– By Avantika Banerjee, Co-Founder ISLR
Hans Kelsen was born in Prague on 11th October 1881. He was from a middle-class Jewish family. He completed his doctorate in 1908. Kelsen’s first book Die Staaslehre des Dante Alighieri was published in 1905. Kelsen served as the professor of Public and administrative law in the University of Vienna from the year 1919, therein, Kelsen served a successful tenure as guided many scholars like Alf Ross, Erich Voegelin among others. Unfortunately, in 1933 when the Nazis seized to power Kelsen had to pay heavy price of Jewish Ancestry and he was removed from the post of professor of International Law in University of Cologne. Kelsen then moved to Geneva and started a new academic career there, where n he focused on topics like relation between the state law and international law, customary law and revision of Covenant of League of Nations. After the beginning of the Second World War Kelsen moved to United States in 1940 and delivered lectures at Harvard Law School. In 1945 Kelsen played an active role in preparing the legal aspect of Nuremberg Trial and in the drafting of the UN Charter.1
Kelsen’s most significant contribution to legal jurisprudence is his ‘Pure theory of Law’ where he provides the Concept of Basic norm (Grundnorm). The idea of Grundnorm is that it forms the underlying basis for a legal system.2 The motive behind the theory of Grundnorm is to determine the origin point of law whether international or Municipal Law. Kelsen was from analytical school of law which primarily focuses on ‘law as it is’ rather than what law ‘Ought to be’. Kelsen was a monist (believing in oneness of municipal and international law). He believed that the only weapon people of a nation possess to combat the horrors of dictatorship is by strengthening of the international community as one which ultimately became the motive behind establishing the United Nations. Although he supported the idea of the UN but could not convince himself that the structure of United Nations was adequate and competent to deal with the problems of the International Community. In order to analyse the working of the UN and point out its limitations, in 1950, Kelsen Published ‘The Law of United Nations’ in this book he analysed the different aspects of the functioning of the organs of the United Nations with a juristic approach. Kelsen applied positive jurisprudence of law while writing this book when he affirms that the book deals with the Law of the Organisation as it is and not with its desired role in International Law.
The book has thoroughly revised the entire working model of the UN on the premise of the UN Charter, according to its making and the ideas expressed in it. However, not all of those ideas hold water today as these bodies have defined their roles over the decades.
The book begins with a critical comment on the Preamble of the United Nations, he says, ‘the preamble of the United Nations states some but not all the purposes of the United Nations’.
He emphasizes that the preamble is an inclusive part of the UN Charter and has the same binding force and the preamble declares as an ‘end’ of the UN is to ‘save the succeeding generations from the scourge of war’ which is identical to the means to reach this end.
Further, Kelsen remarks regarding the Organs of the United Nations as discussed in the Charter wherein, Kelsen points out that the statements have a theoretical rather than legal character. According to him the idea of providing different classes of organs in Article 7 does not provide a real distinction per se. He says that the Article recognises the Secretariat as a body with similar significance as that of the General Assembly, Security Council whereas in reality the Secretariat in fact does not have any independent function to perform like the other organs.
Kelsen further points out the difference in structure and functioning of the General Assembly in comparison with the League of Nations, according to him the equality-based approach as each nation big nor small shall have one vote and five representatives each which is more than that of the league of nations which had three votes each. But he criticises the procedure of selection of the president of General Assembly as a very vague process, in the sense, that the charter does not clearly denote as to who can be elected as the President.3
He portrayed the charter as a weak law by comparing the Sanctions under the Pact of Paris and the UN charter, he Comments – “The Pact of Paris obliges the parties not to resort to war as an instrument of national policy and expressly permits war against a state which has violated the Pact which implies the case of individual and collective self-defence. the Charter obliges them to refrain from any threat or use of force and permits in principle the use of armed forces only as an enforcement action taken by the Organisation as reaction against a threat to, or breach of, the peace and in case of individual or collective self-defence”.4
One of the important obligations is stipulated in Article 2 j: ‘ The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” The formula ‘ The Members of the United Nations agree ‘ means: The Members ‘ shall ‘ or ‘ ought to.’ It expresses the idea that the Members are ‘ obliged ‘ to carry out the decisions of the Security Council. The words ‘ to accept ‘ are superfluous. If the Members are obliged to carry out the decisions of the Security Council they need not ‘ accept ‘ them.5
The Charter does not provide for disarmament by the state as an objective to maintain world peace. In fact, nowhere in the Charter the obligation has been imposed on the states to not to use weapons or shed its possession at best, Kelsen looks at the premise as an utter hypocrisy of the UN charter.
On the functioning of the International Court of Justice Kelsen comments- “The organisation of the International Court of Justice is almost the same as that of the Permanent Court of International Justice. Only a few unimportant changes have been made”. He renders the powers possessed by the ICJ as unimportant as they do not impose any obligations on the parties to carry out its decision and they have the right to withdraw from the ongoing suit at any point which only enables ICJ as an advisory body and not make any conclusive judgements.6
Institutional reforms of the United Nations are being demanded worldwide as a result of the dissatisfaction regarding its functions and restriction of power with few limited nations. The debate of shift of power is more relevant today than ever as the world faces unprecedented economic and social crisis because of the prevailing Covid-19 Pandemic. The Inaction of the UN on several occasions has created distrust among the nations. The organs of the UN have systematically failed to provide relief to aggrieved nations on several occasion thereby, compelling people to think if the current model is adequate to meet the present-day Challenges.
Hence, Kelsen’s writings become relevant here as he was among the first thinkers to foreground the lacking of the UN from its very conception, and he also provided a detailed analysis of the same. It will not be an exaggeration to say that the restructuring of the UN whenever that happens Kelsen’s criticism if taken in to consideration can revamp the model of in the restructuring of the United Nations.
With Kelsen’s analytical approach of taking the law ‘as it is’ is needed not only to form new laws but also to scrutinise the existing covenants of International Law which speaks highly of Human dignity and freedom but failed to deliver the same on several instances.
1 Nicoletta Bersier Ladavac ‘HANS KELSEN (1881-1973) BIOGRAPHICAL NOTE AND BIBLIOGRAPHY’ European Journal of International Law 391(1998).
2 Joseph Raz ‘KELSEN’S THEORY OF THE BASIC NORM’ The American Law of Jurisprudence (1982).
3 Hans Kelsen ‘THE LAW OF UNITED NATIONS -A CRITICAL ANALYSIS OF ITS FUNDAMENTAL PROBLEMS’(The London institute of World Affairs),1951
4 Hans Kelsen ‘THE LAW OF UNITED NATIONS -A CRITICAL ANALYSIS OF ITS FUNDAMENTAL PROBLEMS’ 119(The London institute of World Affairs),1951.
5 Hans Kelsen ‘THE LAW OF UNITED NATIONS -A CRITICAL ANALYSIS OF ITS FUNDAMENTAL PROBLEMS’ 219(The London institute of World Affairs),1951.
6 Hans Kelsen ‘THE LAW OF UNITED NATIONS -A CRITICAL ANALYSIS OF ITS FUNDAMENTAL PROBLEMS’ 463(The London institute of World Affairs),1951.