII).141
Furthermore, there are two important documents of the General Assembly referring to
several lines of the Preamble of the U.N. Charter: the Uniting for Peace Resolution
(1950) and the Friendly Relations Declaration (1970).142
Based on the above we can assume that also the legal dimension of the Preamble is of
significance, and forms an integral part of the „fabric” of international law. Revealing
this helps not only the better understanding of the Preamble, but also that of its
environment, its international legal context.
How the Preamble and the Charter relate to each other
Attila Antal, to whom I have been referring to earlier in this paper, deals separately with
the relationship between preambles and constitutions. Based on the facts that
„preambles are laws in the formal sense” and that „changing them requires a
modification of the constitution” Antal notes that in any case there is a formal unity
between the preamble and the main text of the constitutions or laws. This must also be
true for the United Nations Charter and its Preamble.
135
Simma [2002] p. 35.
Cot, Pellet.
137
Simma [2002] p. 36.
138
Cot, Pellet.
139
Simma [2002] p. 36.
140
Cot, Pellet.
141
Simma [2002] p. 37.
142
Simma [2002] p. 37.
136
23
According to Antal, the answer to the question whether the preamble and the other
chapters form one unit of content, is no. He accepts preambles only as tools of
interpretation, and as he sees their content not to have the same legal weight as that of
the other chapters of a constitution, he thinks that the body of a constitution and its
preamble are separate parts. This – in my opinion – cannot be applied to the Preamble
of the United Nations Charter. In the case of the latter, the emphasis on the history and
the values is so important, that it stands closer to the Charter, than preambles to
constitutions in general. In addition, the Preamble is closely related to the first Chapter,
which further confirms that it forms a whole with the rest of the Charter. Let me refer
here to Bruno Simma as well, who attributes legal force to the Preamble when it comes
to human rights, and to Antal’s claim that – contrary to his previous statements – the
declaration of goals and values may be legally binding, or have at least legal relevance.
--One more note has to be added to the legal analysis part. The reason for why the U.N.
Charter’s Preamble became the focal point of our knowledge about global values is that
„When it comes to realizing and promoting global values, the appropriate language is
global – or international – law.”143
V.
Axioms of the United Nations philosophy: the global values
In this chapter I examine the concepts, i.e. the values in the Preamble. For this purpose,
I firstly have to give a definition on the values I am operating with, and I have to specify
in which context they are used.
Definition
Spijkers defines global values as follows: „A global value is an enduring, globally
shared belief that a specific state of the world, which is possible, is socially preferable,
from the perspective of the life of all human beings, to the opposite state of the
world.”144.
In his study, Spijkers highlights six values:

Peace and Security

Social Progress and Development

Human Dignity

and the Self-determination of peoples
My paper includes the analysis of all the values above, except for the self-determination
of peoples, which was not mentioned in the Preamble. But to complete the value system
I had to add more elements. These elements do not fit exactly into Spijkers’ definition
of global values, however, I see these „unwritten values” as the origins of other global
values.
I also need to emphasize that the concepts I am operating with are much less to be used
in the arena of interstate politics, than on the level of humanity as a whole. I do not
differentiate sharply between society and the international order.145 A further distiction
143
Spijkers [2011] p. 9.
Spijkers [2011] p. 9.
145
Szörényi [2009].
144
24
has to be made between Spijkers’ and my approach: he operates with the traditional
view that values are beliefs, I take them as given, and as facts on the other hand.
Just as the U.N. itself does in legislation, I focus in my paper on the individual and on
humanity at the same time. The first chart in the annex is a good illustration to the
discussion in this chapter. Parts of the Preamble can clearly be identified there with the
concepts. Three exceptions from this statement must be taken into account, which are
the concepts I have been calling „unwritten values”. In my interpretation, unwritten
values are inherent parts of the Preamble, as well as of the value system of the world
organisation. These are morality, unity (the connection between the individual and
community level) and the pursuit of happiness. While presenting these three, I outline
the events (or milestones), through which the derived values came into existence. The
process is illustrated on the second chart146.
