November 2, 2009
Introduction
The aim of this essay is to argue that the language used within the Charter (the “Charter”) of the United Nations (the “UN”) to regulate the task of the Security Council (the “SC”) to maintain peace and international order, was agreed upon by the states participating in the San Francisco Conference of 1945, by means of what Andrei Marmor calls strategic speech (the “Strategic Speech”)[1], and that even though the final text of the Charter of the United Nations (the “Charter”) did not include international law and justice as guiding principles of the SC’s actions, nevertheless a normative implicature obliges the SC to act as bound by such principles.
This aim is relevant because it contributes to provide a new characterization of the normative reach of the Charter when interpreted by the General Assembly, the SC, states, the International Court of Justice (the “ICJ”) and/or the International Criminal Court (the “ICC”), as organs which perform functional roles of the outmost relevance to the stability of international peace, as championed by the UNs legal system.
Elaborating on the normative reach of the Charter has become increasingly important during the last decades, particularly after the failures of the SC in preventing, and/or acting on time in cases such as Rwanda, Kosovo, or Darfur, which probably occurred due to a lack of political will of the SC, which supported its inaction with a narrow interpretation of its functions under the Charter, remaining apart from any intervention in such regions.
Recent claims requiring a redefinition of the functions of the SC, as well as of the principles which must guide its action, have been raised by dozens of countries, NGOs and International Organizations. However, given the difficulty of accomplishing substantial reforms to the Charter, it is relevant to inquire on the possibility of justifying such “redefinition” by other means. This essay is a proposal for broadening such functions and the principles from which the former derive, by means of a new approach to one of the most relevant implicatures embedded in the regulations related to the SC, included under Chapters V and VII of the Charter, mainly in the articles which refer to the SC’s role of keeping international peace and security.[2]
I
Before developing my main argument, it is necessary to recapitulate on some basic concepts. Strategic Speech is characterized by Marmor as one in which:
“(…) the speaker strives to implicate more than he would be willing to make explicit. Consider, for example, two legislators (…) If they make their aims very explicit ex ante, it is very unlikely that they will reach a compromise. Part of what enables opposing parties to reach a compromise consists in their ability to conceal, or at least not make very explicit, the overall implications of their collective speech.”[3]
Marmor believes that a good example of Strategic Speech is legislative speech. Without discrediting the feasibility of defending successfully such idea, I believe that the construction of a legal instrument of strong implications, such as a Constitution, or the Charter of the United Nations, makes a better case of Strategic Speech[4], and thus I strive to prove in (II) via a practical example.[5]
It is difficult to think of a case in which Strategic Speech is more evident than in the context of a forum in which the design of the normative framework of the international world order takes place. The nature of the parties involved with the bargaining process of law creation – of charters, resolutions, etc. –, namely sovereign states, compels them to be extremely careful of the existence of any implied meaning deriving from any of the statutes[6] to which they agree.
The case of the United Nations Conference on International Organization (the San Francisco Conference) which gave birth to the Charter of the UN provides strong evidence of the heated bargaining process that took place between the participant states[7]: three main issues were particularly disputed: (1) the powers and scope of the functions of the SC, (2) the scope of the responsibilities of the UN with regard to economic and social world issues, and (3) the creation of a new world court (the ICJ).
After including some minor changes on the Dumbarton Oaks Draft (the “DOD”)[8] elaborated by the members of what would be the SC, the draft was unanimously approved as the Charter of the UN.[9] Would the Charter have been unanimously approved if it were not because states got to manage a way to embed implicatures in the body of the Charter instead of explicit regulations which would have distanced them irreconcilably? I am of the opinion that it would have not. If such thing had happened, the states would have lost a valuable opportunity of enacting a document which was meant to be the legal and political pillar of world peace.
II
The following example is useful to explain how implicatures played a significant and useful role in the bargaining process and successful enactment of the Charter, in the frame of a paradigmatic Strategic Speech “conversation”.
