Law or Politics? Hans Kelsen and the Post-War International Order

In: Constellations: an international journal of critical and democratic theory, Band 18, Heft 4, S. 513-528

Abstract

In the early 1940s, while World War II raged and the major powers began trading drafts for a world organization devoted to securing international peace and security, there lived in the United States a person with the perfect credentials to play a leading role in drafting an instrument that would give such a world organization a firm legal foundation. That person was not Leo Pasvolsky, who played a leading role in organizing the drafting conferences that gave birth to the Charter. It was Hans Kelsen. Kelsen had unique qualifications when it came to the drafting of constitutional documents. To name just a few, he helped draft Austria's constitution, and he had also sat on Austria's constitutional court in its first decade of existence. He was thus intimately acquainted with both the technical aspects of constitutional drafting and with the fundamental problems of interpretation that can arise in a new constitutional order. In addition, Kelsen was one of the world's foremost authorities on international law, and he had written an extremely influential critique of the Charter of the League of Nations. He had also drafted his own alternative charter for a world organization. And yet, Kelsen played no role in the drafting of the Charter. Instead, he contented himself with a nearly 1000-page critique of the Charter that appeared in 1950 and was supplemented the following year. It is odd that the U.S. Department of State did not avail itself of Kelsen's expertise. After all, his contribution would have lent the project a certain heft, given his experience and international reputation, and it also would have given an Old-World, Central-European accent to an enterprise that already was looking terribly Anglo-American. However, Kelsen's exclusion from the project was just a small part of the broader exclusion of expertise in legal drafting from the formulation of the language of the Charter as a whole. The role that Kelsen adopted as legal critic of the Charter was actually precisely the right one given the needs of the times for a maddeningly ambiguous political document that nonetheless gave rise to a new international legal order. That is, the Charter is a political document. The men who created the U.N. did not believe themselves to require legal advice and they thought that the involvement of lawyers in the drafting process would only complicate matters to no good effect. Leo Pasvolsky was suspicious of lawyers and was quite successful in minimizing their role in the drafting process. There was a team of lawyers on hand at Dumbarton Oaks that was the official drafting committee, but Pasvolsky saw to it that most of the real drafting work was done for that committee by the Formulation Committee, which consisted of leading foreign affairs politicians from the U.S., the Soviet Union and the United Kingdom. This essay began as an attempt to determine whether Kelsen's monumental critique of the law of the United Nations might provide useful insights in light of perennial calls for reform of the United Nations. Anyone familiar with the book will quickly conclude that the book can serve no such purpose, for in it Kelsen limits himself to a commentary on the technical legal deficiencies of the U.N. Charter and ignores, as best he can, the political nature of the U.N. as an institution. Fortunately, Kelsen wrote other works in which he set out an alternative model for the maintenance of international peace and showcased his knowledge of the political as well as the legal challenges associated with the task. Combining those politically astute works with his juristic works, it is possible to reconstruct Kelsen's vision for peace through law. It is a model that has not been attempted and is unlikely to be realized through the current movements for U.N. reform, but it does provide some useful ideas that have not received much consideration even in broader discussions of the evolving nature of the international legal system. This essay proceeds in two parts. The first part addresses Kelsen's critique of the United Nations and the reception of that work, at least within the United States. The second part lays out the main elements of Kelsen's plan for international peace, focusing on the elements in it that distinguish Kelsen's plan from others. One especially surprising feature of Kelsen's approach is his idea that the movement to towards a mature international law must proceed through the establishment of an international court of compulsory jurisdiction. This essay supplements Kelsen's reasoning by arguing that courts, because of their discursive advantages over political and legislative processes, should play a larger role in the development of a comprehensive international legal order. Adapted from the source document.