Morality
The first value is morality. This is the core concept which gives other global values the
opportunity to exist. Morality is about distinguishing between good and bad. If there
was no morality, value systems would be subjective and values relative. However,
thanks to morality we can agree on certain common values and norms. Morality stands
above humanity, but we are drawing closer to the point where we can punctually answer
axiological questions concerning the nature of good and evil. Axiology deals with
questions which distinguish between the subjectivity and objectivity of values („For
instance, a traditional question of axiology concerns whether the objects of value are
subjective psychological states, or objective states of the world.”147).
Samuel Harris – a contemporary author, neurologist and philosopher – confirms the
objectivity of values, morality first of all, in his 2010 TED talk Science can answer
moral questions148. According to Harris, there is a tight connection between science and
ethical questions, it is even dangerous to separate these two. His unfaltering approach,
that values are facts about the well-being of conscious creatures, is rather novel, but I
will take the same approach.
A Ghanaian philosopher, Kwame Appiah, also mentions the objectivity of values: „I
want to hold on to at least one important aspect of the objectivity of values: that there
are some values that are, and should be universal (...)”149.
Although it is impossible to close a philosophical debate of value theory which goes
back to several thousand years in a few sentences, my paper as a whole confirms that
standing up for the objectivity of values means more than an intuitive stance. In the
Global Values book of Karin Miller150 and in several articles151 we can encounter the
same recognition.
146
See annexes.
Stanford Encyclopedia of Philosophy, Value Theory http://plato.stanford.edu/entries/value-theory/
148
Harris,
Sam:
Science
can
answer
moral
questions,
TED
talk,
2010
http://www.ted.com/talks/sam_harris_science_can_show_what_s_right/transcript
149
Spijkers quotes Appiah: Appiah, Kwame Anthony [2006]: Cosmopolitanism: Ethics in a world of
strangers. W. W. Norton & Company, Inc., New York, p. xxi. In: Spijkers, Otto [2011]: The United
Nations, the Evolution of Global Values and International Law. Intersentia Ltd, Cambridge, United
Kingdom; p. 35.
150
Karin Miller [2015]: Global Values, Amazon, Kindle edition, p. 13.
151
Direct arguments for the objectivity of values can also be read in the article: Moore, Adam D. [2004]:
Values, Objectivity, and Relationalism. In: The Journal of Value Inquiry, 38., pp. 75-90., Kluwer
147
25
According to Spijkers, global values constitute the core of „global morality”. 152 This
statement – in contrary to my statement that morality is the core concept – assumes a
reversed connection between morality and the other values, creating a chicken-egg
problem. It is not the aim of my paper to explore the origins of morality, yet I have to
point it out again, that there were delegates in San Francisco who would have preferred
it if there had been an explicit reference to God in the Preamble, as the source of all
principles and aims.153
As we have seen in the historical chapter, when I was writing about the imprints of that
time, the creation of the United Nations is tightly connected to morality. The positive
feelings, and the turn which made leaders see human coexistence and progress in a more
conscious way, and made them think in a larger system, can be called fairly moral.
The unity of humanity
At this point, I would like to explain the connection between individual and community,
in this case that between individual and humanity, to be more punctual, which means
the unity of humanity.
Spijkers sees the statement, that humankind makes up one community, as a kind of
cosmopolitan intuitive feeling, 154 which cannot really be argued for or against, but
which is supported in practice by globalisation.155
Regarding unity, the text of the Preamble refers in its first lines in three different ways
to humanity, as a whole (and in three different tenses). Taking the larger perspective
reflects Jan Smuts’ holistic approach:
•
•
•
„We the peoples of the United Nations”
„succeeding generations”
„(untold sorrow to) mankind”
To explain the link between morality and unity I would like to outline a model. This is
embedding a psychological theory into the historical and global context. Because of its
clarity it does not reflect specific historical events, rather the process of value-evolution.
The psychological theory to be used is Abraham Maslow’s pyramid or hierarchy of
needs.156 Not the whole theory, which is allegedly exceeded, and many elements often
doubted,157 only the assumption, that we have a certain number of needs and that they
have a hierarchy. My study will not merge any deeper into the socio-psychological
discipline than this.
Academic
Publishers.
http://www.nyu.edu/projects/nissenbaum/papers/values,%20objectivity,%20and%20relationalism.pdf
152
Spijkers [2011] p. 14.
153
Spijkers [2011] p. 99., footnote 228.
154
Spijkers [2011] p. 25.
155
Spijkers [2011] p. 27.
