On Constitutional Character Of The Charter Of The United Nations

Is the Charter of the United Nations (hereinafter "the Charter") a constitution? Which kind of constitution is it? Or in which sense and to what extent is it a constitution? This is the main content of constitutional character of the Charter. The development process of the United Nations over60years and increasingly important role of the Charter as the basic standard of conduct in international relations and the cornerstone of international law indicate the Charter have been more and more constitutional character. Understand scientifically and take seriously the character of the Charter so as to exert its function in the wave of globalization and lay the constitutional foundations for international rule of law, which is the purport of this paper.The essential attribute of constitution lies in legal restriction on power. Different from ordinary law, it mainly embodies in its properties of organization regulation, social contract, fundamental law and higher law. Based on it, constitution has the confirmation, regulation and security function of freedom, democracy and human rights, which makes constitution the status of archimedean point for rule of law. The diversity of social environment and its governmental requirement results in the diversity of essential attribute of constitution, correspondingly the features and performance of functions of restriction of power by constitution vary with each society and its different developmental stage. Compared with a country, it is more necessary for international society to restrict power, with special pertinence required. The Charter is expected to maintain world peace and safety, promote international economic and social development, push the progress of human rights of the world especially for special groups in backward countries in that its essential attribute and functions of constitution in restricting international hegemony and regulating power and liabilities of sovereign states.Different from ordinary international law and national constitution, the character of the Charter as international constitution mainly manifests as follows. Firstly, the general charter which the Charter acts as is not only of the existing international organization but of the developing quasi-world government and even of budding international community, all of which have the character of organization law in relation to international powers. Secondly, the Charter is technically a multilateral treaty between States, and essentially it is also social contract of the United Nations and the peoples of the United Nations, which provides a theoretical basis for the universality, legitimacy and authority of the United Nations and is the logical premise of the supply of international public goods by the United Nations, it also becomes the rational choice for international society to maintain and develop. Thirdly, under the globalization tide, it is necessary for the Charter to play a role in governance framework during the course of economic, politic and legal globalization, whether the United Nations itself meets the challenge of globalization or bears the well-deserved mission of global governance. The60year's practice of governance of the United Nations especially after the Cold War makes the character of fundamental law of the Charter more and more outstanding. Fourthly, as a matter of fact, the Charter acts as the basic norm of international law and to some extent throws a light on legitimacy crisis both in form and substance in that the standardized expression of universal value through the Charter and universal consensus of all over the world on its aim and principles, leading to significant character of higher law. In general, the Charter shares the essential attribute of constitution. As to its degree, it is a complex question. On the one hand, the authority and effectiveness of the Charter is not comparable to that of constitutions of the developed countries, on the other hand, the Charter can be labeled of "nominal constitution" as opposed to so-called semantic constitution in those countries torn endemically by civil war and tyranny, which may be summed up in one sentence, fall short of the best but be better than the worst, and the Charter is in a state of intermediate between nominal constitution and normative constitution. That corresponds to the realistic position of the United Nations and basically mirrors development stage in which governance current international society lies. obviously only in a sense of normative constitution, the Charter is worthy of the name of the international constitution and it is imperative and deserved for the Charter to grow into a special type in the group of constitution. As seen from the trend of globalization, from the width, depth and speed of global interdependence, from the international consensus of function of law in global governance, the constitutionalization of the Charter evolves from nominal constitution to normative constitution depends on actual demand of global governance radically and is determined by its actual contribution in the course of international rule of law.