As stated above one of the most relevant issues in dispute in San Francisco was related to the functions of the SC. In reviewing the powers of the SC as regulated in the DOD, Egypt raised the issue whether the SC had to apply international law (and its principles) in keeping international peace and security.[10]
Egypt then proposed an amendment to the DOD, according to which the SC should act “in conformity with the principles of justice and international law” pursuant to the maintenance of peace and international order.[11] Evidently, such proposal was defeated with great opposition of the United States (US) and of the remaining powers of (who would later be members of) the SC (Great Britain, France, China, and Russia). For instance, the posture of the US was that:
“(…) the people of the world wish to establish a Security Council, that is, a policeman who will say, when anyone starts to fight, “stop fighting”. Period. And then it will say, when anyone is all ready to begin to fight, “you must not fight”. Period. That is the function of a police man, and it must be just that short and that abrupt; that is, unless at that place we add any more, then we would say “Stop fighting unless you claim international law is on your side”. That would lead to a weakening and a confusion (SIC) in our interpretation.”[12]
On the flip side, opposition to that posture grew rapidly, under the leadership of Egypt and Uruguay. Uruguay ferociously disapproved the language used in the DOD.[13] When the amendment was put to vote it lost with 21 favorable votes, against 21 negative votes, given the 2/3 majority needed in order to approve successfully amendments to the DOD.[14] Surprisingly, few days later, before the formal proclamation of the Charter, the delegate of the US affirmed in a rather surprising speech that:
“We are here [in San Francisco], first of all, to find ways and means to maintain international peace and security throughout the world. But above and beyond that most desirable objective, we are here to lay the first foundation of a new world civilization which in its international relations shall be based upon law and justice and brotherhood, rather than upon brute force.”[15]
Here we have the postures of parties pertaining to opposite sides of the negotiation. Informally they agree on a central issue of the negotiation: this is, that international order “shall be based upon law (international!?) and justice and brotherhood”!; but they formally do not agree on the inclusion of such (assertion?) one such text in the Charter, as provided by the amendment proposed by Egypt. Nevertheless, however, it seems that the parties do agree in the fact that international law and justice must be the pillars of international order. The relevant questions we may raise here then would be:
(a) Does that external agreement[16] create a – contextual – implicature? And if it does,
(b) What is the normative value of such an implicature? This is: what is the enforceability of the implicature (i.e. before the General Assembly, the SC, or the ICJ) in the context of international conflicts or problems?
I will address (a) and (b), in III and IV, correspondingly.
III
I believe that the external agreement does contribute to the creation of a contextual implicature based on two main arguments.
First: Let us think of the conversation between nation states in the San Francisco Conference with regard to the SC functions as a Strategic Speech, in which conversational cooperation, nevertheless, is predominant. In this case, “our ability to understand content of expressions beyond their assertive content is due to a combination of two kinds of factors: a) general norms of conversation that apply to the relevant speech situation, and b) specific contextual knowledge that is shared by speaker and hearer in the circumstances of the utterance.”[17] In the context of the San Francisco Conference the maxims as listed by Grice would work promoting efficient (and effective) communication between the states. The states (Parties) reasonably relied on such maxims in the bargaining process, with nevertheless, some obvious degree of skepticism which is not sufficient, anyway, to obstruct the efficiency of the communication.
Now, let’s prove Grice’s theory in the light of the specific implicature we are studying in this paper: namely, that any text (utterance) included in the Charter under Chapters V or VII referring to the function of the SC to maintain peace and international order, implies a normative content according to which, the SC should do that in compliance with international law and justice.
Below I will include below my comments to Marmor’s words between parentheses. Referring to Grice, Marmor says:
“In other words, a speaker S (the US and other parties participating in the enactment of the Charter) conversationally implicates q (that the SC shall comply with international law and justice in its function as peacekeeper) by saying p (that the SC shall keep peace and security) in context C (the specific negotiation of the San Francisco Conference, in which, the US made a public declaration according to which “(…) in its international relations shall be based upon law and justice and brotherhood, rather than upon brute force”), if
(a). S is presumed to observe the relevant conversational maxims in C;
(b). the assumption that S meant (or intended that) q is required in order to make sense of S’s utterance of p in context C, given the conversational maxims that apply;
(c). S believes/assumes that his/her hearers can recognize condition b, and can recognize that S knows that.”[18]
I think that each of these three conditions is present in this case. Moreover, I also think that the two main features which Grice associated with conversational implicatures are also present.[19] The first of them being the cancellability of the proposition is clearly present in this case. We could say something like: The SC must keep international peace and security, and in doing so it does not need to apply international law or justice. That assertion would make sense, provided that we did not know the particularities of the context that surround the assertion. Now, here is a connection with the second main feature, which is that conversational implicatures are very context specific.[20] The implicature we intend to prove in these lines only becomes acknowledgeable if we already know the particularities surrounding the context in which the assertion is made. Thus, if we did not know that the US made the declaration we quoted above, or the heated bargaining process that took place between the parties of the SC and other states participating in the San Francisco Conference, the implicature would not be intelligible. Only when we know what actually happened along the process of negotiation and enactment of the Charter the implicature becomes visible to our eyes. Now, here it is necessary to contend that implicatures can become unintelligible, if the context that surrounded the assertion is forgotten. Thus, if hearers forget what happened in 1945 in the San Francisco Conference, whether in their condition of state members, citizens, or international courts of whatever kind, the implicature dyes. This is very likely in the context of the international legal system, given its permanence throughout time, where representatives of the agents of the international community vary constantly.