156
Maslow, A. H. [1943]: A Theory of Human Motivation, Psychological Review, 50, pp. 370-396.
http://psychclassics.yorku.ca/Maslow/motivation.htm
157
Examples for its criticism:
Bridwell, Lawrence G.; Wahba, Mahmoud A. [1976]: Maslow reconsidered: A review of research on the
need hierarchy theory. Organizational Behavior and Human Performance. 15/2, April, pp. 212-240.;
Hofstede, Geert [1984]: The Cultural Relativity of the Quality of Life Concept. The Academy of
Management Review, 9/3, July, pp. 389-398.;
Cianci, R.; Gambrel, P. A. [2003]: Maslow's hierarchy of needs: Does it apply in a collectivist culture.
Journal of Applied Management and Entrepreneurship. 8/2, pp. 143-161.;
Diener, Ed; Tay, Louis [2011]: Needs and subjective well-being around the world. Journal of Personality
and Social Psychology, 101/2, August, pp. 354-365.
26
From one perspective, humanity consists of individuals, who – because of the scarcity
of resources – fight with nature and each other to satisfy their needs. In the course of
time, these individuals discovered the following: If they have satisfied one of their
needs or a group of needs and secured it for a given time, they could direct their
attention to new, other needs, a new group of needs. I assume that humans climbed
higher and higher on their pyramids, because they wanted to be happy and discovered
that this is the way they could be. In his Nicomachean Ethics, Aristotle writes:
„Happiness, then, is something final and self-sufficient, and is the end of action.”158
Thomas Aquinas and St. Augustine too write about happiness as the ultimate goal. The
concept of happiness will be discussed in more detail in one of the next sections.
Returning to the topic of needs: Because of the tough natural conditions, no individual
could climb over a certain level on their pyramid of needs, at least not alone. Here they
got to another important discovery: The more cooperative they were, the more they
could trust and did trust each other, the higher they had the chance to climb. And
because life „rewarded” them for cooperation, they learned to cooperate. It may be right
to say that the law of the jungle (as the primitive survival strategy) and civilisation
parted at this „point” of human history. This is where the separation of „the way of
nature” and „the way of grace” gained meaning, and behavioral patterns emerged, that
we can call moral.
One of the forces that keeps people together is the need for cooperation, and this has
been proven on higher and higher community levels throughout history. The foundation
of the United Nations is in the political sense the coronation of this process, as the
highest level is humanity itself.
The founding fathers of the U.N. could not have foreseen how the world will look in a
few decades, but they knew the values that kept together the people and the peoples on
different levels. Having learned a lesson from the wars, they worked towards the
creation of a system, where interdependence of individual and humanity would lead not
to catastrophes, but to the realization of the individuals’ potentials through the goals of
the global community.
Human dignity
In the preamble it reads: „(…) to reaffirm faith in fundamental human rights, in the
dignity and worth of the human person (…)”.
It is possible to draw parallels between human dignity and the thought of unity. The
values on the level of the individual and on community level are interoperable. These
years we experience a shift towards the individual in international law, that means the
trend is the human rights approach.159 However, the two sides of the coin should be
emphasized equally, also because of what connects them, cooperation. Global values
are based on human needs, as Spijkers mentions in his study.160
The preamble – mentioning the dignity and worth of the human person – is probably the
first sign after the world wars, that humanity has recognised its own value, as a whole
and as individuals. The worth of life, which is a greater common heritage of ours than
anything else, has been regonized again.
158
Aristotle [350 BC]: Nichomachean Ethics http://classics.mit.edu/Aristotle/nicomachaen.html
Spijkers [2011] pp. 201., 280.
160
Spijkers [2011] pp. 56., 207.
159
27
The United Nations relates equality to respect for human dignity161, which again can
strengthen our belief in the close interconnectedness of the individual and community
levels.
The strive for happiness
At this point I am shortly getting back to happiness, the third unwritten value. It cannot
be identified in the U.N. Charter, but the word „happiness” or words „strive for
happiness” can be found in other treaties’ preambles. However, since the United
Nations’ creation, happiness has gained a new role as a value and a goal. Numerous
studies have been written in connection with happiness, and in July 2012, the
„International Day of Happiness” has been introduced to the U.N.’s calendar, which is
March 20.162
It is difficult to define happiness. One could say that it is a subjective thing, however,
we get closest when we „move together”163 towards happiness. This suggests that there
exists some kind of consensus on happiness, a goal towards which the other global
values take us. And for these global values, morality is the „compass”.
