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2 - Hans Kelsen, The Law of the United Nations, A Critical Analysis of

its Fundamental Problems, Stevens & Sons Limited, London, 1951.

Dans cet ouvrage de référence, l’auteur donne (dans un anglais facile à comprendre) des réponses
possibles à certaines questions du présent dossier et du précédent.

pp.15 et s.
2. The function of the organisation and the obligation of the members
The obligation of the Members as formulated in Article 2, paragraph 3, is not quite in harmony with the cor-
responding function of the Organisation as formulated in Article 1, paragraph 1. The Members are obliged
only to settle their international disputes, whereas the Organisation shall bring about also adjustment of situa-
tions which have not the character of disputes. The Members are obliged to settle all their international disputes
by peaceful means, whereas the Organisation shall bring about only adjustment or settlement of international
disputes or situations ' which might lead to a breach of the peace.' In Article 33, where the obligation of the
Members is specified, only disputes ' the continuance of which is likely to endanger the maintenance of inter-
national peace and security ' are referred to. Under Article 2, paragraph 3, the Members are obliged to settle
their international disputes in such a manner ' that international peace and security, and justice,' are not endan-
gered. Under Article 1, paragraph 1, the Organisation shall bring about adjustment or settlement of disputes
and situations ' in conformity with the principles of justice and international law.'

3. LAW AND JUSTICE
In the Preamble, justice and international law are referred to in the provision determining as an end of the
United Nations ' to establish conditions under which justice and respect for the obligations arising from treaties
and other sources of international law can be maintained.' This phrase is probably modelled after the formula
used in the Preamble of the Covenant: ' to promote international co-operation and to achieve international
peace and security . . . by the firm establishment of the understandings of international law as the actual rule
of conduct among Governments, and by the maintenance, of justice and a scrupulous respect for all treaty
obligations in the dealings of organised peoples with one another. ' The Preamble of the Charter does not
proclaim —as the Preamble of the Covenant does—the ' maintenance ' of justice and respect for international
obligations, but : the establishment of ' conditions under which ' such is possible. The long phrase: ' obligations
arising from treaties and other sources of international law ' could easily be replaced by two words: ' interna-
tional obligations.' To lay particular stress on the respect for treaty obligations is rather problematical in view
of the fact that the provision of Article 14 authorising the General Assembly to recommend measures for the
peaceful adjustment of any situation regardless of origin, which it deems likely to impair the general welfare
or friendly relations ' among nations ' has been interpreted to include the possibility of recommendations for
the revision of treaties. In Article 1, paragraph 1, the observance of justice and international law is expressly
restricted to a special function of the Organisation: to bringing about adjustments or settlements of disputes
and situations which might lead to a breach of the peace. Conformity with the principles of justice and inter-
national law is not required for other functions of the Organisation, especially not for taking ' effective collec-
tive measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggres-
sion or other breaches of the peace,' the first Purpose of the Organisation mentioned in Article 1, paragraph 1.
The terms ' in conformity with the principles of justice and international law ' were intentionally placed in the
second, and not in the first part of this paragraph. To proclaim the maintenance of justice and—at the same
time—the respect for international law is highly problematical. If justice is identical with international law,
one of the two terms is superfluous. If, which is more probable, they are not identical and consequently may
be in opposition to each other, the question arises whether, in case of conflict, the one or the other shall be
maintained. Since the Charter gives no answer to this question and no definition of the concept of justice, the
organ of the United Nations which has to apply the provision of the Charter has the choice between justice,
that is to say what this organ considers to be justice in the case at hand, and positive international law; which
practically means that the Charter does not strengthen but weaken the respect for the obligations of interna-
tional law.
The postulate of Article 1, paragraph 1, to conform with the principles of justice and international law is di-
rected at the same person as is the norm ' to take effective collective measures,' namely at the Organisation,