Second, the contextual implicature portrayed in this essay can also be justified if we think that in the international level a state may reasonably expect that other states comply with what they assert and mean not only in Statutes, but also in public declarations, speeches, or round tables. Even though real politik would be a possible example of a counterargument for this assertion, the truth is that the universal principle of pacta sunt servanda, as well as the ideal of good will in the action of states makes me believe that this reasonable expectations theory is indeed plausible.
Plus, with regard to the US, the acceptance of what I would call the implicature theory of interpretation, combined with the well established theory of estoppel[21], would make a very strong case in affirming that the US is indeed bound by the implicature that the declaration cited above created, namely the need of the SC to guide its conduct in the light of international law and justice, notwithstanding the fact that such declaration was not included explicitly in the final version of the Charter.
IV
With regard to the normative value of the implicature, even though my intuition would be to assert that it would have the same value (and power) of the explicit written rule or in certain cases even more, I must confess that in my view no clear answer can be suggested without further analysis. I think that it would be necessary to explore more on the decisions of international tribunals, and in general, in the statutes, resolutions, and actions of the international community, in the past.
It is my intuition that a research of this kind could explore on the implicatures contained in the framework of the different treaties that created the European Union, and particularly, in the norms and arguments that served as a basis for the surprising doctrine of Kompetenz-Kompetenz created by the European Court of Justice in order to expand the scope of its competence, thus becoming a strategic actor in the evolution of the European Union building process.
For instance, since 1964 the European Court of Justice (the “ECJ”) has developed the doctrine of Kompetenz-Kompetenz, even though such type of competence has never been stated formally or explicitly in any treaty within the framework of the European Union legal order.[22] The ECJ, has developed thus, the idea according to which the ECJ is the supreme tribunal with competence to rule in issues regarding the supreme law, this is, the treaties and Statutes related to the European Union.[23] I believe that the ECJ has done so enforcing in the EU legal context an implicature. But proving this intuition would need, as stated above, further work.
V
The simple and straightforward language of the Charter in relation to the issue we are analyzing hereunder, would seem to have helped the parties – but mainly the US and other permanent members of the SC – to (i) fix an actual agreement with the weak parties of the bargaining process, in the context of a cooperative conversation, which nonetheless confronted certain obstructions characteristic of strategic speech due to deficiencies of the cooperative principle present in these type of negotiations, [24] (ii) reduce internal political costs, (iii) reduce political risks abroad, (iv) reduce legal risks abroad, and (v) grant the parties the needed flexibility to defend their own interpretation of the language of the text in their own interest, when needed; but notwithstanding the above, still appear to be committed to the use of international law and justice as a guiding criteria in the exercise of the powers of the SC regulated under Chapters V and VII of the Charter.
It is possible to conclude that the provisions of the Charter do not only have the plain meaning derived from its explicit utterances, but also have a sound meaning derived from the implicatures which lay underneath the surface of the mentioned utterances (assertions).
New issues would need to be addressed from this point on. For example: how far can we go in the “construction” of such implicatures? Is any context surrounding the enactment of a treaty or law relevant to the meaning of the assertion? Does every treaty contain implicatures of this kind? Implicatures are built or they simply exist? And if the latter is possible, which would be the elements of implicatures in order to make their content binding for the parties which participated in their utterance?
BIBLIOGRAPHY
- MARMOR, Andrei. Can the Law Imply More that it Says? On Some Pragmatic Aspects of Strategic Speech. Unedited. P. 15.
- Charter of the United Nations.
- Encyclopedia of the United Nations. The Making of the United Nations: The San Francisco Conference, 25 April-26 June, 1945. http://www.nationsencyclopedia.com/United-Nations/The-Making-of-the-United-Nations-THE-SAN-FRANCISCO-CONFERENCE-25-APRIL-26-JUNE-1945.html
- Spijkers, Otto. Security Council and International Law in San Francisco, 1945. http://unitednationsandtheindividual.blogspot.com/2006/11/security-council-and-international-law.html
- United Nations Conference on International Organization ‘UNCIO’, vol. 6.
- American Bank v. Trinity Universal Insurance Company, 205 So.2d 35 (La.1967).
- Bowett D.W. Estoppel before International Tribunals and Its Relation to Acquiescence. P. 176. http://dspace.hil.unb.ca:8080/dspace/bitstream/1882/947/12/PhaseI_NL_CounterMemorial_SupplementaryAnnexOfAuthorities_Tab11.pdf.
- Weiler, J.H.H. The Transformation of Europe. The Yale Law Journal. Vol. 100, No. 8, Symposium: International Law (June, 1991).
[1] MARMOR, Andrei. Can the Law Imply More that it Says? On Some Pragmatic Aspects of Strategic Speech. Unedited. P. 15.