The values between morality and happiness (see 1. figure) were formed as follows.
Progress
Individuals, and then groups made little steps up on their pyramids of needs. They made
progress. In my opinion, it is not only the individual who has a pyramid of needs, but
the community as well. Human progress and development is a climb on the „largest”
pyramid.
There is a metaphor for this pyramid in U.N. history, which the Philippines used to
stress the interdependence of nations in the modern world: „[t]he mountain of man’s
progress is great and terrible, and they who climb must adjust their pace to the weakest
or the entire chain of climbers will go down.”164 It is reflected in this excerpt from
Article 76 of the U.N. Charter as well: „to encourage recognition of the
interdependence of the peoples of the world”.
Progress and development are characteristics of humankind. The advancement
mentioned in the Preamble („to employ international machinery for the promotion of
the economic and social advancement of all peoples”) suggests linear progress, from
the founders point of view. The United Nations is the organisation which seeks to
promote progress on the highest level of society.
Robert Wright, a contemporary philosopher, justifies the linearity of history and
progress in his 2006 TED Talk Progress is not a zero-sum game with the fact that in the
course of history social organization has reached higher and higher levels, and he
connects all this to morality.165 He associates higher levels of organization with „moral
revolutions” which actually stem from self-interest and are thus inevitable. Wright’s
idea fully parallels my reasoning, and it provides the link between morality and
progress.
161
Spijkers [2011] p. 328.
International Day of Happiness http://www.un.org/en/events/happinessday/
163
NATO poster for European Cooperation by I. Spreekmeester, Holland [1947]
http://www.peacepalacelibrary.nl/imagecollection/erp-whatever-the-weather-we-must-move-together/
164
Spijkers [2011] p. 221. footnote 34.
165
Wright,
Robert:
Progress
is
not
a
zero-sum
game,
TED
talk,
2006
http://www.ted.com/talks/robert_wright_on_optimism
162
28
However, not only progress was present, but growth as well. While it was possible,
people were looking for and were finding new places and resources. During this process
groups met each other, and sooner or later they realized that the available resources are
not or will not be enough for all communities, for all the people. In the modern context
it is Dennis Meadows’ work The limits to growth which deals with this problem166.
However, scarcity has been occuring from earlier on, in different situations, in different
ages, on different levels of society and because of different types of resources. After
they met each other, groups of people could do the following: stop or slow down
growth, change the way they utilized resources, find new solutions through
technological and economic innovations, or integrate and unite their societies through
repeating the cooperative process. Still, there existed and exists another scenario, a
primitive method: the law of the jungle. This has lead to wars and catastrophes. The
clashes of the groups occured on higher and higher levels (on levels of larger and better
organized groups), and in 1993 Samuel P. Huntington already predicted the Clash of
Civilizations.167
Freedom and security
Frightened by the consequences of applying the law of the jungle, and recognizing the
inherent danger, the setback on the pyramid, communities formed systems (legal
cultural, religious and social systems). Through the systems they ensured that common
interests, and possibly the relatively basic individual interests remained intact.
When people saw that their systems work, they felt safer, as numerous important needs
were satisfied again for a longer term. However, they presumably realized as well that
because of the scarcity of resources their growing open system had to be closed.168 The
price of security was: a piece of their freedom. This is where the notions of freedom and
security, as we know them today, have parted. These are two concepts which are
controlled by one of the most fundamental elements of social systems, i.e. the law. In
my view, law has two main directions or dimensions: one is ensuring security, which is
more of a common interest, the other the increase of freedom for the individual.
Equality is key to both, because it fosters trust and cooperation.169
The U.N. Charter associates security with peace for historical reasons, but I prefer
pairing up security and freedom. There is little attention drawn to the relation of
freedom and security, but it can be illustrated on recent examples. One is the EU’s
policy on home affairs and justice. As it reads in Ákos Kengyel’s textbook about the
common EU policies, „The increasing freedom can only be enjoyed if security is
guaranteed at the same time. It is obviously favorable for the citizens of the European
Union – in accordance with the right to free movement – to have border controls lifted,
this however results in the free movement of undesirable elements (such as criminals,
terrorists, illegal immigrants, etc.) as well.” 170 In this example, security had to be
increased with the increase of freedom. However, an opposite process can take place as
166
Meadows, Dennis [1972]: The limits to growth. Universe Books, New York.
http://www.donellameadows.org/wp-content/userfiles/Limits-to-Growth-digital-scan-version.pdf
167
Huntington, Samuel P. [1993]: The Clash of Civilizations? Foreign Affairs, summer edition
http://www.foreignaffairs.com/articles/48950/samuel-p-huntington/the-clash-of-civilizations
168
For more about systems in social sciences see Ludwig Von Bertalanffy’s works.
169
At this point it is worth mentioning the social and political scientist Karl Deutsch, who introduced the
concept of security communities. (Lecture of Éva Kőváriné Ignáth [2014], European Politics: Theories of
Integration)
170
Kengyel, Ákos [2010]: Az Európai Unió közös politikái. (Common Policies of the European Union)
Akadémiai Kiadó (Publisher), Budapest; p. 243., own translation.
29
well, if freedom has to be reduced in order to keep the community safe, just like in the
security policy of the United States after the 9/11 terror attacks. These situations may
lead to conflicts („the dilemma of „security vs. freedom” has emerged with particular
importance in western states, as safety measures often came with restrictions in
freedom, endangering one of the fundamental values of democracy.”171). The securityfreedom conflict is reflected in the speech of John F. Kennedy from July the 25th, 1961:
„We recognize the Soviet Union's historical concern about their security in Central and
Eastern Europe, after a series of ravaging invasions, and we believe arrangements can
be worked out which will help to meet those concerns, and make it possible for both
security and freedom to exist in this troubled area.”172. While the Soviet Union focused
on security173, the United States represented freedom – as always. The two systems
confronted each other at several points during the Cold War. In my opinion the reason
on the level of global values for the confrontations was that there is not always enough
„space” for maximal freedom and security. The two displace each other, and progress is
only possible with keeping a delicate balance.
The Preamble gives another cross-section of the freedom-security dynamics. Emphasis
is clearly on security. The so called freedom-values (freedom itself, democracy,
tolerance and justice), which were inspired by the Enlightenment, are only partially
represented. There may have been historical and emotional reasons for this, particularly
the fear of the war-threat.
Freedom-security dynamics, as mentioned before, are in connection with progress.
When people discover a new technology, a tool, its negative utilization appears shortly
after the positive one. One example is nuclear energy and nuclear weapons, another the
internet and cyberattacks. Thus, with the increase in freedom provided by new
technological means we have to increase security as well during our progress.
Law and justice
The last topic in this paper to explore is the link between morality and law, especially
international law. There are three approaches to this connection. The sceptic and
realistic approaches separate morality from law. Already Immanuel Kant insisted on
isolating the obligations arising from the law and from morality. Hans Kelsen also
belonged to the critics of "legal morality". From the second point of view, morality is a
kind of possibility at the end of political processes, which depend on the legal
framework. Here we can see law and morality standing closer to one another. In this
paper, the third approach is used, which bases international law on universal morality,
which thus determines its development and interpretation. In this view, international law
rests on fundamental values, especially the value of human dignity, further, it has to
protect and promote these values. This third approach is based on natural law. In the
20th century, Hersch Lauterpacht (1897-1960) and Alfred Verdross (1890-1980) were
the two most influential patrons of the theoretical relationship between international law
and natural law. Both were influenced by Hans Kelsen at the beginning of their careers,
of whom they separated themselves later because of their conflicting views regarding
morality. Verdross also advocated the unity of mankind, which he found necessary to
recognize in order to explore the nature of international law. He was the first scholar of
171
Rostoványi, Zsolt [2011]: A Közel-Kelet története. (History of the Middle East) Kossuth Kiadó
(Publisher), Budapest; p. 241., own translation.
172
Kennedy, F. John:„Radio and Television Report to the American People on the Berlin Crisis” July 25,
1961 http://www.presidentialrhetoric.com/historicspeeches/kennedy/berlincrisis.html
173
Ferge, Zsuzsa [1996]: Freedom and Security. International Review of Comparative Public Policy, vol.