[2] This is: Articles 23.1, 24.1, 26, 42, 43.1, 47.1, and 51.
[3] Marmor, Ibidem. P. 13.
[4] Marmor believes that “There are two main features of strategic communication that distinguish it from an ordinary cooperative exchange of information. First, there is typically a certain misalignment of interests: A speaker’s interest in implicating a certain content and the hearer’s interest in the uptake of that content might diverge, to some extent. The speaker wants to communicate more than she would be willing to make explicit, while the hearer may not have an interest in acknowledging the uptake of such oblique implications. Second, this mixture of cooperative and non-cooperative elements of strategic communication is made possible by a certain degree of uncertainty about the relevant maxims of conversation or the level of adherence to them, that the parties are presumed to follow.” Marmor, Ibidem. P. 15. I think that both features appear more clearly in the context of international law, than in the context of local law and of legislative speech, where (i) not necessarily misalignment of interest occurs, and where (ii) the uncertainty about the relevant maxims of conversation applicable is not always present. This is not to say that the same critiques could not be made in the context of international law, but it is evident that in such a case the critique is not so strong, particularly in the negotiation of the Charter or of foundational documents of certain kind of international orders, such as the Rome Statute.
[5] I need to clarify in this point that I do not find Strategic Speech incompatible with cooperative conversations. Strategic Speech can be, in my view, predominantly cooperative, but characterized by a certain level of skepticism or uncertainty, which nevertheless still relies on the maxims of efficient communication, as explained by Grice.
[6] By statutes I mean any written legal regulation.
[7] “After much debate, the smaller and medium-sized nations succeeded in restricting the Big Five's use of the veto in the Security Council. (…)” http://www.nationsencyclopedia.com/United-Nations/The-Making-of-the-United-Nations-THE-SAN-FRANCISCO-CONFERENCE-25-APRIL-26-JUNE-1945.html#ixzz0VeSAHMRL. This is many other examples can be found in the literature of the San Francisco Conference.
[8] The Dumbarton Oaks Draft was the document over which the states of the San Francisco Conference negotiated, finalizing their work with the execution of the Charter of the United Nations.
[9] Encyclopedia of the United Nations. The Making of the United Nations: The San Francisco Conference, 25 April-26 June, 1945. P. 2. http://www.nationsencyclopedia.com/United-Nations/The-Making-of-the-United-Nations-THE-SAN-FRANCISCO-CONFERENCE-25-APRIL-26-JUNE-1945.html
[10] Spijkers, Otto. Security Council and International Law in San Francisco, 1945.
[11] United Nations Conference on International Organization ‘UNCIO’, vol. 6, p. 23.
[12] UNCIO, vol. 6, p. 29.
[13] The Uruguayan delegate stated that: “The mere police function, which pursues the materiality or formality of the order, and which in the popular language of my country is translated into the meaningful expression “You are right, but you are under arrest”, cannot attract our sympathies nor our hopes in the panorama of the reconstruction of the world. The day when there occurs anew the illusion that by sacrificing the rights of the weak in the face of threats by the strong the peace would be saved, on that day the fuse will have been lighted which sooner or later would set off the explosion of war. Injustice is not a propitious atmosphere for peace.” UNCIO, vol. 6, P. 31.
[14] UNCIO, vol. 6, P. 394
[15] UNCIO, vol. 6, P. 118
[16] By external agreement I mean an agreement which exists but which has not been explicitly embedded in a Statute.
[17] Marmor. Ibidem. P. 4.
[18] Marmor. Ibidem. P. 5.
[19] Marmor. Ibidem. P. 5.
[20] Marmor. Ibidem. P. 5.
[21] Bowett D.W. Estoppel before International Tribunals and Its Relation to Acquiescence. P. 176. http://dspace.hil.unb.ca:8080/dspace/bitstream/1882/947/12/PhaseI_NL_CounterMemorial_SupplementaryAnnexOfAuthorities_Tab11.pdf. The doctrine of estoppels has been well established by the International Court of Justice in copious jurisprudence. Even the Supreme Court of the United States has explicitly acknowledged the doctrine of estoppel in American Bank v. Trinity Universal Insurance Company, 205 So.2d 35 (La.1967): “Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. Founded upon good faith, the doctrine is designed to prevent injustice by barring a party, under special circumstances, from taking a position contrary to his prior acts, admissions, representations, or silence.”
[22] Weiler, J.H.H. The Transformation of Europe. The Yale Law Journal. Vol. 100, No. 8, Symposium: International Law (June, 1991) P. 2414.
[23] Weiler. Ibidem. P. 2414.
[24] Grice, P. Studies In The Way of Words. Harvard University Press. 1989.
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