7., pp. 19-41. http://www.fergezsuzsa.hu/docs/freedom_and_security.pdf
30
international law to raise the idea of constitutionalizing the international legal order.174
As illustrated on the 1st figure of the appendix, law has to be connected to morality in
order to function on the levels of the individual and the community.
When talking about the link between law and morality, we must arrive at the concept of
justice. Spijkers considers justice as an „umbrella value, in the sense that if the
international legal order is based on the values of peace and security, social progress
and development, human dignity, and self-determination of peoples, it is a just
order.”175
The evolution of global values
The value system of the United Nations is a global value system, and „global values
theoretically have the potential to influence global affairs”.176 The international legal
order, for which the U.N. Charter provides the „constitution”, aims not only to ensure
peaceful coexistence, but also to realize a set of internationally shared, fundamental
values.177 This realization however, seems – based on current knowledge – not to be a
finite process. The goals are relatively „far”, yet global values develop, evolve, and
something we call a goal today, may be looked upon in the future as a given. For many
more steps on humankind’s pyramid of progress we will experience that successes of
the fight for global values result in the disclosure of new challenges.
Put it in the latter perspective, values can be means and ends as well, or as Spijkers
quotes Rokeach, they can be a „mode of conduct” and an „end-state existence”178. This
explains what Hans Kelsen criticizes wrongly in the Preamble, and why the students in
2013 could not distinguish between the means and ends of 1945.
I call the values presented in my study axioms, because there is hope and chance that
they will be like premises in the future, and are already to some extent, or in theory.
This is best illustrated by humankind’s history itself. „Slavery, common for millennia,
has virtually disappeared. Colonialism has given way to agreement on the right of selfdetermination. Aggression accross recognized national borders, once a standard tool of
state policy, now meets with international condemnation.” 179 We could go on with
relatively modern values, which are now evident for most of us, such as sustainable
development, the equality of men and women and democratic government. It is as if the
whole work of the United Nations had an underlying directive „to improve the world,
primarily by avoiding a repetition of the evils of the past.”180 Value evolution has even
appeared in popular fiction recently: the novel (and movie) Cloud Atlas181 compares
different eras of history, with main stories like the fight for abolishing slavery, the
freedom from discrimination based on sexual orientation, and the rights of clones in the
more distant future.
174
Bernstoff, Jochen von; Venzke, Ingo: Ethos, Ethics, and Morality in International Relations, August
2011.,
Max
Planck
Encyclopedia
of
Public
International
Law
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e936?rskey=ruKacy&result=1&q=morality&prd=EPIL
175
Spijkers [2011] p. 73.
176
Spijkers [2011] p. 7.
177
Spijkers [2011] p. 6.
178
Spijkers [2011] p. 15.
179
Spijkers quotes Florini [2011] p. 51.; Florini, Ann [1996]: The Evolution of International Norms, p.
363.
180
Spijkers [2011] p. 149.
181
Mitchell, David [2004]: Cloud Atlas. Random House Trade Paperbacks, New York.
31
If we apply the linear progress approach of the United Nations to the history of
humanity, it can be viewed as the history of values, as they gain vailidity in society, and
as peoples reach their goals related to these values, making them axioms.
VI.
Conclusion
The Preamble of the U.N. Charter carries several layers of meaning. I hope that my
paper has contributed to unfolding these layers and to the recognition of its indisputable
value content.
We can find certain connections in the value-system of the United Nations, from
morality, through human dignity, international law, as well as through freedom and
security, through progress, harmonizing the individual and the community levels, up
until happiness. These values have a long history, but it is as if the connections
mentioned had been there all along, crystallizing one after another. In the combined
recognition of global values, the founding fathers of the United Nations were in lead,
which is reflected in the value constellation of the Preamble.
In my study, I integrated the values represented by the United Nations into a new
system, creating links and temporality between them through inserting a psychological
model into historical ones. The resulting theory does not give a detailed picture of the
complex reality, it rather serves to follow the birth of values and their connections.
Based on the explanations in the paper, we can obtain a clearer picture of the
correlations between needs, progress and values. The discourse about human needs
stands close to the views of Plato and Durkheim, and the description of the relationship
between individual and society to that of Hobbes and Rousseau, but it would have been
wrong to refer to them. I have not used those works when writing this paper, and my
hypothesis does not completely overlap with their views.
The authors I have been referring to (Samuel Harris, Robert Wright, etc., and Steven
Pinker belongs to this group as well) are representing moral realism, i.e. stand up for the
objectivity of values. There is no unequivocal proof of the objectivity of values in moral
philosophy. Some values, especially those defined by different ideologies, are
inconsistent with each other. I think though, that as my study shows, these
inconsistencies will gradually dissolve with scientific and technological progress, as
well as with increasing integration in the international and societal dimensions.
Integration implies that the value systems of individuals converge, and this convergence
stretches along the United Nation’s value system, i.e. the global values.
I think that the hypothesis introduced at the beginning of the study has been proved with
success through explanation and analysis. The topic is worthy of further thinking, both
in depth and breadth. What I mean by depth is that in the literature of values and their
history there are further opportunities to support the outlined value system. And by
breadth I mean that it is possible to integrate additional values into the system through
further analysis, transparency for example. And when examining progress, another
discipline can be used, namely international economics.
The relationship between freedom and security is a very interesting and unexplored
area. I believe that a full understanding of these and similar values together with their
context and influencing factors would lead to much more efficient organizing and
governance, on the national, regional and international levels. Also, we would see the
advantages and disadvantages of the different economic and political systems more
clearly.
32
I find it an interesting opportunity for research to examine value-evolution in more
classic literature. One of my relevant discoveries here is C. S. Lewis’s The Abolition of
Man182, which mentiones the need for faith in objective values, the connection between
self-interest and the interest of the community, the war of our instincts and the hierarchy
of impulses. These latter two can be associated with the theory of the hierarchy of
human needs, used in this study. It is interesting that both works (The Abolition of Man
and Maslow’s article) were published in 1943. Lewis also writes about the Golden Rule
of reciprocity, mentioned earlier in my paper, he marks natural law and morality as the
source of value judgements, uses the word axiom in connection with values, and raises
the idea of the evolution of our value-systems. All this shows that my hypothesis can be
found in other works, either in parts or in an initial phase.
The second figure is another illustration of value evolution’s unfinished process.
Although my paper did not attempt to predict the possible outcomes, the readers might
rigthly want to think them through. One example is the idealist concept of Herbert
Spencer, according to whom the conflict of egoism and altruism will cease in the future,
and they will even conjugate183. This is somewhat consistent with the theory introduced
in this paper, which describes the inseparability of community and individual, and their
ever closer relationship. Meanwhile, the universe of the United Nations’ values is in a
constant expansion, but individuals do not have the right means yet to embrace the
whole value world.
Finally, it is worth mentioning that based on my study, conclusions can not only be
drawn regarding the values, but also regarding the United Nations. The study is proof
that values are important, but so is the organization representing them. Although it was
created after the most tragic events of humankind’s history, and this has its imprint on
the text of the Preamble, the United Nations – with its function, mission and philosophy
– is timeless, essential and in some sense sacred.
182
Lewis, C. S. [1943]: The abolition of man, or, Reflections on education with special reference to the
teaching
of
English
in
the
upper
forms
of
schools.
HarperCollins,
Glasgow
http://www.basicincome.com/bp/files/The_Abolition_of_Man-C_S_Lewis.pdf
183
Ádám, Antal [1997]: Értékek és értékelméletek. (Values and Value Theories) Társadalmi szemle
(Journal), 52/5; p. 6.
33
Appendix
1. figure: The system of global values
(the strive for) happiness
the economic and social
advancement of all peoples
better standards of life
progress
the community/
humankind
the individual
security
freedom
international law
human dignity
justice
morality
The figure shows, how the main values (morality, (the strive for) happiness, unity of
the individual and humankind) enframe the other values.
34
2. figure: A simplified sketch of the historical milestones, during
which the evolution of global values unfolded
1. People start the journey upwards on their pyramids.
↓
2. They realise that without cooperation they cannot climb higher.
↓
3. People start to cooperate, which strengthens values such as tolerance and
others in connection with helping and respecting each other.
↓
4. When people climb higher by cooperating, groups of people develop and
start growing.
↓
5. Resources get scarce, the growing communities meet each other.
↓
6. People solve the problems of scarcity by integration and innovation or
they are clashing and waging wars on one another.
↓
7. People create closed social systems, and find balance between freedom
and security for the first time.
35

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